[CCWG-ACCT] Creative solutions for Rec.11

Mueller, Milton L milton at gatech.edu
Sat Jan 30 18:50:01 UTC 2016

I'm sorry, Malcolm, but this is a bit too "creative." 

You are proposing to restructure the entire ICANN policy process and to alter in a fairly fundamental way the relationship between GNSO and the GAC. There is a lot of merit in your idea as a general procedural reform, but the point of this exercise is to create accountability mechanisms that substitute for the oversight of the USG, not to alter the policy development process or to redesign all of ICANN.

I think Ed Morris's message was a more positive contribution that points the way toward a solution. 
The problem is not the 2/3 threshold in isolation, the problem is that certain aspects of the CCWG 3rd draft, when looked at in combination, are changing the role of the GAC in ways greatly expand its power over the policy process, because they retain and strengthen the privileges of its old role while also changing its role by making it a part of the community mechanism. 

I agree with Ed: if GAC is not part of the community mechanism, and/or is not exempted from the same reviews as other ACs and SOs, then the 2/3 threshold becomes much less of an issue. 

I agree with Becky's more modest proposal: if GAC is removed from the community mechanism appeals that pertain to whether the board follows GAC advice, then there is less worry about raising the threshold for board rejection of GAC advice. 

I think we need to start from those propositions, not start redesigning the policy process.


> -----Original Message-----
> From: accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
> Malcolm Hutty
> Sent: Saturday, January 30, 2016 4:50 AM
> To: Jorge.Cancio at bakom.admin.ch; kdrazek at verisign.com
> Cc: accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Creative solutions for Rec.11
> 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 present.
> - 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.
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog  London Internet
> Exchange | http://publicaffairs.linx.net/
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