Sunday, January 30, 2005

ICANN as an IGO?

One fascinating admission within the ICANN Strategic Plan is that the Corporation annually re-examines the jurisdiction under which it resides:

5a.iii) ICANN is currently incorporated under Californian law and has tax-exempt status as a non-profit, public benefit corporation under U.S. Internal Revenue Code 501(c)(3). The June 2004 review concluded that there was no advantage to changing ICANN’s corporate status at this time. The review, in conjunction with the review of ICANN’s revenue sources in preparation for this strategic plan has allowed for consideration of many alternatives to best prepare a solid future for ICANN as a global organisation.

I am sure that members of the Internet community would have appreciated the opportunity to have read the "June 2004 review" that considered these corporate status alternatives. One wonders if the document has been posted somewhere :)

We are all aware that ICANN has had to deal with numerous lawsuits, the costs of which are born by its paying constituencies. As William Drake writes: "It is reasonable to expect that when the US government’s patronage ends, ICANN could experience a torrent of further legal challenges concerning restraint of trade under US laws. This is just one of the legal and other uncertainties about how a post-MOU ICANN might operate."

IGO status confers immunity upon an organization. In the face of an escalating slew of lawsuits, immunity is nice to have. The Convention on Privileges and Immunities of Specialized Agencies states:

Art. III: Property, funds and assets
[Section 4]
The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived their immunity.

Further, we already may assume that a great many developing country governments do not support private governance by a California-based corporation and are not satisfied with being relegated to an advisory role in ICANN’s Government Advisory Committee, but are reasonably comfortable within IGO bodies such as the ITU. Is it time for the community (not just ICANN staff) to consider a change in ICANN's corporate status from a 501c3 to an IGO?

While this possibility will probably antagonize U.S. Senator Conrad Burns who appears to have issues with ICANN "turning into a mini-international organization", I view it as worthwhile to openly have this discussion.


At 8:34 PM, Blogger Juan Golblado said...

The "specialized agencies" that your quoted text refers to are specialized agencies of the United Nations, if I'm not mistaken. So it's not some free-standing IGO that you're talking about, it's an organ of the United Nations - with all the baggage that brings with it.


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