[CCWG-ACCT] Recommendation 11, 2/3 board threshold, GAC consensus, and finishing

Malcolm Hutty malcolm at linx.net
Fri Jan 29 00:03:49 UTC 2016

Dear Andrew,

Please forgive me for writing to disagree with you forcefully. You and I
are usually in either in complete agreement, or quibbling over mere
details of a broader unity. And you usually make your case so
beautifully there is usually nothing to add at all.

On this, however, I respectfully disagree with your conclusion that we
should adopt this clause, the so-called "2/3 rule". Moreover, I'm afraid
I think that the evidence you offer to persuade us to your view is
demonstrably untrue in almost every respect.

On 28/01/2016 20:57, Andrew Sullivan wrote:
> For those chartering organizations and individuals that wish to reject
> the compromise, 

What compromise? We keep being told this is a compromise, but I see none.

You say:
> But in
> exchange for that, it enshrines the GAC's responsibility to the rest
> of the ICANN community as to how the GAC will reach decisions.  This
> means that, in exchange for the increased threshold -- a threshold
> that I think will be easy to reach regardless of the actual numbers on
> the board in any case that counts -- the GAC is giving up independent
> control over its decision-making procedures when exercising that
> threshold.

This is simply not the case. The footnote makes clear that the GAC
retains complete control over its decision-making procedures, even to
the extent of defining what constitute a formal objection.

What the community sought was to ensure that the Board would never be
faced with something called "GAC advice", that purports to represent the
collective view of governments, while simultaineously receiving directly
opposing advice from one or more governments that did not join the GAC

Have we achieved that? No. The footnote makes clear that the GAC could
still define the opposition of one or more governments as not
constituting a "formal objection" for any reason, including (for
example) that it was not supported by a sufficient number of other
governments. If the GAC chooses to switch to a 75% supramajority system,
this new bylaw does not prevent them from doing so: they simply need to
define a "formal objection" as being one supported by 25%+1 of the
governments present. Or the GAC could refuse to classify a dissenting
opinion as a "formal objection" for any other reason: not being
submitted in advance, for example.

Personally, I doubt that even had we achieved that protection for the
Board from an invidious position it would be worth the price we are
invited to pay. But since that supposed protection disintegrates under
scrutiny, the issue doesn't even arise.

There is something else the rest of the community sought. We wanted to
win GAC's support for the CCWG Proposal as a whole. In my view, this is
a much more persuasive reason why we might have accepted this demand.
But have we won the GAC's support for our proposal? No. The GAC has made
clear that it is split on this issue, and unlikely to reach a
resolution. It is also withholding its support on other issues too.

Why should the rest of us give this clause our support when the GAC does

Indeed, if one really wished to insist on describing this as
"compromise" that was "reached" on Thanksgiving, as one of our co-Chairs
said this evening, then the GAC has also reneged, by failing to support
it. In truth, however, neither the GAC nor the GNSO has "reneged" on a
"compromise" that was "reached", because no compromise was reached at
all. All that happened was that the CCWG came up with a proposal that it
hoped would form a compromise, if agreed upon by the community as whole.
It is entirely within the rights of both the GAC and the GNSO to decline
to endorse it. But you cannot then call it a compromise, that neither
party accepts.

> I have a question.  If the proposed compromise
> position on recommendation 11 is rejected, there is a good reason to
> suppose that at least one important part of the community (the GAC)
> will reject the accountability proposal.  

Firstly, the GAC has made clear that it is divided. It has given no
reason to suppose that it will suddenly unite in opposition to the
removal of this clause, when it was unable to unite in support of the
same clause's inclusion.

Secondly, there is by contrast a very clear reason to suppose that if
the 2/3 rule is not removed then one important part of the community,
the GNSO, will reject the accountability proposal: the GNSO has said so

Why do you think the GAC support is so much more worthy of weight, while
the GNSO position is not? The GNSO is the very reason that ICANN exists
in anything like its current form: forming and implementing GNSO policy
is the entire purpose for ICANN being more than merely IANA.
Surely the GNSO community is very much the community without whose
support transition is dead.

If fear of rejection "by an important part of the community" is your
litmus test, that clearly points to removal of the 2/3 rule from our
proposal, not adoption of it.

> As I understand things, we are in a trap.  On the one hand, the GAC
> has produced a consensus position that the board must reject GAC
> advice by a supermajority.  

You are mistaken. Please remember that GAC communications are negotiated
documents and you cannot safely make any assumptions beyond what stated.

The Dublin Statement stated:

"In assessing the different rationales presented so far related to
Stress Test 18, the GAC considered

The recommendation of the BGRI WG, as reiterated by the ATRT2, to set
the threshold for the ICANN Board to reject GAC advice to a 2/3 majority
voting, consistent with the threshold established for rejection of ccNSO
and GNSO PDP recommendations."	

That is a long way from stating "a consensus position that the board
must reject GAC advice by a supermajority.". I know that if you or I
wrote such a thing in ordinary discussion (such as now) what you say
would be a reasonable inference, but those rules simply do not apply
when deciphering intergovernmentally-negotiated text.

Of course, it is possible that the GAC might adopt such a position in
the future. But they have given us no evidence that they will do so, and
every evidence that they are unable to do so. The expectation that this
will change is - for those of us not privy to the GAC's internal
deliberations - a matter of the purest speculation.

> Yet the GAC is currently free to
> rearrange its own procedures such that it could lower its own
> threshold for decisions.  

As I have said above, it will remain free, to precisely the same extent
as it is now, under the proposal you recommend to us.

In fact, that GAC freedom of which you speak is *currently* contrained
by the existing GAC Operating Procedures: moving to a lower threshold
would have to be approved by the current, higher threshold. That is the
only protection we have, now or under this new proposal.

> Moreover, let us suppose that the GAC produced advice that the board
> decided to accept, but the rest of the community found that
> objectionable.  In that case, the rest of the community could force
> the board not to take the advice _anyway_, because of the additional
> accountability measures that this CCWG wants to put in place.

How could the community force the Board not to take the GAC's advice? By
sacking the Board, and replacing it with new directors? Unless the
Board's action also breached the Bylaws (in which case an IRP challenge
could be attempted), that is the only recourse available.

Sacking the Board in such circumstances is purest fantasy.
The GAC would obviously object;o nly one other objection would then be
needed. ALAC would surely supply it; one thing that has become clear to
me for the first time, during my participation in this WG, is how close
the ALAC is to the Board, and how readily they adopt the Board's view.

Moreover, such a question is most likely to arise over a matter of gTLD
policy. It seems to me highly questionable as to whether the ccNSO or
the ASO would ever consider dismissing the Board over a purely gNSO
matter that did not directly concern them. So Board dismissal would
likely fail for lack of support, as well as for sufficient opposition.

I'm afraid your expection of community control gives far too much credit
to efficacy of the CCWG proposal. There is simply no available mechanism
to do what you say.

> That's what deals look like.  And we need a deal, and soon, because we
> need to move ahead with the IANA transition.

We do indeed need to move ahead with the IANA transition. Do you really
hope to achieve that by pressing for a proposal the gNSO cannot support?

Andrew, I truly appreciate your efforts to move us past this difficult
issue so that transition can proceed. But I am afraid I believe you have
alighted on precisely the wrong way of achieving this.

Would you efforts not be better spent trying to reconcile the GAC to the
entirely reasonable necessity of avoiding the Board having to judge
between opposing government advice? Must we really pay, as a price for
this modest and reasonable request, the promise that ICANN will by
default do whatever governments instruct it, unless overwhelming
opposition can be organised? Is that how you would really wish ICANN to
be constituted in the future? Or any other I* organisation?

ICANN is not supposed to be an intergovernmentally-led organisation. I
believe you support that principle too, Andrew. I also believe a number
of governments continue to profess it, including even some of those who
are incomprehensibly advocating that the Board should be required to
follow their advice except when extraordinary opposition can be mustered.

I would urge those Members that do believe governments have an important
role to play, but not a leading one, to support the gNSO concerns and
vote to remove the 2/3 rule from our proposal.

Kind Regards,


            Malcolm Hutty | tel: +44 20 7645 3523
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