[discuss] governments and rule of law (was: Possible approaches to solving...)

[Pranesh Prakash]

David Cake <dave at difference.com.au> [2014-02-24 1:46:02]:
> 	It is certainly notable also that GAC representatives often provide early warning that are not clearly based on domestic law or policy, and are applied inconsistently.
> 	As an example, the Donuts application for the string .doctor received GAC Early Warnings that included one from the Government of Australia (a very prolific issuer of GAC Early Warnings) on the basis that .doctor was a regulated market - despite the title doctor being one generally unregulated by law in Australia, and generally considered entirely unproblematic if used in a way that clearly does not seem to be implying someone is a medical practitioner or otherwise the possessor of a doctorate or equivalent - for example, this high profile plumbing firm http://www.tapdoctor.com.au/ whose vans are quite distinctive, and surely not unknown to the bureaucrats who represent Australia in the GAC, as they operate in Canberra. Increasingly, many of the 'public policy positions' put forward by the GAC have no connection to domestic law, legal principle, or consistent precedent, but are a combination of opinion and lobbying.

This is, in my opinion, based on a particular assumption, Dave.  If 
there *had* been a law in Australia greatly regulating who can and 
cannot call themselves a doctor, would that, in your eyes, have made the 
objection about the gTLD more valid, and something ICANN should act on? 
  I can imagine that not everyone would agree on the answer to that 
question.

Secondly, international affairs and national affairs can't always be 
equated.   For example: Rightly or (often) wrongly, international 
treaties have features that the domestic legislations of many of their 
signatories don't.  This can be disastrous (as the TRIPS Agreement has 
been) or beneficial (as I hope the Marrakesh Treaty for the Visually 
Impaired turns out to be).  In norm-setting treaties this difference 
between sometimes stems from the realpolitik of trade and power 
(resulting in the laws of the more powerful nations being the basis for 
the international treaties, even when equivalents don't exist in other 
countries), and sometimes because the an instrument that is to work 
cross-border requires things that is not in practice (and aren't needed) 
at a national or sub-national level.

-- 
Pranesh Prakash
Policy Director, Centre for Internet and Society
T: +91 80 40926283 | W: http://cis-india.org
-------------------
Access to Knowledge Fellow, Information Society Project, Yale Law School
M: +1 520 314 7147 | W: http://yaleisp.org
PGP ID: 0x1D5C5F07 | Twitter: https://twitter.com/pranesh_prakash

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