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

[Bertrand de La Chapelle <bdelachapelle@xxxxxxxxx>]

Mary, just one point :

Are you going in the direction of considering that a national government is
actually "an established institution" eligible to object through the
Community objection procedure if a string has  an impact on a "clearly
delineated group" with which it has "an ongoing relationship" (the standing
criteria for community objections) ? This would allow governments to stand
for a portion of their citizens that could be impacted negatively by the
given string (hence probably covering a part of the GAC request).

It could also solve a potential problem if a community is not aware of the
process (risking to let the objection window lapse) or does not have the
financial means to fill an objection.

I think we should seriously consider in the group whether and how the
community objection procedure could be used to cover some of the cases that
we try to deal with.

Following Mark's comment, there is also the question of the possible role of
the GAC to channel/filter/sort/preprocess such objections.

Best

Bertrand


On Tue, Sep 7, 2010 at 5:13 PM, Mary Wong <Mary.Wong@xxxxxxxxxxx> wrote:

>  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 LAW Two White Street Concord, NH
> 03301 USA Email: mary.wong@xxxxxxxxxxx Phone: 1-603-513-5143 Webpage:
> http://www.law.unh.edu/marywong/index.php Selected 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 LAW Two White Street Concord, NH
> 03301 USA Email: mary.wong@xxxxxxxxxxx Phone: 1-603-513-5143 Webpage:
> http://www.law.unh.edu/marywong/index.php Selected 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*
>
> _______________________________________________
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> https://mm.icann.org/mailman/listinfo/gac
>
>


-- 
____________________
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")