Re: [soac-mapo] Draft recommendation 5 (Board Voting Threshold)

[Richard Tindal <richardtindal@xxxxxx>]

I agree.  In the 'first scenario"  (strings alleged to be contrary to GPIL) a 
simple majority should endorse a DRSP recommendation and a 'super-majority 
should be needed to overturn'.

If we are able to agree on a standard for the second, and more complex scenario 
(strings alleged to be contrary to national interests/ laws) I think the voting 
may vary from above --- but I think its more logical to define the standard for 
this scenario first,   and then debate its voting threshold.

RT



only be required if we allow the Board to overturn the DRSP recommendation.

On Sep 7, 2010, at 8:45 AM, Bertrand de La Chapelle wrote:

> Dear all,
> 
> Following our discussion yesterday evening and Chuck's request for further 
> detailing my comments, please find below some elements regarding Draft 
> recommendation 5, currently worded as follows :
> 
> 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.
> 
> Apologies for the length of the email, but I'm trying to be as clear as 
> possible (including in my own thoughts :-)
> 
> In relation with my earlier comments, we are potentially facing two types of 
> public interest objections :
> 1) invocation of what we could call "global objectionability" : it is argued 
> that the string is contrary to General Principles of International Law (if I 
> take Mary's formulation correctly)
> 2) invocation of more local public interest concerns : one or a few 
> governments on the basis of their particular legal system (or "sensitivities" 
> to use the GAC terminology), and maybe this option is also open to other 
> actors (to be discussed further)
> 
> Let's address them separately. This mail is devoted to the first case : 
> global objections.
> 
> In this case (global objection, universally repugnant term, whatever we label 
> it), I understand from our discussions that the DRSP will, on the basis of 
> existing international agreements or decisions by international courts, 
> produce a recommendation. It is likely that this DRSP recommendation will be 
> rather unambiguous : either the string is contrary to General Principles of 
> International Law (a new acronym : GPIL) or it is not. 
> 
> This recommendation would be formal expert advice but non fully binding for 
> the Board. This means that in theory, the Board could either follow the 
> advice or not follow it. Then, we could envisage the following rule :
> 
> If the Board follows the recommendation, a simple majority should be 
> sufficient :
> 
> If the string is declared NOT in contradiction with GPIL, the string has 
> cleared objection and a simple majority should be enough. 
> 
> If, on the contrary, the string IS found in contravention with GPIL by the 
> DRSP (ie it recommends NOT to approve the string), the string is considered 
> extremely objectionable and a simple majority should suffice for the Board to 
> follow the advice (ie : not approve the introduction of this particular TLD). 
> This is actually the majority rule for other objections, if I am not 
> mistaken. 
> 
> If, on the other hand, the Board decides to go against the recommendation of 
> the DRSP (a possibility if we maintain the non-binding principle), it would 
> have to vote with a super-majority (threshold to be discussed) :
> 
> It would be indeed a major decision by the Board to either allow a TLD that 
> has been considered globally objectionable by the DRSP or, on the contrary, 
> to refuse a string that has been cleared by it. A high majority threshold 
> would in my view, be a natural way to give maximum legitimacy to such a Board 
> decision to overturn a DRSP recommendation. The decision should probably also 
> be motivated, given its importance and (hopefully) rare nature.
> 
> It is important in that context to remember that the introduction of a new 
> TLD in the root requires, in all cases, an explicit positive decision by the 
> Board, even if it is a mere one-liner, like for IDN ccTLDs. As a consequence, 
> as long as the Board has not taken a decision, the TLD application remains 
> undecided (which is for all purposes equivalent to being rejected until 
> proven otherwise and we know the problems if it lasts). Therefore, requesting 
> a super-majority instead of a simple majority for the Board to follow a 
> recommendation of rejection could be risky : we could have a DRSP 
> recommendation for rejection, no super-majority to endorse this rejection and 
> no possibility to overturn the rejection either, as a super-majority would be 
> required as well. Hence a blocked situation that could produce the kind of in 
> limbo situation that we certainly want to avoid.  
> 
> In a nutshell, a super-majority would only be required if we allow the Board 
> to overturn the DRSP recommendation. If we ultimately decide to forfeit this 
> option (de facto making the DRSP binding for global objections), then we have 
> a simple majority rule for any global objection (the first category).
> 
> I will deal in a separate mail with the other case (more local objections), 
> as it is the most delicate issue. 
> 
> I hope this helps
> 
> 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")