[Gnso-igo-ingo] Follow-up to certain points raised during the 17 August call of the reconvened Working Group on Red Cross Red Crescent protections / ConfCall tomorrow Thursday
Stephane Hankins
shankins at icrc.org
Wed Sep 6 16:08:25 UTC 2017
Dear Thomas,
Dear members of the reconvened WG group,
(1) I am not sure the agreement was that we would submit a renewed outline
of the legal protections of the designations (words, names). We may refer
you to our full report submitted to the Board in 2013 and which was
circulated to the Group recently.
We are also attaching a new brief outlining the provisions included in a
chosen list of national laws confirming
i) the right/entitlement of the National Red Cross or Red Crescent
Society in the given country to make use of the designations (words,
names);
ii) the protections accorded to the designations (words, names) under
domestic law and the penal sanctions applicable to misuse thereof.
Our records suggest that national legislation on the use and the
protection of the Red Cross and Red Crescent designations (words, names)
exist in over 120 national jurisdictions.
As rightfully noted by Chris in his message, in many countries (so-called
monist jurisdictions), international treaties such as the 1949 Geneva
Conventions and their Additional Protocols of 1977 and 2005 are directly
applicable in the domestic legal order of States parties, and thus,
without the requirement, in principle, of national implementing
legislation.
(2) We appreciate that tomorrow’s reconvened working group session is the
last discussion prior to the GNSO’s closed session, but wish to recommend
that those lawyers within the GNSO Council take a closer look at the
documents submitted.
This should ensure an informed decision that is in line with the
international legal protections accorded to the designations (words,
names) and with the internationally defined uses of the same (including by
the national and international components of the International Red Cross
and Red Crescent Movement for the purpose of identification).
(3) As suggested at the end of the last call, we take this opportunity to
lay out once more in writing a summary of the main points of the case for
extending the current protections/reservations to the identifiers of the
respective National Red Cross and Red Crescent Societies and for
recommending that these protections be made permanent.
We appreciate that this has been submitted many times before and please
understand that we are not in a position to add new legal grounds to what
should constitute an already solid case.
The legal case
1) The designations (words, names) “Red Cross”, “Red Crescent”, “Red
Lion and Sun” are protected under the 1949 Geneva Conventions and their
Additional Protocols of 1977. The designation (words, name) “Red Crystal”
is on its part protected under the combined provisions of the 2005 Third
Additional Protocol to the Geneva Conventions and Resolution 1 unanimously
by the 29th International Conference of the Red Cross and Red Crescent in
2005 (and therefore by all States parties to the Geneva Conventions as
members of the International Conference).
States have an international obligation under these international treaties
to ensure the protection of these designations (words, names) and to
adopt, if their legislation is not already adequate, measures necessary
for the repression, at all times, of abuses of the designations (words,
names).
There are 196 Parties to the 1949 Geneva Conventions and the list thereof
may be accessed on the website of the Swiss Federal Department of Foreign
Affairs – as it is the Swiss Federal Council which exercises the function
of Depository of these international treaties.
2) There are two recognized uses of the distinctive emblems and of
their designations (words, names): one is “protective use” in times of
armed conflict, the other is “indicative use” to indicate a link with the
International Movement of the Red Cross and Red Crescent and its
respective components (the 190 recognized National Red Cross and Red
Crescent Societies, the ICRC and the IFRC). The use by Red Cross or Red
Crescent Societies is stipulated under Article 44 para. 1 to 3 of the
first Geneva Convention of 1949.
The Red Cross and Red Crescent organizations are hence recognized under
international law (and the domestic legislation in force in a majority of
countries) the legal right to make use of the designations (words, names).
This is alternatively provided for under different types of national
legislation (in a national legislation on the use and protection of the
Red Cross and Red Crescent emblems, in a national legislation on the
recognition/status of a National Society in the domestic legal order,
etc.).
National Red Cross and Red Crescent Societies have an express duty under
the Statutes of the International Red Cross and Red Crescent Movement to
make use of one of the names (and distinctive emblems) in conformity with
the Geneva Conventions and their Additional Protocols. This constitutes
one of 10 Conditions for recognition of National Societies as a component
of the Movement (Article 4 of the Statutes of the Movement). It is
furthermore confirmed in the agreed practice of the Movement that, when
used for indicative (identification) purposes as part of a National
Society’s official name, the words require to be accompanied by an
adjective indicating national affiliation (“British Red Cross Society”,
“Croix-Rouge canadienne”, etc.).
3) In legal terms, the designations (words, names) require to be
protected from misuse at all times. This implies that they be protected
from misuse
- in both their authorized uses and displays (including when used as
part of the name of one of the Red Cross or Red Crescent organizations,
including the National Societies);
- whether displayed on their own or when used together with other
words or designs. The protections would be meaningful if they did not
extend to the use of the designations when used or displayed in
combination with other words.
Absent the possibility of a string similarity review mechanism as we are
explained, and with a view to ensuring an effective protection of the
designations in their indicative function, there is no other way but to
extend the protections and reservations of the designations (words, names)
in the domain name system to the names and identifiers of the respective
Red Cross and Red Crescent organizations.
The public policy case
Besides the legal case outlined above and which should of itself ground
the global public policy considerations for the protections, we have also
in the past highlighted a range of additional considerations for the
extension of the reservations to the full names of the Red Cross and Red
Crescent organisations, in particular the National Red Cross and Red
Crescent Societies.
These include in particular to:
- the distinct roles and mandates recognized to a National Society
under international law and under domestic laws – thus including, the
distinct and privileged status and responsibilities of National Societies
as an auxiliary to the public authorities in the humanitarian field in
their own country;
- the particular risks of fraudulent use of the names and
identifiers of National Societies (and of the Movement as a whole) which
may occur, particularly in the event of a humanitarian emergency.
We are attaching once again the intervention by Charlotte Lindsey, ICRC’s
Director of Communication and Information Management, to the GNSO Council
as presented on 14th April 2016, which provided elements to this question.
Until tomorrow. With best regards,
Stéphane
Stéphane J. Hankins
Legal adviser
Cooperation and coordination within the Movement
International Committee of the Red Cross
Tel (direct line): ++0041 22 730 24 19
-----Original Message-----
From: Thomas Rickert [mailto:thomas at rickert.net]
Sent: Tuesday, September 05, 2017 12:37 PM
To: Mary Wong <mary.wong at icann.org>
Cc: Thomas Rickert <thomas at rickert.net>; Chuck <consult at cgomes.com>;
christopher.lamb17 at gmail.com; Jorge.Cancio at bakom.admin.ch; Greg Shatan
<gregshatanipc at gmail.com>; gnso-igo-ingo at icann.org
Subject: IMPORTANT: Are there more questions?
Dear all,
Thanks for this vivid exchange of e-mails.
As we prepare for the upcoming call it would be great to understand
whether there are open questions with respect to the legal basis for
protections.
If so, please send them to the list prior to the call so we can hopefully
get answers for everyone’s consideration before or during the call.
If there are no questions on the list, we have to assume there are none
and that we can proceed to a mini consensus call on the aspect of the
legal basis for protections.
If there are questions, we hope to get them answered and move to the mini
consensus call.
An agenda for the call will be circulated shortly.
Best,
Thomas
> Am 04.09.2017 um 01:18 schrieb Mary Wong <mary.wong at icann.org>:
>
> Dear Chuck and everyone,
>
> In addition to the information from Christopher, we understand that the
Red Cross representatives may be preparing an updated list of the
protections that the Red Cross names currently under discussion may be
entitled to under various national laws. In the meantime, Working Group
members may find helpful the initial research that ICANN Legal performed,
as part of the work of the original PDP Working Group, relating to the
protection of the terms associated with the Red Cross, International
Olympic Committee and IGOs: see Annex 5 of the Final Report -
https://gnso.icann.org/en/issues/igo-ingo-final-10nov13-en.pdf (please
note that the research was limited to answering a specific question that
was posed at the time by the Working Group, as reflected in the
introductory text to this Annex).
>
> Working Group members may also find helpful the current, interim list of
reserved names of the Red Cross National Societies:
https://www.icann.org/sites/default/files/packages/reserved-names/ReservedNames.xml#red-cross-international
. Please note that, as part of the current scope of work for this group,
the GNSO Council has expressly requested that the group consider the
specific names of the 190 Red Cross National Societies as well as a
specific, limited set of variants of those names. As you may recall, the
Red Cross representatives have kindly offered to work with ICANN and the
Working Group to develop and agree on the final list of names and
variants, if and when appropriate.
>
> Thanks and cheers
> Mary
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