[LACNIC/Politicas] An interesting article on the NRO letter

[Fernando Frediani]

Adrian, whats is your intentions with these messages ?

Do you intend to attack Afrinic more than it has been attacked recentelly ?
Do yoh have you interest in Afrinic hability to not allow ressources to be
used out of the region or in Afrinic management to be changed ?

What are tour intetionf with rhese emails messages to severel email lists ?

On Fri, 22 Jul 2022, 01:35 Adrie Schmidt, <Adrie.Schmidt at outlook.com> wrote:

> I have come across this article on recent NRO Letter written by a
> prominent Law professor. I think it may be of value to the community,
> please see below:
>
> " The world's Regional Internet Registries (RIRs), coordinated by Number
> Resource Organization (NRO), manage the distribution of Internet Protocol
> (IP) addresses in five continents respectively. Although far less well
> known than domain names, IP addresses are also the critical resources
> essential to the proper function of the global internet. As the steward of
> the critical address resources, NRO and all the Regional Registries are
> highly respected technical organizations.
>
> However, many people in the internet community are surprised, though not
> in a lovely way, by the NRO's public call requesting Mauritius government
> to intervene in a court case in which AFRINIC was sued by a company
> reportedly located in Hong Kong for a contractual dispute. AFRINIC is the
> RIR for Africa, established in 2004 and headquartered in Ebene, Mauritius.
> Since the case involves the complicated legal and internet governance
> issues during a long period of time, the merit and procedure of the case
> cannot be elaborated in such a short piece. But anyone, of course, has the
> right to comment or opine on the case and may well have the different
> propositions or preferences.
>
> But the NRO's Open Letter dated July 12, 2022 to Mauritius Foreign
> Minister and Attorney General uncommonly requests the government take
> action against the on-going court proceeding in a country with "stable and
> consistent legal system." Should the NRO's request be successful, Mauritius
> would hardly be able to maintain her "stable and consistent legal system"
> simply because judicial independence, the cornerstone of rule of law, would
> be subverted.
>
> Since AFRINIC deliberately chose "Mauritius as the most appropriate place
> to host this fundamental role for the regional Internet", it shall comply
> with the laws and court orders of that country. The NRO's belief that
> preservation and protection of "the independence of AFRINIC" be only
> achieved through repudiating Mauritius legal system that actually "benefit"
> AFRINIC is entirely paradoxical.
>
> The contractual dispute is a civil dispute in nature. The NRO's blames on
> both the "abusive" litigation and Mauritius court orders (such as the
> interim measure to freeze the AFRINIC's bank account) should be able to be
> reviewed or resolved within the legal system of Mauritius. Instead of
> keeping any faith in the "stable and consistent legal system" from which
> AFRINIC chose to reside in order to obtain the benefit, the NRO's resort to
> the government powers to influence or control the court proceeding seems
> arbitrary, cynical and a bit arrogant to a sovereignty state. Doing so is
> of little help to AFRINIC that is subject to the territorial jurisdiction
> of Mauritius. Doesn't NRO consider that its proactive Letter could make
> AFRINIC less welcome in local host country?
>
> More interestingly, the NRO requests in the letter that the AFRINIC be
> recognized from Mauritius "as an international organization." Actually,
> what's requested by the NRO is the legal immunity granted to the legal
> status of an international organization. However, only Intergovernmental
> Organizations (IGOs) created through multilateral international treaties,
> like the UN based in New York or World Trade Organization (WTO) based in
> Geneva, are entitled to the legal status of privileges or immunities based
> upon the respective founding charters or treaties. AFRINIC, as stated at
> www.afrinic.net, is a nonprofit and member-based organization registered
> and operating under the Corporate Legal Frameworks of Mauritius.
> Irrespective of the NRO's call to recognize AFRINIC as an international
> organization "as rapidly as possible", obviously, no such international
> treaty exists at the moment. Before requesting for AFRINIC's legal status
> of an international organization, the international treaty t
>  hat can support the NRO's request has to be concluded. Notwithstanding
> AFRINIC's importance to Africa, including but not limited to providing the
> services to internet operators, fostering digital culture throughout the
> region, and supporting regional digital economy, it will inevitably take
> years for African countries to convene, negotiate and reach an agreement on
> the treaty for AFRINIC. Actually, very few internet organizations transform
> into treaty organizations. Most of them remain non-governmental nonprofit
> organizations. For example, both the Internet Corporation for Assigned
> Names and Numbers and Internet Engineering Task Force, two most influential
> global internet organizations, are incorporated under the American laws
> without any treaty immunity status. Although the pros and cons about the
> so-called "UN model" has been hotly debated for a couple of years,
> technical community is largely not keen of transforming into treaty
> organizations for a variety of reasons. The NRO's re
>  quest that AFRINIC be recognized as an IGO is an eyebrow-raising move to
> the internet technical community.
>
> Alternatively, Mauritius legislature may extraordinarily enact a special
> law to grant the legal immunity for AFRINIC. If NRO calls for this
> approach, it is ironical that the call was made to the Foreign Minister and
> Attorney General, none of whom has the legislative powers.
>
> By all means, transformation of AFRINIC into an international organization
> either through an international treaty or a special Mauritius law deserves
> strategic thinking and planning, not just for convenience.
>
> Further, should AFRINIC obtain the legal immunity of an international
> organization, such legal status generally shouldn't be applied
> retrospectively. In an unlikely scenario that Mauritius government did
> address this issue "as rapidly as possible" as urged by NRO, it is still
> highly contentious why AFRINIC should be allowed to resort to the
> newly-gained legal immunity in the preexisting legal proceeding of a
> contractual dispute. Since non-retrospective is the commonly-recognized
> legal principle in the world, NRO's request for AFRINIC's international
> organization status, no matter successful or not, is unlikely to have any
> effect on the current court case.
>
> Although internet technical organizations origined from North America and
> Europe, they now commit to function as the steward of critical internet
> resources in the global public interests.  They should keep in mind that
> mutual respect and trust between the internet organizations and sovereign
> states in the Global South are very important to the stable operation and
> development of the internet. NRO's Open Letter not only shows little
> understanding of the real legal issues in the proceeding but the striking
> sense of superiority in the post-colonist world. If NRO really wants to
> ensure AFRINIC "to remain accountable and subject to Mauritian laws", it
> should contribute to resolve the dispute, not to cause collateral damage."
>
> (The author is a professor of law with the Beijing Normal University.)
>
> https://www.globaltimes.cn/page/202207/1271059.shtml
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