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[ga] Re: "Does it make a difference that the ccTLD community..." ???
On Tue, 25 Mar 2003, Ramesh Kumar Nadarajah wrote:
>
> 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
that's just local law
> 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"?
It usually takes much longer than that. Depends also how many.
>
> 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.
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>
> >>
> >>
> >>
> >
> >
> >
>
>
--
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
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