Reconsideration Request 02-1
Recommendation of the Committee
Date: 25 June 2002

Recommendation

On 22 January 2002, David Ogden submitted reconsideration request 02-1. Mr. Ogden is the Coordinator of the Interim Secretariat for the Stockholm Convention on Persistent Organic Pollutants. The request seeks reconsideration of the IANA's failure to assign the pops.int domain for the Interim Secretariat's use.

Background

In the past, the .int top-level domain was used both for international treaty-based organizations and for Internet-infrastructure purposes. Because of the need for secure and stable management of the infrastructure aspects of the .int domain, from the time of its inception in 1988 the .int domain was administered by personnel at the University of Southern California/Information Sciences Institute. This activity was assumed by ICANN as part of the transition of the IANA functions from USC/ISI to ICANN at the time of ICANN's establishment. In 2000 the Internet Architecture Board recommended that any new infrastructure subdomains be established within .arpa and that consideration be given to migrating existing infrastructure subdomains in .int to .arpa. See also RFC 3172, Appendix A (28 April 2000 letter from Karen Rose to Louis Touton designating administration of .arpa as an additional IANA function). ICANN is currently working with the IAB to progress with the transition and has committed to the stability of the infrastructure subdomains within .int for however long they need to be in place, with guidance from IAB/IETF as to their management.

Accordingly, subdomains are now established in .int only for international treaty-based organizations. In September 2001, the United Nations Environment Programme submitted a template to the IANA for registration of "pops.int"; this application was completed by submission of a copy of the Stockholm Convention on Persistent Organic Pollutants in October 2001. On 27 November 2001, the IANA responded that, based on its review of the materials submitted, the Stockholm Convention did not appear to establish a separate organization with independent international legal personality, as required for registration in .int.

After some additional correspondence, Mr. Ogden submitted reconsideration request 02-1 on 22 January 2002 seeking registration of pops.int domain for the Interim Secretariat's use.

After reviewing the request, the reconsideration committee wrote to Mr. Ogden on 24 April 2002 seeking additional information concerning (a) the progress of the Stockholm Convention toward entering into force and (b) the characteristics of the Secretariat, pertinent to whether it is widely considered to have international legal personality. On 30 April 2002, Mr. Ogden provided a detailed response to the request for additional information.

We therefore proceed to consider request 02-1 based on the original request augmented by the additional information given in the 30 April 2002 supplementation. Based on that information and the analysis described below, the committee recommends that the pops.int name be assigned to the Interim Secretariat for the Stockholm Convention on Persistent Organic Pollutants in the manner described below.

Analysis of the Request

The application for registration of pops.int presents two principal issues under the eligibility criteria for .int:

1. Is there a treaty or similar agreement between or among national governments.

2. Does that treaty establish an organization widely considered to have international legal personality.

The request for reconsideration asserts that these two requirements are met:

Basically, the Stockholm Convention fits to two criteria for the .int address, in that it is established by an international agreement (it was adopted by 127 countries and has been signed by 112) and is an independent legal entity and it and its organs (e.g., the secretariat) enjoy independent legal personality.

A. Treaty or Similar Agreement

A threshold requirement for new registrations within .int is the existence of a treaty or similar agreement between or among national governments. Although the IANA did not base its failure to register pops.int on this requirement, the reconsideration committee believes a brief explanation of the applicability of this requirement to the Stockholm Convention is appropriate.

According to documentation submitted with the reconsideration request, the Stockholm Convention on Persistent Organic Pollutants was not then in force. At the time of the reconsideration request, 112 nations had signed the Convention, but Article 26 provides that the Convention only enters into force ninety days after fifty nations have deposited instruments of ratification, acceptance, approval or accession. That had not yet occurred at the time of the reconsideration request.

This is not a case, however, of an unratified treaty unlikely to ever enter into force. In contrast, it appears highly likely that the Stockholm Convention will enter into force, as indicated by the reliance of its signatories in funding an Interim Secretariat to begin operations. At the time of the supplemental submission of 30 April 2002, 127 nations had signed the Convention, though only seven nations had deposited instruments of ratification or accession. The reconsideration committee concludes from these facts that there is a very strong likelihood that the Stockholm Convention will enter into force in the foreseeable future. In these circumstances, the committee believes that the Convention should qualify as a treaty or similar intergovernmental agreement for purposes of the .int registration requirements. Following this approach allows newly established treaty-based organizations to begin making effective use of the Internet to assist in their start-up activities. The IANA has indicated that this approach is consistent with the approach it has followed in other cases. In the event that (for some unforeseen reason) the Stockholm Convention does not go into force within four years,¹ the continuance of the registration should be evaluated.

B. International Legal Personality

Registrations within .int are granted to treaty-based organizations, not treaties. Thus, in addition to identifying a treaty (or similar agreement), applicants for .int registrations must show that the treaty establishes an organization. Specifically, the .int registration requirements follow the Vienna Convention on the Law of Treaties (1969), which provides that international organizations are those widely considered to have international legal personality and are subjects of and governed by international law.

The request for reconsideration identifies the secretariat as the organization created by the Stockholm Convention. The relevant portion of that Convention – Article 20 – establishes a secretariat, and then assigns the duties of the secretariat to an existing body:

20(3). The secretariat functions for this Convention shall be performed by the Executive Director of the United Nations Environment Programme, unless the Conference of the Parties decides, by a three-fourths majority of the Parties present and voting, to entrust the secretariat functions to one or more other international organizations.

In past situations such as this, where the treaty establishes a secretariat but assigns its functions to an existing body, the IANA's practice is to presume that the "virtual" secretariat does not have a legal personality independent from the existing body. In these cases, however, the IANA has afforded the applicant the opportunity to demonstrate, by showing that the secretariat has actually developed commonly recognized incidents of legal personality such as entry into contracts and capacity to sue and be sued, that the secretariat meets the requirement of being widely considered to have international legal personality.

The novel circumstance in this case is that the Stockholm Convention has not entered into force and that the secretariat therefore has a short track record. Nonetheless, the reconsideration committee believes that the supplemental information provided by the applicant on 30 April 2002 meets the requirement for independent international legal personality. The supplementation stated in part:

[Q] 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?

[A] Yes. The secretariat will have the ability to enter into legally binding agreements, contracts and memoranda of understanding, mainly those requested by the Conference of the Parties. This will include memoranda of understanding with other convention secretariats.

[Q] 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?

[A] Yes. The secretariat will have the ability to sue or be sued for those obligations it would have contracted. It could also have standing in the International Court of Justice.

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

[A] Secretariat staff will be employed through the United Nations exclusively to service the Stockholm Convention. However, certain bodies of the Convention, e.g., regional centres established under paragraph 4 of Article 12 of the Convention, may be able to hire local staff directly.

In view of these responses, the reconsideration committee concludes that, under the existing practice of the IANA (adapted to the start-up status of the Stockholm Convention), the secretariat should be deemed to be widely viewed as having international legal personality, and therefore should be considered to meet the requirements for registration of the pops.int domain name.

Recommendation

For the foregoing reasons, the reconsideration committee recommends that the name pops.int should be registered to the Interim Secretariat for the Stockholm Convention on Persistent Organic Pollutants, subject to re-evaluation in the event that the Stockholm Convention does not enter into force within four years after the registration is made.

Note:

1. In its 30 April 2002 supplemental submission, the Interim Secretariat stated that "The Convention will likely enter into force before December 2003" and that the registration should be re-evaluated in 2006, since "[t]here is almost no doubt that the Convention would enter into force long before this date."