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

Mazzone, Giacomo mazzone at ebu.ch
Fri May 18 09:48:02 UTC 2018

Dear colleagues,
I think that we are insisting on a dead-end row, when we discuss about the
„intended use“. This concept does not help when we are talking about a unique resource.
If we look at some of the most contentious TLD of the last round (most of them unresolved till today)

- Amazon

- Patagonia

- Spa

- Africa

How such a concept of the “intended use” would have helped ?
I cannot figure out at all.
We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs.
I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored.
I remember here what he said few days ago:

  *   “  What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use?
     *   I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.”
ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.


From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces at icann.org] On Behalf Of Liz Williams
Sent: vendredi 18 mai 2018 10:06
To: Greg Shatan <gregshatanipc 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

Hello Greg

I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.

Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)?  So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?).  If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system).  If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so.  They would not need letters of support or non-objection because they are irrelevant to the application...

Further ideas most welcome.

Dr Liz Williams | International Affairs
.au Domain Administration Ltd
M: +61 436 020 595 | +44 7824 877757
E: liz.williams at auda.org.au<mailto:liz.williams at auda.org.au> www.auda.org.au<http://www.auda.org.au>

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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:


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”).


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

BG Katrin

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Tel: +49 30 49802722
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ohlmer at dotzon.consulting<mailto:ohlmer at dotzon.consulting>

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Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces at icann.org<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<mailto:harish at nixi.in>; Heather Forrest <haforrestesq at gmail.com<mailto:haforrestesq at gmail.com>>
Cc: gnso-newgtld-wg-wt5 at icann.org<mailto: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

From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org<mailto: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<mailto:haforrestesq at gmail.com>>
Cc: gnso-newgtld-wg-wt5 at icann.org<mailto: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

Harish Chowdhary,
Technology Analyst,
National Internet Exchange of India
www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/>

From: Heather Forrest <haforrestesq at gmail.com<mailto:haforrestesq at gmail.com>>
Sent: Thu, 17 May 2018 11:38:39 GMT+0530
To: gnso-newgtld-wg-wt5 at icann.org<mailto: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 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 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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