Commission Paper 3: Country-Code Top Level Domains (Part Two)

In our continued look at the European Commission’s Six Papers on the functioning of ICANN, even though Part One of our look at Paper 3 seems to support the view that functioning of Member States’ ccTLDs might be ultra vires the Commission’s powers as laid down by TFEU.

But let us nonetheless examine in finer detail the proposals in Paper 3, and consider the authority for the various propositions contained in them

The paper starts out with several assertions, many of which are, once again, perfectly correct, although it is sometimes seems difficult to match some of the conclusions with the premises.

 

The treatment of ICANN by ccTLDs has always been a sensitive political issue. 

Entirely correct. But it seems this not so much because the operation of ccTLDs are a matter of national sovereignty.

The extent to which it  may be a matter of national sovereignty is a matter we must return in detail on another occasion as ‘national sovereignty’ is a term of art having a specific meaning, and as has been shown in Part 1, national sovereignty may be partially given up by national Parliaments to the European Union in some areas.

Most likely it is a sensitive issue because often in the past, ICANN (in its operation of the IANA function, whether apparently under contract or not) has apparently been (a) hamfisted, (b) careless of the distinction between policy-making and executive duties,(c) and unmindful of natural justice and fair procedure.

As evidence for this proposition, take a look at the ccNSO’s Final Report of the Delegation Re-delegation and Retirement Working Group (see Note 1, below) which was released in February 2011.

It documents, among other things, that “there are several documented cases of failure to minute Board discussions regarding the re-delegation of ccTLDs contrary to the procedures as laid out in the ICANN Bylaws” and that “there are significant concerns relating to accountability and transparency of ICANN”.

Even further: “by the end of 2009 the IANA Reports had dropped all mention of the GAC Principles”.

 

Tunis Agenda Declaration

The author of Paper 3 rehearses and re-adopts the statement in the Tunis Agenda that:

“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”.

Once again, this appears to be a perfectly valid statement, and it is one of course which is already familiar to many.

The identical principle must apply equally to the Union as to third countries.

It was submitted in Part 1 of this analysis that the Union should not be involved in decisions regarding Member States’ country-code Top Level domains unless the issue falls within the exclusive competence of competition rules, or within the shared competence of the internal market.

And even where the the internal market is concerned, subsidiarity probably applies which confirms that decisions concerned operation of ccTLDs cannot be within the powers of the Commission.

 

Problems in the way ICANN-IANA have dealt with delegations and re-delegations.

It is undeniable that there have indeed been problems in this regard, as noted above and elsewhere.

(a) ‘requirements imposed by ICANN on third country governments requesting a redelegation’.

First of all, ICANN is a private corporation, incorporated in California, and as such is subject to the rule of law. (It is also a requirement of membership of the Union that Member States subscribe to the Charter and the rule of law).

It is set out in the policies applicable to creation of country-code Top-Level Domains what the procedures are for appointment of, and change of manager. Among which is that the IANA must receive a communication from the existing manager stating that the existing manager consents to the change.

To do otherwise than what is set out in existing policy would appear to be unlawful and open to challenge.

(b) Requirements imposed in respect of IDNs

Here of course is where it gets interesting. In approaching this I would merely ask the question:

“Where is the policy on IDN ccTLDs, and to what extent is ICANN following it?”.

It seems to me that the unfortunate difficulties currently being experienced by the Union in the matter of IDN versions of .EU  can be easily explained by the answer to the above question.

(However, I must make, in passing, a statement that despite this analysis, I think ICANN has been obstructive, short-sighted and stupid and I side with the EU over their difficulties in dealing with ICANN over .EU IDNs)

Ironically one should always bear in mind that the very genesis of .EU arose when, on 25th September 2000, the ICANN Board took a decision to satisfy an apparently genuine need but which decision appeared to be ultra vires the policy in force at the time. The relevant Regulations for .EU followed that decision some years later. (It’s entirely human, although a little inconsistent, to get what you want you want by persuading ICANN to bend the existing rules, then to complain later they are not following rules when some other issue arises.)

 

(c) Unexplained delays in update root zone information.

This complaint is entirely correct. And I speak from personal experience. of 15 years in dealing with such requests.

In 1997 top-level domain operators were able, using the automatic systems of the InterNIC, to see Root Zone information updated and functioning in the root within approximately one hour.

It seems to me, as it seems to many, that the several ‘choke points’ that have been created since that facility was dismantled, following the creation of ICANN, do not serve a purely technical function.

It is imperative for the success of e-commerce, within the territory of Member States that such intentional choke points are removed. Interestingly this point, of all the points in Paper 3 probably is most likely to  fall under the shared competence of the Union with the Member States (internal market, interoperability).

It is therefore fortunate that the Paper’s author is 100% right in respect of this one point.

 

2. Possible initiatives

Whilst it the proposed initiative is understandable, it is premature and appears to be based on a simplistic view of the situation.

The nature of the relationship between national and territorial ccTLD managers, ICANN, IANA, the US Government, national government (if there is one), and other relevant public authorities (e.g. territorial government, if applicable) is complex and not as well-defined as some might wish and worthy of much more detailed study.

 

3. Possible implementation

The reference to the proposed in the draft IANA contract regarding national law appears to be over simplistic.

Of course, the deference shown to national and territorial law and jurisdiction and the recognition of principle of subsidiarity is very welcome.

Nonetheless, ICANN must be required to hold itself to the standards set out in ‘relevant international law’, and may not be required by ‘local law’ to act in any way that is inimical to standards of fundamental rights as accepted by civilised nations, and as are set out in, among other places, the European Union’s Charter of Fundamental Rights.

Surely it cannot be the position of the Union cannot be that ICANN/IANA should (for example) should be required to breach (say) Article 17 of the EU Charter if a provision of Syrian law required the expropriation of assets belonging to the .SY operator unnecessarily or disproportionately even if it was in accordance with a lawful decree of the current Syrian government?

It seems to this author, that tt would be entirely inappropriate the IANA Contractor were to be placed in a position where it may be required by being bound by a country or territory’s  law and jurisdiction to carry out any act that was in any way repugnant to the US Constitution or the European Convention.

 

Note 1: For information: this author was a member of the Delegation Re-delegation and Retirement Working Group of the ccNSO.

 

 

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