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Re: [ga] New TLD White Paper released
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.
On Mon, 24 Mar 2003 eric@hi-tek.com wrote:
> Professor Froomkin et al,
>
> In law it is my limited understanding that we follow the authority as such;
> 1. Written statute;
> 2. Precedence
> 3. Contract
> And if all that is a contradictory mess - we look to the course and
> conduct between the parties and the custom and practice of the trade
> to determine the rules applied in an IRAC (issue, rule, application
> and conclusion) manner.
> Of course I am not a lawyer although I have practised and taught in
> the past, it would seem that applying these principals would lead us
> to the conclusion, barring well based legal argument to the contrary,
> that these are matters of sovereignty. If you have any of the
> foregoing that is contrary, I would be most interested. It is poor to
> argue that a void of law leads to a void of rights.
>
> Eric
>
> "Michael Froomkin - U.Miami School of Law" wrote:
>
> > I, of course, argued that no such right exists. For it to exist it must
> > have a source. The name is a convenience created by a private standards
> > body and used on a private network. How could it become a subject of
> > public international law? No one has ever been able to explain this to me
> > except to say they think it would be a nice result. But to be legal it
> > has to have a legal mechanism. What is it?
> >
> > On Mon, 24 Mar 2003, Rodrigo Orenday Serrato wrote:
> >
> > > What about the right of a nation over the ccTLD that corresponds to it
> > > (provided that the ccTLD in question in fact corresponds to a nation-state).
> > >
> > > As Prfr. Froomkin put it in one of his papers (please note that this is not
> > > an exact quote), sovereign nations may come to hold the position that
> > > control over the ccTLD assigned to them is an "appurtenance" of their
> > > sovereignty. Spain and Colombia have, for example.
> > >
> > > I do beleive that the right of sovereign nations, and other subjects of
> > > public international law, to control their ccTLD should be acknowledged.
> > >
> > >
> > > Atentamente, Regards
> > > Rodrigo Orenday Serratos
> > >
> > >
> > > -----Mensaje original-----
> > > De: owner-ga@dnso.org [mailto:owner-ga@dnso.org]En nombre de Eric
> > > Dierker
> > > Enviado el: Sábado, 22 de Marzo de 2003 06:24 PM
> > > Para: jefsey@club-internet.fr
> > > CC: steinle@smartvia.de; baptista@dot-god.com; ga@dnso.org
> > > Asunto: Re: [ga] New TLD White Paper released
> > >
> > >
> > > I can show you! Try, it.com.vn
> > > I do not buy into the TLD garbage but I buy into ccTLD market.
> > > We must back it up with secondary market contributers.
> > > e
> > > > At 04:08 20/03/03, steinle@smartvia.de wrote:
> > > >>Please show me only one case where your sole rights in a TLD was
> > > >>acknowledged.
> > > >
> > > > No one has right in an TLD, as no one as right into a nation.
> > > > Exept to some extend its registrants.
> > > >
> > > > That ICANN has accepted an absurd economical model
> > > > where people buy their own name or lose them, does not
> > > > change anything to this.
> > > >
> > > > Please eread RFC 920 and 1591.
> > > > jfc
> > > >
> > > >
> > > > --
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> > >
> > >
> > > --
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> > >
> > > --
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> > >
> > >
> >
> > --
> > Please visit http://www.icannwatch.org
> > A. Michael Froomkin | Professor of Law | froomkin@law.tm
> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> > +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
> > -->It's warm here.<--
>
>
--
Please visit http://www.icannwatch.org
A. Michael Froomkin | Professor of Law | froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
-->It's warm here.<--
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