[CCWG-ACCT] Townhall meeting follow-up

[McAuley, David]

As usual, Seun asks good questions.

But in my opinion the issue is about ultimate enforceability irrespective of lesser resolution measures along the way in a dispute (all of which appear good and probably as effective as may be needed).

A legal maxim applies to our work: Things without remedy should be without regard.

Stated differently, without possession of final authority the community’s “rights” aren’t rights at all – they are interests for which the community will have to lobby ICANN.

Maybe the interests will be honored, maybe not.

There is a binary decision at the end of this discussion: who has the final say, the board or the community?

With the empowered SOs/ACs model the final say is the community’s – but its exercise is reserved until all other remedies have been tried without success.  All of the to-and-fro of community discussions, comments, reconsiderations, IRP appeals, shaming, etc. must be tried first – and in the same manner as they have been in the past.

If they all fail, there is board member(s) removal.

And even then community exercise of its final authority would be subject to the community process required to undertake such a step.

IMO, the model Becky put on the table is compelling – it is, as she said, simple, easy, fast, and flexible.

David McAuley

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Seun Ojedeji
Sent: Monday, June 22, 2015 12:52 PM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Dear all,
First i like to thank the Co-Chairs for responding to all the questions during the townhall meeting. Milton mentioned 2 things and i like to use that to provide my feedback/suggestions:
- Purpose of the CCWG:

IMO, i think the purpose of the CCWG is to recommend ways to improve ICANN accountability but enforceability could just be one of such features and not the ultimate goal.
- Enforceability solutions other than membership:
Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability. Puting that in mind, i think the CCWG report in summary has provided the following (amongst others):
- They have looked into the current bylaw and proposed edits that would ensure community engagement in the board decision making process which is not existing at the moment
- They have proposed ways by which the suggested edits to the bylaw once implemented can be updated (fundamental bylaw)

I think these 2 items are critical accountability enhancement and once implemented would have provided ICANN board with some specific guideline on how to approach issues as accordingly.
So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?

As a follow-up to my question about ICANN board complying with its bylaw. I will like to ask the following questions:
- Has there been any known scenario where ICANN board at the moment did not obey its current bylaw?
- If ICANN board does not obey its bylaw, what its legal implication to the board members with regards to their mandate?
- Is it possible for board members to sign a mandate upon induction indicating that they would resign if the community (through a defined process) determined that they did not follow the organisation's bylaw?

Regards
--
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Seun Ojedeji,
Federal University Oye-Ekiti
web:      http://www.fuoye.edu.ng
Mobile: +2348035233535
alt email: <http://goog_1872880453> seun.ojedeji at fuoye.edu.ng<mailto:seun.ojedeji at fuoye.edu.ng>
The key to understanding is humility - my view !

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