Rachovitsa: International Law and the Global Public Interest: ICANN's Independent Objector as a Mechanism of Responsive Global Governance

Adamantia Rachovitsa (Univ. of Groningen - Law) has posted International Law and the Global Public Interest: ICANN's Independent Objector as a Mechanism of Responsive Global Governance (in Non-State Actors and Changing Relations in International Law, forthcoming). Here's the abstract:

The Internet Corporation for Assigned Names and Numbers (ICANN) is the informal, privately run body that manages the Domain Name System. ICANN recently expanded the top level of domain names by launching the new generic Top-Level Domain (gTLD) Programme and it has already introduced more than 1,000 gTLDs into the DNS (for example, ‘.CHURCH’, ‘.HEALTH’). This programme is expected to have a great impact on how Internet users search and experience the web in the future. The public(-like) nature of ICANN’s operation and the global ramifications of its decisions raise accountability and legitimacy concerns. In order to address some of these concerns, ICANN decided to protect certain interests and rights within the new gTLD programme by providing the opportunity for third parties to submit an objection to gTLD applications on specific grounds, including a limited public interest objection.

This paper concerns the limited public interest objection, according to which an applied-for gTLD string will not be registered if it is found to be contrary to generally accepted legal norms of morality and public order recognised under the principles of international law. The paper shows that the LPI objection is notable for three reasons. First, it aims to protect the interests of the global Internet community and not merely private interests; second, ICANN introduced an international legal standard to evaluate the applied-for strings; and third, a novel institution has been created to support the limited public interest objection: the Independent Objector acting solely in the best interests of the general public. Interestingly, Professor Alain Pellet served as the Independent Objector from 2012 to 2014.

The paper argues that the Independent Objector is a novel mechanism with the potential to enhance ICANN’s responsiveness to the global public interest. Although international lawyers have now started to pay attention to Internet governance bodies when discussing global governance, ICANN is very often excluded from these discussions due to its complexity and specificity. The discussion draws insights on the feasibility and desirability of the objection and the Independent Objector as means to remedy a gap in global governance. The analysis critically assesses how the Independent Objector has developed the limited public interest objection and evaluates the potential and limitations of international law for articulating and protecting the public interest at a global level. The paper concludes by making a series of recommendations with a view to improving the future implementation of this mechanism.