[At-Large] R: R: Is ICANN's oversight really moving away from the US government?

Dr. Alejandro Pisanty Baruch apisan at unam.mx
Wed Apr 13 02:15:20 UTC 2016


the proposal to have a number of synchronized, pre-agreed, unilateral statements that affirm mutual commitments between ICANN and a number of relevant parties is not a new system. It is fully based in a rather restrained way on the legal and political bases available today. 

Nobody is accusing you of anything. 

Brevity may add to clarity.

Alejandro Pisanty

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Desde: at-large-bounces at atlarge-lists.icann.org [at-large-bounces at atlarge-lists.icann.org] en nombre de parminder [parminder at itforchange.net]
Enviado el: martes, 12 de abril de 2016 18:52
Hasta: Subrenat, Jean-Jacques; At-Large Worldwide
Asunto: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?

On Sunday 10 April 2016 10:49 PM, Subrenat, Jean-Jacques wrote:
> Having read, or re-read, the 67 messages which make up this thread so far, I would like to offer a few remarks and make a suggestion.
> - Throughout this thread, some terms have been used loosely, e.g. "international", "international organization", "treaty organization", etc. Current international law requires that we respect the definition of each of these terms. In particular, "international organization" refers to a body set up by a treaty to which member states are parties, and which their respective parliaments have ratified. In this sense, ICANN is not an international organization, although its work may have global effects. It should be clear that the membership of a Treaty Organization is limited to sovereign states, or multilateral bodies themselves set up by those sovereign states (e.g. the European Union). Therefore, if ICANN were to be transformed into an "international organization", it would be governed by the collective will of its members, i.e. sovereign states. This governing power would/could not be shared with any other category of membership.

This is not true.... A treaty signed by governments can create
international law making for a body which is governed in any way that
they may want it governed... My proposal is for the treaty to have the
ICANN governed exactly as it is governed at present, including the new
mechanisms of the transition proposal, but now incorporated under the
international law, created by the treaty, and not, as currently, under
US laws created by the US legislature (either way the 'law' is
governmental - there is no escape from it)..... I am seeing here a
continuing confusion between two very different things (1) law(s) of
incorporation, and accordingly application of overall jurisdiction, (2)
nature of governance system of an incorporated organisation. It is this
confusion that informs most responses to my proposal.

You must see that while ICANN's governance system is multistakeholder,
the law of its incorporation, and jurisdiction over it, is fully fully
governmental, that of a single government, the US.

The proposal is not to change ICANN's multistakeholder governance
system, it is meant to be preserved as it is....It is the second
element, its law of incorporation, and accordingly, applicable
jurisdiction, which is sought to be changed from the current US based to
an international one... Either way it is governmental. One is US
government, other has all governments together, by consensus. I cant see
how one can prefer the former - especially if not a US citizen.
> - The claim, made at the beginning of this whole thread, that ICANN should and could come under some "international jurisdiction" might seem interesting, but cannot overcome the fact that, in the current acceptance of international law, there is no intermediate status between that of a Treaty Organization on the one hand, and on the other hand an entity which, in spite of its worldwide significance, does not have international status as granted by sovereign states.

Yes, law has today to be written by a national  - governmental - system,
or an international - governmental - system. There is no third way.
Jean-Jacques, are you suggesting any new way for writing 'law', in its
fully serious and real meaning? (Remember, a law is a law only if backed
by legitimate coercive force.) If so, I very much look forward to
hearing about it, and am willing to engage with any such proposals.

> - Like any other human construct, international law has evolved over time: at this stage, only sovereign states have the power to create, modify or terminate an international organization. The reasons invoked so far on this thread for giving ICANN a different legal status include: reinforcing the public interest component, strengthening accountability, heeding the needs of the global Internet user community, reinforcing the international nature and perspective of ICANN.

I really want to hear more about the 'legal' status for ICANN you are
proposing. For which, allow me to remind you of your own above caveat in
the opening line of your present email that lets not 'loosely' employ
terms with serious and specific political and legal meanings.

> - The status of International Organization may not be available for ICANN:

It is fully available. An international treaty has to sanctify the
current ICANN gov structure, and put it into international law through
an international treaty.

>  in addition, many within our communities have argued that it is also not desirable. This was largely debated in the CWG and in the CCWG. As for the Proposal sent by the ICG to the NTIA on 10 March 2016, it was bound by the criteria set out by the NTIA, including that the proposed transfer of oversight of the IANA Functions would not be exercised by any government, group of governments, or Treaty Organization.

Again a confusion. Unless you think post transition IANA functions
continue to be in the oversight of US gov (they being in its
jurisdiction), I am not proposing international inter-gov oversight of
ICANN... ICANN can very well be under the new devised 'community
oversight'.... I am only talking about the applicable jurisdiction -
which has to either be US gov or international law. (Do you know of a
third option, if so pl share?). I am seeking jurisdiction of
international law, with host country jurisdiction immunity. NTIA
criterion was "NTIA will not accept a proposal that replaces the NTIA
role with a government-led or an inter-governmental organization
solution."  My proposal does not replace NTIA's current oversight role
by an inter-gov one. It seeks to replace US's - continued - jurisdiction
with international - inter-gov - jurisdiction. Pl see the difference.

Meanwhile, I am surprised by your assertion that NTIA has excluded
discussion on ICANN jurisdiction in its initial criteria.... I thought
this issue is open to be discussed, and in fact CCWG's work stream 2 is
going to take it up (as also observed by Seun in this thread).

> - ICANN and the United States of America entered into an agreement, first the Joint Project Agreement (JPA) and later the Affirmation of Commitments (AoC), by which both parties undertook to respect a series of principles and procedures.

Any organisation can enter into any kind of agreements with others, and
put them in its bylaws or whatever.... that *does not* create a new
jurisdiction, or law of incorporation.... For that it has to depend on
some superior politico-legal source, and it can only be either a
national jurisdiction or an international one.......
> - The mechanism set up for the AoC could be widened to all parties interested in an improved ICANN. An International Affirmation of Commitments (IAC) could be drafted by the ICANN Board and opened to a range of signatories: sovereign states, enterprises, NGOs, associations, international organizations (e.g. the European Union, the Association of American States, UNESCO, etc.).

Jean-Jacques, if you and others are serious proposing a new political
arrangement, please be both brave and clear about it, and also specific.
I am surely interested to hear about any such political innovation. But
please put them forward in all seriousness, and detail, and plausibility..

It is somewhat strange that I am being accused in this thread of
proposing things that are simply impractical or too difficult to take
forward. And the same people are putting forward proposals, which, as
far as I read them,  seek means of law making that have not been thought
of, much less undertaken, in the last many centuries of development of
democracy (and I think are very problematically post-democratic).  But
still, I want to hear more about the proposals, and am ready to engage
with them.



> - I first aired this idea when serving on the ICANN Board (2007-10). Things were not ripe then. Are they now?
> Best regards,
> Jean-Jacques.
> ----- Mail original -----
> De: "parminder" <parminder at itforchange.net>
> À: "Olivier MJ Crepin-Leblond" <ocl at gih.com>
> Cc: "At-Large Worldwide" <at-large at atlarge-lists.icann.org>
> Envoyé: Dimanche 10 Avril 2016 11:11:04
> Objet: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?
> Olivier
> You are running in circles around the main case that I am presenting but *not* addressing it in the exact form I present it, which, I repeat, is as follows...
> *Rojoadirecta takes a closed gTLD only for its own business, and so there is no other agency that loses anything in closing down of .rojadirecta, only rojadirecta loses which is supposed to be the intention of the court order.*
> I am putting the above under emphasis so that you get it and get nothing else, and try to respond only to this situation - which is an important representative one.
> The situation being, we move a few years back, enforcement agencies have the same problem with rojadirecta that they had a few years back, but this time verisign as controller of .com is unable to be of any help, bec .rojadirecta is a gtld and its own registry... Only ICANN can remove .rojadirecta, and it can do so without doing any damage at all to anything or anyone else, other than rojadirecta, which is the very intention of the enforcement action (of a court or another US agency)
> I can clearly see that the order, court or otherwise, but especially of a court, will in such a situation go now to ICANN - bec for a US court/agency ICANN is not in any way different from verisign - and that ICANN MUST comply with the order, on the pain of further coercive action.
> Do you or anyone else have a case that no, this wont happen.... If so, please be explicit, and justify your reasoning. That will be the right response to what I am arguing.
> But I see from your email below that you are inclined to say that if rojadirecta is indeed afraid of being on the wrong side of US law, now or any time in future, in doing a business that has nothing directly to do with the US, it should simply not take a gTLD.... I just want to hear it again, is this what you are saying....
> If so, it is both surprising and very disappointing that a leader of ALAC, the supposed civil society space working with ICANN, is saying such a thing.... That a central domain name service can/ should be denied to non US entities, unless they are ready to act as per US law and fully so, even if they are acting entirely outside of the US..... Is this justice and fairness? How are people here in ALAC opening advocating it?
> How can we allow DNS to become a tool of making all of the world subject to US laws, in all areas of social activity, bec a gTLD can be in any area of social activity, governance, health, education, anything and everything..... Anyone aspiring to a gLTD in any of these social areas must make sure that it, now and for ever, observe US law, even if it plans never to have anything to do with the US..... Are we here at ALAC really advocating, or by default, working towards such a world?
> parminder
> On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote:
> Dear Parminder,
> let me try and help here too:
> On 09/04/2016 07:01, parminder wrote:
> US courts are not a subject of ICANN, it is the other way around....
> So courts are not going to observe the intricate niceties of ICANN's
> internal lingo..... gTLDs are directly controlled by ICANN, it can
> include and remove one from the operative list of gTLDs.... There is
> no other way to remove a gTLD... That alone counts, and the court will
> direct ICANN accordingly.... Just forget the ICANN jargon. Please
> respond to substantive points and issues. So what you are saying is that ICANN has sole ability to add or remove
> TLDs from the Root, so US courts could ask ICANN to remove TLDs from the
> Root. But Parminder, we are always talking about 2nd level - ie. the
> names *under* the top level domain. What you are effectively saying is
> that a request could be made by a US court to remove a top level domain
> from the Root --- WHY? This is throwing the baby out with the bathwater.
> This is like asking for the Indian Top Level Domain .IN to be removed
> from the root because a sub-domain under .IN is used for criminal
> activity. What I mentioned in my previous message is that there is
> jurisprudence already in the US for this, so this kind of request has
> very little chance of ever succeeding.
> You havent responded to my substantive points, and are taking the
> cover of a jargon about which I care as little as a US court will..
> The substantive point it; is to proceed from an existing case,
> rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's
> case .wikipedia), and the same case had come to the same US court,
> where would its order to take down the web presence of the respective
> businesses be directed?  Would you care to respond to this point? Thanks. So here again, you are speaking about Top Level Domains. If I understand
> you correctly, you take the example of Rojadirecta having applied
> successfully for top level domain Rojadirecta - and what you are saying
> is that there could be a request through a US court for this top level
> domain to be removed from the Root. Using your words, that would "take
> down the web presence of the respective businesses" -- all of the domain
> names under .rojadirecta would be affected. Well, you're right. Perhaps
> that's why Rojadirecta prefers operating under a variety of top level
> domains that are not run by a US Registry rather than running its own
> Top Level Domain.
> Kindest regards,
> Olivier
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