[Ws2-jurisdiction] RES: RES: Agenda for Jurisdiction Subgroup Meeting 20 June at 19:00 UTC

[Mueller, Milton L]

> -----Original Message-----
> 
> Take the example of disputes involving the management of ccTLDs. It should
> not be open to the courts of any country other than the country responsible
> for a given ccTLD to adjudicate on matters relating to that ccTLD.

For the record, I don't necessarily agree with this.  ccTLD delegations are governed by ICANN-developed policies (via ccNSO, etc.). A California or US court could be and should be involved in determining whether ICANN broke its own rules in some kind of a decision related to cc's.  Note that the US court is NOT making the policy; it is simply providing recourse if ICANN breaks its bylaws or otherwise ignores proper process.

> This is what Tunis Agenda, paragraph 63, says: "Countries should not be
> involved in decisions regarding another country's country-code Top-Level
> Domain (ccTLD). Their legitimate interests, as expressed and defined by each
> country, in diverse ways, regarding decisions affecting their ccTLDs, need to
> be respected, upheld and addressed via a flexible and improved framework
> and mechanisms."

But this assumes that ccTLDs are subject to national sovereignty, which is a policy that has not been accepted even by GAC, much less by the rest of the ICANN community. Nor is there any international legal basis for asserting national sovereignty over cc's. 

Remember that the Tunis Agenda was NOT a policy that achieved consensus amongst all stakeholder groups. It was a document drafted, negotiated and approved by states with some consultation with other groups.

Dr. Milton L Mueller
Professor, School of Public Policy
Georgia Institute of Technology
Internet Governance Project 
http://internetgovernance.org/