[rpd] Ratified Policy Proposal - AFPUB-2020-GEN-006-DRAFT03, AFRINIC Number Resource Policy Transfer

[Benson Muite]

Paul Hjul <hjul.paul at gmail.com> writes:

>
>
> [So I am quoting a different email from you]
>
>> In the case of AFRINIC, they perceive it as encroaching the staff, and
>> then the board doesn’t ratify it. May be because Mauritius law and that
>> means that we must change AFRINIC to another jurisdiction? What is clear is
>> that the community is the responsible of how the resources are handled by
>> means of policies (not the staff, not the Board, not AFRINIC as an
>> organisation), and this ALSO means that if they are misused against the
>> policies, the community also is the responsible and has the RIGHT to decide
>> how and even when the resources must be recovered. AFRINIC just execute the
>> orders of the community in regard to policies. This is the same in all the
>> RIRs.
>>
>
> There is a serious problem with the culture amongst some of the staff but I
> actually do think the vast majority of employees actually do try to do the
> right thing and that some careful leadership from the top will solve things
> reasonably quickly.

AFRINIC has mostly operated succesfully, but there has also been financial
mismanagement.

> AFRINIC as an organization has a long standing problem of certain insiders
> wishing to use the organization to advance some bizarre ideological bent
> and to use the cantankerous fights which flow as a smokescreen to engage in
> general larceny.
>
> When anybody gets caught with their trousers down poor Mauritius as a
> jurisdiction gets blamed.
>
> The problem isn't Mauritius as a jurisdiction. With the way AFRINIC has
> misdirected itself the litigation space would be infinitely more hazardous
> in South Africa (for example). We would probably have had a 15 year running
> saga over whether and how PAJA applies and while there is a certain
> intellectual curiosity for many reasons the questions at hand are best left
> as academic. If AFRINIC fell in one of the United Kingdom jurisdictions I
> can assure you that the barristers who've been engaged to take injunctions
> out on AFRINIC would have the same level of success (if not greater) as
> they've had in Mauritius (there would be significantly fewer matters but
> the overall situation would be similar). My knowledge of Kenya is quite
> limited but I have little doubt that the Keynan judiciary would largely
> align with the Mauritius and English courts - although the judges and even
> counsel will be more likely to wear wigs. Namibia, Lesotho and Botswana are
> distinct jurisdictions to South Africa and you might be able to avoid some
> of the delay that would arise in South Africa but you'd get much the same
> endpoint as in South Africa. If AFRINIC were seated in eSwatini we'd be
> able to argue for a more Roman-Dutch contract law than anywhere else but I
> am not sure anybody will actually be happy with the outcome. Rwanda is
> showing promise on some fronts but I don't think we can really escape the
> extent to which stability of rule of law is still to be entrenched.
>
> Now there are one or two aspects and peculiarities of Mauritius and there
> is a certain parochial feel to that annoys me [although we should probably
> blame the French], but the problem is not - and has never been - about the
> choice of jurisdiction.
> More importantly there is a massive difference between allocation policies
> and policies aiming to control the utilization of allocated resources.
> Grandfathering is a longstanding way of avoiding problems but emphatically
> avoiding retrospective rule making doesn't serve the interests of staff.
> This actually presents itself quite strongly the moment "legacy" space
> comes up.
>
> If RIPE NCC were to behave as badly as AFRINIC has I can assure that the
> authorities in the Netherlands would have operated in a vary similar manner
> to Mauritius. I really don't know if LACNIC has ever tried to pick the
> wrong fight on spurious grounds but I don't think the courts of
> Uruguay will afford it some unique tolerance.
> The less that is said about the United States the better. [If you take a
> gander down the ARIN mailing lists you'll discover some spine chilling
> stupidity as to the organizations understanding of resource holding.]
>

AFRINIC is a company limited by guarantee. From the companies act in
Mauritius:
https://www.mcci.org/media/35749/the-companies-act-2001.pdf
my understanding is that annual reporting requirements are primarily the
total indebtedness, members and directors.  This is insufficient for an
organization that can impact over 1 billion people.

ARIN serves two countries, so may not have the same challenges as other
RIRs. Have not looked at the legal registration status of LACNIC, it
does serve many countries and appears to have done so well. APNIC is
registered in Brisbane, Australia though was initially located in Japan
and was moved for cost reasons:
https://en.wikipedia.org/wiki/APNIC#History
APNIC has both a non-profit corporation and a public company limited by
guarantee:
https://www.apnic.net/about-apnic/transparency/

RIPE NCC is an association under dutch law:
https://business.gov.nl/running-your-business/legal-forms-and-governance/association/

This has good status for tax obligations, and requires that directors
operate it in compliance with the stated objectives:
https://business.gov.nl/running-your-business/legal-forms-and-governance/liability-of-a-director-or-committee-member/

One of the challenges RIPE NCC may face is compliance with sanctions:
https://trust.ripe.net/legal-compliance/

If one considers IP addresses useful in government operations, this may
have implications for national sovreignity.  As an example the ITU has
been involved in regulating the use of space internet services:
https://en.wikipedia.org/wiki/International_Telecommunication_Union#Iranian_complaint_about_Starlink
The ITU is not the most efficient organization (the multi stakeholder
internet model is better), but the ITU is not subject solely to the laws
of the country it is registered in.