[CCWG-ACCT] PDP interaction with bylaws veto - proposed approach

[Nigel Roberts]

On 18/11/15 11:06, Dr Eberhard W Lisse wrote:
> I don't care really much about the other SO's, but the ccNSO is
> different, at least in this context.
> > On 18/11/15 11:06, Dr Eberhard W Lisse wrote:> I don't care really much about the other SO's, but the ccNSO is
> different, at least in this context.

Eberhard is right, but  anyone who was not involved in ICANN before 2005 
it's worth pointing out some background to the reasons the ccNSO is so 
different.

It will help understand not only why no change to the 2003 settlement in 
the guise of increasing accountability, will be acceptable to a 
significant number of ccTLD managers, and thus the entire package will 
not get consensus.

There are two important concepts, one borrowed from the European Union, 
and the other is a concept well known to GAC members, although it has a 
slightly different construction used in this context.

Those are "subsidiarity" and "sovereignty".


SUBSIDIARITY
============

Many, many ccTLD operators could not have become members of the ccNSO 
without this building block of repairing the relationship between ccTLDs 
and ICANN which had, in 2003, broken down at a fundamental level.

There are in fact many different reasons.

However, if membership of the ccNSO implied that the ccNSO majority set 
ccTLD policy for its members (as the gNSO appears to do), the 
organisations concerned simply could not be members, and the legitimacy 
of the ccNSO would be threatened due to non-participation.

This including knotty legal issues for those ccTLDs who are considered 
to be public authorities (i.e. government controlled, owned or 
directed).  Other, private sector ccTLDs, take the view similarly choose 
not to concede power over their internal policies to a 
Johnnie-come-After private body without statutory authority over them, 
and there are still holdouts for this reason too.

The principle of subsidiarity is this.

No policy or policy decision should be taken at the overall level (c.f. 
the Union) where such policy was not absolutely necessary to achieve the 
purpose of the organisation.

The expectation is that policy and decisions about how a ccTLD is run, 
operated etc. is a local matter in the country or territory that the two 
letter code represents, subject to the rule of law (self-evidently both 
in California and the place of establishment of the ccTLD operator).

And this is echoed in the current version of the GAC principles (2005).



SOVEREIGNTY
============

This is one those words which has multiple different, but similar meanings.

We could probably coin a better, but for the time being this will have 
to do.

Clearly Prof. Muelller's recent insightful article tells us that 
traditional views of national sovereignty (e.g. the UK having 
sovereignty over the Turks and Caicos Islands) cannot apply to 2-letter 
codes.

However, if we use the word sovereignty to highlight the "right of each 
country or territory ccTLD manager to self-determination in matters 
relating to its own ccTLD", then it's may be helpful to say that ccTLDs 
are sovereign unless their Designated Manager misbehaves substantially 
(See RFC1591, and the interpretation work).


Ultimately the test, that I, and I know several other ccNSO Council 
Members will use when the matter is finally considered is this.

"Does the proposal significantly affect the subsidiarity principle and 
the right of ccTLDs individually and collectively to regulate their own 
affairs without the involvement or interference of third parties?"

Any proposal which does not answer that question in the negative will 
not receive the necessary support, in my view.



On 18/11/15 11:06, Dr Eberhard W Lisse wrote:
> I don't care really much about the other SO's, but the ccNSO is
> different, at least in this context.
>
>