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

[Nigel Roberts]

Milton is right, with one small caveat.

*NEW* ccTLD delegations are governed by ICANN-developed policies. Or 
rather they would be, if we weren't still operating on pre-ICANN 
developed policy (for ASCII strings).

Delegations before ICANN existed cannot be *governed* by anything of 
ICANN's in a strict sense.

But the vast majority of ccTLDs abide by the existing consensus, simply 
becuase it's sensible. (NB: there are one or two, government or 
royal-controlled ones that don't accept the consensus view, but they are 
outliers).

If a public authority wishes to formally control, or nationalise a ccTLD 
operator, it may, subject to the rule of law (if the country is a 
_rechtstaat), do so by virtue of the simple requirement (which predates 
ICANN) that there be an administative presence in the country concerned.

The statement that the relevant government(s) is or are the ultimate 
authority on matters of public policy in respect of ccTLDs is, of 
course, simply trite law, since they are the fount of authority in ALL 
matters of public policy in that country.



>
>
>> -----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 responsibleccTLD delegations are governed by ICANN-developed policies
>> for a given ccTLD to adjudicate on matters relating to that ccTLD.
>
> For the record, I don't necessarily agree with this.   (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/
>
>
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