[IOT] Thoughts on comments regarding challenges to Consensus Policy

[Malcolm Hutty]

On 08/01/2018 15:48, McAuley, David via IOT wrote:
> 
> In an earlier email today, I promised to send along some thoughts on
> public comments we received regarding challenges to Consensus Policies.
> 
>  
> 
> Here are my thoughts, made in my role as a participant, not as team lead.
> 
>  
> 
> Also, I paraphrase the comments in places for ease of reading but urge
> you to read the comments themselves as submitted.
> 
> * *
> 
> *Rewriting consensus policy:*
> 
>  
> 
>  1. GNSO – NCSG
>     (https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfLoCFUVHjfN.pdf):
> 
> See page 6 of their comments, which says, among other things:
> 
> /We’ve stepped into the IRP as a Constitutional Court without adequate
> consideration of the limitation of their powers. Like appellate courts
> in countries, the IRP should only be judging what and what is not
> consistent with ICANN Bylaws. The hard work of rewriting those sections
> of the Consensus Policy that were invalidated below to the communities
> that created the rules in the first place. /
> 
> / /
> 
> /Accordingly, the IRP Panels should send invalidated portions of
> Consensus Policies back to the ICANN Board which should send it back to
> the Supporting Organization that created them. Such must be the rules
> written into the IRP Supplementary Procedures “Standard of Review”
> (Section 11).  /
> 
>  
> 
> My view: I think the intent of this comment is consistent with the
> limited IRP Panel authority spelled out in Bylaw 4.3(o)(iii) –
> specifically, whether ICANN action or inaction violates articles or
> bylaws. Thus no change to the draft procedures seems needed based on
> this comment.

I think I agree.

NCSG writes:

   "We’ve stepped into the IRP as a Constitutional Court without
   adequate consideration of the limitation of their powers. Like
   appellate courts in countries, the IRP should only be judging what
   and what is not consistent with ICANN Bylaws. The hard work of
   rewriting those sections of the Consensus Policy that were
   invalidated below [sic, but presumably this is a typo for "belong"]
   to the communities that created the rules in the first place."

I agree with this statement.

NCSG immediately goes on to say

  "Accordingly, the IRP Panels should send invalidated portions of
   Consensus Policies back to the ICANN Board which should send it back
   to the Supporting Organization that created them."

Does NCSG mean to suggest that the policy would continue in effect, but
with the invalid portion severed? That doesn't seem consistent with the
paragraph above: that would effectively grant the IRP Panel the ability
to rewrite the policy itself, with scissors.

Surely the correct understanding is that if the policy is incompatible
with the bylaws as written, then the policy is abrogated. Whether ICANN
wishes to proceed with a different version of the policy, without the
offending clause, is a matter for ICANN (as a whole), not for the IRP
Panel. A policy might be a delicate balance of interests, and if we
can't have it as written, we might prefer to have nothing, not the
policy with one clause severed.

However, on reflection, I suspect that what NCSG is worried about is
that the *ICANN Board*, on receipt of the IRP's decision abrogating the
policy, might choose to immediately re-adopt a version of the policy
with the offending text severed (and/or having made additional changes
itself), whereas NCSG would prefer that a new policy development process
was initiated. i.e. they don't think the Board should be able to rewrite
the policy in this fashion either.

I think this comment is therefore really addressed to the question of
whether the Board is entitled to adopt ccTLD policy or gTLD policy
outside or in conflict with the respective PDPs, including by adopting a
policy that varies from a PDP outcome. It seems to me there is a good
case that rewriting a PDP policy in such a fashion would itself be a
violation of Article 10 Section 10.6 or Article 11 Section 11.6,
respectively. Even so, I think it is outside the scope of the Rules of
Procedure to assert that this is so within the Rules of Procedure.

If I am correct in that, then David's proposal that we let the current
text stand without any addition to address NCSG's point further must
also be correct.

Malcolm.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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