[Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Maureen Hilyard
maureen.hilyard at gmail.com
Fri May 18 11:02:35 UTC 2018
Thank you Javier
I guess i can explain where it is I am coming from to make such as
suggestion. But it makes sense to me because I am working on the
development of this policy at the moment.
What I am dealing with is an environmental issue (the Nagoya Protocol), and
the basics of it are:
* There is a provider who owns a particular resource, and a user who wants
to share the use of this resource.
* The user must first get Prior Informed Consent to get access to the
resource (similar to the non-objection letter).
* Once this is in hand, they then move onto negotiating a contract which
includes an agreement of the benefits (Mutually Agreed Terms) that *each
party* will receive from this contractual relationship.
* There are external monitors (Checkpoints) who make sure that all
agreements are kept and benefits are being attributed, etc.
But that's it (in a nutshell).
On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua at gmail.com> wrote:
> Maureen,
>
> Please do share that idea!
>
> There has been substantial discussion on conflict avoidance models, and
> even some “TLD sharing” in these wt5 threads. Your contribution would
> definitely be appreciated!
>
> Javier Rúa-Jovet
> ALAC
>
> +1-787-396-6511
> twitter: @javrua
> skype: javier.rua1
> https://www.linkedin.com/in/javrua
>
>
> On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard at gmail.com>
> wrote:
>
> I think that core to Mazzone's argument for me, is :
>
> “ 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 am currently working in an day job that has nothing to do with ICANN or
> TLDs, but the content that I am working with relates to "benefit-sharing".
> And I wondered if this model could be incorporated into the discussion,
> where the government and the applicant might be able to make an agreement
> on some mutual benefit/s of sharing a name. Just a thought along the lines
> of what I am dealing with in a completely different context but, would
> that ever work here?
>
> On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone at ebu.ch> wrote:
>
>> 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
>>
>> - GCC
>>
>> 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.
>>
>>
>>
>> Giacomo
>>
>>
>>
>> *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.
>>
>>
>>
>> Liz
>> ….
>> Dr Liz Williams | International Affairs
>> .au Domain Administration Ltd
>> M: +61 436 020 595 | +44 7824 877757
>> E: liz.williams at auda.org.au www.auda.org.au
>>
>> Important Notice
>> This email may contain information which is confidential and/or subject
>> to legal privilege, and is intended for the use of the named addressee
>> only. If you are not the intended recipient, you must not use, disclose or
>> copy any part of this email. If you have received this email by mistake,
>> please notify the sender and delete this message immediately.
>>
>>
>>
>> On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc at gmail.com> wrote:
>>
>>
>>
>> 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
>> <https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutschland+-+Germany&entry=gmail&source=g>
>>
>> 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
>> <https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g>
>>
>>
>>
>> *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.co
>> m/store/product/protection-of-geographic-names-in-internatio
>> nal-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
>>
>>
>>
>> _______________________________________________
>> Gnso-newgtld-wg-wt5 mailing list
>> Gnso-newgtld-wg-wt5 at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5
>>
>> ------------------------------------------------------------
>> -------------------------------------------------------------------
>> [NIXI is on Social-Media too. Kindly follow us at:
>> Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ]
>> This e-mail is for the sole use of the intended recipient(s) and may
>> contain confidential and privileged information. If you are not the
>> intended recipient, please contact the sender by reply e-mail and destroy
>> all copies and the original message. Any unauthorized review, use,
>> disclosure, dissemination, forwarding, printing or copying of this email
>> is strictly prohibited and appropriate legal action will be taken.
>> ------------------------------------------------------------
>> -------------------------------------
>>
>> _______________________________________________
>> Gnso-newgtld-wg-wt5 mailing list
>> Gnso-newgtld-wg-wt5 at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5
>>
>> _______________________________________________
>> Gnso-newgtld-wg-wt5 mailing list
>> Gnso-newgtld-wg-wt5 at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5
>>
>>
>>
>> ------------------------------
>>
>>
>>
>>
>> * ************************************************** This email and any
>> files transmitted with it are confidential and intended solely for the use
>> of the individual or entity to whom they are addressed. If you have
>> received this email in error, please notify the system manager. This
>> footnote also confirms that this email message has been swept by the
>> mailgateway ************************************************** *
>>
>> _______________________________________________
>> Gnso-newgtld-wg-wt5 mailing list
>> Gnso-newgtld-wg-wt5 at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5
>>
>
> _______________________________________________
> Gnso-newgtld-wg-wt5 mailing list
> Gnso-newgtld-wg-wt5 at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg-wt5/attachments/20180518/31e93be8/attachment-0001.html>
More information about the Gnso-newgtld-wg-wt5
mailing list