[Party1] template - consensus defined for ICANN dealing with GAC advice - draft1

Tue Mar 3 11:53:10 UTC 2015

Dear Malcolm, colleagues,

This is indeed an interesting discussion, which is likely to generate some more comments from the government side. 

>From our (DK) point of view we fully understand the need to have a stress test for such a situation, including mitigating capture, but it is our general view that any such proposal should not lower the current threshold for the obligation of the ICANN Board to duly taking into account GAC advice.  

With regard to Malcolm's suggestion below, we believe the text should not be split into two. To clarify: In practice, the example you present below where the other governments would be "indifferent" actually means that the other governments actively chose not to actively support that specific issue, for different reasons, and consequently there would be consensus on advancing that specific issue as GAC advice. We would also like to underline that reaching consensus among governments is not an easy task and is a process that requires deliberations and compromises.  Therefore, we would like keep the text from the existing consensus rules in the GAC's Operating Principles.

Moreover with regard to the template, there may be situations where the GAC could not give consensus advice to the Board on a specific issue because of opposition from one government but the general view could still be in the benefit of the public. The opposite situation could be interpreted so that a non-consensus advice always would be contrary to the public benefit/interest.

Consequently in the attached document we suggest to amend the following paragraph:

 "Primarily this purpose:
·       Ensure decisions are for benefit of the public, not just for a particular set of stakeholders" 

to

"Primarily this purpose:
.     Avoid capture of a particular set of interests"

Best regards,

Julia

Julia Katja Wolman

DANISH BUSINESS AUTHORITY

Dahlerups Pakhus
Langelinie Allé 17
DK-2100 København Ø
Telephone: +45 3529 1000
Direct: +45 35291308
E-mail: jukacz at erst.dk
www.erhvervsstyrelsen.dk

MINISTRY FOR BUSINESS AND GROWTH

-----Oprindelig meddelelse-----
Fra: wp1-bounces at icann.org [mailto:wp1-bounces at icann.org] På vegne af Malcolm Hutty
Sendt: 2. marts 2015 12:38
Til: Kavouss Arasteh; Jordan Carter
Cc: wp1 at icann.org
Emne: Re: [Party1] template - consensus defined for ICANN dealing with GAC advice - draft1

On 01/03/2015 08:01, Kavouss Arasteh wrote:
> I understand from the draft that therte would be only "CONSENSUS ADVICE"
> from GAC to ICANN Board
> However, today, GAC could advise the ICANN Board with advice on which 
> no consensus is reached and that is an aimportant elements on which 
> the system is working.
> There are several examples of such kind of advice.

Absolutely, this is an important point. It is of course important that the Board receive input from individual governments as well as other stakeholders. The GAC has sometimes found it convenient to convey such input through consensus documents such as the communique. When it does so this essentially means "We have no consensus on X, but some of our members would like to express their own view to you, and we are agreed that you should be aware of their view".

This is entirely appropriate. At the same time, it is important to be able to distinguish between a view that has commanded a consensus in the GAC and one which does not; the bylaws provides for special weight to be given to GAC views, and that surely means the former rather than the latter. This template simply aims to clarify that.

As a small tweak, I wonder whether the template would be improved by spltting the test into two heads ("general agreement" AND "the absence of formal objection", as follows:

"Consensus advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies, where consensus is understood to mean the practice of adopting decisions by general agreement and the absence of any formal objection.  [...continues unchanged]"

The aim of this change is to address the position where one government raises an issue of interest to them only, and other governments are indifferent. It seems to me if only one government holds a position, and the others state that they have no view, this doesn't really constitute a consensus position, and ought not to be treated as such.

Of course, governments that were largely disinterested would still be free to give their positive support anyway, perhaps out of comity, and so to form a consensus. This change would merely say that input would only be treated as GAC consensus advice if they chose to do so.

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