[discuss] ICANN governance structure

Nigel Roberts nigel at roberts.co.uk
Wed Mar 19 08:28:32 UTC 2014

> Lawyers will tell you that ICANN and its Directors are accountable to the public interest through the functioning of the California corporate statute and its remedies for behavior that is found to be unlawful.  Many find this unsatisfying.  Is there a better way, still grounded in the rule of law, to accomplish the aim of mission appropriate behavior?
> I don’t want to belabor the issue. The above points, a non-exhaustive list, suggest the complexity of what we are about, and the difficulty of reducing theory to workable practice.

With one qualifier, this is a most helpful statement.

I submit that certainly an AMERICAN (or perhaps Californian) lawyer may 
tell you that "ICANN and its Directors are accountable to the public 
interest through the functioning of the California corporate statute . . 
." without too much fear of contradiction.

BUT I can't imagine (equidistant from the fulcrum, on the other side) 
that, say, any *Iranian* or *Cuban* lawyer would be able to say such a 
thing without irony.

It seems to me, that the position of NTIA has been very like that of the 
British Monarch[*] today: that is to say, it came into being /ex 
machina/, operates as a formalism, under colour of law, acting by 
"constitutional convention" and in whose name the representatives of the 
community act (i.e. Parliament =/= ICANN Board).

It also has some aspects of the function House of Lords -- it's 
unelected by most of those it governs and may occasionally act as a 
brake, giving time for reflection, when the lower House (i.e. ICANN 
Board) intends to do something stupid.

So from where I sit in 2014, and on balance, and at the moment, the role 
of NTIA does far more good than otherwise -- at least for much of the 
world (though I have direct experience that in a different time, 
mistakes were made).

But if you are a country which officially is NOT on good terms with 
"these united States" (as the Declaration of Independence has it), then 
even if NTIA has (almost) always acted, and always will in the future 
act "pro bono publico mundi", its role cannot be domestically accepted.

In the 21st century it is no longer enough to be in actuality free of 
bias (which the DOC-NTIA does today appear to me to be in relation to 
its stewardship of the self-created IANA oversight function), one must 
always be apparently free of bias[**] .

No agency of one national government can, by definition, possibly be 
that, it dealing with any individual, corporation or government agency 
from another land.

Nigel Roberts (Engineer-turned-academic-lawyer)

[*] Disclosure: I'm personally a believer that no form of monarchy can 
be a legitimate form of Government, not even a constitional monarch 
(like the UK) and not even if the Queen rides bicyles to go get her 
shopping herself (like Netherlands, Sweden, Denmark etc)

[**]  (See McGonnell -v- United Kindom (2000) in the European Court of 
Human Rights)

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