[Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook

Heather Forrest haforrestesq at gmail.com
Thu May 17 06:07:49 UTC 2018

Dear WT5 colleagues,

I very much appreciated the agenda item today on improving the efficiency
of information exchange and retention. I like the idea of a single document
to capture all inputs, but I worry that staff compiling a new and separate
compilation of our comments is a less efficient, rather than more
efficient, way to work.

I have hesitated to add to the excellent thread that got started on the
topic of city names. That thread sparked detailed discussion, but it got
very long and complex very quickly (70+ posts). I hope we can continue to
explore ways that enable more voices to be heard, and to more efficiently
capture inputs from members at the time they are first made, so that we can
avoid devoting previous policy staff resources to summarising and
re-formatting after the fact what's already been said but is scattered
around across thousands of emails.

In it is possible to create a library or repository on the WG wiki or
similar, I have attached my comments below also as a PDF. Submissions in
writing make it possible to provide more background, explanation, and
detail, and point to the sorts of specific examples, laws, etc that support
your views - why I think the city names thread is so effective, despite its
length. I personally don't believe it's helpful to make a lengthy
intervention on our calls, so I haven't done that. I apologise in advance
for the length of this post! I tried to be as concise as possible while
still providing explanation for conclusions.

I agree with those who have already suggested that it does not make sense
to try to categorise and treat differently different types of geographic
names (city, country, region, local, landmark, etc), because international
law does not make that distinction. References have been made in other
posts to international law, and some members have dismissed these comments.
I urge us to treat international law seriously in terms of what the law
currently is, how it is formed, and how it affects our policy-making. My
comments rely heavily on my doctoral thesis, completed in 2012 at the
University of Berne, Switzerland, on the question of whether the Applicant
Guidebook provisions on geographic names are consistent with international
law. My research has been published (https://lrus.wolterskluwer.co
nal-law-and-domain-name-system-second-edition/) and reviewed
internationally. I mention this not in an underhanded attempt to sell
books, but rather to acknowledge the impossible task of summarising  4+
years and 400+ pages and 1000+ footnotes in this post, and to provide a
link to the full set of data and analysis that sits behind this post.

*1. The critical difference between domestic and international law, and why
it matters*

Having examined Swiss law in my thesis as an example of national law
dealing with geographic names, I noted the references to 29 Civil Code (and
other national laws) in the thread on city names. The Swiss Civil Code
applies only in Switzerland's borders, so the right of challenge exists
only against those those persons and companies within Swiss jurisdiction. A
national law that limits the use of a name (any name, geographic or
otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a
party in, for example, Indonesia. This is the case unless, under widely
accepted fundamentals of international law, the law is classified as a
"general principle of international law", meaning that it is universally
adopted in most countries' national laws. Determining this is a difficult
and time-consuming process, usually undertaken to identify procedural (how
an outcome is achieved) rather than substantive (attributing a right or
responsibility) legal rules. Even apart from the fact that the question of
legal rights in geographic names is a substantive matter rather than
procedural one (and thus not the sort of rule traditionally constituting a
"general principle of international law"), my research uncovered no such
universality or consistency across the laws of the many countries of the
world such that the principle of 29 Swiss Civil Code or similar could be
characterised as a general principle of international law. When a country
has such a law, it is enforceable only against those within that country's
jurisdiction. It has been said by many on this list that "*Domain names are
unique, and global resources". *This is precisely why we cannot base the
policy for those global resources on national laws unless those laws are
shared by all or at least most countries.

*2. International law does not explicitly recognise a right of governments
to approve/reject a new gTLD application*

This is the principal conclusion of my doctoral thesis, albeit distilled
into its most concise wording without any of the supporting law or
explanation. I have worded this here very carefully, so as to offer a
statement of fact, not opinion, because I am aware that some will dismiss
it by saying: "Well, this is just your *opinion*'.  After exhaustive
research in a range of fields of international law (including state theory
and the principles of what makes a country a country in the eyes of the
international community plus trade law, IP law, historical custom, and
others), both historical and current, and their explanatory notes, texts
and drafts, I can state unequivocally that I found no *explicit*
recognition of a government right to a geographic name in any area or
source of international law. As a critical next step, I considered whether
such a right is *implicitly* recognised. Some countries have tried, at
different points in recent time, to amend the Paris Convention for the
Protection of Industrial Property to explicitly recognise government rights
in geographic names. These attempts have not - as yet - reached the full
agreement of the many countries party to the convention (currently 177);
this agreement is necessary for a rule to be international law. The fact
that agreement cannot be reached on this point indicates that - at least
right now - there is also no implicit international law recognising legal
rights of government in geographic names. This conclusion is based on the
state of the law today. It is not a prediction of nor an evaluation of
future law. This is not my personal judgment on what the law *should or
could *be.

*3. Why we should not ignore international law in WT5, and why ICANN policy
effectively creating or circumventing it compromises ICANN*

In the CWG-Use of Country and Territory Names, as well as in WT5, it has
been said that the fact that there is no international law recognising an
exclusive right of governments to geographic names does not matter because
a) the fact that international law does not contain such a right does not
stop ICANN policy from doing so and b) there is more to the issue than just
international law.

First, b), there is more to the issue than just international law. Just
because one thing is affected by numerous factors affecting different
stakeholders does not mean that any single factor can be ignored. Dare I
say it, there is more to WHOIS data than just privacy or law enforcement
(or any number of other factors). I have yet to hear anyone suggest that we
ignore privacy in the next-generation WHOIS. Or law enforcement. etc.

On a), the fact that international law does not contain a right of
governments to geographic names does not stop ICANN policy from doing so.
It is not simply the case that there is no law; the many countries of the
world have tried but cannot agree on this issue. Argument a) sees ICANN
making a decision it is not empowered to make, in the face of those bodies
that are empowered to make this decision but have not found the agreement
necessary to do so. ICANN has in its bylaws committed to "carrying out its
activities in conformity with relevant principles of international law and
international conventions and applicable local law." Is a policy that gives
governments a right of priority or exclusivity in geographic names "in
conformity with relevant principles of ... applicable local law"?
Conformity would depend country-by-country, each country having different
local laws, only achievable if all countries agreed. If agreement isn't
there, this is not a workable foundation for a rule that applies to all;
some will inherently be violators from the outset. Each country has a
sovereign right to choose how to name a place or to impose restrictions on
using names within its own borders. We cannot pick the law of one or some
countries and impose it on all countries, because this violates basic
principles of sovereignty. A country trying to impose national law outside
of its own borders can at its most extreme be interpreted as an intrusion
into national sovereignty, and thus an act of war. Think of any country in
the world other than the one you live in or represent, and then imagine
that country insisting that its laws apply in your home country. This is
clearly not an environment that ICANN should create or encourage, and why
we need to rely on international law, which by definition is law agreed
upon by a large proportion of the world's nations.

Is a policy that gives governments a right of priority or exclusivity in
geographic names "in conformity with relevant principles of international
law"? No, because not all countries agree that such rights exist. I believe
that ICANN oversteps its mandate and legitimacy when it implements a policy
that recognises a right that not only is not explicitly recognised in
international law, but where we have clear record of not being able to
reach agreement. To the outside world, this suggests that ICANN is being
used to circumvent the agreement threshold needed to form international law
in the bodies where that happens. ICANN's rules are strengthened by, and
earn their legitimacy from, their origin in and recognition by legitimate
law-making bodies. International law experts do not recognise ICANN - at
least at this time - as a body the agreed decisions of which constitute
international law. If it is desired and agreed that international law
should change or evolve, this action must be taken through those legitimate
law-making bodies. Lobbying for new international law has no place in WT5;
this needs to be directed at the government representatives who participate
in these recognised international law-making bodies. Once such a law is
made in those fora, we would ignore it at our peril in ICANN policy-making.

*4. An absolute consent/non-objection process that prioritises one party's
rights or interests over others is not supported by international law*

A rule that gives any stakeholder - public or private - an absolute
exclusive or priority right in a geographic name in the DNS (in other
words, the right to tell all others they cannot use the name in the DNS, or
place restrictions on its use in the DNS) is not supported by international
law. No one has absolute or priority rights under international law such
that they have the power to decide how or whether others use a geographic
name. Again, it is precisely because the DNS is a global resource that we
should not presume to prioritise one party over another. This, for better
or worse, is how we ended up with auctions to resolve competing
applications. I am NOT suggesting that auctions are appropriate here, but
simply noting that we ended up with auctions in the AGB because the ICANN
community felt it was not possible or appropriate to have to decide whether
one applicant's application was more worthy or deserving or stronger etc
than another.

*5. We need policy that respects national sovereignty and the rights
recognised in international law by not giving any one stakeholder priority
over others, enables all those with rights or interests in a name to
identify their right/interest and risks to those, and resolves applications
to avoid those risks.*

Rather than aim in WT5 to create (and argue about) a single,
one-size-fits-all rule, I believe that we should be aiming to develop
steps for equitably and transparently dealing with applications for
geographic names, where all interested parties have the opportunity to
clearly identify their particular right or interest and test the
application against those rights/interests. If I were to propose a change
to the flow charts we saw today, it would be a streamlined process, fairer
for all. As a strawman I suggest something like the involvement of the
Independent Objector in the 2012 applications, whereby the global public
interest in a given string was explicitly identified and evaluated against
each challenged application, on a case-by-case basis. An individualised
resolution to each case can be reached where all interests are evaluated
for possible harm, possible alternatives or remediating solutions are
identified, all by an independent party, but without the cost or burden or
time of litigation. These are global resources, so this cannot be a policy
about "protection". Rather, a policy for global resources should be about
finding ways to make sure they are used fairly, transparently, in
accordance with and not in place of international law. Many comments have
been made in this thread along these lines, so I'm hopeful that we're
conceptually all closer together than it appears.

With best wishes, and thanks to the co-leads for encouraging a broad range
of views to be expressed,

Heather Forrest
WT5 member
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