Educational Material to Assist ICANN in Deciding What Status The Corporation
Should Aim for as A Private International Entity in Its Host Country
Submitted at the request of Mr Paul Twomey, President & CEO of the Internet Corporation for Assigned Names and Numbers
Table of Contents
1. The request
11. The US system
12. Other states
16. Further work
The question at issue is what status the Internet Corporation for Assigned Names and Numbers (ICANN) should try to achieve as a private international entity in its host country. Before making a decision in this respect, it is important that ICANN examines the existing system of privileges and immunities granted to organisations and institutions governed by public international law, as well as what applies under national laws to such entities and private law subjects that have been granted certain facilities by the host country.
The present paper focuses mainly on material from Switzerland. However, it is also based on information retrieved from other European countries and the US as well as information retrieved via the Internet.
The preliminary conclusions are that states do not grant privileges or immunities to entities that are not subjects under public international law although there are exceptions, among them even non-governmental organisations. These exceptions indicate that there might be room for flexibility, depending on the interest of the host country in question.
A provision in a proposed Swiss law that has been sent to cantons and the political parties in Switzerland for comments seems to open up for granting privileges and immunities also to new categories of institutions in that country. However, one cannot draw any conclusions until the proposal is adopted and applied by the competent authorities.
Entities governed by private law and in particular NGOs would be considered as legal persons under the laws of the state in which they have their seat. But there are cases in which such entities have been granted facilities of various kinds.
This brings to the forefront the question how ICANN intends to organise itself in the future. Since there seems to be no intention of changing the legal status from a private subject to a subject recognised as a legal personality under public international law (an international legal subject), the present paper contains a more detailed analysis of elements of an Agreement between Switzerland and the International Olympic Committee. Of particular interest should also be a Dutch law from 2002 and some material relating to a few very special entities that have been granted privileges and immunities by the US.
All this material should provide assistance in determining what elements ICANN would wish to include in a host country agreement. It is important that ICANN decides for itself what it would like to achieve by concluding an agreement with its host country.
Another obvious matter is how ICANN wishes to organise itself and how ICANN's "Charter" or "Constitution" should be drawn up.
1. In a telephone conference on 21 July 2006, which is available on the Internet, Mr Paul Twomey, President & CEO of the Internet Corporation for Assigned Names and Numbers (ICANN) asked me to provide some educational material that could assist ICANN in deciding what status the Corporation should aim for as a private international entity in its host country.
2. The present paper is in response to that request. As it appears, particular attention is given to what applies to some specific entities that have been granted privileges and immunities in the US by Executive Order.
3. The choice of material that appears in the present paper has been influenced by my personal experience as a law clerk and judge in the courts of my own country Sweden (1962-1972), as legal adviser and later Head of the Legal Department in the Ministry of Justice (1972-1984), as Head of the Legal and Consular Department of the Ministry for Foreign Affairs (1984-1994) and as Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations (March 1994-March 2004).
4. It should be understood that I have no detailed knowledge of how ICANN was established and how it functions. Nor do I have expertise in US federal law, much less state law. These matters would be for the ICANN team to look into.
5. For the record it is also important for me to state that already in my initial contacts with Mr Twomey I mentioned my first reaction (at the time when I was the Legal Counsel of the United Nations) to the question of governance of the Internet. I was actually quite taken aback that States did not join hands to govern the Internet as they had done in the past every time a major system for communications had been invented (post, telegraph, telephone, communications by road, rail, sea, air, etc.).
6. On behalf of my colleagues in the United Nations System and myself, I actually raised this matter with the World Intellectual Property Organisation (WIPO). Discussions were held at a WIPO meeting in Geneva in May 2002. The following is a quote from a press release from that meeting:
"Discussions on the protection of the names and acronyms of IGOs were opened by Mr. Hans Corell, Under-Secretary-General for Legal Affairs and The Legal Counsel of the United Nations, speaking on behalf the Legal Advisers of the United Nations system. Mr. Corell presented evidence of the abuse in the DNS of the names and acronyms of IGOs and proposed measures to resolve this problem. All delegations, except one state, supported a recommendation to protect the names and acronyms of IGOs through modification of the UDRP in cases where their registration or use as domain names was inconsistent with applicable treaty provisions, including Article 6ter of the Paris Convention. Article 6ter offers certain protection for state-related identifiers and emblems (e.g. flags) and for similar identifiers and names of IGOs. It was also recommended that the system to be established to protect these names should respect the privileges and immunities granted to IGOs under international law."
7. My statement on behalf of the Legal Advisers of the United Nations System before the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications appears as Annex I to the report from the Second Special Session on the Report of the Second WIPO Internet Domain Name Process
8. My immediate reaction was also that the activities of ICANN may very well be equal to exercise of public authority. In that context, I recalled Chapter 11 of the Swedish Constitution on "Judicial and General Administration". Article 6, paragraph three of this Chapter reads:
"Administrative functions may be entrusted to a company, an association, a community, a foundation, or a private individual. If such a function involves the exercise of public authority, it shall be entrusted to such a body or a person by law."
9. I have also noted that similar concerns have been expressed with respect to the US legal system, in particular through Senator Burns queries relating to the legality of ICANNs relationship with the Department of Commerce. There are also articles on this topic raising inter alia the question whether the arrangement violates the nondelegation doctrine of the U.S. Constitution.
10. This issue must of course be settled domestically within the US. The more overriding issue, i.e. whether there should be a treaty governing the Internet, does not seem to be on the agenda at present, in particular in view of the outcome of the World Summit on the Information Society. I note in this context the Tunis Agenda for the Information Society, adopted on 15 November 2005, and in particular its provisions on Internet Governance (paras. 29-82).
11. I have not had the opportunity of studying in sufficient detail the negotiating history of the relevant provisions of this Agenda and how they relate to the contemplated restructuring of ICANN. I would, however, like to draw attention to paragraphs 34, 35 and 71, which read :
"34. A working definition of Internet governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.
35. We reaffirm that the management of the Internet encompasses both technical and public policy issues and should involve all stakeholders and relevant intergovernmental and international organizations. In this respect it is recognized that:
- Policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues.
- The private sector has had, and should continue to have, an important role in the development of the Internet, both in the technical and economic fields.
- Civil society has also played an important role on Internet matters, especially at community level, and should continue to play such a role.
- Intergovernmental organizations have had, and should continue to have, a facilitating role in the coordination of Internet-related public policy issues.
- International organizations have also had and should continue to have an important role in the development of Internet-related technical standards and relevant policies.
71. The process towards enhanced cooperation, to be started by the UN Secretary-General, involving all relevant organizations by the end of the first quarter of 2006, will involve all stakeholders in their respective roles, will proceed as quickly as possible consistent with legal process, and will be responsive to innovation. Relevant organizations should commence a process towards enhanced cooperation involving all stakeholders, proceeding as quickly as possible and responsive to innovation. The same relevant organizations shall be requested to provide annual performance reports."
12. Considering this statement I assume that, for the time being, no treaty making exercises are contemplated. By definition, this means that ICANN's legal personality would have to be based in a specific jurisdiction. This also means that a number of issues will have to be addressed that would not be necessary to solve in case the Internet governance would be by treaty.
13. Against this background it is important for me to stress that by providing this paper I am not advocating any particular solution to the question of Internet governance. However, if the state community is not prepared to engage in a treaty making exercise in this field, it is important that the work that must be performed to govern the system is conducted in the most secure an appropriate manner. It is against this background that I am contributing material to the process in which ICANN is presently engaged.
14. The point of departure is obvious. The status of a legal entity or legal person would be governed by the laws of the state in which it is established. In a federal state, it might be governed by both federal and state law.
15. Over time, customary international law has developed with respect to diplomatic and consular relations among states. This law was codified in the 1960s under the auspices of the United Nations. Reference is made to the Vienna Convention on Diplomatic Relations of 18 April 1961 and the Vienna Convention on Consular Relations of 24 April 1963.
16. In parallel, multilateral relations developed, and it soon became necessary to regulate also the status of diplomatic envoys to intergovernmental organisations and, in this context more importantly, the status of those organisations. The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 could be mentioned as an example.
17. Such multilateral agreements are always coupled with an agreement between the organisation and its host state, so-called host country or headquarters agreements. In this context, reference is made to the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations of 26 June 1947.
18. Obviously, the contents of such conventions and agreements must be reflected in the national legislation of the member states of the organisation and, in particular, its host state.
19. For the convenience of the ICANN team, the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations are attached as Annexes 1a and 1b. The Convention on the Privileges and Immunities of the United Nations and the UN Headquarters Agreement are attached as Annexes 2 and 3.
20. The purpose of a host country agreement is to allow the intergovernmental organisation to conduct its business without unduly interference from the host state. Obviously, the organisation has responsibility vis-a-vis all its members, and it is therefore not appropriate that the organisation and its officials are subject to local laws with respect to their official business. Therefore, the international community has over a period of time put in place a constant practice to grant to international organisations and other international structures established on their territory privileges, immunities and facilities designed to allow them to exercise their international mandates without the host state being able to influence this work in any manner.
21. As it appears from the 1946 Convention and the UN Headquarters Agreement, the premises of the United Nations, its archives, its correspondence and its publications enjoy protection from interference by the local authorities. UN officials enjoy privileges and immunities depending on their status within the Organisation. The highest officials enjoy diplomatic immunity, while others enjoy what is referred to as functional immunity.
22. It is important to stress that privileges and immunities are always granted in the interest of the organisation in question and not for the personal benefit of the officials.
The question now is: what status should ICANN aim for as a private international entity in its host country?
23. The following material from Switzerland should be of particular interest in this context:
A proposal for a federal law on the privileges and immunities and facilities granted by Switzerland as the host State, see Annex 4.
A 60 page explanatory report to this proposal.
The Agreement between Switzerland and the Global Fund to Fight Aids, Tuberculosis and Malaria of 21 June 2005, see Annex 5.
The Agreement between Switzerland and the International Olympic Committee of 20 March 2001, see Annex 6.
24. The Swiss system is very well described in the introductory part of the explanatory report. It appears that it is considered a Swiss national interest to attract intergovernmental organisations to Switzerland. In the "International Geneva" and in the cantons of Vaud, Berne and Basel there are some 35,000 people present (international officials, members of the permanent missions to the international organisations based there and members of their families).
25. It should be said at the outset that it is very clear that in Switzerland privileges and immunities are granted only to intergovernmental organisations and to organisations or institutions that are established by states or with the participation of states.
26. The reason that the proposal for new legislation has been elaborated and sent to the cantons and the political parties for commentaries is mainly technical. But there is also some important news. When dealing with these matters, the Federal Council is presently basing itself on conventions and international treaties, on a certain number of federal laws and federal decisions as well as on its constitutional competences with respect to Switzerland's foreign policy. In view of the importance of the subject matter, the Federal Council has decided to codify and consolidate its practice and to regulate in a single law the principal tools of its policy as host state. Reference is made to pages 2-4 of the explanatory report, see Annex 7.
27. Therefore, even if the law is still in draft form, the proposal and the explanatory report should be of interest to ICANN. In the following, an analysis will be made of the draft law and the two agreements.
28. For the purposes of the present paper the most interesting question is who the beneficiaries of the privileges, immunities and facilities are. This question is answered by Article 2, paragraph 1 of the proposed law. The entities enumerated under letters a. to k. are more or less self-evident and do not require any particular comments in this context. It should be noted, though, that the explanatory report mentions the International Committee of the Red Cross (ICRC) and the International Federation of Red Cross and Red Crescent Societies together with the Global Fund to Fight Aids, Tuberculosis and Malaria as examples of international institutions of the nature referred to in Article 2, paragraph 1 b. See further below.
29. Reference should also made to Article 8 which states that an international quasi governmental organisation can benefit from privileges, immunities and facilities
30. From Article 12 follows that "arbitral tribunals" referred to in Article 2, paragraph 1 letter l. refers only to tribunals established by an international treaty or by a resolution of an intergovernmental organisation or an international institution. The explanatory report expressly states that commercial arbitral tribunals based on private law contracts are not considered in this provision. Otherwise this provision would have been of interest to ICANN.
31. For the purpose of the present paper, the remaining item under Article 2, paragraph 1 letter m. "other international organisms" deserves particular attention. From Article 14 it appears that in exceptional cases, such an organism can benefit from privileges, immunities and facilities:
32. This article might be one of the key provisions that will be discussed in detail during the legislative process. In the explanatory report it is said that "other international organisms", which completes the "exhaustive" list, takes into consideration that international relations are in constant evolution. It is not possible to foresee today the new forms of international cooperation that will emerge. It is stated in the report that it is important to give the Federal Council the means of responding to future challenges when it is faced with a specific request for the establishment in Switzerland of a new organism that does not fit the other definitions of the law. However, the report very clearly states that it is only in exceptional cases that the Federal Council would grant privileges, immunities and facilities to "another organism" based on the new law. Because of the importance of this provision in the present context, pages 16, 17, 34 and 35 of the explanatory report are attached as Annex 8.
33. Of particular interest in this context are also Articles 23 and 24 on non-governmental organisations (NGOs). According to the first provision, NGOs have to establish themselves in accordance with Swiss law. The Swiss Federation may facilitate such establishment within the limits of applicable law and assist financially in accordance with the draft law. Exception from federal taxes (cantonal and municipal are not mentioned) and assistance in engaging personnel from abroad as foreseen in Swiss legislation are mentioned specifically.
34. Article 24 prescribes certain conditions:
a. that the NGO is constituted as an association or a foundation under Swiss law;
b. that the members are physical persons of different nationalities or legal persons established under the national laws of different states;
c. that it is active in several states;
d. that it pursues purposes of public service or public purposes as foreseen in a 1990 federal law on direct federal taxes;
e. that it collaborates with an intergovernmental organisation or an international institution, for example by having observer status with such organisation or institution;
f. that the presence of the NGO in Swiss territory is in the interest of Switzerland.
35. In the explanatory report it is said that NGOs have today an even more important position in international affairs. They are often invited to participate in international conferences and to contribute to the work of intergovernmental organisations and institutions.
36. According to the report, the NGOs have until now not had any specific recognition at the federal level. Reference is simply made to Article 60 of the Civil Code. Now, says the report, is the time to recognize them as actors in the field of host country politics.
37. However, the recognition foreseen will not give the NGOs the right to claim privileges and immunities. And that is why they do not appear in the list of beneficiaries in Article 2. Nevertheless, Article 23 permits the Federation to facilitate the establishment and activities of NGOs in Switzerland within the limits of the law when they represent a particular interest in the area of host country politics. The facilities in question are contained in other federal laws such as the law on direct taxes, or in provisions on the engagement of foreign staff, since such provisions must be respected.
38. Since the ICRC is often spoken of in these contexts, I should perhaps explain briefly the International Red Cross and Red Crescent Movement. This movement is made up of the ICRC and the International Federation of Red Cross and Red Crescent Societies together with National Red Cross and Red Crescent Societies.
39. For our purposes it is important to look at the legal nature of the ICRC. The Committee is actually a private association formed under the Swiss Civil Code. Therefore, its existence is not in itself mandated by governments. However, the functions and activities of the ICRC (which are to provide protection and assistance to victims of conflict) are mandated by the international community of states. They are based on international law, namely the 1949 Geneva Conventions and the two Additional Protocols from 1977. This means that the ICRC is recognized, automatically or in accordance with special legislation, as having an international legal personality. It is against this background that the ICRC has been granted privileges and immunities comparable to intergovernmental organizations. Note in this context the French position below.
40. The International Federation was founded in 1919, and now comprises 183 member Red Cross and Red Crescent Societies, a Secretariat in Geneva and more than 60 delegations to support activities around the world. It acts under its own Constitution with all rights and obligations of a corporate body with a legal personality. According to Article 1 of its constitution its headquarters are in Geneva, and it is considered to have international legal personality.
41. From the web site of the International Olympic Committee (IOC), I have retrieved the following information.
42. The Olympic Movement groups together all those who agree to be guided by the Olympic Charter and who recognise the authority of the IOC, namely: the International Federations (IF) of sports on the programme of the Olympic Games; the National Olympic Committees (NOCs), the Organising Committees of the Olympic Games (OCOGs), athletes, judges and referees, associations and clubs, as well as all the organisations and institutions recognised by the IOC.
43. The IOC is an international non-governmental non-profit organisation and the creator of the Olympic Movement. The IOC exists to serve as an umbrella organisation of the Olympic Movement. It owns all rights to the Olympic symbols, flag, motto, anthem and Olympic Games. Its primary responsibility is to supervise the organisation of the summer and winter Olympic Games.
44. The IOC President is elected by the IOC members by secret ballot for an initial term of eight years, renewable once for four additional years. The President presides over all activities of the IOC, acting as its permanent representative.
45. The Executive Board consists of the IOC President, four Vice-Presidents and ten other members. All the members of the Executive Board are elected by the Session, by secret ballot, by a majority of votes cast, for a four-year term.
46. The members of the IOC are individuals who act as the IOC's representatives in their respective countries, not as delegates of their country within the IOC. The members meet once a year at the IOC Session. The IOC chooses and elects its members from among such persons as its nominations committee considers qualified. All Olympic Movement members have the right to submit nominations.
47. The Olympic Charter is the codification of the Fundamental Principles, Rules and by-laws adopted by the IOC. It governs the organisation and running of the Olympic Movement and sets the conditions for the celebration of the Olympic Games.
48. Article 15 of the Olympic Charter contains the following provision with respect to the legal status of IOC:
"1 The IOC is an international non-governmental not-for-profit organisation, of unlimited duration, in the form of an association with the status of a legal person, recognised by the Swiss Federal Council in accordance with an agreement entered into on 1 November 2000.
2 Its seat is in Lausanne ( Switzerland), the Olympic capital.
3 The object of the IOC is to fulfil the mission, role and responsibilities as assigned to it by the Olympic Charter.
4 The decisions of the IOC are final. Any dispute relating to their application or interpretation may be resolved solely by the IOC Executive Board and, in certain cases, by arbitration before the Court of Arbitration for Sport (CAS).
5 In order to fulfil its mission and carry out its role, the IOC may establish, acquire or otherwise control other legal entities such as foundations or corporations."
49. As distinct from the proposed law, the Agreement between Switzerland and the Global Fund to Fight Aids, Tuberculosis and Malaria (hereinafter "the Fund") and the Agreement between Switzerland and the IOC are in force. For our purposes, a comparison between the two is important.
50. The Fund has been granted privileges and immunities of the same nature as an intergovernmental organisation. (Incidentally, the same applies under the corresponding executive order issued in Washington.) In the case of the IOC, the Agreement is much more limited, and it is clear that this organisation is not granted a standing similar to intergovernmental organisations.
51. There are some similarities between the two Agreements, but the differences are striking.
52. With respect of freedom of action, both the Fund and IOC are granted the same independence and freedom (Article 2 in both Agreements).
53. However, with respect to legal capacity, the provisions are different. The Fund is recognised as a legal personality under public international law, while IOC is recognised only as an entity having legal capacity in Switzerland. Reference is made to Article 1 in both Agreements.
54. The provisions that apply to the Fund on inviolability of premises, inviolability of archives, immunity from jurisdiction and execution, and publications and communications (Articles 3-6) appear only in that Agreement. The fiscal and customs regimes are different in the two Agreements, while the freedom to dispose of funds is regulated in the same manner (Articles 9 and 5, respectively).
55. A comparison between Articles 10-32 of the Agreement that applies to the Fund and Articles 6-18 of the Agreement that applies to IOC demonstrates considerable differences, mainly due to the fact that the officials of the Fund have been granted full-fledged privileges and immunities.
56. Of particular interest in this context are the provisions on peaceful settlement of disputes. Here, the Agreement with the Fund contains the usual provisions that one would expect in an agreement with an intergovernmental organisation. One article addresses the settlement of disputes of a private law character, while another relates to settlement of disputes with respect to the interpretation or application of the Agreement itself. Reference is made to Articles 25 and 29.
57. Article 25 means that a "satisfactory" solution shall be found in cases where the dispute relates to contracts to which the Fund is party or other disputes of a private law character. The same applies to disputes where officials who enjoy immunity are party, if this immunity is not waived in accordance with specific provisions in the Agreement. Article 29 is a standard provision in an international agreement.
58. The Agreement with IOC, on the other hand, contains only a provision relating to settlement of disputes concerning the interpretation or application of the Agreement itself (Article 15). This means that disputes of a private law character will come under the jurisdiction of the national courts of Switzerland.
59. My attention has been drawn to Executive Order: Designating the Global Fund to Fight Aids, Tuberculosis and Malaria as a Public International Organization Entitled to Enjoy Certain Privileges, Exemptions, and Immunities. For the purposes of the present paper it would be useful to determine if there are other similar organisations in the US and, if so, the terms of their recognition.
60. First, attention should be drawn to a short overview by the Congressional Research Service of immunities accorded to foreign diplomats, consular officers, and employees of international organizations under US law. My recommendation is that the ICANN team reviews this document (some 30 pages).
The United States International Organizations Immunities Act
61. The basis of the US system is the United States International Organizations Immunities Act of 29 December 1945, see Annex 9.
62. From Section 1 of this act it appears that the basic condition for the application of this law to any organisation is that it is a public organisation:
"Section 1. For the purposes of this title, the term "international organization" means a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive Order as being entitled to enjoy the privileges, exemptions, and immunities herein provided. - - - "
63. However, since it is important to find out whether the words "or under the authority of any Act of Congress authorizing participation or making an appropriation for such participation" has opened for the admission of others to the system I made a web research to find out the reality behind the provision. It turned out that the Legal Information Institute of Cornell University had some information in this respect. I enclose a listing of the entities that are entitled to enjoy certain privileges, exemptions, and immunities, see Annex 10.
64. Let me say that I recognize almost all of these entities from my previous work. I note in particular that the ICRC is among those listed. There could be the odd regional organization that I have not come across in the past. But to me the picture is very clear as far as international legal subjects are concerned: the US legislation is in line with what applies generally within the State community.
Some specific entities
65. However, among the entities listed, there were a few that attracted my attention. I have therefore made a more detailed review of the following entities that should be of interest to ICANN. As it appears, the material that I have collected with respect to these entities is of a different nature than the other Annexes to the present paper. My ambition has been to collect a few pages relating to these entities in such a manner that the reader will get a quick overview. At the same time the ICANN team will be able to quickly find additional relevant material.
International Fertilizer and Development Center (IFDC)
66. This entity was first established as a private, nonprofit corporation under the laws of the State of Alabama. However, in March 1977, IFDC was designated as a public, nonprofit, international organisation by Presidential Decree 11977. It should be interesting to hear in more detail what material was produced by IFDC to be granted this status. The pages that are attached to the present paper, including the Executive Order, do not give much guidance here. Neither does the IFDC website. Reference is made to Annex 11.
International Food Policy Research Institute (IFPRI)
67. The International Food Policy Research Institute (IFPRI) is one of 15 food and environmental research organizations known as the Future Harvest centers. These centers are located around the world and conduct research in partnership with farmers, scientists, and policymakers to help alleviate poverty and increase food security while protecting the natural resource base.
68. The centers are principally funded through the 58 countries, private foundations, and regional and international organizations that make up a group called the Consultative Group on International Agricultural Research (CGIAR). This group is in turn co-sponsored by the World Bank, the Food and Agricultural Organisation (FAO), the International Fund for Agricultural Development (IFAD) and the United Nations Development Programme (UNDP).
69. The interesting element here is that IFPRI is very informally organised, allowing a membership that goes far beyond the circle of governments. For ICANN it is also interesting to note that this institute has several offices around the world. On the other hand, the Institute has its feet firmly on a platform of government support. Unfortunately, I have not been able to locate its statute. Reference is made to Annex 12 that also includes information about CGIAR.
Inter-American Statistical Institute ( IASI)
70. The Inter-American Statistical Institute is a professional organisation whose purpose it is to promote statistical development in the American region. Membership in the Institute is individual, institutional, and ex officio as provided for in Article II of its Constitution. It should be of interest for ICANN to take a closer look at this Institute to see whether there are similarities, although I know that ICANN does not have members in the same manner as the Institute. The fact that the Institute can have intergovernmental organisations as members is likely to influence its status. Reference is made to Annex 13.
International Union for Conservation of Nature and Natural Resources (ICUN)
71. The World Conservation Union (ICUN) is a membership organization. The Union has a membership of more than 1,000 organizations, as well as 10,000 individual scientists and experts structured in six Commissions. The priorities and work of the Union are set by members every four years and subsequently coordinated by a professional secretariat with 1,000 staff in 62 countries.
72. Among the member organizations there are 82 states, 111 government agencies and more than 800 non-governmental organizations (NGOs). Members meet every four years at the World Conservation Congress (the Union's General Assembly) to express their views, guide the Union's policy and approve its programme. The latest Congress was held in Bangkok, Thailand in November 2004.
73. In the present paper is included the Table of Contents of the statutes and regulations of ICUN. Particularly interesting is the provision on its legal status (Part I, para.1) which prescribes that ICUN is constituted in accordance with Article 60 of the Swiss Civil Code as an international association of governmental and non-governmental members. The material should be of interest to ICANN, although it should be noted that ICUNs status is probably influenced by the substantive government agency membership. Reference is made to Annex 14.
74. I have not engaged in a more profound analysis of the system applied in other states. However, a brief check with colleagues in Austria, France, the Netherlands, and the United Kingdom allows for the preliminary conclusion that, in principle, these states do not grant privileges and immunities to entities that are not subjects under public international law. However, exemptions have been made when it has been deemed to be in the interest of the host country.
75. In Austria (like Switzerland, Austria is the host country for a United Nations office), the granting of privileges and immunities to international organizations are regulated by a law of 14 December 1977.
76. In accordance with Article 7 of this law, international organizations are (1) those that are established exclusively by states or intergovernmental organizations, (2) those that either in their entirety consist of legal subjects under public law from several states or similar institutions or those that are established partly from such entities and partly from states or intergovernmental organizations and (3) the World Tourism Organization.
77. In Austria there is also a law on the granting of privileges to non-governmental organizations. To be recognized as an NGO, the organization must be established on the basis of Austrian law or the law of a state recognized by Austria. It must consist on physical persons of different nationalities or of legal persons that have been established in accordance with the legal order of several states. The NGO must also be close to an entity that falls under the law of 14 December 1977. Consultative status with such an organization is a particular merit. Additional requirements are that the activities of the NGO must to a considerable extent be conducted in Austria and that these activities are in conformity with Austrian law and in the interest of Austrian foreign policy.
78. I have been informed that both these laws are partly superseded by Austria's membership in the European Union; the granting of privileges and immunities through government regulations is no longer possible since the European Commission Value Added Tax Directive and the European Commission Customs Regulation have become applicable in Austria.
79. France does not grant privileges and immunities to entities that are not subjects under public international law. There are, however, two exemptions to this principle. The first concerns an international association of francophone parliamentarians, which has been granted privileges and immunities in accordance with a law from 1989 for this specific purpose.
80. Interestingly enough, the second exemption of the same nature concerns the ICRC. As we have seen in the foregoing, the ICRC is recognized as a public international law subject in some countries. This is, however, not the case in France. But as France saw it as an obligation and in its interest to grant privileges and immunities to the ICRC, a law for this specific purpose was promulgated in 2003. Basically, this law means that the ICRC and its personnel enjoy in France privileges and immunities that are identical to those accorded to the United Nations and is personnel in accordance with the Convention on the Privileges and Immunities of the United Nations of 13 February 1946.
81. In the Netherlands, the system is basically very much the same as in France. My attention was drawn in particular to the Act of 31 October 2002 containing provisions concerning the legal personality, privileges and immunities of the High Commissioner on National Minorities, see Annex 15.
82. Just as in many other states, the Organisation for Security and Cooperation in Europe (OSCE) is not recognised as a separate international legal subject. It was therefore necessary for the Netherlands to invest the High Commissioner on National Minorities, which is an agency of the OSCE, with a legal personality and to confer on this agency and its officials privileges and immunities. It was necessary to do this through a special Act. This Act can also serve as a very good illustration to the elements that are needed in a privileges and immunities regime.
The United Kingdom
83. The system in the United Kingdom is similar to the ones examined. I was informed that a major "cleaning up" exercise had been made last year, when the International Organisations Act 2005 was adopted. The Act and Explanatory Notes to the same are attached as Annex 16.
84. As it appears, it is not so easy to get a clear overview over all legislation that exists in this field in the UK. Reference is made to several other acts, and it would be a major exercise to put all this together. However, for the purposes of the present paper it should be sufficient to refer to the 2005 Act. It is interesting to note the entities that are enumerated in this Act. Among them is the OSCE.
85. The following is just a sample of international associations or other entities under private law. The fact that they are included here is simply to serve as an illustration to what one can find if one embarks on a reconnaissance tour in this field.
International Chamber of Commerce
86. Article 1 of the Statute of the International Chamber of Commerce contains the following provisions on name, purposes and international headquarters:
"1. The Organisation is called International Chamber of Commerce, and also known as the "World Business Organisation", and hereinafter referred to as "ICC".
2. ICC brings together the various economic sectors in market economy countries and acts to:
a. represent trade, industry, finance, transport, insurance and, in general, all sectors of international business;
b. ascertain the views of corporations, companies, organisations, firms and individuals involved in international trade and related business operations and voice them to the relevant intergovernmental institutions and, through its National Committees, Groups and Direct Members, to their governments and other bodies in their respective countries;
c. assure effective and consistent action in the economic and legal fields in order to contribute to the harmonious growth and the freedom of international commerce;
d. provide practical and expert services to the international business community;
e. encourage effective rapprochement and cooperation among businessmen in different countries and among the organisations that bring them together.
3. Since its establishment in 1919, the seat and the International Headquarters of ICC have been located in Paris."
International Bar Association (IBA)
87. The International Bar Association (IBA) is a dual membership organisation, comprising 20,000 individual lawyers and over 195 Bar Associations and Law Societies. It has its seat in London. Its Constitution does not contain provisions on its seat and legal status. However Article 10 contains provisions to the effect that if someone resorts to certain proceeding or action seeking to exercise or enforce rights under that Article the Association agrees not to contest personal jurisdiction or venue in such jurisdiction. I am also told that IBA is tax exempt.
World Federation of United Nations Associations
88. Article 42 of the Statute of the World Federation of United Nations Associations contains the following provision on legal status:
"The Federation, as long as its Headquarters are in Switzerland, is set up under Article 60 of the Swiss Civil Code."
Article 60, paragraph 1 of the Swiss Civil Code means that political, religious, scientific, artistic, charitable, recreational or other associations that do not have an economic purpose acquire legal personality as soon they express in their statutes their willingness to organize themselves as a corporative.
Federation Internationale de Football Association (FIFA)
89. Article 1 of the Statute of the Federation Internationale de Football Association (FIFA) contains the following provision on n ame and headquarters:
"1 The Federation Internationale de Football Association (FIFA) is an association registered in the Commercial Register in accordance with art. 60 ff. of the Swiss Civil Code.
2 FIFA headquarters are located in Zurich ( Switzerland) and may only be transferred to another location following a resolution passed by the Congress."
International Helsinki Federation for Human Rights
90. Article 1 of the Statutes of the International Helsinki Federation for Human Rights contains the following provisions on name and status:
"1.1 The name of the organization is: International Helsinki Federation for Human Rights (the "Federation"). The Federation is based in Vienna.
1.2 The Federation is an association as defined by the Association Law of the Republic of Austria (the "Association Law"). The Federation is a non-partisan and non-profit membership organization dedicated to the welfare of the community, and no part of its net income shall accrue to the benefit of any private organization or individual."
International Association of Judges
91. Article 1 of the Constitution Statute of the International Association of Judges reads:
"1. The International Association of Judges is hereby established.
2. The seat of the Association is in Rome."
The International Legal Assistance Consortium (ILAC)
92. The International Legal Assistance Consortium (ILAC) was launched at a conference in Sweden in December 2000. This conference brought together over 80 participants from more than forty organisations world-wide. In November 2001, ILAC registered as a non-profit association under Swedish law and on 1 September 2002 ILAC opened its headquarters in Stockholm, Sweden.
93. As it appears, Switzerland has not granted full-fledged privileges and immunities to other entities than subjects under public international law. The proposed provision relating to "other international organisms" may be an opening for granting more far-reaching entitlements to entities of a different legal nature that engage in international matters. However, it is too early to say what this provision would mean, if it is approved during the legislative process. In its present form, it is meant to be applied only in exceptional circumstances.
94. With respect to the states that I have looked at, including the US, it would seem that they have not granted privileges and immunities to entities that are not subjects under public international law except in very special cases. But these exceptions nevertheless indicate that there might be room for flexibility, depending on the interest of the host country in question.
95. Entities governed by private law and in particular NGOs would be considered as legal persons under the laws of the state in which they have their seat. But, as it appears, there are cases in which such entities have been granted privileges and immunities.
96. This brings to the forefront the question how ICANN intends to organise itself in the future. Since I have been led to believe that there is no intention of changing the legal status from a private subject to a subject recognised as a legal personality under public international law (an international legal subject), it is of interest to analyse more in detail the elements of the Agreement between Switzerland and the IOC.
97. The following is a brief review of the elements of the Agreement between Switzerland and the IOC from an ICANN perspective.
98. First, there is the recognition of legal capacity (Article 1). This provision only applies within Switzerland, which is obvious. Whether an entity will be recognised as a legal person in the territory of another state would be decided under the laws of that state.
99. The provision on freedom of action in Article 2 is important, but the question is how much it adds to what would normally apply under a constitution in a democratic society. I refer, in particular, to freedom association, freedom of assembly, freedom of expression, etc.
100. Article 3 on the tax regime is important, as are the provisions on social security and pension fund. Note in particular that exemptions have been granted also from cantonal and municipal taxes. This should be borne in mind if the host state is a federal state.
101. With respect to the customs treatment, it should be noted that there is only an undertaking to expedite procedures, nothing else (Article 4). Disposition of funds is of course important, and a provision along the lines of Article 5 might be of interest for ICANN.
102. The provision on the symbol in Article 6 might also be of interest judging from the ICANN letterhead.
103. What is of particular interest is the provision in Article 7 on foreigners. This provision could be used as a model when you examine the national legislation on admission of foreigners to the territory of the host state. I take it for granted that ICANN would like to be free to employ people from many countries.
104. Whether a provision similar to Article 8 on military service is necessary depends on the existing legislation in the host country.
105. The provision in Article 9 on entry into, stay in and departure from the host country is very general. It would seem to be designated mainly to generate a positive atmosphere at the border control, but in practice it might actually be of great importance. However, according to its wording it does not provide any guarantee of the kind that is given to those who work for or visit intergovernmental organisations.
106. The provision on identity cards in Article 10 should be an obvious part of any agreement with a host country. If such an agreement is concluded, it will also be necessary for the institution to provide the host country with a list of the names of the individuals who are entitled to the facilities under the agreement.
107. The provision in Article 11 on prevention of abuse is obvious.
108. The provision in Article 12 on assistance by Swiss diplomatic and consular representatives in other countries is interesting. It has to be seen as a generous gesture.
109. The provision on security in Article 13 should also be of interest.
110. Whether an article corresponding to Article 14 is necessary depends on the national legislation of the host country. It simply prescribes that the Ministry for Foreign Affairs is responsible for coordinating the execution of the Agreement at the federal level.
111. A provision on settlement of disputes concerning the interpretation or application of the agreement is necessary. It is interesting to note that Article 15 does not go further than to negotiations between the parties.
112. The provisions in Articles 16-18 are obvious. It should be noted, though, that there are no provisions on immunity from legal suit.
113. Obviously, the present paper is only a preliminary study. Further research and a full-fledged legal analysis have to be done by the ICANN team.
114. Depending on where ICANN intends to have its seat it would also be necessary to look at the constitutional and legislative possibilities that are open to the host state. Certainly, the tasks performed by ICANN might be considered so important that a presumptive host country could view the situation not only in the de lege lata but also in the de lege ferenda perspective. That is to say, a presumptive host state might for policy reasons be open to the idea that ICANN should be granted facilities that so far have only been accorded to intergovernmental organisations or other entities governed by public law.
115. At the same time it is important that ICANN determines for itself what it would like to achieve by concluding an agreement with its host country. At a certain stage of the process it would probably also be helpful to contact directly the officials that are responsible for these matters in the prospective host state(s) as well as the legal offices of institutions that already operate under host country agreements with those states.
116. It is also obvious that the ICANN team has to look into the matter how "the Charter" or "the Constitution" of ICANN should be drawn up. Since ICANN is presently a corporation governed by its articles of incorporation under the State laws of California, it is necessary to review this matter.
117. There is a very close connection between this issue and the legal framework that a host state could offer. As a matter of fact, in my opinion the way in which a presumptive host state would react to a proposal from ICANN would very much depend on the way in which the new administrative structure of ICANN is set up.
118. In my view, it is of importance what organs are established to manage a legal entity. In case there is no general assembly or similar body to supervise activities, the host state might hesitate to grant privileges and immunities. The absence of such an organ has a direct implication for the lines of command and accountability within an organisation.
119. In case ICANN is granted immunity, there has to be a body that can waive this immunity in situations where this is in the interest of justice. Reference is made to Sections 14, 20 and 23 of the Convention on the Privileges and Immunities of the United Nations (Annex 2).
120. Another matter is what dispute settlement modalities must be offered in case ICANN is granted immunity. Reference is made to provisions of this nature in the annexes and in particular to Sections 29 and 30 of the Convention on the Privileges and Immunities of the United Nations (Annex 2).
Members of the Committee accept that there are a number of administrative challenges that ICANN faces as it is a unique model of bottom up participation and coordination of policy decision making. What are examples of how other global organizations have met similar challenges? Can experiences in other organizations be applied to ICANN to inform consideration of how best to serve the global community?
121. To give an answer to this question would require a thorough knowledge both of ICANN and the other organisation(s) in question. A review of ICANN' s Articles of Incorporation, By-laws and the Memorandum of Understanding with the US Department of Commerce, as amended, reveals that ICANN is indeed a very complex construction. Just the host of acronyms employed is mind-boggling to someone who is not very familiar with the Corporation and the way it operates.
122. This means that my ability to give advice here is limited. But there is one thing that I can say, based on personal experience from 10 years in the United Nations Secretariat. To fully understand an organisation it simply does not suffice to study its constitutional documents and read about it. One has to have a direct experience of the organisation from within to understand all the matters that it faces.
123. My answer to the question would therefore be that, yes indeed, experiences in other organisations could be of great benefit to ICANN. But those experiences must be sought by persons from ICANN who are thoroughly familiar with the way in which the Corporation works from persons in the other organisation(s) with the same familiarity with their respective organisation.
Is the organization's ability to scale internationally affected by its legal personality being based in a specific jurisdiction?
124. In response to this question I would recall my point of departure (para. 14 above), which I indicated as obvious: The status of a legal entity or legal person would be governed by the laws of the state in which it is established. In a federal state, it might be governed by both federal and state law. I also recall my comments on the basics in paras. 5-13 above.
125. By definition, ICANN's ability "to scale internationally" will be affected. However, the issues that will arise can be solved. What is necessary is to identify exactly how ICANN would like to organise itself in the future. Once these policy decisions are made, legal solutions can be worked out. Because of the common interest of a good governance of the Internet it should also be possible to find solutions. However, this requires a spirit of cooperation among those concerned, in particular the States. I am not referring here to the host State only but to all States, since the Internet has to work globally.
Annex 3 UN Headquarters Agreement
Annex 16 International Organisations Act 2005