Re: [soac-mapo] charter and mission

[Antony Van Couvering <avc@xxxxxxxxxxxxxxxxxxxx>]

Milton,

I'm wading a little out of my depth here, but I think you have it a bit wrong.  
The Treaty of Paris (the trademark treaty) allows exemptions from recognizing 
trademarks if they are offensive or threaten morality and public order.  It's a 
national exemption because morality and public order cannot, just as you say, 
be applied globally.   

So the idea of a local exemption to an almost-global standard is not so much of 
a problem: there are models and templates to follow, such as the Treaty of 
Paris for trademarks. 

For the GAC at least, the issue -- as explained by Suzanne Sene, the US rep on 
the GAC -- is rather different.  Here's what she said at the GAC meeting.  In 
fact she said it on multiple occasions, there are several quotes like this.   
Since the objection was identified by, and raised by, the US Gov't, it's worth 
listening to what they have to say:

"The problem that we finally identified as basically being
insurmountable is that the proposed approach is exceedingly complex
and possibly highly subjective.  That's just a first observation.

"The bigger problem is that the terms "morality and public order" are
used in the Treaty of Paris as grounds for countries to take an
exception to the obligations they have signed onto.  So, in other
words, the Treaty of Paris pertains to tractor [I think she meant "trademark"] 
protection.  And I hope
our WIPO colleague is in the room, because I will defer to that
expertise.  And that provision in the treaty permits countries to deny
a trademark application on the basis of morality and public order.
But the determinations for the denial are made on a country-by-country
national basis.

"So it is -- the more we thought about it, the more we realized that
this was a very bizarre, if you will, basis for ICANN to create a
foundation for an affirmative decision when it's used in the treaty as
an exception.  So, from our perspective, that tells us -- confirms our
understanding that there is no international law on morality and
public order.  There is no internationally agreed definition of what
morality and public order might encompass.  It is determined on a
country-by-country basis."

In other words, the morality and public order is a local thing, invoked locally 
in relation to something that is otherwise global in scope.  Morality and 
public order are specifically NOT globally defined, and therefore -- according 
to the US government -- ICANN has no business or justification for trying to 
define such a thing.  On the contrary, such a thing can only exist locally, and 
therefore can be the basis of an exception, and never an affirmative global 
standard.  The implication is that if morality and public order were ever 
defined on a global scale, it should be governments doing it by treaty, not 
ICANN by comment periods. 

So this isn't exactly what you said.  Since we're essentially dealing with the 
U.S. Gov't objections, I thought it would be useful to be precise on their 
concerns. 

Antony




On Jul 11, 2010, at 12:04 PM, Milton L Mueller wrote:

> 
>> What specifically makes it [MAPO] unworkable?
> 
> This has already been explained, but I will do it again in more detail. 
> 
> The law relating to MAPO is an EXCEPTIONS process. It allows national 
> governments to refuse to recognize things that other governments recognize 
> and that they would be obligated by treaty to recognize, by invoking their 
> own, _local_ standard of morality/public order. 
> 
> Example: suppose Denmark (used entirely for illustration purposes) grants the 
> trademark <obsceneword>. Under international treaties other countries are 
> supposed to recognize that TM. But with the MAPO exception a country (say, 
> Burundi) can say, "sorry, we don't recognize that TM in our country." In 
> other words, MAPO does _not_ allow Burundi to shoot down the granting of the 
> TM <obsceneword> in Denmark and everywhere else in the world. It simply 
> allows Burundi to exempt itself from recognition of that trademark in its own 
> jurisdiction. 
> 
> To summarize, MAPO explicitly recognizes that there _are no_ globally 
> applicable standards of morality and public order! It is an exceptions 
> process that restricts the applicability of a global agreement within a 
> national jurisdiction. 
> 
> Now if you wanted to translate the MAPO approach directly into the TLD 
> name-granting process, here is how it would work. Someone proposes a TLD; 
> specific countries would object to those TLDs as conflicting with their own 
> local standards of MAPO. Therefore they would announce that they would be 
> blocking the TLD _in their country_, or preventing registrars in their 
> country from selling it or customers from registering it, etc. But their 
> objection would have NO EFFECT outside of their own country. 
> 
> A very important distinction, no?
> 
> As it is now, ICANN's MAPO is constructed to give one country or a small 
> group of countries the right to make a _global_ decision based on their own, 
> parochial standards of morality and public order. This is not only uworkable, 
> it is wrong. Since there is absolutely NO international consensus on such a 
> standard, this is a highly repressive and unacceptable standard - aside from 
> having no basis in international law. 
> 
> --MM
>