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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

That does clarify Mary.  Thanks.

 

Chuck

 

From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On Behalf Of 
Mary Wong
Sent: Tuesday, September 07, 2010 11:14 AM
Cc: soac-mapo@xxxxxxxxx
Subject: Re: [soac-mapo] Third "draft recommendation" (individual government 
objections)

 

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 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 
<http://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 
<http://law.unh.edu>