Re: [soac-mapo] charter and mission

["Mary Wong" <MWong@xxxxxxxxxxxxx>]

Hi everyone,
 
My personal concerns with MAPO remain: (1) the unsuitability of subjecting 
private party transactions to public international law (i.e. the law of 
nations); (2) the lack of clear and universally accepted international legal 
standards for MAPO; and (3) it's possible that introducing a mechanism that 
brings public international law issues into domain name coordination goes 
beyond ICANN's mandate.
 
I'm not a public international lawyer, but let me try to explain my first two 
concerns. For (1), the creation of a gTLD is a private transaction between an 
applicant and ICANN (a private corporation). Public international law - being 
the legal realm within which the human rights treaties were negotiated - is 
concerned with state actors (e.g. did a state comply with its international 
treaty obligations?). The added complication where human rights and MAPO issues 
are concerned is the fact that the existing enforcement mechanisms for 
violation of these treaties are few, usually at best quasi-judicial in nature 
(non-binding) and work within a framework where it is a complaint against a 
state (whether by another state or an individual).
 
For ICANN to set up a MAPO objection process (for which its own Explanatory 
Memoranda acknowledge the influence of various human rights treaties) that 
operates in addition and in parallel to existing international law mechanisms, 
and that does not relate to state actor violations, seems inappropriate and 
possibly even foolish.
 
For (2), ICANN itself has acknowledged (in its May 2009 Explanatory Memorandum) 
that the MAPO standards do not rise to what public international lawyers call 
"jus cogens" (high-level universal norms). It simply does not seem adequate to 
adopt standards that certain legal experts (as yet unnamed) consider "generally 
accepted" based on a comparative study of 8 countries that purported to be a 
"representative sample of countries in each region of the world".
 
On this point, it could be helpful if ICANN could make available - at least to 
this group - its own background and research materials, including the actual 
questions posed to the legal experts, their actual opinions and identities. 
These could be posted to the wiki as additional source materials for us as we 
proceed with our discussions.
 
Basically, it seems to me that our discussions center around the following 
questions:
(1) Should there be a MAPO objection process at all?
(2) If yes, is it even possible to have standards that would either be 
inoffensive or acceptable to everyone? Are any of the existing MAPO standards 
in DAGv4 inoffensive or acceptable? Are there others, not listed, that could be?
(3) If the answer to (1) is no, what (if anything) should be done about 
applications that violate international legal norms/laws?
 
(ancillary questions might include - what is the technical risk of a fragmented 
Internet caused by national governments exercising their sovereign rights to 
block certain sites/strings? What is ICANN's legal liability/exposure 
with/without a MAPO objection process? etc.)
 
I hope these ramblings will help move our discussion forward, and thanks to 
Richard and Robin for posting the source materials to the wiki!
 
Cheers
Mary
 
 
 
Mary W S Wong
Professor of Law & Chair, Graduate IP Programs
Franklin Pierce Law Center
Two White Street
Concord, NH 03301
USA
Email: mwong@xxxxxxxxxxxxx
Phone: 1-603-513-5143
Webpage: http://www.piercelaw.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: 
http://ssrn.com/author=437584


>>> 


From: Avri Doria <avri@xxxxxxx>
To:<soac-mapo@xxxxxxxxx>
Date: 7/10/2010 3:28 PM
Subject: Re: [soac-mapo] charter and mission

> There are also internationally agreed conventions against racial and gender 
> discrimination which provide a positive basis for excluding certain names. 

These are the sorts of thing that fall under the MAPO exception process.  And I 
would argue pretty much the only things that legitimately fall under the MAPO 
clause as originally recommended and as current defined (though inflammatory 
phrases may as well in some rare occasions).  but other than the MAPO objection 
procedure, how else do you expect these to be objected to.

that is why I argue that the current condition are both necessary and 
sufficient.

What specifically makes it unworkable?

a.



On 10 Jul 2010, at 14:05, Milton L Mueller wrote:

> 
> Agree with W. Drake's understanding of the origin and purpose of this group.
> 
> My view (and that of NCUC from the beginning) was that MAPO as constructed by 
> staff was and is unworkable. Robin Gross may want to dig up the numerous 
> memos we sent to staff back in the 2007 time frame and add them to Richard 
> Tindal's list of source materials. As the US govt's GAC rep explained in 
> Brussels, MAPO is grounds for a national _exemption_ to international 
> recognition of names, it is not a global, uniform standard for deciding which 
> names are or are not acceptable. Since there is no global standard for 
> morality and public order, we should simply drop that term (whether we like 
> to call it MOPO or MAPO). 
> 
> However, rather than "replacing" MAPO with something else, I am hoping that 
> this group can come to an agreement that we simply don't need anything to 
> replace it. This does not mean that anything goes in the top level name 
> space. It simply means that there already are agreed international 
> conventions and standards, coupled with ICANN procedures, that meets whatever 
> legitimate concerns are out there. 
> 
> As several people pointed out during the GAC meeting, there is an objection 
> process when names are associated with communities or linguistic groups. 
> 
> There are also internationally agreed conventions against racial and gender 
> discrimination which provide a positive basis for excluding certain names. 
> 
> Let us also not forget that freedom of expression guarantees are part of the 
> enumerated international agreements that must be respected by this process.
> 
> --MM
> 
> 
>> -----Original Message-----
>> From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On
>> Behalf Of Avri Doria
>> Sent: Friday, July 09, 2010 6:51 PM
>> To: soac-mapo@xxxxxxxxx
>> Subject: Re: [soac-mapo] Re: some source documents
>> 
>> 
>> 
>> Hi,
>> 
>> We all volunteered for this group.
>> 
>> Do we have a charter?
>> 
>> Do we have a mission?
>> 
>> Are we here to provide arguments that the MAPO solution in DAGv4 is
>> sufficient and shouldn't be messed with?
>> 
>> Or do we have some other purpose?
>> 
>> 
>> I admit I was rather shaken up when GAC resurrected the subject with the
>> lines that they did not understand the solutions and had not been
>> consulted.  I know I consulted them at the time, I can't say anything
>> about why they don't understand it now.
>> 
>> So while I think it might be useful to try and explain why the DAGv4
>> MAPO solution is  sufficient, I do not know if that is our mission.
>> 
>> I should note that my arguments for DAGv4 being both necessary and
>> sufficient are my own and not supported by NCSG.  We have not polled on
>> it lately and I expect we would be of  mixed viewpoint.  At the time
>> that the new GTLD recommendations were voted on, NCUC was very much
>> against the MAPO recommendations and made no secret of it.
>> 
>> Oh yeah, one other question: do we have wiki space to start stashing the
>> reference materials?
>> 
>> a.
> 





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