[CCWG-ACCT] ST-18 and 2/3 Threshold Proposal

[Mueller, Milton L]

I completely agree with Keith's statement below.
But there is another element to the ST18 discussion that has been overlooked. Under customary and formal international law, states are all sovereign and equal. That is why it is standard procedure for the UN to rely on full consensus (no objection from any member). A majority of states, for example, cannot require any other state to sign a treaty. Any other arrangement would effectively erode state sovereignty, making states unequal because a majority of some states could impose obligations or commitments on another state or states.

Any deviation from full consensus by GAC would have substantially the same effect. It could allow one group of states to impose their will on other states regarding what advice should be given to the board. In deciding whether to follow the Advice, it would also force ICANN to choose between following the advice of some states and following the preferences of other states. Since ICANN's policies are effective globally, it is only appropriate for GAC advice to be based on a global consensus of _all_ states. Redefining GAC consensus as anything other  than full consensus is inconsistent with sovereignty. Further, it dramatically reduces a healthy political constraint on GAC advice, opening the door to political conflict, and games of dominance, among states over GAC advice.

--MM


From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Drazek, Keith
Sent: Tuesday, November 17, 2015 2:41 PM
To: accountability-cross-community at icann.org
Subject: [CCWG-ACCT] ST-18 and 2/3 Threshold Proposal

All,

Here are my current thoughts on our ongoing discussions around ST-18, the 2/3 threshold issue, and the GAC's participation in the community mechanism:

The CCWG's mandate is to empower the community as a whole to better hold ICANN and its Board accountable. Our mission is not to modify the influence of one SO or AC relative to the Board, or to one another, nor to enable or encourage such change in the future. This process should not be used by individual groups to seek increased influence relative to others. That's why we are proposing a unified community as the sole Designator, and set thresholds for decisions supported by multiple ACs and SOs.

Under the current discussions, it appears that a subset of GAC members want three new "powers" that do not exist today: (1) the right to hold a decisional role in the community mechanism, (2) a 2/3 threshold for Board rejection of consensus advice, and (3) the ability to adjust the definition of consensus that would trigger the Board's special obligations.  Why is the CCWG now focusing on the 11th-hour introduction of the 2/3 board threshold along with flexibility to change current practice on the definition of consensus? Both of those stand to increase the influence of the GAC alone over the Board and other community groups.

No one is trying to tell the GAC how to define consensus for its internal deliberations or advice. Rather, ST-18 simply reinforces the current practice that the Board's obligations kick in only when the GAC's consensus is consistent with current practice - reflecting the UN definition/absence of formal objection. Any change to this practice must be viewed as empowering the GAC alone over the Board and potentially in a disproportionate way relative to others.

By participating in the community mechanism as a co-equal, the GAC will be able to contribute to this joint community empowerment in a decisional way, if it chooses to do so. This is already a big change (that some are uncomfortable with) but it shows that the rest of the community respects the important role of governments and the GAC in our community processes.

In my view, the CCWG should resist pressure to intentionally or inadvertently increase the relative influence of any one group, and stay focused on the joint community empowerment envisioned in our charter. This should not be an opportunity for any group to secure individual benefits they have previously been denied.

Thanks and regards,
Keith


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