[ga] Re: "Does it make a difference that the ccTLD community..." ???

[Ramesh Kumar Nadarajah <ramesh@mimos.my>]

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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