Reconsideration Request 02-1 Request for Additional Information Sent: 24 April 2002

Subject: Request for Additional Information - pops.int Application
Date: Wed, 24 Apr 2002 18:36:08 -0700
From: Louis Touton <touton@icann.org>
To: DOgden@unep.ch

David Ogden, Coordinator
Interim Secretariat for the Stockholm Convention
on Persistent Organic Pollutants
UNEP Chemicals
11-13, chemin des Anemones
CH-1219, Chatelaine, Geneva, Switzerland

Dear Mr. Ogden,

The ICANN Reconsideration Committee is reviewing your reconsideration request. The Committee has asked me to request some additional information to assist in its review. Because the Reconsideration Committee seeks to operate in a transparent manner, this request and your response will be posted publicly on the ICANN web site.

As recognized in your reconsideration request, there are two basic factors pertinent to the question of whether an .int name should be registered to the Interim Secretariat for the Stockholm Convention on Persistent Organic Pollutants:

a. is it created by an international treaty or other agreement agreement between or among nations?

b. is it an independent legal entity such that it is widely considered to have international legal personality, and is a subject of and governed by international law?

These issues frame the areas of the Committee's request for additional information:

a. According to Attachment C to your reconsideration request, the Stockholm Convention on Persistent Organic Pollutants had not yet entered into force. It appears that 112 nations had signed it. According to Article 26 of the Convention, however, it enters into force ninety days after fifty nations have deposited instruments of ratification, acceptance, approval or accession. It appears that had not yet occurred when you filed the request.

The Reconsideration Committee is under the impression that it is highly likely that the Stockholm Convention will in the forseeable future go into force, as indicated by the reliance of the signatories in funding an Interim Secretariat to begin operations. The Committee wishes additional information that distinguishes the Stockholm Convention from situations where a treaty is likely to fail to enter into force. (In such situations, granting a .int name at an early stage could lead to a situation where the name would later have to be revoked when the treaty fails, causing undesirable disruption.) Accordingly, it would be helpful to the Committee if you could provide information concerning the likelihood of the Stockholm Convention entering into force:

i. How many nations have now signed the Convention?

ii. How many nations have deposited instruments of ratification, acceptance, approval or accession?

iii. When is it anticipated that the Convention will enter into force?

iv. What concrete steps have been taken to commence operations in reliance on the Convention going into force?

v. Assuming a .int name is granted now, what deadline does your organization feel would be appropriate for consideration of revoking the name in the event that the Convention has not entered into force before the deadline?

b. Independent international legal personality. The treaty or other multinational agreement must create an organization that is widely considered to have international legal personality, and is a subject of and governed by international law. The question then involves whether the Convention has created (or will create, when it goes into force) a Secretariat meeting these requirements. Language such as that of Article 20 of the Stockholm Convention has not, in the past, ordinarily been deemed by itself sufficient to meet this requirement, because rather than appearing to create a new entity it assigns the responsibility to an existing entity with other responsiblities (the executive director of UNEP). In the past, however, the IANA has also considered explanatory circumstances that have been deemed, in conjunction with the treaty language, to show that a secretariat has independent international legal personality. To allow the Committee to investigate whether these circumstances are present, the following information would be helpful:

i. Does the Interim Secretariat for the Stockholm Convention on Persistent Organic Pollutants take the position that it has (or will have upon entry into force) independent international legal personality?

ii. Does/will the Interim Secretariat for the Stockholm Convention on Persistent Organic Pollutants have the ability to enter legally binding contracts in its own name?

iii. Does/will the Interim Secretariat for the Stockholm Convention on Persistent Organic Pollutants have the ability to sue and be sued in its name in the courts?

iv. Does/will the Interim Secretariat for the Stockholm Convention on Persistent Organic Pollutants have the ability to employ staff in its own name?

Information about these indicators of independent international legal personality should help the Committee assess whether this requirement for .int registration has been met.

We thank you in advance for your understanding of the need to be careful in following the criteria by which .int names are granted.

Best regards,

Louis Touton

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