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

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

These may be part of the solution here and these should be considered, but I 
don't think it will provide a complete solution.  

-----Original Message-----
From: David W. Maher [mailto:dmaher@xxxxxxx] 
Sent: Wednesday, December 05, 2012 11:50 AM
To: Shatan, Gregory S.; Avril Doria; gnso-igo-ingo@xxxxxxxxx
Subject: Re: [gnso-igo-ingo] RCRC Comments on the WG IGO/INGO template

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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