[WP2] revised Mission, Commitments, Core Values -

[Malcolm Hutty]

On 20/07/2015 23:50, Bruce Tonkin wrote:
> So perhaps we could add something under the bylaws with respect to
> GAC advice, that to the extent that it is possible the advice should
> include a rationale with references to relevant applicable national
> or international laws.

I suspect that this will provoke further objections of the "we're
governments, you can't tell us what to do" variety.

I think we should treat this disagreement as a definitional problem:
we're not trying to tell GAC what to do, but rather to identify the
specific circumstances where the special treatment will be given.


Allow me to offer the following sugestion:

J1. For the purposes of this section, GAC Consensus Advice means advice
to the ICANN Board on matters of public policy that has been adopted by
the members of the Governmental Advisory Committee on the basis of
consensus as a collective position.

J3. The ICANN Board shall duly take into account GAC Consensus Advice,
both in the formulation and adoption of policies.

J2. Nothing in this section shall be construed to limit the right of the
Governmental Advisory Committee, nor of any government or other entity,
to offer advice other than GAC Consensus Advice. Nothing in this section
shall be construed so as to increase or diminish in any way the right or
obligation of the ICANN Board to take into account any advice that is
not GAC Consensus Advice.

J4. In the event that the ICANN Board determines to take an action that
is not consistent with the GAC Consensus Advice, it shall so inform the
Committee and state the reasons why it decided not to follow that advice.

J5. If the reason (or part of the reason) the Board has for not
following GAC Consensus Advice is that it requires action outside the
Mission, it shall so inform the Governmental Advisory Committee. If the
reason (or part of the reason) the Board has for not following GAC
Consensus Advice is that it requires action (or inaction) inconsistent
with the Core Values, or any other provision of these Bylaws, it shall
so inform the Governmental Advisory Committee, and shall identify the
provision that would be so infringed.

J6. In the event that the ICANN Board determines to take an action that
is not consistent with the GAC Consensus Advice for reasons other than
those set out in J5, the ICANN Board will then try, in good faith and in
a timely and efficient manner, to find a mutually acceptable solution.


This text makes clear that we are not trying to interfere with the GAC's
internal procedures or in any way limit the right of governments to give
advice on whatever they wish, arrived at in any manner and with whatever
degree of support amongst governments. All we are seeking to do is
identify clearly the circumstances when that advice directly creates
special duties for the Board, and what those duties are. Those
circumstances are where there is a common view on public policy amongst
governments generally; it is not where the matters remains controversial
amongst governments themselves. I believe this is a reasonable
distinction that can be respectfully defended to governments.

If adopted, the above text would narrow the scope of the special
treatment so as to avoid a futile and time-wasting search for a solution
in the specific case where the gravamen of the Board's objection is that
what the GAC is asking is impossible for ICANN to do. This should also
be defensible to the GAC; ICANN, like an IGO, must be a rules-based
organisation. In return, we promise greater clarity to the GAC when this
is the case (which gives it the option of refining its position so as to
avoid this conflict, if it should so wish).

By requiring the Board to identify specific conflicts with the Bylaws
where that is the reason for rejecting GAC Consensus Advice, we will in
practice make it more difficult for the Board to reject GAC Consensus
Advice where there is no identifiable conflict. I would therefore hope
that the GAC will see the advantages of this proposal.


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