Re: [soac-mapo] Third "draft recommendation" (individual government objections)

["Mary Wong" <Mary.Wong@xxxxxxxxxxx>]

Thanks, Chuck - the Quick Look may not be the most appropriate. Perhaps
Evan's suggestion of some addition/modification of the Community
objection procedure, i.e. "Community & National Government Objections"?
Here's why:
 
To me, there's a substantial (and substantive) difference between an
objection which is grounded on recognized principles of international
law (such as universal human rights enshrined in longstanding treaties)
versus one that is based on national sovereignty (and thus more diverse
national viewpoints).
 
The former MAY be justified - IF confined within recognized categories
(i.e. international law) and only to the extent that TLDs that clearly
contravene principles of international law should NOT be approved. The
latter should, however, be restricted to the limits of national
sovereignty (i.e. each government makes its decisions based on its
applicable national laws where such laws go beyond the limits of
international law), e.g. blocking objectionable strings. 
 
>From the call yesterday, a prime GAC concern seems to be "whether - and
how - can national governments (aside from resorting to blocking) raise
concerns if an applied-for string is objectionable to them?" I suggest
that, at best, such "objections" can't be simply because the string is
insulting, offensive or politically/culturally sensitive UNLESS it
contravenes a particular national law. In that case, then what this
group should consider is:
 
(1) whether or not there should be a procedure for individual
governments to raise this as an objection, or just leave it to national
action (e.g. blocking); and
(2) if yes, how (and in this I don't think it should be a full-blown
DRSP procedure since the question is basically one of national and not
international law.Thus, either a form of Quick Look, or a modification
of the Community Objections process, or some other acceptable mechanism,
could be used.)
 
I hope this clarifies,
 
Mary
 
 
  
  
 
Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH
03301USAEmail: mary.wong@xxxxxxx.eduPhone: 1-603-513-5143Webpage:
http://www.law.unh.edu/marywong/index.phpSelected writings available on
the Social Science Research Network (SSRN) at:
http://ssrn.com/author=437584

>>> 


From: "Gomes, Chuck" <cgomes@xxxxxxxxxxxx>
To:<Mary.Wong@xxxxxxxxxxx>
CC:<soac-mapo@xxxxxxxxx>
Date: 9/7/2010 10:41 AM
Subject: Re: [soac-mapo] Third "draft recommendation" (individual
government objections)
Thanks for the constructive thinking Mary. I think it is important to
remember that the quick look process was designed to eliminate frivolous
complaints. Should single government complaints be judged as frivolous
or would it be more appropriate to let a DRSP make the evaluation
whether the concern fails to meet criteria?

Chuck

 
From: Mary Wong [mailto:Mary.Wong@xxxxxxxxxxx] 
Sent: Tuesday, September 07, 2010 09:57 AM
Cc: soac-mapo@xxxxxxxxx <soac-mapo@xxxxxxxxx> 
Subject: RE: [soac-mapo] Third "draft recommendation" (individual
government objections) 
 
Would the GAC's concern be sufficiently addressed, and Principle G
satisfied, if the following process (or something like it) was to be
followed?
 
[adopting and amending Marika's and Bertrand's language]

Draft recommendation : The Applicant Guidebook should allow individual
governments to file an objection based on national public interest
concerns THAT ARE SPECIFIED BY THE OBJECTING GOVERNMENT AS BEING
CONTRARY TO NATIONAL LAW.
 
[new suggestion follows]
 
Such national objections shall be subject to the Quick Look procedure
under which a suitably-qualified legal expert will render an opinion as
to whether the objections raise a substantive legal issue as to
contravention of the applicable national laws. Such a finding may
[would?] not lead to a full objection procedure ... [FOLKS: need help
here as to whether government objections based on national law/interests
should trigger a full dispute resolution process or just lead to
blocking or ... ?]
 
The above is on the assumptions that (1) we retain a Quick Look
procedure; and (2) such a procedure will accommodate BOTH a "regular"
objection filed based on the final [narrow and specific] standards in
contravention of principles of international law AND such specific
national government objections.
 
[and then returning to Bertrand's suggestion]
 
Individual governments may, in the last resort, block APPROVED TLDs
UNDER THEIR RESPECTIVE NATIONAL LAWS WHERE SUCH TLDs HAVE BEEN
DETERMINED TO BE IN POSSIBLE CONFLICT WITH APPLICABLE NATIONAL LAWS. THE
CURRENT RECOMMENDATION IS NOT INTENDED TO ENCOURAGE ANY SUCH BLOCKING
BUT TO ENSURE THAT NATIONAL GOVERNMENTS have THE ABILITY to be heard AS
PART OF THE EVALUATION process and be provided the opportunity to RAISE
RELEVANT SUBSTANTIVE OBJECTIONS REGARDING THE POTENTIAL PUBLIC IMPACT OF
AN APPLIED-FOR STRING.
 
I haven't had the chance to consider how best to fold the above into
Richard's and others' great suggestions from last week, but wanted the
group to have the opportunity to review this suggestion before today's
call if possible.
 
Cheers
Mary
Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH
03301USAEmail: mary.wong@xxxxxxx.eduPhone: 1-603-513-5143Webpage:
http://www.law.unh.edu/marywong/index.phpSelected writings available on
the Social Science Research Network (SSRN) at:
http://ssrn.com/author=437584
>>> 


From: "Gomes, Chuck" <cgomes@xxxxxxxxxxxx>
To:"Bertrand de La Chapelle" <bdelachapelle@xxxxxxxxx>
CC:"Marika Konings" <marika.konings@xxxxxxxxx>, <soac-mapo@xxxxxxxxx>
Date: 9/7/2010 9:28 AM
Subject: RE: [soac-mapo] Third "draft recommendation" (individual
government objections)

Bertrand,
 
I think the ‘evaluation process’ is a much longer period than the
‘objection period’, the latter being a subset of the former.  Which
would you prefer?
 
Chuck
 

From: Bertrand de La Chapelle [mailto:bdelachapelle@xxxxxxxxx] 
Sent: Tuesday, September 07, 2010 8:59 AM
To: Gomes, Chuck
Cc: Marika Konings; soac-mapo@xxxxxxxxx
Subject: Re: [soac-mapo] Third "draft recommendation" (individual
government objections)

 
Good question Chuck, 

 

"Introduction process" was intended to cover the whole process from
submission to delegation, ie : before the TLD is actually entered in the
root. The idea was to distinguish the two phases : the capacity to voice
objections before the final decision, and the last resort option to
block if the TLD is introduced.

 

But you are right and we could instead use a term of the DAG, like "the
evaluation process" or "during the objection period".

 

B.

On Tue, Sep 7, 2010 at 2:40 PM, Gomes, Chuck <cgomes@xxxxxxxxxxxx>
wrote:

It seems to me that Bertrand’s suggestions are helpful.  Does anyone
disagree?  I do have one question though: what is meant by ‘introduction
process’?  Is that the ‘Initial Evaluation Process’ or something
different?  We should use a term that is used in AGv4.
 
Chuck
 

From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On
Behalf Of Bertrand de La Chapelle
Sent: Tuesday, September 07, 2010 8:23 AM
To: Marika Konings
Cc: soac-mapo@xxxxxxxxx
Subject: [soac-mapo] Third "draft recommendation" (individual
government objections)

 
Marika,

 

The third "draft recommendation" listed below says : 

 



Draft Recommendation: Clarify that in the current Draft Applicant
Guidebook, Individual governments are able to file an objection based on
a national concern. At the end of the day, national governments will
block what they don't like, but they have to be heard and make their
case and the potential impact it might have.

 

I am not sure the DAG 4 allows this already. Or have I missed something
?

 

The current DAG envisages only the four specific types of objection :
string confusion, legal rights, MaPO and community. The MaPO objection
process is the one we are talking about here (even if renamed). But in
the current MaPO wording, there is no possibility, as far as I
understand, for a particular government to voice an objection that is
not linked to a general objectionability (according to principles of
international law), but related to its own public interest concerns (ie
:"sensitivities" to take the GAC wording).

 

If the group considers, as Konstatinos rightly put it, that :
governments "have to be heard and make their case and the potential
impact it might have", we may need to clarify the conditions for such an
objection by one or a few governments.  

 

So I suppose that what we actually mean is the following :

 



Draft recommendation : The Applicant Guidebook should allow individual
governments to file an objection based on specific national public
interest concerns.

 

On a side note, the wording of the second sentence could be improved by
saying something like : 

 



Individual governments may, in the last resort, block by law TLDs
raising public interest concerns at the national level, but they have to
be heard in the introduction process and be provided the opportunity to
make their case and describe the potential impact the TLD might have.

 

In other words, the idea is to provide the avenue for a fair hearing of
governments concerns in the introductory process, recognizing that if
the string is approved nonetheless, they will retain in any case the
possibility to block.

 

I hope this helps.

 

Best

 

Bertrand

 

 

On Mon, Sep 6, 2010 at 11:45 PM, Marika Konings
<marika.konings@xxxxxxxxx> wrote:

Dear All,

Please find below the draft recommendations that came out of today’s
CWG Rec 6 WG meeting. For those on the call, please let me know if I’ve
missed or misstated anything. For those of you that were not on the
call, if you do not agree with one or more of these draft
recommendations, please share your objection and reason for objection
with the mailing list. 

USE OF MORALITY & PUBLIC ORDER TERMS 

Draft Recommendation: Remove the references to Morality & Public Order
in the Draft Applicant Guidebook as far as these are being used as an
international standard and replace them with the term ‘Public Order
Objections’. Further details about what is meant with ‘Public Order
Objection’ would need to be worked out to ensure that it does not create
any confusion or contravene other existing principles such as principle
G.

INTERNATIONAL PRINCIPLES OF LAW 

Draft Recommendation: Give serious consideration to other treaties to
be added as examples (see list circulated by Marilyn Cade) in the Draft
Applicant Guidebook, noting that these should serve as examples and not
be interpreted as an exhaustive list.

Draft Recommendation: Clarify that in the current Draft Applicant
Guidebook, Individual governments are able to file an objection based on
a national concern. At the end of the day, national governments will
block what they don't like, but they have to be heard and make their
case and the potential impact it might have.

Draft Recommendation: Clarify terminology by using Principles of
International Law instead of International Principles of law to make it
consistent with what GNSO intended (possible implications to be further
discussed in meeting tomorrow with Jones Day lawyer)

HIGH BOARD TRESHOLD FOR APPROVING / REJECTING

Draft Recommendation [For further discussion on tomorrow’s meeting]: To
reject a string for which a recommendation 6 objection has been filed,
there should be a higher threshold of the board to approve a string /
there should be a higher threshold to reject a string / a sub-set might
require a higher threshold to approve.

If you cannot participate in tomorrow’s meeting in which Carroll Dorgan
from Jones Day will participate, please share any questions you would
like to ask him with the mailing list so these can be put forward if
time allows.

With best regards,

Marika 


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-- 
____________________
Bertrand de La Chapelle
Délégué Spécial pour la Société de l'Information / Special Envoy for
the Information Society
Ministère des Affaires Etrangères et Européennes/ French Ministry of
Foreign and European Affairs
Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de
Saint Exupéry
("there is no greater mission for humans than uniting humans")




-- 
____________________
Bertrand de La Chapelle
Délégué Spécial pour la Société de l'Information / Special Envoy for
the Information Society
Ministère des Affaires Etrangères et Européennes/ French Ministry of
Foreign and European Affairs
Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de
Saint Exupéry
("there is no greater mission for humans than uniting humans")




As of August 30, 2010, Franklin Pierce Law Center has affiliated with
the University of New Hampshire and is now known as the University of
New Hampshire School of Law. Please note that all email addresses have
changed and now follow the convention: firstname.lastname@xxxxxxxxxxx.
For more information on the University of New Hampshire School of Law,
please visit law.unh.edu 


As of August 30, 2010, Franklin Pierce Law Center has affiliated with
the University of New Hampshire and is now known as the University of
New Hampshire School of Law. Please note that all email addresses have
changed and now follow the convention: firstname.lastname@xxxxxxxxxxx.
For more information on the University of New Hampshire School of Law,
please visit law.unh.edu