The Internet Corporation for Assigned Names and Numbers (ICANN) is a non-profit corporation that was formed to assume responsibility for the IP address space allocation, protocol parameter assignment, domain name system management, and root server management previously performed under US Government contract by IANA and other entities.

IANA or the Internet As-signed Numbers Authority was the overall authority for the IP addresses, domain names, and many other parameters used in the Internet. It was responsible for the overall coordination and management of the Domain Name System (DNS) especially the delegation of portions of the name space called top-level domains.

What are top-level domains? The DNS structure contains a hierarchy of names. The root, or highest level of the system is unnamed. Then, there are what are called the top-level domains. They may be divided into generic top-level domains, or gTLDs, and country code top-level domains, or ccTLDs. Generic TLDs refer to a limited number of domains that do not have geographic or country designation. This includes .COM, .NET, and .ORG. Country code TLDs, on the other hand, are domains delegated to country managers and whose codes are assigned from a table known as ISO-3166-1 maintained by an agency of the United Nations. It is said that country code domains are each organized by the manager for that country and that manager is performing a public service on behalf of the Internet community.

As shown in http://iana.org/root-whois/ph.htm, the ccTLD manager in the Philippines is identified as follows: the PH Domain Foundation as the sponsoring organization, Jose Emmanuel Disini as both the administrative and technical contact, and http://www.domreg.org.ph/ as the URL for its registration services.

Rules Governing ccTLDs

The country code manager is subject to RFC (Request for Comments) 1591 entitled "Domain Name System Structure and Delegation" issued by John Postel of IANA in March 1994. Then, in May 1999, ICANN issued a document entitled "Internet Domain Name System Structure and Delegation", also known as ICP-1. It summarizes the "current" practices of IANA in administering RFC 1591. It was intended as the basis for possible future discussions of policy in the area of the domain name system structure and delegation.

The ccTLD as Trust

RFC 1591 states that the "designated authorities are trustees for the delegated domain, and have the duty to serve the community." It states also that the "designated manager is the trustee of the top-level domain for the nation, in the case of a country code, and the global Internet community." It continues by saying that "concerns about 'rights' and 'ownership' of domains are inappropriate." Instead, what is appropriate is "to be concerned about 'responsibilities' and 'service' to the community."

Following the same line, ICP-1 states "TLD managers are trustees for the delegated domain, and have the duty to serve the community." It repeats substantially the language used in RFC 1591 as follows: "The designated manager is the trustee of the TLD for both the nation, in the case of ccTLDs, and the global Internet community. Concerns about 'rights' and 'ownership' of domains are inappropriate. It is appropriate, however, to be concerned about 'responsibilities' and 'service' to the community."

Both RFC 1591 and ICP-1, therefore, suggest the presence of a trust. Tolentino (in his commentary on the Civil Code) defines trust as "the legal relationship between one person having an equitable ownership in a property and another person owning the legal title to such property, the equitable ownership of the former entitling him to the performance of certain duties and the exercise of certain powers by the latter."

This legal relationship of trust involves a trustor, a trustee and a beneficiary. According to Art. 1440 of the Civil Code, "a person who establishes a trust is called the trustor; one in whom confidence is reposed as regards property for the benefit of another person is known as a trustee; and the person for whose benefit the trust has been created is referred to as the beneficiary."

A trust may be classified as express or implied. An express trust is created by the intention of the trustor or of the parties. An implied trust comes into being by operation of law. Since, the trust that is involved in ccTLDs are created by intent and not by operation of law, then it should be classified as an express trust.

From the foregoing, it may be said that an express trust is established in favor of the nation and the global Internet community as beneficiaries. What is reposed upon the ccTLD manager is the trust or confidence and not anything else. This explains the language of RFC 1591 and ICP-1 which states that concerns about rights and ownership are inappropriate and that what is appropriate is to be concerned about responsibilities and service to the community.

Delegation, Transfers, Disputes

According to RFC 1591, "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 an equitable, just, honest, and competent job." It states that "significantly interested parties in the domain should agree that the designated manager is the appropriate party" and that "IANA tries to have any contending parties reach agreement among themselves, and generally takes no action to change things unless all the contending parties agree." It specifically states that "only in cases where the designated manager has substantially misbehaved would the IANA step in." In same breath, however, RFC 1591 also states that "it is also appropriate for interested parties to have some voice in selecting the designated manager."

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

On the other hand, ICP-1 states that "delegation of a new top level domain requires the completion of a number of procedures, including the identification of a TLD manager with requisite skills and authority to operate the TLD appropriately." It also states that "the desires of the government of a country with regard to delegation of a ccTLD are taken very seriously" and that "significantly interested parties in the domain should agree that the proposed TLD manager is the appropriate party."

As to the transfer of TLD management from one organization to another, ICP-1 states that "the higher-level domain manager (the IANA in the case of TLDs) must receive communications from both the old organization and the new organization that assure the IANA that the transfer is mutually agreed, and that the proposed new manager understand its responsibilities." It also states that "it also very helpful for the IANA to receive communications from other parties that may be concerned or affected by the transfer."

According to ICP-1, "in the event of a conflict over designation of a TLD manager, the IANA tries to have conflicting parties reach agreement among themselves and generally takes no action unless all contending parties agree." The document took note that "on a few occasions, the parties involved in proposed delegations or transfers have not been able to reach an agreement and IANA has been required to resolve the matter" and that what occurred was "usually a long drawn process, leaving at least one party unhappy." It declared that "it is better when the parties can reach an agreement among themselves."

ICP-1 omitted that statement in RFC 1591 which states that "only in cases where the designated manager has substantially misbehaved would the IANA step in." Perhaps this is to allow the ICANN greater flexibility in addressing problems involving the designated country code managers.

Responsibilities and Revocation

Under both the RFC 1591 and ICP-1, the designated ccTLD manager has the duty to serve the community, to be equitable to all groups in the domain that request domain names, and to do a satisfactory job of operating the DNS service of the domain.

To be equitable, RFC 1591 requires that same rules are applied to all requests, that all requests must be processed in a non-discriminatory fashion, and that academic and commercial (and other) users are treated on an equal basis. It requires that no bias be shown regarding requests that may come from customers of some other business related to the manager and that no requirement that a particular mail system (or other application), protocol, or product be used. ICP-1 substantially repeats all these requirements but, in addition, it requires that the policies and procedures for the use of each TLD must be available for public inspection.

To do a satisfactory job of operating the DNS service for the domain, RFC 1591 requires that the "actual management of the assigning of domain names, delegating subdomains and operating nameservers must be done with technical competence." Such includes "keeping the central IR or other higher-level domain manager advised of the status of the domain, responding to requests in a timely manner, and operating the database with accuracy, robustness, and resilience." In addition, ICP-1 requires that "the IANA must be granted access to all TLD zones on a continuing basis."

As stated in RFC 1591, "in cases when there are persistent problems with the proper operation of a domain, the delegation may be revoked, and possibly delegated to another manager." On the other hand, ICP-1 states that "in cases where there is misconduct, or violation of the policies set forth in this document and RFC 1591, or persistent, recurring problems with the proper operation of a domain, the IANA reserves the right to revoke and to redelegate a Top Level Domain to another manager."

What It Takes to Transfer or Redelegate

While RFC 1591 states that "only in cases where the designated manager has substantially misbehaved would the IANA step in", no such statement is contained in ICP-1. Instead, it states that "in the event of conflict over designation of a TLD manager, the IANA tries to have conflicting parties reach among themselves and generally takes no action unless all contending parties agree." It continues by saying "on a few occasions, the parties involved in proposed delegations or transfers have not been able to reach an agreement and IANA has been required to resolve the matter."

There some people who are of the opinion that transfer necessarily involves revocation and that the grounds for revocation are limited. We should take note, however, that the grounds for revocation as provided in RFC 1591 include "cases when there are persistent problems with the proper operation of a domain, the delegation may be revoked, and possibly delegated to another manager." On the other hand, the grounds provided in ICP-1 include "cases where there is misconduct, or violation of the policies set forth in this document and RFC 1591, or persistent, recurring problems with the proper operation of a domain, the IANA reserves the right to revoke and to redelegate a Top Level Domain to another manager."

In addition, these grounds for revocation may not exclusive. A trust is a fiduciary relationship and a trustor may revoke the trust at will. This is because, by the definition of Tolentino, the trustor retains the beneficial ownership over the property.

Role of Government

At present, a group is asking for the redelegation of the Philippine ccTLD to a non-profit organization. This group has called for support from the Philippine government. Can and should the government intervene?

From both RFC 1591 and ICP-1, it is clear that the designated manager is a trustee of the ccTLD for both the nation and the global Internet community. Both documents speak of the "nation" and not just the local Internet community. While there would be some question as to who can speak for the local Internet community, there should be no question as to who can speak for the "nation". Obviously, the Philippine government has the mandate to do so. Should government intervene, ICP-1 states that "the desires of the government of a country with regard to delegation of a ccTLD are taken very seriously."

What then is Dot PH in relation to the Philippine government and the Filipino nation? Is it a public resource? It has been argued that it is not a public resource because of the following: (1) it is a created resource and not a natural resource, (2) the Philippine government does not have territorial jurisdiction over the ccTLD, and (3) the Philippine government did not fund the creation or the development of the domain name system and the Internet as a whole.

I think this quote from the concurring opinion of Justice Padilla in the case Manila Prince Hotel vs. Government Service Insurance System (267 SCRA 408) is relevant. It states:

"A study of the 1935 Constitution, where the concept of 'national patrimony' originated, would show that its framers decided to adopt the even more comprehensive expression 'Patrimony of the Nation' in the belief that the phrase encircles a concept embracing not only the natural resources of the country but practically everything that belongs to the Filipino people, the tangible and the material as well as the intangible and spiritual assets and possessions of the people."

Does Dot PH belong to the Filipino people? The PH in Dot PH, just like the two-letter codes used in other ccTLDs, was taken from a table known as International Standard Organization (ISO) 3166-1, one of the three parts of ISO 3166 entitled "Codes for the Representation of Names of Countries and their Subdivisions." This standard developed in the early 1970 is maintained by a body established and known as the ISO 3166 Maintenance Agency. Its primary function is "to add and to eliminate country names and country subdivision names and to assign code elements as needed, in accordance with the rules provided in the standard."

Who are entitled to be included in ISO 3166-1 and to get a two-letter country code? According to the ISO 3166/MA website, there are two ways by which new entries may be added to ISO 3166-1, namely: (1) through the United Nations lists of country names given in the UN Bulletin "Country Names" and in the code list of the "Standard Country or Area Codes for Statistical Use", and (2) upon request subject to certain requirements.

Ninety nine per cent (99%) of all entries in ISO 3166-1 are in the standard because the UN lists the country name. More specifically, the Philippines was included in the table because the UN listed it as a country. The UN listed the Philippines as a country because of international recognition that it is an independent state. It can be said, then, that the two-letter code PH was assigned and therefore "belongs" to the Philippines on account of international recognition that it is a country or an independent state.

Does the Philippines have territorial jurisdiction over the Dot PH ccTLD? RFC 1591 requires that, "for top-level domains that are country codes, at least the administrative contact must reside in the country involved." More importantly, the fact that Dot PH sells the domain names in the Philippines is clearly doing business in the Philippines. We can safely conclude, therefore, that the Philippine ccTLD is well within the territorial jurisdiction of the Philippine government.


Conclusion

Under both RFC 1591 and ICP-1, the designated manager of a ccTLD like Dot PH is a trustee of the said ccTLD for the nation and the global Internet community. The designated manager, therefore, has the duty to serve the nation and the global Internet community as beneficiaries of the trust.

Both RFC 1591 and ICP-1 speaks of the nation. Clearly, there is no difficulty in determining who can speak for the nation. The Philippine government has the mandate to do so. In fact, ICP-1 states that "the desires of the government of a country with regard to delegation of a ccTLD are taken very seriously."

Justice Padilla notes in his concurring opinion in the Manila Prince Hotel v. Government Service Insurance System case that, under the 1935 Constitution from which the term "national patrimony" originated, the framers believed that the term meant "practically everything that belongs to the Filipino people." Based on this, the country code PH can very well be said as belonging to the Filipino people.

As already pointed out, the code PH was taken from a table known as ISO 3166-1 which assigns two-letter codes to countries listed by the United Nations. It was assigned to the Philippines on account of our being an independent state and should therefore be considered part of our national patrimony. This being so, the preservation of the value the code is necessarily of great national interest.

The Philippine government, therefore, may regulate and even seek the revocation and redelegation of the Philippine ccTLD based on national interest. The following are the grounds for such revocation of the designation of the ccTLD manager and the redelegation to another, provided by RFC 1591 and ICP-1, namely: (1) misconduct, (2) violation of policies set forth in ICP-1 and RFC 1591, and (3) persistent, recurring problems with the proper operation of a domain.

It is not correct to say that the Dot PH issue is merely a consumer protection issue. The PH code was assigned to the Philippines by ISO 3166 on the basis of international recognition of the Philippines as a country. It "belongs" to the Filipino nation. It is part and parcel of our national patrimony. It is, therefore, well within the powers of the Philippine government, as the representative of the Filipino nation, to regulate the use of the two-letter code including use in the operation of the Internet especially within its territorial jurisdiction.

(Copyright 2003. Gilbert E. Lumantao. All rights reserved. No part of this article may be reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews.)