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

Tue Mar 3 13:28:59 UTC 2015

Thank you very much Julia and Rafael for these inputs. It is very helpful
in further developing this proposal.

I think there is an objective question we need an answer to, which is:

*Which, if any, SOs and ACs have the ability to change their internal rules
or procedures in a way that affects the whole ICANN community?*

>From where I sit, I know that the GAC could do this: if it changed the
Operating Principle 47 to allow advice by majority vote, this would
effectively increase governmental influence in ICANN and is solely a GAC
decision.

I do not know whether other ACs can do this, because I do not know whether
the bylaws give a special privileged status to their advice similar to the
status they give to GAC advice.

I do not know whether other SOs can do this.

I think in the ccNSO there is no advice provision, and in terms of
policymaking, all the rules are set out in the PDP which is part of the
bylaws. So any change for ccNSO influence is a bylaws change, as far as I
know.

If we have a clearer position of this, it would be helpful.

*Are ICANN staff able to provide this information?*

*Is any volunteer member of the WP able to provide this information?*

I think if we know the answer, we will have a better basis to proceed.

My initial thought is that if it is only GAC that has this ability, then
that isn't something that should be maintained, because one of the key
criteria for the IANA stewardship transition that NTIA has set out is that
ICANN should not be subject to *governmental* control in future. An
unlimited ability for governments to increase their influence in ICANN at
their own discretion could conflict with that requirement, and mean the
IANA stewardship transition fails.

That's why resolving this in some way is part of WorkStream 1 - to be done
to allow transition to proceed.

Looking forward to more discussions!

bests
Jordan

On 3 March 2015 at 21:36, Perez Galindo, Rafael <RPEREZGA at minetur.es> wrote:

> Dear All
>
> Spain fully concurs with the views expressed by Denmark.
>
> While understanding the need to avoid capture, no proposal should preempt
> the way in which a Committee makes decisions, which is what this idea would
> mean in practice by compelling the GAC to stick to the consensus rule if it
> wants the Board to duly take into account its advice.
>
> This proposal goes beyond the scope of this CCWG unless we engage in
> discussion of procedures in all relevant SOs/ACs, as well.
>
> At any rate, such a proposal would strongly affect the GAC role and should
> request explicit consent from the GAC prior to its inclusion in the report.
>
> Best regards
>
> Rafael Pérez Galindo
> S. G. de Servicios de la Sociedad de la Información
> Secretaría de Estado de Telecomunicaciones y para la Sociedad de la
> Información
> MINISTERIO DE INDUSTRIA, ENERGÍA y TURISMO
>    c/ Capitán Haya, 41 Pta. 6ª Despacho 6.10 (28020 Madrid, España)
>   +34 91 3461544
>   +34 91 3461577
>   rperezga at minetur.es
>
>
> -----Mensaje original-----
> De: wp1-bounces at icann.org [mailto:wp1-bounces at icann.org] En nombre de
> Julia Katja Wolman
> Enviado el: martes, 03 de marzo de 2015 12:53
> Para: wp1 at icann.org
> Asunto: Re: [Party1] template - consensus defined for ICANN dealing with
> GAC advice - draft1
>
> 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.
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog  London
> Internet Exchange | http://publicaffairs.linx.net/
>
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>
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-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *
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