RE: [gnso-igo-ingo] RCRC Comments on the WG IGO/INGO template

["Shatan, Gregory S." <GShatan@xxxxxxxxxxxxx>]

The last statement "If something is indeed illegal, then take it to the 
appropriate court for action," concerns me and I think this is a dangerous 
direction to take in this or any other PDP or ICANN process.  ICANN is, among 
other things, an SRO (self-regulatory organization).  As such, it has avoided 
having policy and outcomes decided by courts and legislative bodies by engaging 
in pro-active self-regulation, such as the UDRP and the other DRPs (e.g., the 
PDDRP).  The various bodies of ICANN (GNSO, GAC, etc.) are all attempting to 
cooperate to provide self-regulation.

Organizations such as the National Advertising Bureau of the Better Business 
Bureaus, the American Medical Association, the National Association of 
Realtors, NASD, etc. all provide streamlined self-regulatory mechanisms that 
provide more nuanced, cost-effective expertise-based dispute resolution 
processes from reaching the courts.  I'm not saying these are all equally 
effective organizations, but it is a core part of their model and the ICANN 
model to serve this function.

Of course, some matters will end up in court or legislated by outside bodies -- 
but it is not in the best interests of the constituents of these organizations 
or ICANN to throw it all to the courts.  I think it is one of the strengths of 
ICANN that major cases and legislative efforts have largely been avoided by 
reasonably effective self-regulation.  (Of course, I am not enamored of all of 
the outcomes of these efforts.)

Furthermore, it is due to the relative success of the ICANN as an SRO that 
there is relatively little legislation specifically relating to ICANN or the 
domain name registration process.  In turn, this makes the question that has 
come up here several times (along the lines of "Show me a statute that 
specifically and explicitly refers to ICANN and the domain name registration 
process") a red herring.  (Another reason that this is a red herring is that 
laws are generally drafted to be broad enough to apply to various facts and 
circumstances as they develop over time ("old wine in new bottles").

In a different world, we could have had ICANN policy and processes shaped by 
litigation (including class action and multinational litigation efforts) and 
legislative efforts (which would be a  mess, given the multinational nature of 
ICANNs work) and rulemaking by IGOs (do you really want outside organizations 
taking over ICANN's internal regulatory functions?).  Whatever criticisms I or 
others have of ICANN, it may be said (as with democracy), that it is the worst 
system for managing and regulating the Internet, except for all the other ones.

Greg


Gregory S. Shatan 
Partner 
Reed Smith LLP
599 Lexington Avenue
New York, NY 10022
212.549.0275 (Phone)
917.816.6428 (Mobile)
212.521.5450 (Fax)
gshatan@xxxxxxxxxxxxx
www.reedsmith.com 



-----Original Message-----
From: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On 
Behalf Of Avri Doria
Sent: Friday, November 30, 2012 4:42 AM
To: gnso-igo-ingo@xxxxxxxxx
Subject: Re: [gnso-igo-ingo] RCRC Comments on the WG IGO/INGO template


Hi,

I support this position.

And would add that prior decisions by the Board and the GAC have no binding 
influence on the procesess or recommendations of the GNSO.  Certainly should be 
considered as part of the informational flow, but this is a bottom-up process 
and as such directives from above have no special merit making them more 
important than other community input.

Part of the reason we are stuck in the position is because at every step of the 
way, various parties have tried to trump the GNSO policy process by appealing 
to Authority.  It is time for that appeal to be dropped in favor of genuine 
participation in the PDP process.

Getting back to law.  If something is indeed illegal, then take it to the 
appropriate court for action.

avri

On 30 Nov 2012, at 05:55, David W. Maher wrote:

> 
> I reiterate my position that the special protection of the Red Cross and Red 
> Crescent, if any, should be based on policy issues related to humanitarian 
> considerations, and not based on legal considerations. The laws referred to 
> below do not have anything to do with ICANN's procedures for the registration 
> of domain names.
> David W. Maher
> Senior Vice President - Law & Policy
> Public Interest Registry
> 312 375 4849
> 
> From: Stephane Hankins <shankins@xxxxxxxx<mailto:shankins@xxxxxxxx>>
> Date: Thu, 29 Nov 2012 06:54:05 -0500
> To: THOMAS RICKERT <rickert@xxxxxxxxxxx<mailto:rickert@xxxxxxxxxxx>>, 
> "gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>" 
> <gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>>, 
> "gnso-secs@xxxxxxxxx<mailto:gnso-secs@xxxxxxxxx>" 
> <gnso-secs@xxxxxxxxx<mailto:gnso-secs@xxxxxxxxx>>
> Cc: "christopher.rassi@xxxxxxxx<mailto:christopher.rassi@xxxxxxxx>" 
> <christopher.rassi@xxxxxxxx<mailto:christopher.rassi@xxxxxxxx>>
> Subject: [gnso-igo-ingo] RCRC Comments on the WG IGO/INGO template
> 
> Dear Thomas, dear Berry, dear all,
> 
> (1) Further to yesterday's call, please find attached, the "Red Cross and Red 
> Crescent" comments on the WG IGO/INGO Template distributed yesterday in track 
> changes. As indicated during the call, we recommend that the wording 
> "international organisations" be maintained throughout the document, as it 
> will better allow to encompassall concerned organisations, thus including the 
> international components of the the International Red Cross and Red Crescent 
> Movement which are considered to enjoy a distinct status under international 
> law. The latter stems in particular from the ICRC's enjoyment of 
> international mandates conferred upon it by the treaties of International 
> Humanitarian Law, the observer status recognized to the International 
> Committee of the Red Cross and the International Federation of Red Cross and 
> Red Crescent Societies in the UN GA, the participation of the components of 
> the Movement in the International Conferences of the Red Cross and Red 
> Crescent, in which Sta!
 te!
> s participate, the Headquarters Agreements concluded by the ICRC and the 
> International Federation with many States and acknowledging inter alia the 
> Organisations' diplomatic priviliges and immunities.
> 
> It should also to our mind be made clear in the template that the WG will 
> require to examine and to take into due account also all distinctive grounds 
> substantiating the requirements for the protection and reservation of the 
> designations of the IO's under consideration and which would complement the 
> affiliation of the said names to any given organisation. This should allow to 
> fully and comprehensively reflect the global public interest in their 
> protection. As recalled during yesterday's call, the words "Red Cross" and 
> "Red Crescent" designations require to be protected, as stipulated under 
> international law treaties, in their own right as the designations of the 
> protective emblems of armed forces medical personnel in times of armed 
> conflict (and not only, or exclusively, as part of the names of the 
> respective components of the International Red Cross and Red Crescent 
> Movement, whether those of the International Committee of the Red Cross, 
> International Federation of Red Cr!
 os!
> s and Red Crescent Societies, Afghan Red Crescent or American Red Cross).
> 
> 
> 
> (2) As a second point, we also wish to take this opportunity to emphasize, 
> and thus following certain argumentspresented during the yesterday's call, 
> that the protection of the Red Cross, Red Crescent and Red Crystal and 
> related designations is not being grounded or called for out of "sympathy" 
> for the Red Cross and Red Crescent or for its humanitarian roles, but because 
> the protection of these names stems and is a requirement under universally 
> agreed international norms of international humanitarian law (194, soon to be 
> 195 States partiesto the 1949 Geneva Conventions).
> 
> (3) We take this opportunity to attach the Position Paper which we submitted 
> to the Board on 13 June 2012. There are also, as participants in the former 
> Drafting Group on IOC/RC will recall, a series of other past submissions of 
> the RCRC shared since the beginning of this year.
> 
> 
> 
> With best regards,
> 
> 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
> 
> Christopher M. Rassi
> Senior Legal Officer
> International Federation of Red Cross and Red Crescent Societies 
> Chemin des Crêts, 17|1209 Petit Saconnex |Geneva|Switzerland Tel. +41 
> (0)22 730 4536 | Fax +41 (0)22 733 0395 
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