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

[Greg Shatan]

Nick,

I don’t think that Heather was suggesting “no rules,” though I’ll let her
speak for herself.  Rather, I see her suggesting that we stick to “the rule
of law” and avoid making policy for which there is no legal support.

One of the touchstones of gTLD policy-making has been that we don’t create
new rights.  We certainly may create new methods for enforcing those
rights, and we may seek to adapt off-line rights so that they work in the
ICANN context (which may require some judicious re-shaping of the
parameters of that right).  Lastly, ICANN policy-making has favored (except
for technical considerations) after-the-fact curative rights (e.g., UDRP)
over before-the-fact preventive rights.  Any time policy-making strays from
any of these concepts, it must be done with the utmost conservatism.  These
precepts should govern our exploration of options and “pragmatic
compromises.”

As I read your email, the key policy objective you cite is avoiding “the
false impression of an authorisation by a state or other authority.”  That
seems to be a reasonable objective.  You state that letters of
non-objection were helpful to a “significant number of national and city
TLDs who once they had negotiated this hurdle proceeded to delegation and
successful widespread use without contention.”  I assume that “national and
city TLDs” means a TLD intended to function as an adjunct to a nation or
city referred to in the TLD (i.e., a “geoTLD”).  Here, I think we might
find at least tentative agreement — a “geoTLD” functioning without
authority from the relevant state/authority could lead to a false
impression of authorization.   And, as far as I know, the TLDs intending to
be geoTLDs did make it through the process successfully (however, this must
be confirmed).

However, context is critical in that analysis.  Where the TLD is not
functioning as a geoTLD, there is no valid basis to claim a “false
impression of authorization,” and there Is no need for a letter of
non-objection.  There may be some extremely limited special cases (e.g.,
country names), but they must be the exception and not the rule.

You advise that we should “Compare and contrast with other applications
some six years later which are still stuck in the process.”  I’m not sure
which applications you’re thinking, but the applications that I can think
of in that category were not geoTLD applications, but rather wanted the TLD
for other purposes.  If there are any geoTLD applications stuck in the
process, please let me (and all of us) know; that would be a valid concern.

The “other [non-geoTLD] applications ... still stuck in the process” are
examples of situations where the non-objection process did NOT work
successfully at all.  These are essentially dolphins stuck in tuna nets.
This needs “improvement,” as you would say.  The improvement needed is to
remove the non-objection process in these instances.  There’s no likelihood
of confusion, so the process should not be available.

Perversely, the existence of an overbroad non-objection requirement might
fuel “false impressions of authorization” by creating a false impression
that every string that has a geo-meaning must have been authorized.  This
type of “false false impression” can be eliminated by making the letter of
objection process much more narrowly tailored to the case of truly likely
“false impression of authorization.”

This bring us back to the concern that Heather was suggesting “no rules.”
 After thinking this through, it’s even more clear that this is not what
she meant.  Rather, I believe she meant that we need to create rules that
are clearly based on rights, rather than creating rights by making up
rules.  In this instance, that means requiring letters of non-objection
only where the applicant seeks to run the “city’s TLD” or the “state’s TLD”
or whatever the equivalent geoTLD is; without a letter of non-objection (or
support) such a registry would create a “false impression of
authorization”.

At the same time, we need to make it clear that where there is no false
impression of authorization, there should be no power over a gTLD
application granted to a “Geo-homophone” — at any point in the process.
This would bring clarity to measures dealing with the key issue you
highlight — a remedy for false impression of authorization — while
eliminating the uncertainties for applicants not seeking to create a geoTLD
(including the threat that they could be interminably “stuck in the
process”).

Greg



On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <
ohlmer at dotzon.com> wrote:

> +1 Nick
>
>
>
> BG Katrin
>
>
>
>
>
> DOTZON GmbH - digital identities for tomorrow
> Akazienstrasse 28
> 10823 Berlin
> Deutschland - Germany
> Tel: +49 30 49802722
> Fax: +49 30 49802727
> Mobile: +49 173 2019240
> ohlmer at dotzon.consulting
> www.dotzon.consulting
>
> DOTZON GmbH
> Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598
> Geschäftsführer: Katrin Ohlmer
> Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin
>
>
>
> *Von:* Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces at icann.org] *Im
> Auftrag von *Nick Wenban-Smith
> *Gesendet:* Donnerstag, 17. Mai 2018 18:55
> *An:* harish at nixi.in; Heather Forrest <haforrestesq at gmail.com>
> *Cc:* gnso-newgtld-wg-wt5 at icann.org
> *Betreff:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of
> International Law to the GeoNames Provisions of the Applicant Guidebook
>
>
>
> Hi Heather, all
>
>
>
> This is a very interesting point of discussion.
>
>
>
> Firstly I think we all agree that clear and predictable rules for
> applicants going forward is a highly desirable objective. Where the current
> 2012 AGB can be improved upon then we should identify the offending wording
> and seek to replace it with something better. The use of the term “city”
> for example means different things to different people and countries. In
> the UK I had always understood a city to equate to those population centres
> with a cathedral, but from Wikipedia it seems there is quite a lot of
> history and domestic politics to it!
> https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom
>
>
>
> Secondly, I generally accept that in terms of ICANN generally and grant by
> ICANN of new gTLDs in particular, there is not much by way of international
> law. (If there were, then we would not need to have all these meetings at
> all times of day and night to reflect on the policy options, and in fact
> ICANN would probably just be another UN agency). So for better or worse the
> task falls to the various ICANN communities, balancing the various
> interests and stakeholder views from across the globe and coming up with
> options, and considering the inputs and making pragmatic compromises where
> appropriate. In turns out that in this field of geo names there are a lot
> of different opinions and perspectives, which makes this a complicated
> process!
>
>
>
> Finally, as I said in my previous post about an eon back in policy terms
> it is the false impression of an authorisation by a state or other
> authority that is to be avoided here. To my mind whilst the non-objection
> process was not perfect by any means, it did work very successfully in
> relation to a significant number of national and city TLDs who once they
> had negotiated this hurdle proceeded to delegation and successful
> widespread use without contention. (Compare and contrast with other
> applications some six years later which are still stuck in the process).
> Very open to alternative solutions, such as a fair and transparent early
> advisory approach, but no rules at all does not feel a good outcome in
> terms of justification in the general public interest.
>
>
>
> Best wishes
>
> Nick
>
>
>
> *From:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org> *On
> Behalf Of *Harish Chowdhary
> *Sent:* 17 May 2018 09:14
> *To:* Heather Forrest <haforrestesq at gmail.com>
> *Cc:* gnso-newgtld-wg-wt5 at icann.org
> *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of
> International Law to the GeoNames Provisions of the Applicant Guidebook
>
>
>
> Dear Heather,
>
> I would like to re-iterate the facts again with some queries.
>
> *2. International law does not explicitly recognise a right of governments
> to approve/reject a new gTLD application*
>
> As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is
> based on a consensus of the GAC. If the GAC advises that there are concerns
> about a particular gTLD (generic Top level Domain ) application, the ICANN
> Board is expected to enter into dialogue with the GAC to understand the
> scope of concerns and provide rationale for its decision.
>
>    - Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is
>    not useful
>    *as per International Laws?*
>
>
> *4. An absolute consent/non-objection process that prioritises one party's
> rights or interests over others is not supported by international law.*
>
>    - Do you suggest that the National Governments are just a party in
>    this context and doesn't reflect the concern and sensitivities of people of
>    the Country?
>
> I beleive Mr. Jorge is correct while suggesting that “letter of
> non-objection” model, apart from being already tested, leaves the decision
> on the applicable solution to the relevant public authorities in conformity
> with their national laws and policies. This way it is respecting the
> diverging national approaches to the question.
>
> Further, do you suggest should we start a discussion on which law has
> precedence over another while they are applied to a Geo-name TLDs. This may
> again add the one more dimension of complexity to the issue.
>
>    - National Laws
>    - International Laws
>    - ICANN By-laws
>
> It is to be noted that in March 1994, RFC 1591 was published, setting out
> the naming practice. RFC 1591 reflects the significant amount of work
> critically for the context of country names as top-level domains.RFC 1591
> identified and preserved the link between ccTLDs and the ISO 3166-1 list
> and established two significant, fundamental principles:
>
> 1.      The IANA (ICANN) is not in the business of deciding what is and
> what is not a country.
>
> 2.      The selection of the ISO 3166 list as a basis for country code
> top-level domain names was made with the knowledge that ISO has a procedure
> for determining which entities should be and should not be onlist.
>
> ·        To date these two principles are still at the core of the policy
> for allocation and delegation of ccTLDs (and IDN ccTLDs)
>
> ·        The policy on use of two-letter codes as the source for ccTLDs
> and as documented in RFC 1591, is still valid.
>
> ·        At its core, it relies on the ISO 3166 and its processes and
> procedures to determine whether a Geographic/Geopolitical entity should be
> considered a country, and, hence ultimately if a ccTLD code should be
> assigned to that entity.
>
> Based upon the above facts we may again involve the* ISO at United
> Nations* (If there is huge complexity at ICANN level (WT#5) in
> determining the role and imortance of GAC and Goverment laws in delegation
> of GEO-TLDs) to set a procedure for determining which entities should be
> and should not be onlist of
>
> ·        City Names
>
> ·        Names with Geo-graphic Significance
>
> ·        Names which were not included in the AGB 2012
>
>
> *Thanks,*
>
>
> * Harish Chowdhary, Technology Analyst, National Internet Exchange of
> India*
> *ISOC FELLOW | inSIG FELLOW*
> * IIREF FELLOW | UASG AMBASSADOR*
> www.nixi.in | www.indiaig.in | registry.in
>
>
> From: Heather Forrest <haforrestesq at gmail.com>
> Sent: Thu, 17 May 2018 11:38:39 GMT+0530
> To: gnso-newgtld-wg-wt5 at icann.org
> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of
> International Law to the GeoNames Provisions of the Applicant Guidebook
>
>
> 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.com/store/product/protection-of-geographic-names-in-international-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 i**nternational 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 predictable 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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