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

[Richard Tindal <richardtindal@xxxxxx>]

I dont think it's a veto.  I think it's simply an Objection that is then 
considered against certain criteria  - with no guarantee the objection will be 
successful

To my mind one of those criteria would be the context you describe below.

R


On Sep 7, 2010, at 11:18 AM, Milton L Mueller wrote:

> Mary:
> What gives a government in, say, Saudi Arabia the authority to veto a TLD 
> application based in, and legal in, say, Denmark?
>  
>  
> From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf 
> Of Mary Wong
> Sent: Tuesday, September 07, 2010 9:58 AM
> Cc: 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 writingsavailable 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")
>  
>  
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