[icann-eu] Does the ICANN legally exist (this is not a joke)?

[Jefsey Morfin <jefsey@wanadoo.fr>]

Gentlemen,
I asked a complex legal question to Louis Touton three days ago without 
response yet. I suppose I may now publicly post it on different lists as it 
interests the laws the whole world.

The question is to lawyers from every country:

"ICANN being a no member corporation, does ICANN exist according the laws 
of your country and if not may a corporation of your country enter into 
legally valid relations with it?"

I would like to build a table indicating the countries where relations are 
no problem, the countries where relation are not possible (if any) and the 
countries where this is grey area. I will publish that table.

Thank you for your cooperation on this interesting issue.
Jefsey



PS. Consequences and suggestion

Would even a limited number of countries be unable to legally relate (pay a 
donation, pay a bill, sign a service agreemnt, justify travel expenses to 
attend ICANN meetings, etc...) ICANN should have Members. It would be no 
use to seek legal waivers from the local governements since these waivers 
could be challenged in the USA according to the local standard laws.

I though about the consequences of such an obligation and found that we may 
now (after two years of maturation under the ICANN and after the positions 
taken in MDR) find a very simple and easy solution, fully respecting what 
the ICANN tries to achieve and responding to most of the questions risen 
for a few weeks. It also happens that all the lay people I explained it to 
though it was the existing situation.


This solution :

1. does not change anything in the ICANN organization
2. fully responds to the charter of the ICANN as an international consortium
3. insures the unicity and the protection of the root system while 
permitting the dissemination of root servers systems
4. fully addresses the ccTLDs demands
5. fully addresses the @large concerns
6. maintains the same involvement of the GAC, protects the US rights while 
clearly showing the privatization of the Internet is irreversible
7. does not require any important review of the bylaws allowing to delay 
them until the end of the @large study, in order to have a global reshape - 
based upon study and experience - towards a stable and string ICANN

It simply consists in accepting that the root is the directory of the ICANN 
Members where cc/gTLDs represent the @large community they serve. What most 
of the people think it does.


This means that the ccTLDs would form the ICANN/GA:
-  the ICANN would be the organization they desire with as many WG they wish
-  they would pay a flat yearly Membership fee voted by them through the 
ICANN/GA as part of the ICANN budget
-  their MDR unanimously voted contract would become the ICANN Membership 
agreement
-  their MDR Best Practices would be the Member's Charter.
-  the SSRAC and CRADA would de facto become associated to TLDs as part of 
the ICANN/GA
-  the root ownership would this way become common property of its true 
stakeholders and real owners the users.

With the following advantage for stability:
-  ccTLD management assignment would be protected: reassignment would 
consist in GA voting the exclusion of a Member and accepting a new Member 
with the approaval of its government (if a member of the GAC). A public and 
a decision among peers.
-  the private nature of the Internet would be demonstrated
-  its democratic bottom-up nature would be made plain: ccTLDs legitimacy 
would clearly come from their Local Internet Community and ICANN's 
legitimacy from the ccTLDs, i.e. indirectly from the users.
-  there could be several temporary root server systems implemented (one or 
more per area) to provide better root stability under SSRAC control, 
without fear for the root integrity. This would give time to devise a DNS 
upgrade.

This also means that:
-  no other change of any kind would be necessary in the current bylaws and 
SO organization
-  in accordance to their Best Practice and to heir own benefit the ccTLDs 
would promote the development of their @large community
-  the ccTLDs being involved in every aspects of the ICANN activity and 
forming the ICANN Membership, each SOs representation at the BoD should 
include one ccTLD.
-  the equilibrium within the BoD between SO's Directors and @large 
Directors would be natural since legitimacy would come from a developped 
@large community (probably made of the free members of the local NICs) and 
would correspond to an "ownership" by the real market which would allow 
better relations with established similar services like Telcos.
-  there would be no problem at having @large Directors and @large NICs 
Directors directly elected (NICs @large Directors providing a simple and 
open way for good relations with their community and a natural selection 
process towards the election to the BoD of informed and commited persons).


I am no lawyer but it seems that the current agreement with the USG would 
remain quite unaffected and satisfied by a fair, democratic and realistic 
solution. The USG would remain the signatoree of the CRADA and could accept 
other co-signatorees among GAC and ccTLDs, still controlling this way the 
stability of the system.

I would suggest that the "million" of TLDs explained by the Board to the 
GAC would be competitively registered through the ccTLDs  (the bylaws call 
for such a competition and some ccTLDs could be cheaper than $ 50.000 :-) 
!!! ) .

Individual Domain holders would probably represent the natural backbone of 
the local communities with the ISP should also accepted as a DSO community.

I note that such an approach would accept the present Chinese evolution 
while maintaining the coherence and the political stability of an ICANN 
became the Internet "common house".