[Party1] template - consensus defined for ICANN dealing with GAC advice - draft1
Mathieu Weill
mathieu.weill at afnic.fr
Thu Mar 5 16:45:57 UTC 2015
Dear Colleagues,
Attached is the note I sent to Thomas Schneider, GAC Chair, as discussed.
Le 05/03/2015 16:26, Thomas.Schneider at bakom.admin.ch a écrit :
>
> Dear all
>
> i have taken note of the discussions in WP1 and I agree that this is
> an important matter where we will have to have a discussion in the GAC.
>
> So I am waiting for the co-chairs of the CCWG to contact me with some
> clear issues/questions that they would want us to discuss.
>
> And then we will come back with feedback from the GAC as soon as
> possible.
>
> Best regards
>
> Thomas
>
> *Von:*Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> *Gesendet:* Donnerstag, 5. März 2015 11:27
> *An:* Jordan Carter; Schneider Thomas BAKOM; Olga Cavalli; Campillos
> Gonzalez, Gema Maria; Manal Ismail; Jandyr Ferreira dos Santos Junior;
> Michael.Niebel at ec.europa.eu
> *Cc:* Mathieu Weill; wp1 at icann.org
> *Betreff:* Re: [Party1] template - consensus defined for ICANN dealing
> with GAC advice - draft1
>
> Dear All,
>
> As I mentioned before , we are now discussing some very delecate issue.
>
> We need to seek views from GAC before proceeding further
>
> Regards
>
> Kavouss
>
> 2015-03-05 0:32 GMT+01:00 Jordan Carter <jordan at internetnz.net.nz
> <mailto:jordan at internetnz.net.nz>>:
>
> Dear Mathieu
>
> To confirm we at WP1 today agreed to halt any further
> consideration of this, pending your consultation with the GAC.
>
> best
>
> Jordan
>
> On 5 March 2015 at 00:27, Mathieu Weill <mathieu.weill at afnic.fr
> <mailto:mathieu.weill at afnic.fr>> wrote:
>
> Dear colleagues,
>
> We are obviously on sensitive grounds here. We are all well
> aware that to reach our goal, to enhance Icann's
> accountability in the context of a successful transition, we
> need to ensure :
> - that we have consensus across all SO/ACs
> - that we ensure the absence of capture within Icann.
>
> This discussion started from the stress test which is
> precisely defined at ensuring that Icann is not captured by
> governments or a group of governments. The proposal being
> currently discussed suggests that Icann Bylaws incorporate a
> specific decision making rule (consensus) for GAC Advice to
> get special deferrence by the Board. Feedback from some GAC
> members in the CCWG tend to demonstrate that the proposal
> would not get full consensus at this point.
>
> We need to recognize that the proposal is consistent with
> current practice of the GAC, but also that this current
> practice has been discussed in the past within the GAC, and
> appears to be a point of discussion between GAC members
> lately. Consequently, we as CCWG run the risk of stepping into
> an internal GAC discussion without properly understanding the
> specific context.
>
> The co-chairs will engage the GAC Chair, Thomas Schneider, on
> the issue shortly, as discussed earlier within the CCWG.
> before doing that I would appreciate your insights on some
> aspects of the current proposal :
> - would other definitions of decision making, for example
> supermajority requirements such as those existing for some
> gNSO decisions, provide sufficient guarantees against capture
> (2/3 ; 3/4; ...) ? In this case they could replace the
> proposed definition of consensus ?
> - how does the current proposal (consensus being defined as
> "no formal objection") prevent from one single government
> "capturing" GAC "special deferrence" advice ? Could that not
> be considered by some as capture (within the GAC) by one
> government over the "public policy" perspective that the GAC
> brings into Icann.
>
> Thanks for your considered responses, and for the very useful
> debate on this topic so far.
>
> Best,
> Mathieu
>
>
> Le 04/03/2015 07:14, Jordan Carter a écrit :
>
>
>
> Dear all, dear Olga,
>
> Apologies for the delay in replying, but here we go:
>
> On 3 March 2015 at 23:35, Olga Cavalli
> <olgacavalli at gmail.com <mailto:olgacavalli at gmail.com>> wrote:
>
> Dear Jordan,
>
> could you clarify this sentence please:
>
> "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"
>
> In short: if GAC can choose to decide advice more easily,
> and ICANN is obliged to duly take GAC advice into account,
> then GAC can choose to increase its influence in ICANN.
> GAC should not be able to choose to do this on its own, is
> the argument here.
>
> Here's the long version:
>
> At the present time GAC advice triggers an obligation on
> ICANN to duly take that advice into account, as per the
> bylaws:
>
> /Article IX Section 2 Part 1/
>
> /j. The advice of the Governmental Advisory Committee on
> public policy matters shall be duly taken into account,
> both in the formulation and adoption of policies. In the
> event that the ICANN //Board determines to take an action
> that is not consistent with the Governmental Advisory
> Committee advice, it shall so inform the Committee and
> state the reasons why it decided not to follow that
> advice. The Governmental Advisory Committee and the ICANN
> //Board will then try, in good faith and in a timely and
> efficient manner, to find a mutually acceptable solution. /
>
> This obligation to look at the advice, and to try and find
> a mutual solution, is what gives GAC its influence in
> ICANN - its advice cannot be ignored by the Board.
>
> The GAC in its Operating Principles (#47) specifies that
> advice will be made by consensus.
>
> GAC can change its operating principles.
>
> If - hypothetically - GAC did change its operating
> principles to allow it to give advice to ICANN on a
> non-consensus basis - perhaps by voting - then it would be
> _lowering the threshold_ at which advice could be given.
>
> The *current* combination of ICANN having to give due heed
> to GAC advice, and the consensus nature of that advice, is
> what gives the GAC its *current* level of structural
> influence in ICANN.
>
> It seems to me that*if the threshold was lowered* for
> establishing such advice, then that influence would be
> *increased*. Governments would have more influence in
> ICANN, because it would be easier to give advice on more
> topics without the onerous requirement of consensus being
> arrived at.
>
> In the other direction, if the threshold for advice was
> *made higher* (e.g. if GAC - hypothetically - changed its
> operating principles so that it could only offer consensus
> advice after agreeing it was consensus at three GAC
> meetings in a row, with a quorum of 100 governments
> participating), then the level of influence would be
> *reduced*.
>
> The logic behind this proposed change to the ICANN bylaws
> is that the *current* level of GAC advice in the ICANN
> environment should be maintained, and that any changes to
> it would need to be agreed not just by GAC (which is the
> case today), but by the whole community through a change
> to the bylaws.
>
> I apologise that this is a long reply, but I cannot answer
> clearly more briefly.
>
> Thanks
>
> Jordan
>
> Best regards
>
> Olga
>
> 2015-03-03 10:28 GMT-03:00 Jordan Carter
> <jordan at internetnz.net.nz
> <mailto:jordan at internetnz.net.nz>>:
>
> 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 <mailto: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 <tel:%2B34%2091%203461544>
> Ê +34 91 3461577 <tel:%2B34%2091%203461577>
> rperezga at minetur.es <mailto:rperezga at minetur.es>
>
>
> -----Mensaje original-----
> De: wp1-bounces at icann.org
> <mailto:wp1-bounces at icann.org>
> [mailto: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 <mailto: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 <tel:%2B45%203529%201000>
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> <http://www.erhvervsstyrelsen.dk>
>
> MINISTRY FOR BUSINESS AND GROWTH
>
>
>
>
> -----Oprindelig meddelelse-----
> Fra: wp1-bounces at icann.org
> <mailto:wp1-bounces at icann.org>
> [mailto: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 <mailto: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
> <tel:%2B44%2020%207645%203523>
> Head of Public Affairs | Read the LINX
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>
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>
> --
>
> Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> 04 495 2118 <tel:04%20495%202118> (office) | +64
> 21 442 649 <tel:%2B64%2021%20442%20649> (mob)
> jordan at internetnz.net.nz
> <mailto:jordan at internetnz.net.nz>
> Skype: jordancarter
>
> /A better world through a better Internet /
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>
> --
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> Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> 04 495 2118 <tel:04%20495%202118> (office) | +64 21 442
> 649 <tel:%2B64%2021%20442%20649> (mob)
> jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
> Skype: jordancarter
>
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>
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> --
>
> *****************************
>
> Mathieu WEILL
>
> AFNIC - directeur général
>
> Tél:+33 1 39 30 83 06 <tel:%2B33%201%2039%2030%2083%2006>
>
> mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
>
> Twitter : @mathieuweill
>
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>
> --
>
> Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> 04 495 2118 (office) | +64 21 442 649 <tel:%2B64%2021%20442%20649>
> (mob)
> jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
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>
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>
>
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*****************************
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Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr
Twitter : @mathieuweill
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