[discuss] governments and rule of law (was: Possible approaches to solving...)

[David Cake]

On 21 Feb 2014, at 10:42 pm, Milton L Mueller <mueller at SYR.EDU> wrote:

> 
> 
> -----Original Message-----
>> while there are good reasons to distrust governments the important 
>> resource behind governments is the rule of law including administrative 
>> law that both enables and constraints government actions.
>> I cannot imagine any form of democracy that could do without rule of law. 
> 
> Jeanette, Yes! The proper role for governments is to produce and enforce general laws/rules, hopefully rules that efficiently order and enable action (e.g., by upholding individual rights and protecting against their violation). 
> 
> The problem with governments' activities in the internet space is that they have deliberately shirked this role, and instead reached for a more arbitrary and inappropriate role as "public policy" maker. As our experience with the GAC has shown, goverments don't want to define objective, clear rules, they want to intervene on a discretionary basis based on political whims and power grabs which they call "policy."  "Policy" means: whatever I want at the moment.

	It is certainly notable also that GAC representatives often provide early warning that are not clearly based on domestic law or policy, and are applied inconsistently. 
	As an example, the Donuts application for the string .doctor received GAC Early Warnings that included one from the Government of Australia (a very prolific issuer of GAC Early Warnings) on the basis that .doctor was a regulated market - despite the title doctor being one generally unregulated by law in Australia, and generally considered entirely unproblematic if used in a way that clearly does not seem to be implying someone is a medical practitioner or otherwise the possessor of a doctorate or equivalent - for example, this high profile plumbing firm http://www.tapdoctor.com.au/ whose vans are quite distinctive, and surely not unknown to the bureaucrats who represent Australia in the GAC, as they operate in Canberra. Increasingly, many of the 'public policy positions' put forward by the GAC have no connection to domestic law, legal principle, or consistent precedent, but are a combination of opinion and lobbying. 
	The special pleading by the IGOs and INGOs is a particularly egregious example at the moment - the main driving force seems to be the lobbying on the basis of the argument that IGOs and INGOs are impoverished and rules that protect them will save them money, but if this same argument was put forward a reason for IGO/INGO acronyms to have special consideration that trademarks do not, it would never survive in the domestic policy environment of most GAC participants, including several of those that are pushing for it most strongly. 

> I cannot remember how many times I have asked representatives of governments in the GAC: if you are so concerned about X and Y problems related to ICANN or the  Internet, why dion't you all get together and pass a treaty about it, which can then bind ICANN and other internet-related institutions? The answer is always the same; if it is not a sheepish silence it is "oh, that's too difficult, and besides we don't all agree on what the rule should be."
> 
	Indeed - much GAC advice arises from a poor process that lets the strongly held opinions of a few GAC members prevail, even though it would never achieve real backing at treaty level. 
	
> Never forget: the international system is anarchic. There is no real "international" law, at least not yet, because there is no real international government.  Therefore, power-based political bargaining fills the vacuum. That is why govts are especially dangerous in this context. The resistance to them is not some naïve and immature resistance to the constraints of the real world. It is a very realistic, experience-based understanding of how easily power can be abused in the transnational context. 

	Agreed - and in the case of iCANN, we can add a government process that is clearly a poor fit for the purposes for which it is being used. 

	Regards

		David
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