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

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

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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