RE: [gnso-iocrc-dt] FW: Session on IOC/RC

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

I think these comments miss the point, in part because the picture that the 
OECD is seeing is incomplete.  I would refer them back to the GAC's original 
letter, which referred to the tapestry of protection for IOC and RCRC names 
based on both treaty protection and the protection afforded by specific 
national laws of many jurisdictions.  To reduce this to a "battle of the 
treaties" is to ignore half the picture.  The "criteria" referred to is the 
combination of treaty protections and national law protections, not those of 
treaty protection.
 
The discussion of whether the IOC and RCRC organizations can conclude treaties 
or are "subjects" of international law is interesting, but completely 
irrelevant.  No one ever contended that the IOC and RCRC could conclude 
treaties, and the fact they cannot is beside the point.  The references in the 
meeting to "international law" were, I believe, just references to the treaties 
relevant to the IOC and RCRC, not to public "international law" per se.  As a 
technical matter, the reference to "international law" may have been 
inaccurate, since "international law" (or at least "public international law") 
is by the law governing relationships between nations, or between nations and 
intergovernmental organizations.  This is not what was meant by "international 
law" in the context of last week's discussion.  This may be confusing to 
someone listening in after the fact, but it is the nature of oral give and take 
that people will speak colloquially to get their point across, even if what 
they say isn't exactly the accurate term for what they mean.  Furthermore the 
meeting was intended primarily to discuss and explore the consensus proposal 
that the DT had developed, rather than to serve as an exposition of the 
justifications for the protections in the first place.  To use the statements 
made in that meeting as a complete understanding of the reasoning for the IOC 
and RCRC protections is to put a weight on the meeting that it was never 
intended to bear.
 
I hope that the OECD and other intergovernmental organizations can understand 
the accurate picture of the "criteria" we considered and reconsider the 
statements below.  While we should welcome their input, a discussion that is 
based on a mischaracterization is only going to be a dead end.
 
Thank you.
 
Greg
 
Gregory S. Shatan 
Deputy Chair| Tech Transactions Group 
IP | Technology | Media 
ReedSmithLLP 
The business of relationships
599 Lexington Avenue
New York, NY 10022
212.549.0275 | Phone
917.816.6428 | Mobile
212.521.5450 | Fax
gshatan@xxxxxxxxxxxxx
www.reedsmith.com 

________________________________

From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx] On 
Behalf Of Neuman, Jeff
Sent: Saturday, March 10, 2012 1:23 PM
To: gnso-iocrc-dt@xxxxxxxxx; council@xxxxxxxxxxxxxx
Subject: [gnso-iocrc-dt] FW: Session on IOC/RC
Importance: High



Councilors and Drafting Team Members,

 

FYI. Please see some communication we just received from the OECD on the 
discussion this morning on the IOC/RC names and the difference between those 
names and IGOs.

 

Jeffrey J. Neuman 
Neustar, Inc. / Vice President, Business Affairs

 

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From: Glen de Saint Géry [mailto:Glen@xxxxxxxxx] 
Sent: Saturday, March 10, 2012 12:19 PM
To: Neuman, Jeff
Cc: gnso.secretariat@xxxxxxxxxxxxxx; Margie Milam
Subject: TR: Session on IOC/RC
Importance: High

 

Dear Nicola,

 

Thank you very much for your email. I have transmitted this to the working 
group's mailing list and their chair, Jeff Neuman.

Kind regards,

 

Glen

 

Glen de Saint Géry

GNSO Secretariat

gnso.secretariat@xxxxxxxxxxxxxx

http://gnso.icann.org

 

De : Nicola.BONUCCI@xxxxxxxx [mailto:Nicola.BONUCCI@xxxxxxxx] 
Envoyé : samedi 10 mars 2012 19:06
À : Glen de Saint Géry
Cc : Alexandra.EXCOFFIER-NOSOV@xxxxxxxx; Jill.SCHUKER@xxxxxxxx; 
Sam.PALTRIDGE@xxxxxxxx
Objet : Session on IOC/RC
Importance : Haute

 

Dear Glen,

 

I just heard part of the session on IOC/RC that you were chairing.  Let me 
first congratulate the GNSO Working Group for its transparency in putting this 
session live.....I have to say however that ,as an international lawyer working 
in public international law for 25 years, I heard several statements that would 
 cause any public international lawyer to jump on his/her seat  such as "The 
IGO's do not meet the same "criteria" than IOC/RC based on international law" 
(sic...)

 

Such statements do not stand scrutiny.  

 

First, it should be noted that in public international law only states and 
intergovernmental international organizations are considered subjects of 
international law.  This is clearly recognized by the 1986 Vienna Convention on 
the Law of Treaties between States and International Organizations and between 
International organizations (see   
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_2_1986.pdf) 
which indicates that only "intergovernmental organizations" can conclude 
treaties.  With all due respect for the two institutions in question they do 
not meet the 1986 Convention criteria .

 

Second, if you look at the treaty protection offered by public international 
law to the names and acronyms of IGO's it is difficult to argue that it is not 
at least comparable if not stronger than the one offered to the two 
institutions in question.

 

I understand that GNSO and ICANN in general is concerned with precedent but I 
cannot but restate what the IGO already wrote in December 2011.  We continue to 
stand ready to find a solution within the ICANN framework which we fully 
respect  but we are not ready to give up what we consider to be a legitimate 
and reasonable request .

 

While I am not in Costa Rica I am ready to join any discussion via internet or 
on the phone (you had suggested a further GNSO working group discussion 
tomorrow at 12h00) and as you may know the OECD is represented in San José by 
Sam Paltridge whom you can get in touch with too.

 

Best regards

 

 

 

 

 

Nicola Bonucci
Director & Accession Coordinator / Directeur et coordonnateur de l'adhésion

Directorate for Legal Affairs / Direction des affaires juridiques

                

 

2, rue André Pascal - 75775 Paris Cedex 16 
Tel: +33 1 45 24 80 77 - Fax: +33 1 44 30 62 45

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<http://www.oecd.org/> 

 

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