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[ga] Re: "Does it make a difference that the ccTLD community..." ???
Title:
Thank you. That clarifies matters.
But if over the next decade or so:
1. redelegations are demanded by national governments on the basis that the
existing ccTLD manager is not serving the Local Internet Community; and
2. governments begin enacting legislation that they have control over their
portion of cyberspace (however defined and whether enforceable or not)
in your opinion, would that amount to "international custom"?
Thank you again for the clarifications.
- ramesh -
Michael Froomkin - U.Miami School of Law wrote:
Let me clear up a confusion: the "custom" at issue is state practice, not
what private firms do.
Neither ICANN, GAC nor ccTLDs are recognized international state actors.
GAC is an advisory body to a private firm, so even though governments send
representatives it has no status in public international law.
On Tue, 25 Mar 2003, Ramesh Kumar Nadarajah wrote:
Sorry, do not see relevance of a complete list of ccTLDs. If you are
disputing the existence of a ccTLD community, I suppose it comes down to
a question of definitions.
I am referring to the extract from Article 38 of the statute of the
international court of justice as quoted by Prof Froomkin:
"b. international custom, as evidence of a general practice accepted as
law;"
If there is general practice by the members of the GAC, ICANN and the
ccTLDs which are active in the ICANN-related dialogue (whether or not
they form a community), can it be construed as international custom? And
assuming RFC 1591 is the document that records the principle behind that
general practice, if it can be considered a general practice. Could it
be merely a question of time before a behaviour becomes acknowledged as
general practice?
- ramesh -
Jim Fleming wrote:
"Does it make a difference that the ccTLD community..." ???
====
Can you first provide a **complete list** of the TLDs in the so-called "ccTLD community" ?
2-Letter TLDs do not imply ccTLD, they may imply Valuable TLDs, but not so-called ccTLDs.
If the U.S. Government decides to remove .FR and .DE from their root servers, there is little anyone can do about it...and, that
does not remove .FR and .DE from the name space...because modern DNS software does not use ANY root servers...people would be fools
to be tied to a single point of control and failure...
As for the Top 2,048 TLDs...Americans can self-select (via free market selections) which TLDs they prefer...they have the bandwidth
and the new services are tied to having a lot of bandwidth and the rest of the world will not be at that table...the laws of physics
can not be changed...bits only move so fast from one place to another...take for example the RIO situation...you could have 400+
people in meatspace going to the wrong RIO to meet...and they have no bandwidth to be reconnected via the InterNAT...they are being
positioned further and further from the big island with .NET as the center...some of the so-called ccTLDs will of course disappear
into the ocean...literally...
----- Original Message -----
From: Ramesh Kumar Nadarajah
To: Michael Froomkin - U.Miami School of Law
Cc: eric@hi-tek.com ; Rodrigo Orenday Serrato ; jefsey@club-internet.fr ; steinle@smartvia.de ; baptista@dot-god.com ; ga@dnso.org
Sent: Tuesday, March 25, 2003 6:30 AM
Subject: Re: [ga] New TLD White Paper released
Question for the professionals: Does it make a difference that the ccTLD community, ICANN and the GAC operate based on the principle
stated in RFC 1591 which says:
"These designated authorities (i.e. the ccTLD manager) are trustees for
the delegated domain, and have a duty to serve the community.
The designated manager is the trustee of the top-level domain for
both the nation, in the case of a country code, and the global
Internet community."
If they are trustees, the beneficiaries appear to be the nation (state?) for a ccTLD. Equitable ownership?
Regards,
- ramesh -
Michael Froomkin - U.Miami School of Law wrote:
I am afraid you are confusing national law and international law (and
international public law with international private law). What you have
written is (sort of, in a very basic and oversimplified fashion) the rule
for national law. But national law does not (much) extend beyond the
state's borders.
Public International law is quite different. Simplifying, the sources of
international are broadly considered to be those found in Article 38 of
the statute of the international court of justice (cf.
http://www.un.org/Overview/Statute/chapter2.html), to wit:
<blockquote>
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.
</blockquote>
I cannot prove to you a negative, but I have searched high and low -- I am
writing an article about this very issue -- and it is my contention to you
that not a single one of these four sources exists to support the
proposition that a state "owns" the ccTLD whose TLD is identical to the
ISO country code associated with that state as a matter of public
international law. [It cannot be international private law as there is
neither treaty nor contract to support this claim.] Note, in this context,
that the ISO is itself a private body. If the matter is so obvious,
surely someone could come up with a citation prior to the GAC's
declaration that this rule was already a fact?
Of course, a state that does not already control its cognate ccTLD could
apply its national rules to take the ccTLD from its domiciliary [since the
delegee of the ccTLD must be resident]. In the absence of some principle
of public international law lodging the ownership of the ccTLD in the
state a priori, the state must do this act in conformity with its own
rules: in some places that means it can expropriate at will, in others it
could threaten to torture the delegee, but in still others it may have to
follow due process and/or offer compensation.
The significance of the debate we are having is that, were it the case
that there were an existing rule of public international law which stated
that ownership of the ccTLD was (always?) (inalienable?) vested in the
state, even a civilized state would not need to observe domestic due
process, and would never need to provide compensation, but could simply
take the ccTLD directly.
There are indeed rights here, but they are rights that sound in
international private law: the rights of the ccTLD delegate to the quiet
enjoyment of his agreement with IANA during good behavior without
interference from outsiders to the relationship.
I hope this has helped you understand why you have used false premises to
reason to an incorrect conclusion.
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