[members-discuss] NRO letter to Mauritian Government

Hi

I think the following commentary would be interesting to the members.

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 that 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 request 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*.)

Source:https://www.globaltimes.cn/page/202207/1271059.shtml

On Wed, Jul 20, 2022 at 11:09 PM Kaj Niemi <kajtzu at basen.net> wrote:

> The Dutch government recognizes the following international organizations
> https://www.government.nl/topics/international-organisations/multilateral-forums
>
>
>
> Almost all countries have a concept of international organization, which
> is not to be confused with associations and corporate entities, with their
> own criteria on what they wish to recognize and invite to their country.
> Usually, these organizations exist in a country because the host government
> is part of them one way or another (UN, NATO, ICJ, etc.) and the privileges
> extended of course depend on the treaty between the organization and the
> host country itself.
>
>
>
>
>
>
>
> Kaj
>
>
>
> *From:* members-discuss <members-discuss-bounces at ripe.net> *On Behalf Of *Elvis
> Daniel Velea
> *Sent:* Tuesday, July 19, 2022 13:31
> *To:* Sander Steffann <sander at steffann.nl>
> *Cc:* Christian Kaufmann <exec-board at ripe.net>; members-discuss at ripe.net
> *Subject:* Re: [members-discuss] NRO letter to Mauritian Government
>
>
>
> Hi Sander,
>
>
>
> On Tue, Jul 19, 2022 at 02:33 Sander Steffann <sander at steffann.nl> wrote:
>
> Hi Elvis,
>
> > if you and the Board were so keen on transparency and discussion, you
> would have brought the letter to the community for feedback prior to
> signing it.
>
> I have to take it up for the board and Hans Petter here. What you suggest
> would be unworkable. That would imply that the RIPE NCC couldn’t operate
> independently anymore and would be micro managed by its members. That is
> also not ok.
>
>
>
> this situation is not something unforeseen. this whole AfriNIC issue has
> been brewing up for years… this letter could have been discussed before it
> became an emergency
>
>
>
> on the other hand, the letter, the tone, what it suggests… that is a big
> thing that may ruin reputation worked and fought for decades.
>
>
>
> Question for CK and HPH: Is there such a thing as an ‘International
> Organization’ in the Dutch Law? Has the RIPE NCC requested such status for
> itself before asking it for another RIR?
>
>
>
>
>
>
> Cheers,
> Sander
>
>
>
> cheers,
>
> elvis
>
>
>
> PS: I still think I am in a simulation or a dream. This text should not
> have been written, corrected, approved, signed. Never ever! What right does
> the NRO have to speak on behalf of the ‘African regional community’ on such
> harsh terms?
>
>
>
> ‘It would be very unfortunate for the African regional community if the
> above situation proves that the designation of Mauritius as the place to
> locate AFRINIC has been wrong.’
>
>
>
>
>
> --
>
> This message was sent from a mobile device. Some typos may be possible.
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