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

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

Milton, that's just it - they (and any other individual government)
should not. What I was exploring (based on comments by Bertrand and
other GAC representatives) was the possibility that individual
governments could - based on existing national law and not just
"sensitivities" or a perceived likelihood to offend - raise an objection
of some sort.
 
What I suggest is: (1) an objection (whether by a
person/group/government) *must* be based on law; and (2) if this CWG is
going to recommend that an individual government can lodge a national
law objection, this should *not* be treated the same as an objection
that is based on principles of international law.
 
Based on what we just heard on the call with Jones Day, it seems to me
that:
 
(1) "principles of international law" has a recognized meaning whereas
"international principles of law" does not;
(2) "ordre publique" is not the same thing as MAPO and is a more
recognized and clearer term than "public interest";
(3) there are established international institutions (e.g. the European
Court of Human Rights) that can, and have, determined whether or not
particular actions are against "ordre publique"; and
(4) neither "principles of international law" nor "ordre publique"
extends to cultural sensitivities or potentially offensive (but not
illegal) activities. 
 
May I therefore suggest that:
 
(1) as Evan has suggested, this CWG consider recommending that
individual government objections - if recognized - be dealt with under a
modified Community Objections Procedure rather than a standalone MAPO
process?
 
(2) as I've suggested previously, that any individual government
objections must be based on a clearly-delineated, specific national law
prohibition?
 
(3) as Richard has suggested, MAPO as a title/category be renamed as
something more general (how does "Other Objections Based on Principles
of Ordre Publique" sound)?
 
(4) in addition to the remaining issues, at least on these few, we go
on to consider the specific ordre publique grounds that could/should be
in place (i.e. the 4 existing legal norms identified) and a possible
appeals mechanism?
 
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: Milton L Mueller <mueller@xxxxxxx>
To:"'Mary Wong'" <Mary.Wong@xxxxxxxxxxx>
CC:"soac-mapo@xxxxxxxxx" <soac-mapo@xxxxxxxxx>
Date: 9/7/2010 2:19 PM
Subject: RE: [soac-mapo] Third "draft recommendation" (individual 
government objections)

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 LAWTwo White StreetConcord, NH
03301USAEmail: mary.wong@xxxxxxx.eduPhone: 1-603-513-5143Webpage:
http://www.law.unh.edu/marywong/index.phpSelected 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")

 
 
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