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Constituency Meeting ccTLD Best Practice



The role of ccTLDs, and their relationship with ICANN is now the most important structural, political and financial issue facing ICANN. ICANN has, since its inception, dealt with two major problems: "the NSI monopoly", and new gTLDs. At its Yokohama meeting, the Board set in train a process for the establishment of new generic top level domains. Its relationship with the country code managers now raises at least as many problems as these two.


Delegation of authority to various country code managers has occurred on a variety of bases. As a result of those delegations, substantial infrastructural investments have been made in many countries including New Zealand. It is now recognised in most countries that the safe and stable management of the DNS is now fundamental, particularly to e-commerce.

There are three primary claimants for authority in the delegation process, but more particularly, the redelegation process when a problem is said to exist with the current delegation of country code authority.

The first claimant is the existing manager. Many existing managers look to RFC 1591, posted by John Postel in March 1994 as providing the basis for their authority. (See This is directed to the opening of new top level domains, including but not restricted to country code top level domains. Under this document, the selection of a new top level domain manager is made by IANA, the Internet Assigned Names Authority. It said, in terms of making that selection:

"The major concern in selecting a designated manager for a domain is that it be able to carry out the necessary responsibilities, and have the ability to do a equitable, just, honest and competent job."
RFC 1591 goes on:

  • "These designated authorities are trustees for the delegated domain, and have a duty to serve the community. The designated manager is the trustee of the top level domain for both the nation, in the case of a country code, and the global internet community. Concerns about "rights" and "ownership" of domains are inappropriate. It is appropriate to be concerned about "responsibilities" and "service" to the community."

In talking of redelegations, it says:

  • "For any transfer of the designated manager trusteeship from one organisation to another, the higher level domain manager (the IANA in the case of top level domains) must receive communications from both the old organisation and the new organisation that assure the IANA that the transfer in (sic) mutually agreed, and that the new organisation understands its responsibilities. It is also very helpful for the IANA to receive communications from other parties that may be concerned or affected by the transfer."

As ICANN was being formed, ccTLD managers were concerned to ensure that there was no break in the continuity of their trusteeship. Discussions took place using, and the International Association of Top Level Domains ("IATLD") was formed, having as its charter the maintenance of RFC 1591.

New Zealand subscribed to the IATLD's position answering "yes" to the question of whether ICANN should include in its by-laws the following phrase :

  • "The ICANN agrees to continue to use RFC 1591 for any and all actions it takes, or any role it assumes, with regard to the two letter ISO 3166 TLDs commonly known as Country Code TLDs (ccTLDs)."

New Zealand is not a member of the IATLD.

The IANA function has now been taken over by ICANN. It apparently continues to operate within the ICANN structure.

ICANN has redrafted RFC 1591 to take into account what it calls the "actual practices" of IANA in relation to ccTLDs. The new document is entitled IPC1 (see

The Government Advisory Committee

The intent of RFC 1591 and its successor was to avoid IANA making decisions as to what was a government or not, and who was a competent governmental authority. ICANN Board members recognised that the ccTLD question would involve governments and issues of national sovereignty. At least Australia among the governments became involved with US. DoC discussions as ICANN was forming. ICANN created the Government Advisory Committee. It is in this area that the GAC is being most active.

It is chaired by an Australian. Australia has a particular problem with its delegation, which years of government intervention have so far failed to resolve satisfactorily. There are other examples of problem allegations. A representative of the Gambian internet community complained in Yokohama to the Board's open forum that its request for redelegation had gone unanswered by the ICANN staff.

The Government Advisory Committee has drafted, and presented at the ICANN meeting at Cairo in March 2000 a set of principles on delegation and redelegation. (See The key principles to this document are :

  • A pre-eminent role for governments;
  • A system of written "communications" (ie regulations, laws or contracts) between:
  • the government and the manager; and
  • the government and ICANN.

It contains a number of assertions such as :

  • "The delegee (Strine for "delegatee" or "ccTLD manager") should recognise that ultimate public policy authority over the relevant ccTLD rests with the relevant government or public authority".

This is an attempt to convert the domain name space into a part of the territory of the country. In many cases, when,. for example:

  1. the relevant hardware;
  2. the managers;
  3. all domain name registrants

are obliged to be citizens of or registered in the territory, this may be a logical extension of national sovereignty.

However, in cases where -

  1. the servers are off-shore;
  2. the manager is off-shore; and
  3. registrants are from both inside and outside the jurisdiction,

the extension of sovereignty should not be seen as so automatic.

It may be that quite different terms and conditions should apply to "closed" as distinct from "open" ccTLDs.

In cases of redelegation, the GAC document regards it as the responsibility of the relevant government to promote a change (see clause 7.2).

The GAC suggests it as reasonable that ICANN should notify the relevant government if there is a problem with a particular delegation, and the government should be obliged to co-operate in a reassignment.

Critical to the GAC document however, is its recognition that it is ICANN that makes the redelegation. However, it can only do this to someone who has been designated by the relevant government or public authority. (See clause 7.4).

There are protections for ccTLD managers in the GAC document; clause 7.5 provides that they should not be subject to "discriminatory or arbitrary practices, policies or procedures from ICANN or the relevant government or public authority."

ccTLD response

There have been a number of written responses from individual ccTLDs, regional ccTLD groups and others to the requirement to formalise the position between ccTLDs and ICANN.

These have most recently been summarised by Anthony van Couvering of IATLD, working as a working group of the ccTLD Constituency. Two documents have been produced :

  1. Best practice guidelines for ccTLD managers (June 12, 2000) (; and
  2. Re/delegation guidelines for ccTLD managers (June 18, 2000) (

The broad ccTLD principle on redelegation is at page 5 :

"The mandate for a redelegation comes jointly from the local internet community and the IANA, as these two bodies - per the best practices guidelines established by the ccTLD Constituency - are similarly the source of the mandate under which a ccTLD manager operates a ccTLD."

A complaint procedure is set out, involving, in the first instance, IANA. This is the current situation. If that fails, a (New Zealand-suggested) dispute resolution body made up of the local internet community, the local government, a rep. from the ccTLD Constituency, the local manager, two from IANA and a final "authority" figure is appointed to hear the matter.

The European position

Although attempts have been made to incorporate the position adopted by CENTR, CENTR has not agreed, nor has the ccTLD Constituency in Yokohama agreed with the drafts that were discussed. CENTR's position is clearly set out in the press release reporting the letter to ICANN CEO Mike Roberts, of 10 May 2000 in reply to his request for funding. There are five essential issues that CENTR says European ccTLD managers have with ICANN, including -

  1. The sovereign right of the local internet community in each CENTR country to manage its own ccTLD;
  2. The desire to participate in any policy formulation or restructuring activities by ICANN, while retaining local policy implementation; and
  3. That no authority is conceded to ICANN by any CENTR member on the management of any ccTLD.

CENTR's view is that complete authority was transferred by John Postel to the local manager, and all issues, including re-delegation, are a matter for the local courts in the country associated with the ccTLDs.

The English view

Nominet (the manager of .uk) has taken US legal advice, which is to the effect that the UK registry has a contract with either the estate of John Postel, or his employer (effectively the University of Southern California). Nominet has not consented to any transfer of the benefits or obligations under that contract to ICANN, and does not recognise any ICANN authority over the UK registry.

On the funding question, the UK registry has sent a cheque for $US100,000, accompanied by a carefully worded letter. This is to the effect that banking the cheque will acknowledge that there is no contract between ICANN and .uk, but the funding is to be treated as a donation.

At the Cairo meeting, item 1 of the Board's resolutions, included the following resolution -

"That the President and staff are authorised to work with the ccTLD managers, GAC, and other interested parties to prepare draft language for contracts, policy statements, and/or communications including appropriate funding arrangements, to be presented to the Board and posted for public comment as soon as practicable."

The staff's response to this was to post, on 5 July (as most of us were leaving or preparing to leave for the Yokohama meeting), a draft discussion document, seeking responses by the time of the Board meeting.

ccTLD reps met in Yokohama with ICANN staff urgently and late one night. Most comment was condemnatory, for the lateness of the proposals, and its apparent attempt to influence the current stage of document development/ negotiation.

CENTR has provided an initial formal response regretting that its "essential issues" have been ignored. From discussions with CENTR members, perhaps the most objectionable part of the staff document is its insistence on the application of California law. CENTR takes as its starting position that each ccTLD manager operates in all respects under the domestic law of the country in which it operates. This means that any challenges need to be brought under the law of the country in which the relevant registry resides.

GAO Report

On the Friday before departure for Yokohama (7 July) the US General Accounting Office released a report on ICANN. The US GAO performs a similar function to our own Audit Office, being independent of both the executive and legislature.

The report is highly significant. One of the questions it has set out to answer, of significance to this paper is -

"Whether the Department has the legal authority to transfer control of the authoritative root server to ICANN."

The report makes it plain that this is a difficult legal question. Of more significance however is the reports recorded of the assertion by the US Department of Commerce that it has no intention to transfer ultimate policy control of the root to ICANN.

"Ultimate policy control" includes the ability to change country code delegations.

Accordingly, it is not clear whether negotiations with ICANN alone will suffice. Becky Burr, the serving Department of Commerce official throughout this period is resigning. There is a pending presidential election in the US which may result in a change of administration.

What to do

The ccTLD Constituency, and .nz needs to consider very carefully how to proceed.

At the ccTLD Constituency plenary session, I pointed out to delegates that membership of the DNSO constituency provided only the ability to make recommendations to the DNSO Names Council. Such recommendations take their place, for priority, along with recommendations from each of the six other constituencies (commercial, trade mark lawyers, non-commercial, NSI, ISPS and .com registrars).

By contrast, the ccTLDs have been invited by ICANN staff on other occasions to form a "peer" association to negotiate the critical role of what amounts to management of all of the internet outside the United States. Not the least of this issue involves questions of registry administration, sovereignty, protection from arbitrary government action, political credibility and funding for ICANN.

CEO Mike Roberts' and the staff's view is that the US Government's MoU with ICANN permits it to achieve bilateral agreement with each ccTLD manager separately, rather than by way of negotiation with such a peer organisation. The practical reality however, is that 90% of the funding of the $1.5 million per annum (and we are now coming to the close of the second year with no money paid) will come from the top 20 ccTLDs.

I have received considerable personal support for the proposal to form a "ccTLD Inc" to negotiate these issues with ICANN. It was discussed in Los Angeles, and many thought it would proceed at that point but one of those assuming responsibility has withdrawn from the process.

A separate organisation is required because the ccTLD Constituency is currently open to all ccTLD managers. This is simply too large a group to organise effective negotiations for, and includes many "dead" or questionable delegations, and many who have taken no part in the ICANN process. An agreement reached between ICANN and ccTLD Inc. will not be binding on non members, which should serve as a powerful precedent if it can achieve the bridging or consensus which all parties seem to aspire to. Arguably the best option is to form a new ccTLD Support Organisation on a par with the three other support Organisations (APO, PSO and DNSO) with three seats on the Board.

CENTR has offered to act as the negotiating body, and one option would be for New Zealand to join with Center for this purpose. Center is well-respected, well organised and well funded.

On the other hand, it is seen as having "led the charge" in opposition to ICANN funding and the GAC principles.

Recommendations for .nz: My recommendation is that ISOCNZ authorise me to continue to explore and facilitate the formation of a peer organisation of ccTLDs to negotiate with ICANN and other interested parties on ccTLD matters.

P.C. Dengate Thrush
29 July 2000

© 2000 The Internet Society of New Zealand
Last updated 2 August 2000

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