Re: [ga] New TLD White Paper released

["Roberto Gaetano" <ploki_xyz@hotmail.com>]

Michael Froomkin wrote:
>
>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?

I did not search high and low, so I'm speaking only from impressions and 
without facts.
I believe Prof. Froomkin to be correct: I would be very much surprised if 
such legal foundation did formally exist, given the way the IANA delegation 
of the cc started.

However, there has been an attempt to root the ccTLDs in the related 
country, proven at least by two facts:
- no delegation has been granted (in the early days) against the will of the 
government of the country owning the ISO-3166 code string
- some (weak) requirement of location of the registry have been introduced

Of course, as noted repeatedly by numerous witnesses of the early days of 
the Internet, Ion Postel was operating in a situation in which there was 
simply a lack of legal international infrastructure, operating a formally 
private service with the understanding (by him, but not necessarily by 
everybody else) that the service might have acquired world-wide relevance. 
Hence, IANA avoided getting trapped into "what is a legitimate country" and 
relied on an international standard, i.e. ISO-3166, and "best judgement" 
(given the circumstances) about the delegation.

The great scheme of things was:
- a set of country-related TLDs, managed in principle by each sovereign 
country in ways that they would best choose, given the different political 
and economical model (centralized, decentralized, state-owned, privately 
owned, subcontracted, etc.);
- a set of general-purpose TLDs, not related to a specific geography, and 
delegated via a bid process.

For the second part, we all know how it ended. But this had a disastrous 
effect also on the first part, because it is simply the artificial shortage 
of gTLDs that has increased the interest in ccTLDs.

Back to the original points in the thread:
1. Yes, indeed, there is currently no international legal framework that 
assigns the ccTLDs to the country that owns the corresponding ISO-3166 code, 
which means that in principle any ccTLD could be delegated to any 
organization. The question is: should an international legal framework be 
created? Or, put it differently, is it reasonable that a sovereign country 
has control on a unique resource that identifies it in the Internet? If the 
answer is yes, the second question will obviously be how to manage the (few) 
situations in which this is currently not the case. On this subject, Prof. 
Froomkin might have more experience, but I believe that it happens all the 
time that private interests collide with public interests, and there are 
ways to pay off the private business (think about building a new highway on 
private property, for instance).
2. Prof. Mueller's paper, that I still lack the time to digest in its 
entirety, seems to me to provide an important contribution to the debate. 
Personally, I do believe that in one way or the other ICANN has to come up 
with a reasonable solution to the delegation of new TLDs, we might as well 
discuss how. To delay this process further is not an option.

Another point was brought by John Berryhill, namely the way to "force" the 
root operator, subject to the law of his/her country, to obey a redelegation 
mandated by a different country, using these words:
>
>...  How do you propose they exercise their "right"?  Invade?

We can all see that these days this type of solution can be applied as 
alternative to international law, but I still think that there are better 
ways to operate. What about to have the A-root under international 
jurisdiction? I know, it's not the first time I say that, but I thought 
that, given the current international situation, this should be restated.

Best regards
Roberto



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