[CCWG-ACCT] Creative solutions for Rec.11

Malcolm Hutty malcolm at linx.net
Sat Jan 30 09:49:51 UTC 2016

On 29/01/2016 21:24, Jorge.Cancio at bakom.admin.ch wrote:
> it is a bit akward you would need to concede that you imply that
> without the 2/3 the GNSO would be able to support Rec 11.
> It gives an impression as if Rec 11 (without 2/3) would contain
> anything "that would need to be accepted", when as we all know Rec 11
> (without 2/3) corresponds to 100% of the GNSO starting position.
> So there would be any concession. No aspect "in need to be
> accepted".
> Just a 100% win-situation for the GNSO.

On 29/01/2016 22:01, Jorge.Cancio at bakom.admin.ch wrote:
> I feel that at this critical juncture we all have to keep the whole
> picture in our heads, be creative (as Becky for instance) and look
> for a solution which may be acceptable across the community as a
> whole.

The 2/3 rule is evidently unacceptable to the GNSO.

Without that rule, Rec.11 would (it seems) be acceptable to them. Jorge
says "But this is their starting position, it would mean a 100%
win-situation for the GNSO". I might observe that the logic of that
seems to be that GNSO ought to have come to CCWG with a more extreme
initial position, so that it could settle on what it really wanted.
Perhaps it will learn to adapt its negotiating tactics.

However, I do agree with Jorge: we need to try to respect the need for
all parties to be seen to gain improvements from our changes. I would
therefore like us to take up his challenge to "be creative" in an
attempt to find a solution.

Let us consider what the 2/3 rule attempts:

- from a government point of view, it provides an assurance that GAC
advice will be given greater weight, affirming the importance of
government input. Such an assurance is necessary to them.

- from a GNSO point of view, it ensures that the Board will
automatically follow GAC advice (except in very unusual circumstances)
transforming ICANN into a body which is led by government policy. Such a
transformation is unacceptable to them.

With GNSO opposition, I believe we must accept that the 2/3 rule is
dead. But taking up Jorge's challenge, we must replace it not with
nothing, but with something creative that would offer in its place the
assurance to governments the 2/3 rule seeks to achieve, without creating
the transformation that the GNSO opposes.

I think it would be useful if people come forward with ideas for
strengthening the input of governments without overbalancing the
decision-making process as the 2/3 rule does.

I would therefore like to make the following suggestion of my own:

* Remove the 2/3 rule; and
* Provide that when providing advice on GNSO policy, GAC advice is given
directly to the GNSO (during the PDP) instead of to the Board, (after
the community consensus policy is finalised and ready to be ratified).
Require that the GNSO consider any such GAC advice before adopting a PDP
policy. (This is conceptual: lawyers can wordsmith).

The advantages of this proposal, as I see them, are as follows:

- By accepting GAC advice into an earlier stage of the process, it will
be possible to incorporate it into the design of the policy, rather than
tacking it on as an adjunct. GAC advice will therefore be more effective
and the ultimate outcome more likely to reflect GAC expectations than at

- By incorporating the fruits of GAC advice into the community proposal,
it will also benefit from the rule that the Board is expected to accept
GNSO community consensus policy proposals, and can only reject them by
2/3 supermajority.

- By including the GAC in the policy-development process we strengthen
the GAC's role as a part of our community, reducing the "them and us"
tensions and helping to ensure that GAC concerns are given full respect
at every level of the organisation.

Most importantly, this suggestions aims to strengthen the GAC's role in
a manner that also strengthens the multi-stakeholder policy development
process, rather than standing in tension with it. It can therefore be
seen not as a zero-sum compromise but a true win-win solution.

I look forward to your thoughts,


            Malcolm Hutty | tel: +44 20 7645 3523
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