W3C home > Mailing lists > Public > www-style@w3.org > February 2009

Re: Why "color"

From: marbux <marbux@gmail.com>
Date: Thu, 19 Feb 2009 10:09:50 -0800
Message-ID: <2c60d980902191009l5ff80247y4f9810946dfff908@mail.gmail.com>
To: Philip TAYLOR <P.Taylor@rhul.ac.uk>
Cc: Daniel Glazman <daniel.glazman@disruptive-innovations.com>, Adam Twardoch <list.adam@twardoch.com>, Philip TAYLOR <Philip-and-LeKhanh@royal-tunbridge-wells.org>, www-style@w3.org
On Thu, Feb 19, 2009 at 8:53 AM, Philip TAYLOR <P.Taylor@rhul.ac.uk> wrote:
> With respect, Daniel, "reality" requires recognising
> the fact that most of the world does not speak English
> (in any of its variants) as a first language, and that
> we who are in the privileged position of being able
> to discuss standards for future software specifications
> have a duty not only to recognise this fact but to
> build in this recognition into specifications currently
> under discussion.

I'm a retired lawyer and scholar of international law governing IT
standards development. I think you have a fair point in regard to the
duty you speak of. That does not clearly resolve the issue in my mind
because there are arguments cutting the other way in context and the
World Trade Organization Dispute Resolution Process has not yet spoken
directly to the issue in the context of IT standards.

But this is an issue that should be bumped over to W3C Legal for some guidance.

In the Agreement on Technical Barriers to Trade, Article 4 provides in
relevant part:

"Members [nations] shall ensure that their central government
standardizing bodies accept and comply with the Code of Good Practice
for the Preparation, Adoption and Application of Standards in Annex 3
to this Agreement (referred to in this Agreement as the "Code of Good
Practice"). They shall take such reasonable measures as may be
available to them to ensure that local government and
*non-governmental standardizing bodies within their territories,* as
well as regional standardizing bodies of which they or one or more
bodies within their territories are members, *accept and comply with
this Code of Good Practice.* ... The obligations of Members with
respect to compliance of standardizing bodies with the provisions of
the Code of Good Practice shall apply irrespective of whether or not a
standardizing body has accepted the Code of Good Practice."

<http://www.wto.org/english/res_e/booksp_e/analytic_index_e/tbt_01_e.htm#article4>
(footnote omitted).

In the referenced Code of Good Practice, the following relevant
passages are found:

"D.     In respect of standards, the standardizing body shall accord
treatment to products originating in the territory of any other Member
of the WTO no less favourable than that accorded to like products of
national origin and to like products originating in any other country.

"E.     The standardizing body shall ensure that standards are not
prepared, adopted or applied with a view to, or with the effect of,
creating unnecessary obstacles to international trade."

Note that those two provisions echo language found in sections 2.1 and
2.2 of Article 2, governing the preparation adoption, and application
of technical regulations.
<http://www.wto.org/english/res_e/booksp_e/analytic_index_e/tbt_01_e.htm#article2>.
A fair reading of Article 2 section 2.2 suggests that whether an
obstacle is "unnecessary" sets a very high legal threshold reserved
for very serious situations such as "national security requirements;
the prevention of deceptive practices; protection of human health or
safety, animal or plant life or health, or the environment. In
assessing such risks, relevant elements of consideration are, inter
alia: available scientific and technical information, related
processing technology or intended end-uses of products."

I see a fair argument that sole reliance on a single human language
for markup tokens raises issues under both sections D. and E. of the
Code of Good Practice quoted above, although I think the issue more
squarely poised by section E governing obstacles to international
trade. The legal inquiry suggested by the sections cited above is: [i]
whether the reliance on a single human language for markup tokens
creates an obstacle to international trade; and [ii] if so, whether
that obstacle is necessary.

Even where obstacles to international trade are necessary, language in
Article 2 section 2.2 suggest that a "least trade restrictive"
solution is required. "technical regulations shall not be more
trade-restrictive than necessary to fulfil a legitimate objective[.]"

I think it likely that faced with a dispute that directly posed the
issue, the WTO Appellate Body would read the "least trade restrictive"
solution requirement into the Code of Good Practice. In effect, the
"least trade restrictive" language is but another way of asking
whether an obstacle to international trade is "unnecessary."

That said, I also suspect that a dispute over usage of American or
British spellings would not be viewed as a serious matter by the
Appellate Body. A far more compelling issue would be a dispute
involving English and a different language commonly used in a
developing nation.

But in sum, I think this an issue the W3C lawyers should speak to.

Best regards,

Paul E. Merrell, J.D.

-- 
Universal Interoperability Council
<http:www.universal-interop-council.org>
Received on Thursday, 19 February 2009 18:10:33 GMT

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