Nigel, you finish your answer with "encourage this discussion to take place in its appropriate place" and reefer to the ccNSO being so and will probably continue to be so and then you mix judicial with technical matters. But to what degree and framework/by laws is it only a matter for the ccNSO? That is the very core question that has to be discussed! I would like to remind everyone in WS2 that the topic is within the scope of WS2 (as stated clearly during WS1, first time stated and noted at the initial Frankfurt meeting January 2015 by the then co-chairs). If there is no group including the topic, as you imply Nigel, Niue strongly suggests that is corrected or a group is formed. This is a core issue for the the GAC and can not be shrugged under a rug (as said before, "the elephant in the room"). Regards, /Pär Brumark On 2017-08-23 13:01, Nigel Roberts wrote:
This is in danger of veering away from the Charter of this WG, I think.
But unless the Chairs object, I will give a short answer.
Nothing in anything ICANN does can constrain the ability of the sovereign to legislate. This is recognised. It is trite law.
It's also trite law that the Government of a country or territory is the ultimate authority on public policy.
It's a SIP whose views at delegation time are taken seriously into account. This doesn't automatically give it the right to issue orders to ICANN that must be followed.
Nor does it automatically give a government ownership of a ccTLD, just like countries don't automatically own telecoms companies or the railways. (Many did, and some still do).
But countries can exercise their lawful powers in many ways. And RFC 1591 requires an admin contact in the country (not necessarily territory, in the case of territorial ccTLDs, which I know Niue is not).
The admin contact is thereoore automatically subject to the lawful exercise of State (i.e. sovereign) powers.
The true nature of a ccTLD delegation remains unclear - it is quasi-contractual, not statutory or treaty-based. The mere existence of a two letter TLD does not make the property of the sovereign unless that country was one (like North Korea) where a state actor received the delegation from IANA.
I would encourage this discussion to take place in its appropriate place, which is the ccNSO if it relates to global policy that is necessary to be global.
On 23/08/17 10:42, Pär Brumark wrote:
Nigel,
if the issue was, as you claim, matters were settled and solved since long, we would not have this discussion and examples like Niue´s ccTLD .nu would not remain unsolved.
Or?
I would rather say that the matter was buried. Perhaps momentary wisely, in order to avoid some conflicts at the time.
But burying this fundamental issue has lead to inconsistency, long drawn interpretations of the RFC1591 like the FOI that has to be interpitaded in itself by the FOIWG e t c e t c.
It is not about destroying the multi stakeholder model as you claim to fear (with almost apocalyptic scaremongering). I would rather say the opposite - clarifying changes could rather improve the multi-stakeholder model framework and ICANN´s legitimacy.
The world has changed and ICANN has matured and enlarged since the early days when the RFC1591 was the fundament for everything. What you seem to imply is that the only and perfect solution has somehow been found.
Niue can hardly agree with you.
Now, I do not want to harm my message in this answer by using to many references and quotes about how settled the jurisdiction issues NOT are, but the latest attempt to start sorting things out was the very time consuming ccNSO work with The FOI/FOIWG finished in 2015.
The following statement is the GAC´s standpoint regarding the full FOI/FOIWG is from ICANN52, Singapore, 2015.
From the GAC Communiqe, Singapore, 2015:
---
"4.*Framework of Interpretation Working Group (FOIWG) Report *
The GAC notes the work of the ccNSO FOIWG, and its efforts to provide interpretive clarity to RFC1591. The GAC welcomes the FOIWG’s recognition that, consistent with the GAC’s 2005 Principles, the ultimate authority on public policy issues relating to ccTLDs is the relevant government. As such, nothing in the FOIWG report should be read to limit or constrain applicable law and governmental decisions, or the IANA operator´s ability to act in line with a request made by the relevant government.".
---
Best Regards,
Pär
On 2017-08-22 14:39, Nigel Roberts wrote:
Kavouss, Thiago, all
As is clear from the ratio in the Weinstein case, it has not been ruled that the US courts will exercise /in rem/ jurisdiction over ccTLDs. (the question is open -- in rem certainly applies to second level gtld domains, and ccTLD domains registered with a US registrar).
What IS clear, from history, is that ICANN has, in the past, acted in a way that in my country would be defined as 'blackmail'.
Viz: refusing to make IANA changes unless and until a particular country agreed to sign a contract on ICANN's terms over its ccTLD.
Others related to that specific ccTLD can confirm their recollection and may do so.
Whilst you appear to be agreeing with me on the point of subsidiarity, it is clear to me that providing ICANN-PTI with blankey immunity from all actions it could take, would allow it to return to that behaviour, with impunity.
So in fact, ccTLDs would LOSE the subsidiarity they currently enjoy.
I fully understand the concerns regarding OFAC etc. But that's a reason for ICANN to work with the General Licencing regime to mollify those concerned. It's not a reason to give IANA the freedom to do whatever it likes without the Rule of Law applying.
There is no intrinsic problem that needs solving with the ccTLD system.
That system has has been carefully and cooperatively reviewed by ICANN staff, cctLD managers and GAC members over a 7 years period resulting the policy framework we have know.
One concern IS certainly the potential effects of OFAC.
This does need to be explored further and the consideration of the meaning "prohibited transaction" (I don't think ICANN carries out any) and if it does, the obtaining of a general licence.
But this is no reason to tear up the policy work we've done in the ccTLD community over, literally decades, to arrive at the workable system we have today, over the disaster that was ICANN in 2001-2.
And isn't this WG about jurisdiction, anyway?
On 22/08/17 11:50, CISAS wrote:
Dear Mr Roberts,
Thank you for your email.
Please be advised that email addresses that are not commonly sent to CISAS can be interpreted as spam by our server and as such will not be allowed through to the inbox. You original email was un-junked and as such we should experience no further problems receiving your emails.
I am sorry that any information you received from Bintu was incorrect and that you felt my answers were evasive. I have sent you the CEDR Complaints Procedure previously which you will need to use in order to make a complaint about the CISAS service.
I can confirm that Numbergroup Network Communications (Ireland) Limited is a member of CISAS. This company also goes by the name of Numbergroup Network Limited. We can therefore take on complaints about a company with either of the aforementioned names.
There is no record of a companies named ‘Numbergrp Network Communications Ltd’ or ‘Numbergrp Ltd’ being a member of CISAS. I suggest that you contact Ofcom in order to obtain further information regarding these companies.
Kind regards,
Holly Quinn CISAS Team Leader
As you must know (from the Weinstein case)
On 22/08/17 12:21, Kavouss Arasteh wrote:
Dear All I have noted some immediate rush and reaction to the proposal made by Thiago He raised an important issue which I have also taken with reference to a Resolution adopted by Plenipotentiary Conference of ITU Busan to which the United States of America which hosting ICANN venue and ICANN applicable law regarding non interference of any State in the ccTLD of other States. This has nothing to do with the development of PDP in process as it may takes years to finalize during which the ccTLD of other states would be detrimentally impacted. We have established WS2 and its sub grouop dealing with jurisdiction which is quite eligible to address the issue .We need to understand each other ^s problems and not make back and fort the issues which is of fundamental and crucial importance. Please also see my issue 2 Regards Kavouss
having read our immediate reaction but
On Tue, Aug 22, 2017 at 12:23 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:s
I fully support Jordan's intervention here.
Neither this group nor the ICANN Board can legislate for ccTLDs - the strong respecting of the principle of subsidiarity by ICANN is fundamental to the relationship tween the ccTLD community and ICANN, enabling the 2003 Montreal Agreement which rescued the multistakeholder model, reversing the previous year's formal rejection and abandonment of the ICANN system by ccTLDs.
On 22/08/17 10:58, Jordan Carter wrote:
Dear Thiago, dear all,
Dispute resolution regarding ccTLD matters is currently the subject of a PDP in the ccNSO.
This isn't the perfect link but does give some info:
https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24...
<https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24...>
While the existence of the PDP does not prevent this sub-group of the CCWG discussing this matter, my understanding of ICANN's bylaws is that the Board would not be able to accept any WS2 recommendation on this subject. That is a hard won protection of our ccTLD independence that has been a feature of the ICANN system since the ccNSO was formed.
As such, the Jurisdiction group may prefer to focus its effort and energy on matters where implementable recommendations can be made by the CCWG.
Hope this helps,
Jordan
On Tue, 22 Aug 2017 at 1:32 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> <mailto:thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>>
wrote:
Dear All,
For your consideration:
Issue 3: In rem Jurisdiction over ccTLDs
Description: US courts have in rem jurisdiction over domain names as a result of ICANN's place of incorporation, and US courts and US enforcement agencies could possibly exercise its exclusive enforcement jurisdiction over ICANN to compel it to re-delegate ccTLDs. This is contrary, in particular, to paragraph 63 of the Tunis Agenda: "Countries should not be involved in decisions regarding another country's country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected, upheld and addressed via a flexible and improved framework and mechanisms." It is to be noted that while paragraph 63 may not state that States have sovereignty over ccTLDs, it does establish that States should not interfere with ccTLDs. Further, an obligation on States not to interfere with certain matters, as ccTLDs, need not be based on the principle of sovereignty to exist, nor does it suppose that the matter is one subject to the sovereignty of States. For States can simply agree to limit their ability to interfere with ccTLDs delegated to other countries, and this is the principle embodied in Paragraph 63 of the Tunis Agenda.
Proposed solution: ICANN should seek jurisdictional immunities in respect of ICANN's activities relating to the management of ccTLDs. In addition, it should be included in ICANN Bylaws an exclusive choice of forum provision, whereby disputes relating to the management of any given ccTLD by ICANN shall be settled exclusively in the courts of the country to which the ccTLD in question refer. A similar exclusive choice of forum clause shall be included in those contracts ICANN may have with ccTLD managers, where such a contract exists.
Best regards,
Thiago _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
-- Jordan Carter | Chief Executive, InternetNZ
+64-21-442-649 <tel:%2B64-21-442-649> | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>
Sent on the run, apologies for brevity
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