The EU has a human rights court, it is the ECJ until the EU will join the ECHR as foreseen in Art. 6 TEU but blocked by the ECJ itself. A Spanish court may ask for a preliminary ruling of the ECJ. However, as the EU intentionally did not regulate domain names it is not so clear that this issue is covered by EU law. More arguments are in favour of an EU competence. After exhaustion of local remedies, the case can be brought before the ECtHR. Both courts are aware of the respective case-law and try to avoid strong disagreement. Judgements are binding under international law and compliance is monitored by the Committee of Ministers. “Declaratory judgments“ does not reflect the high compliance. Best, Erich Von: Nigel Roberts<mailto:nigel@channelisles.net> Gesendet: Donnerstag, 21. September 2017 21:43 An: Aikman-Scalese, Anne<mailto:AAikman@lrrc.com>; 'Paul Rosenzweig'<mailto:paul.rosenzweig@redbranchconsulting.com>; 'Thiago Braz Jardim Oliveira'<mailto:thiago.jardim@itamaraty.gov.br>; 'farzaneh badii'<mailto:farzaneh.badii@gmail.com> Cc: 'ws2-jurisdiction'<mailto:ws2-jurisdiction@icann.org>; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: Re: [Ws2-jurisdiction] [Ws2-hr] RES: .cat The EU doesn't have a human rights court. The European Court of Justice in Lux. is the highest court on matters of EU law. The European Court of Human Rights in Strasbourg is not an EU institution. It provides declaratory judgments on infringements by signatories (47 countries, see http://www.coe.int/en/web/about-us/our-member-states ). As a condition of opening a case in the ECHR one must have exhausted domestic legal remedies first.
It appears that many of their judgments are not enforced by national governments but it would still be good to get the judgment anyway, wouldn’t it?
Hard to see how ICANN could enforce a Human Rights violation by an EU government. Squarely in the realm of the EU Court of HR I would think.
Anne
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*From:*ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Wednesday, September 20, 2017 6:57 AM *To:* 'Thiago Braz Jardim Oliveira'; 'farzaneh badii'; 'Nigel Roberts' *Cc:* 'ws2-jurisdiction'; ws2-hr@icann.org *Subject:* Re: [Ws2-hr] [Ws2-jurisdiction] RES: .cat
Actually, that’s wrong Thiago, but you know that. The facts are that .cat has physical offices in Spain – hence its offices could be raided. That is true irrespective of whether or not the .cat owners are corporate domiciled in Spain or in France or anywhere else in the world. The same is true of ICANN’s offices in Turkey, which have not been raided by Turkish police and (we all fervently hope never will be).
While I join everyone in dismay at the action of the Spanish authorities they prove my point, as Nigel said.
Paul
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*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz Jardim Oliveira *Sent:* Wednesday, September 20, 2017 8:47 AM *To:* 'farzaneh badii' <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>>; Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>>; ws2-hr@icann.org <mailto:ws2-hr@icann.org> *Subject:* [Ws2-jurisdiction] RES: [Ws2-hr] .cat
Dear all,
Farzaneh is right in disagreeing with Nigel.
The .CAT case only confirms that the territorial State, that is the State in which territory a legal entity is based (in this case the .CAT registry), is in the unique position to enforce its prescriptions against that legal entity.
Notice that the action of "raiding" the .CAT registry was undertaken by Spanish law enforcers, and only they could have undertaken it (at least until such time as Spain consents to foreign officials' exercising forceful actions within Spanish territory). In sum, the "police raid" by Spain happened because the .CAT registry, being located in Spain, was subject to the territorial jurisdiction of Spain, notably its exclusive enforcement jurisdiction.
In the case of ICANN, the lessons the .CAT case teaches us (as if anyone really needed this case to be convinced of the following) is that the United States, the country in whose territory ICANN is based (as well as where are located its DNS management activities), is in the unique position to enforce law prescriptions against ICANN, to enforce its sanctions regime against ICANN, to shutdown ICANN, to interfere with ICANN's DNS management activities. No other country is in a position to do so, and this should be remedied.
Best regards,
Thiago
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *farzaneh badii *Enviada em:* quarta-feira, 20 de setembro de 2017 08:51 *Para:* Nigel Roberts *Cc:* ws2-jurisdiction; ws2-hr@icann.org <mailto:ws2-hr@icann.org> *Assunto:* Re: [Ws2-jurisdiction] [Ws2-hr] .cat
Farzaneh
On Wed, Sep 20, 2017 at 6:24 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
I think this all clearly proves Paul Rosenzweig's point that ICANN's jurisdiction is irrelevant as national police forces and judicial authorities can apply national law to particular registries.
Under the Treaty of Rome, incidentally, the .CAT registry has the complete right to move it's operations to any of the other 27 Member states (soon to be 26) of the Union. If it did that, would ICANN itself then come in the firing line from the Spanish courts, perhaps?
I disagree. ICANN's jurisdiction is the most relevant when it comes to delegation-redelegation of ccTLDs and accreditation of regirars and approval of registries. This case does not prove the point that ICANN's jurisdiction is totally irrelenat under all circumstances.As we clearly demonstrated at the jurisdiction group.
On 20/09/17 09:58, Thomas Rickert wrote:
Hi all, you might find this article interesting.
https://www.internetnews.me/2017/09/20/dotcat-registry-offices-raided-spanis...
Best, Thomas
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