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

["David W. Maher" <dmaher@xxxxxxx>]

Then let's focus on improving the existing and proposed RPMs (UDRP, TMCH,
URS) so that the IGOs have the protection they afford.
David W. Maher
Senior Vice President ­ Law & Policy
Public Interest Registry
312 375 4849 




On 12/5/12 10:39 AM, "Shatan, Gregory S." <GShatan@xxxxxxxxxxxxx> wrote:

>
>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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