Further Consideration of the Asia Green IT System v. ICANN Independent Review Process Final Declaration

Asia Green IT System Bilgisayar San. ve Tic. Ltd. Sti. (AGIT) initiated Independent Review Process (IRP) proceedings challenging the decision of the ICANN Board (acting through the New gTLD Program Committee (NGPC)) to accept the Governmental Advisory Committee (GAC) non-consensus advice against AGIT's applications for .HALAL and .ISLAM (Resolution 2013.06.04.NG01, https://www.icann.org/resources/board-material/resolutions-new-gtld-2013...), and to place AGIT's applications on hold until AGIT resolved the concerns raised by the objecting countries and the Organisation of Islamic Cooperation (OIC) (Resolution 2014.02.05.NG01, https://www.icann.org/resources/board-material/resolutions-new-gtld-2014...). The GAC non-consensus advice, in the 11 April 2013 Beijing Communiqué, indicated that: "The GAC recognizes that Religious terms are sensitive issues. Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applications for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed." (GAC Beijing Communiqué, https://www.icann.org/en/system/files/correspondence/gac-to-board-18apr1... [PDF, 156 KB].)

IRP Panel Final Declaration:

On 30 November 2017, the IRP Panel (Panel) issued its Final Declaration in the AGIT IRP (https://www.icann.org/en/system/files/files/irp-agit-final-declaration-3... [PDF, 1.31 MB]). The Panel's findings are summarized below, and materials regarding the IRP are available in full at https://www.icann.org/resources/pages/irp-agit-v-icann-2015-12-23-en.

The Panel declared AGIT to be the prevailing party, and that ICANN shall reimburse AGIT for its IRP fees and costs. (Final Declaration, paras. 151, 156.) The Panel also declared that the ICANN Board (through the NGPC) acted in a manner inconsistent with ICANN's Articles of Incorporation (Articles) and Bylaws. Specifically, the Panel declared that the "closed nature and limited record of the [GAC] Beijing meeting provides little in the way of 'facts' to the Board. Of the 6 pages [Communiqué] produced by the GAC to the Board, only 58 words concerned the .HALAL and .ISLAM applications, utilizing vague and non-descript terms [such as "religious sensitivities"]." "[T]his manner and language is insufficient to comply with the open and transparent requirements mandated by Core Value 7." Therefore, "any reliance on the Beijing Communiqué by the Board in making their decision would necessarily be to do so without a reasonable amount of facts." "[T]o be consistent with Core Value 7 requires ICANN to act in an open and transparent manner." (Final Declaration, paras. 81, 83, 148.) The Panel further declared that the Board "acted inconsistently with Core Value 8" by placing AGIT's applications "on hold" – "to be consistent with Core Value 8 requires [ICANN] to make, rather than defer (for practical purposes, indefinitely), a decision…as to the outcome of [AGIT's] applications." (Final Declaration, para. 149.) In the view of the Panel, "the 'On Hold' status is neither clear nor prescribed" in the Guidebook, Articles or Bylaws. The Panel declared that by placing the applications "on hold," ICANN "created a new policy" "without notice or authority" and "failed to follow the procedure detailed in Article III (S3 (b)), which is required when a new policy is developed." (Final Declaration, paras. 113, 119, 150.)

The Panel recommended that, in order to be consistent with Core Value 8, "the Board needs to promptly make a decision on the application[s] (one way or another) with integrity and fairness." The Panel noted, however, that "nothing as to the substance of the decision should be inferred by the parties from the Panel's opinion in this regard. The decision, whether yes or no, is for [the ICANN Board]." (Final Declaration, para. 149.)

Prior Board Consideration:

The Board considered the Final Declaration at its 15 March 2018 meeting. After thorough review and consideration of the Panel's findings and recommendation, the Board accepted that the IRP Panel declared AGIT as the prevailing party, and that ICANN reimburse AGIT its IRP costs, which was completed in April 2018. The Board further directed the BAMC to re-review the GAC non-consensus advice (received per Section 3.1 subparagraph II of the Applicant Guidebook) as well as the subsequent communications from or with objecting and supporting parties, and to provide a recommendation to the Board as to whether or not the applications for .HALAL and .ISLAM should proceed. (Resolutions 2018.03.15.15 – 2018.03.15.17, https://www.icann.org/resources/board-material/resolutions-2018-03-15-en....)

The Board concluded that re-reviewing the GAC non-consensus advice and the positions advanced by both supporting and opposing parties would afford the Board a fuller understanding of the sensitivities regarding the .HALAL and .ISLAM gTLDs and would assist the Board in making its determination as to whether or not AGIT's applications should proceed.

Board Accountability Mechanisms Committee Review and Recommendation:

Pursuant to the Board's directive, the BAMC reviewed the GAC non-consensus advice regarding the .HALAL and .ISLAM applications in the 11 April 2013 Beijing Communiqué, indicating that: "The GAC recognizes that Religious terms are sensitive issues. Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applications for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed." (GAC Beijing Communiqué, https://www.icann.org/en/system/files/correspondence/gac-to-board-18apr1... [PDF, 156 KB].) In conjunction, the BAMC also re-reviewed the GAC Early Warning notices submitted in November 2012 by the UAE and India against both applications, expressing serious concerns regarding a perceived lack of community involvement in, and support for, the .HALAL and .ISLAM applications, and noting concerns regarding a lack of mechanisms to prevent abuse of the gTLDs. (Early Warnings, https://gacweb.icann.org/display/gacweb/GAC+Early+Warnings.) The BAMC also reviewed the opinions expressed in the dialogue between members of the Board and concerned members of the GAC, which occurred on 18 July 2013 in accordance with the steps required when the GAC provides non-consensus advice to the Board pursuant to Module 3.1 (subparagraph II) of the Guidebook. Representatives from various countries attended, and those from the UAE, Malaysia, Turkey, and Iran voiced their opinions (see transcript, Attachment B to the Reference Materials):

The UAE reiterated its concern, along with the concerns of Saudi Arabia and the OIC, that religious terms such as Halal and Islam are sensitive and need to be carefully considered, noting that the UAE's "main concern is that the applicant was not representing the Muslim community" and "the community is opposing the introduction of those TLDs, in this manner, and there has to be better coordination with the community, in order to properly introduce the TLD."
Malaysia supported the concerns expressed by the UAE and noted the "very sensitive" nature of the gTLDs, indicating that the gTLDs "need to, at least, come from [a] known organization like the OIC that we know they represent Muslim as a whole."
Turkey also expressed concerns that "these are…very sensitive strings and needs the community support." Turkey noted that AGIT is a legitimate Turkish company, but that AGIT "[d]id not achieve…any support from organization for Islamic countries." Turkey further noted that "we have the concern that it's just an IT company handling this kind of religious and sensitive issues could be a very difficult and problematic one in the future." Turkey concluded that "anything [that] covers whole Islam should be referenced from an umbrella organization," such as the OIC, which "is the best reference point, because it's the most comprehensive umbrella organization. And if they cooperate, if they get some kind of working relation with them [AGIT], that would be acceptable from our point of view."
Iran acknowledged the concerns by the various countries and suggested that "we" work together (perhaps through dialogue or a working group) to "include individuals, entities, governments, personalities [with views and concerns] in an inclusive, multistakeholder approach" to develop "the most appropriate [mechanisms] or modalities" to address the concerns raised by the community.
In addition, and in accordance with the Board's Resolution, the BAMC reviewed and considered the additional relevant materials related to the .HALAL and .ISLAM matter – including the comments submitted by the ICANN community regarding the applications; the correspondence from the governments of the Kuwait, Iran, Lebanon, and Indonesia, the Gulf Cooperation Council (representing six member States) and the OIC (representing 57 member States and 1.6 billion Muslims) expressing concerns and objections regarding the applications; the Resolutions issued by the OIC against the applications; the determination of the ICANN Independent Objector (IO), as well as AGIT's first and second responses (December 2012 and February 2013) to the IO's Initial Notice; the Expert Determinations dismissing the UAE's community objections, which were issued based on the Expert's belief that the OIC "remains neutral" as to the applications; the GAC Buenos Aires Communiqué and correspondence indicating that "no further GAC input on this matter can be expected." The BAMC also reviewed the endorsement letters submitted by AGIT in support of its applications, the correspondence from AGIT and its counsel, and the support letter submitted by the Republic of Mali in February 2014.

After extensive analysis and discussion, and after considering various options regarding the .HALAL and .ISLAM applications, the BAMC recommended that the Board direct the President and CEO, or his designee(s), that the pending application for .HALAL and the pending application for .ISLAM submitted by AGIT not proceed. The BAMC recommended this action based not only on its due diligence and care in reviewing all relevant materials, but also on its consideration of and commitment to ICANN's Mission and core values set forth in the Bylaws, including ensuring that this decision is in the best interest of the Internet community and that it respects the concerns raised by the majority of the community most impacted by the proposed .HALAL and .ISLAM gTLDs.

Board Consideration:

The Board agrees with the BAMC's recommendation to not proceed with the pending application for .HALAL and the pending application for .ISLAM.

The Board, in exercising its independent judgment, thinks that not proceeding with AGIT's .HALAL and .ISLAM applications is the right thing to do based upon the Board's review and analysis of the GAC non-consensus advice, the 18 July 2013 dialogue with concerned members of the GAC, the materials relevant to the .HALAL and .ISLAM matter (in particular, the Resolutions adopted by and the communications from the OIC), the discretion conferred upon the Board by the Guidebook, and the Mission and core values set forth in ICANN's Bylaws.

The Board acknowledges and appreciates that AGIT included a proposed governance model in its applications in an attempt to alleviate potential concerns by the Muslim community regarding the management and operation of the proposed .HALAL and .ISLAM gTLDs, that AGIT submitted over 300 additional letters of support for the .HALAL and .ISLAM applications from various individuals and entities within the Muslim community (dated approximately 2012-2013), and that approximately 30 comments were submitted by the community in support of each application (in 2012). The Board also notes that in AGIT's responses to the IO's Initial Notice, AGIT explained its efforts to reach out and discuss AGIT's plans for governance and operation of the .ISLAM gTLD with Turkey, Pakistan, Libya, Egypt, UAE, Iran, Kazakhstan, Afghanistan, Tajikistan, and Uzbekistan Ministries. (First Response (26 December 2012) and Second Response (20 February 2013), https://www.independent-objector-newgtlds.org/home/the-independent-objec....) AGIT further noted that it had prepared "a draft proposal on the Governance of .ISLAM gTLD" and shared that draft with various persons, organizations, and governments (including the UAE, India, and the OIC), requesting that they provide feedback on the draft. AGIT also noted a "positive" conversation it had with the UAE GAC representative regarding AGIT's .HALAL and .ISLAM applications.

Nevertheless, despite these efforts, the majority of the Muslim population as well as several of the specific governments and representative entities noted above by AGIT continue to object to AGIT's applications for .HALAL and .ISLAM. AGIT, through its counsel, argues that it has not received any response from the objecting parties regarding AGIT's proposed governance model. However, the objecting parties have effectively responded by continuing to voice their objections to the applications, which are publicly posted on ICANN's website. After AGIT made efforts to reach out and provide a draft of its proposal to various parties (as noted in AGIT's December 2012 and February 2013 IO responses), those governments and representative entities continued to object to the applications.

On 11 April 2013, the GAC issued the Beijing Communiqué indicating that "[s]ome GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applications for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed." (Beijing Communiqué, https://www.icann.org/en/system/files/correspondence/gac-to-board-11apr1... [PDF, 156 KB].) In the 18 July 2013 Board/GAC dialogue, representatives from the UAE (on behalf of itself, Saudi Arabia, and the OIC), Malaysia, and Turkey reiterated their concerns regarding the applications (as noted in detail above). On 25 July 2013, the State of Kuwait and the Gulf Cooperation Council each sent letters to ICANN stating: "Being part of the Islamic community, we would like to share the concerns raised by UAE government in its early warning. We believe that the application put forward by AGIT is not in the interest of the Islamic community due to the sensitivities inherited in them. We believe that this TLD should be managed and operated by the community itself through a neutral body that truly represents the Islamic community such as Organization of Islamic Cooperation (OIC)." (https://www.icann.org/en/system/files/correspondence/al-qattan-to-icann-... [PDF, 103 KB]; and https://www.icann.org/en/system/files/correspondence/al-shibli-to-icann-... [PDF, 108 KB].) In August and November 2013, the Islamic Republic of Iran sent letters to ICANN indicating: "We strongly believe that both TLDs should be managed and operated by the Muslim community through a neutral body that represents the different sections and segments of the Muslim community including Governments, NGOs and IGOs, Private Sector, Academia, as different stakeholders of internet in the this community." (See https://www.icann.org/en/system/files/correspondence/mahdoiun-to-chalaby... [PDF, 293 KB]; and https://www.icann.org/en/system/files/correspondence/mahdioun-to-chehade... [PDF, 196 KB].) Additional letters were received in 2013 from the Republics of Lebanon and Indonesia similarly expressing concerns regarding the applications. (See https://www.icann.org/en/system/files/correspondence/hoballah-to-chalaby... [PDF, 586 KB]; and https://www.icann.org/en/system/files/correspondence/iskandar-to-chalaby... [PDF, 463 KB].)

Most noteworthy are the Resolutions passed and the correspondence sent by the OIC, which consists of 57 member States and represents over 1.6 billion members of the Muslim community. The OIC began voicing its objections against the applications as early as December 2013 (if not earlier) and has continued to do so as recently as April 2018:

11 December 2013 OIC Resolution against the .HALAL and .ISLAM gTLDS: "[T]he OIC General Secretariat to communicate with the concerned party ICANN in order to file an official objection to the use of gTLDS .Islam and .Halal, and preserve the right of member states in this regard." (OIC Resolution, https://www.oic-oci.org/subweb/cfm/40/fm/en/docs/IT-%2040-CFM-FINAL-ENG.pdf [PDF, 286 KB].)
19 December 2013 OIC letter to ICANN: "I would like to reiterate and affirm the official opposition of the OIC Member States towards any probable authorization by the GAC allowing use of these new gTLDs .islam and .halal by any entity not reflecting the collective voice of muslim people." (19 December 2013 letter, https://www.icann.org/en/system/files/correspondence/ihsanoglu-to-crocke... [PDF, 1.06 MB].)
11 July 2017 OIC Resolution against the .HALAL and .ISLAM gTLDS: "[OIC] Reconfirms OIC position that the two domains .Islam and .Halal or any other domains, which concern the entire Islamic Ummah, should not be sold without a coordinated consent of all the OIC Member States." (OIC Resolution, https://www.oic-oci.org/subweb/cfm/44/en/docs/final/44cfm_res_it_en.pdf [PDF, 34 KB].)
15 April 2018 OIC letter to ICANN: "As I mentioned in my past communication, the Foreign Ministers of the Organization of Islamic Cooperation (OIC) maintain the position that the new gTLDs with Islamic identity are extremely sensitive in nature as they concern the entire Muslim nation." "Therefore, I would like to bring to your kind attention that OIC Foreign Ministers unanimously re-adopted a resolution in this regard as a confirmation of its previous resolutions on the same matter [attaching the 11 July 2017 OIC Resolution]." (15 April 2018 letter, https://www.icann.org/en/system/files/correspondence/al-othaimeen-to-cha... [PDF, 1.57 MB].)
Based upon the Board's review of the relevant materials, its extensive due diligence, and its dialogue with concerned members of the GAC regarding .HALAL and .ISLAM, it is apparent that the vast majority of the Muslim community (more than 1.6 billion members) object to the applications for .HALAL and .ISLAM. It should be noted that, in February 2014, the ICANN Board sent a letter to AGIT – noting the substantial opposition to AGIT's applications; listing the Gulf Cooperation Council, the OIC, the Republic of Lebanon, and the government of Indonesia as four parties that "all voiced opposition to the AGIT applications," with detail as to the concerns of each; and providing AGIT with additional time to reach out to the objecting parties. (7 February 2014 letter, https://www.icann.org/en/system/files/correspondence/crocker-to-abbasnia... [PDF, 540 KB].) It is unclear whether or not AGIT made such additional efforts. Two weeks later (on 21 February 2014), AGIT initiated the Cooperative Engagement Process and, ultimately, the IRP Panel determined that placing the applications on hold was inconsistent with ICANN's Articles and Bylaws, and that the Board should "make a decision on the application[s] (one way or another) with integrity and fairness." In addition to the extensive objections against the applications voiced prior to the IRP Final Declaration, the OIC again reiterated the "unanimous" objection of the Foreign Ministers of its 57 member States in April 2018, months after the IRP Final Declaration.

Under these circumstances, taking the decision to not proceed with the current .HALAL and .ISLAM applications, after reviewing and considering the objections raised by the countries and entities representing the majority of the Muslim community, is in the public interest, is in accordance with the Guidebook provisions that confer upon the Board the discretion to consider individual applications and whether they are in the best interest of the Internet community, and reflects the Board's commitment to ICANN's Mission and core values set forth in the Bylaws, including ensuring that this decision is in the best interest of the Internet community and that it respects the concerns raised by the majority of the community most impacted by the proposed .HALAL and .ISLAM gTLDs.

Specifically, Section 5.1 of the Guidebook provides: "ICANN's Board of Directors has ultimate responsibility for the New gTLD Program. The Board reserves the right to individually consider an application for a new gTLD to determine whether approval would be in the best interest of the Internet community. Under exceptional circumstances, the Board may individually consider a gTLD application. For example, the Board might individually consider an application as a result of GAC advice on New gTLDs or the use of an ICANN accountability mechanism." (Guidebook, Section 5.1, https://newgtlds.icann.org/en/applicants/agb.) Moreover, in applying for the gTLDs, the applicant acknowledged and agreed that the Board has the discretion to make such a decision – "Applicant acknowledges and agrees that ICANN has the right to determine not to proceed with any and all applications for new gTLDs, and that there is no assurance that any additional gTLDs will be created. The decision to review, consider and approve an application to establish one or more gTLDs and to delegate new gTLDs after such approval is entirely at ICANN discretion." (Guidebook, Section 5.1, https://newgtlds.icann.org/en/applicants/agb.)

This decision is also in keeping with ICANN's core values as set forth in the operative Bylaws, in particular those mentioned below, in that it takes into consideration the broad, informed participation of the Internet community and those members most affected, it respects ICANN's accountability mechanisms, and it recognizes the concerns expressed by the countries and entities representing the majority of the affected community (Bylaws, https://www.icann.org/resources/pages/bylaws-2012-02-25-en; and similarly reflected in the current Bylaws, https://www.icann.org/resources/pages/governance/bylaws-en):

Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making.
Acting with a speed that is responsive to the needs of the Internet while, as part of the decision-making process, obtaining informed input from those entities most affected.
Remaining accountable to the Internet community through mechanisms that enhance ICANN's effectiveness.
While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account governments' or public authorities' recommendations.
While the Board strives to follow all the core values in making its decisions, it is also the Board's duty to exercise its independent judgment to determine if certain core values are particularly relevant to a given situation. And, in fact, the operative Bylaws anticipate and acknowledge that ICANN may not be able to comply with all the core values in every decision made and allows for the Board to exercise its judgment in the best interests of the Internet community: "…because [the core values] are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values." (Bylaws, https://www.icann.org/resources/pages/bylaws-2012-02-25-en.)

Taking this decision is within ICANN's Mission as the ultimate result of ICANN's consideration of this matter is a key aspect of coordinating the allocation and assignment of names in the root zone of the domain name system (DNS). Further, the Board's decision is in the public interest, taking into consideration and balancing the goals of resolving outstanding new gTLD disputes, respecting ICANN's accountability mechanisms and advisory committees, recognizing the input received from the Internet community, and abiding by the policies and procedures set forth in the Guidebook, which were developed through a bottom-up consensus-based multistakeholder process over numerous years of community efforts and input, and is consistent with ICANN's core values.

Taking this decision is not expected to have a direct financial impact on the ICANN organization and will not have any direct impact on the security, stability or resiliency of the domain name system.

This is an Organizational Administrative function that does not require public comment.