[Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus

Wed Jan 11 15:27:11 UTC 2017

Paraminder:

You ask "why did the chair rush calling consensus on one text, rather than, as is his job, to try to persuade acceptance of small changes that could make all happy", but then you note that "the wording of the question was a hotly contested subject for more than a month".

I believe that you have answered your own question. Taking more than a month to concur on a questionnaire consisting of but four questions is an inordinate waste of valuable time, and bringing the matter to a conclusion after so much time is hardly a matter of running roughshod over any member of the WG but a reasonable decision to conclude the discussion when it became apparent that consensus had been reached both on the wording of the question and the need to move on to other matters. I commend the chair for bringing the discussion to a successful conclusion.

We flatter ourselves too much if we believe that the precise wording of any question will constrain anyone responding to it from putting forth whatever point of view they wish to convey in an answer regardless of that wording. The precision required for the wording of a questionnaire is of a lesser degree than that required for final recommendations.

Finally, it is not the job of the chair to "make all happy". Indeed, I have yet to participate in any policy process anywhere that makes all participants equally happy. Further, the general rule of thumb regarding a policy process is that the final product is probably fair if participants in its shaping are equally unhappy about what they had to concede to reach consensus agreement. It is the job of the chair to move us toward consensus, not unanimity of happiness, and to fulfill our charge within the allotted timespan.

Regards,
Philip

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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Tuesday, January 10, 2017 11:31 PM
To: Mueller, Milton L; ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus

On Wednesday 11 January 2017 04:48 AM, Mueller, Milton L wrote:
Actually you are misrepresenting the situation, Parminder.

At least two of the "no" votes to which you refer were not votes against proceeding with the version of Q4 we ended up adopting, they were expressing preferences for small alterations in wording.

You are wrong, or rather misrepresenting things, Milton. Not just two "no" votes were expressing preference for what you call as small alterations in wording, in fact,  all three "no" votes (including mine) were calling for just that small alteration.

Which brings us to the key question: why did the chair rush calling consensus on one text, rather than, as is his job, to try to persuade acceptance of small changes that could make all happy? I was quite happy with Seun's alternation to David's text, and voted for it. But suddenly, majoratarianism, rather than a spirit of compromise, took control, and a consensus was triumphantly called, and then celebrated. Is is not the Chair's job to see if we could arrive at a text that all agreed, when, as you say, the nay sayers only wanted small alterations of wording.

This, especially in a context that the wording of the question was a hotly contested subject for more than a month here. And the chair could notice the developed - developing country divide in the voting. Was it then proper for the Chair to bludgeon the group into a quick "consensus" rather than - at this last stages where the positions had come rather close, and we were ready to work on David's text (which itself was unfairly forced on us, in preference to earlier texts, and subsequent amendments to David's) -- seek compromises and a text that everyone agreed.

Also please notice that Seun and I proposed amendments to David's text well in advance over the elist. These were not put on the screen. I kept insisting that we start with the 7 alternatives of the last call, and also put Seun/ my alteration on the screen. I repeatedly got no response from the chair. I then cut pasted the text thrice in the chat window - still no response. Vidushi make strong appeals thrice to put these texts on the screen, but to no avail. I had to practically call a point of order to get the chair to then, very belatedly, put that text on the screen. But no attempt was made - which is a chair's job to do - to see if compromise could be got. We had much come down from our position to begin with last call's 7 options - or in fact were forced to come down - and were ready to work on David's text, suggesting small changes. But the chair, and following him the group, made no effort to try compromises.

I think this was a miscarriage of an open participatory process.

parminder

From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Tuesday, January 10, 2017 1:52 PM
To: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Epistemological basis of sub-group's working - and my objection to the so called consensus

I would also like it to be on record that the so called consensus was decided on basis of 11 to 3 votes, which were neatly divided along the lines of developed countries based persons and developing country based ones. All those who voted "yes" to the final formulation were from developed countries, overwhelmingly US based (which has current jurisdiction on ICANN), and all those from developing countries voted "no". There were only three participants from developing countries, and all voted "no". I must however state that many from developed countries did not vote either way.

I am all for friendship and camaraderie, but there is a limit to playing down such significant facts and differences, especially in relation to such an important geopolitical issue as the jurisdictional oversight over ICANN. This particular fact of how voting was split cannot be ignored.

parminder

On Tuesday 10 January 2017 11:59 PM, parminder wrote:

Dear Co-Chairs/ All

I understand that the Chairs will right now be busy drafting a report to submit for the CCWG meeting tomorrow indicating consensus on the questionnaire as seems to have been agreed in today's call. Since I made a formal objection to the process, I will like to clarify the basis of my objection, putting it on record.

My objection mainly arises from the fact that that the jurisdiction sub-group seems to be deciding a new, innovative, and completely unjust, rule for its working. It apparently has decided that in taking public/ community input into its work, it will accept only such inputs that are fully and exclusively based on actual occurrences/ instances that can be proven to have happened in the past. I expect that, in the typical creeping acquisition way, this new rule would then also be applied to the discussions, and to making recommendations, by the group itself.
This is a unique and significant epistemological stance. Importantly, such a stance was not applied to the work of work-stream I of CCWG, for coming up with a new accountability mechanism. It was never insisted that only such "facts" as arise from actual occurrences in the past can be the basis of suggesting any institutional change.

Even in other groups of work-stream 2, like those dealing with transparency, human rights framework, etc, it is not a condition that any institutional change has to be based on facts arising from actual "verifiable occurrences" in the past, and the implications arising thereof. I have some passing acquaintance about the stage of outputs from the subgroups on transparency and human rights, and I know for a fact that there has never been a condition that any institutional innovation can only arise from "verifiable occurrences" in the past, absent which no change can be suggested or made.

In the circumstance, it is question of fairness and natural justice, to ask why a jurisdiction related institutional change can only be based on facts that directly arise from clearly verifiable past occurrences. What is so special about jurisdiction related institutional changes - which is the mandate of a separate sub group, and about which issue many actors were insistent since the very start that it should be given full consideration?

I am happy to shown otherwise, but right now I can only think that this is being done with the intention to fend off the discussion going in directions that certain actors fear would not serve their interests. If one fears losing a case on cannons of reason, justice and preponderance of public opinion, the best thing to do - if one is powerful enough -  is to simply change the rules of how a decision process will be conducted, and what are the legitimate or illegitimate inputs into it. That is exactly what has been done in this case. It strains the credibility of ICANN's so called open process; whose first rule seems to be, throw so much resources at any important issue as to overwhelm any discussion about it, and then, if "problems" persist, simply change the rules and frame new ones, as has been done in this case. I cannot accept that an ICANN WG cannot trust the community/ public to give their free and unconstrained views on a key issue central to its mandate. And that it should resort to making novel, and absurd rules, about what can and what cannot be said by the public/ community as inputs into its work. This especially when in very similar parallel processes there exists no such rule. This new rule changes the very basis of the working of this sub group, and almost completely hamstrings it.

parminder

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