Dear all,

First of all let me join the many others that have thanked and supported Pedro’s attempt to operationalize the GAC communique from Dublin. It is the best text and attempt to find a compromise that we’ve seen so far. Two comments before talking about the substance:

-          First, the Dublin GAC Communiqué is based on unanimous consensus – there was no objection to it in Dublin. It would therefore be self-contradictory for CCWG to impose ST18 while rejecting the proposals from the GAC communiqué, which is the result of the very consensus ST18 is trying to preserve.

-          Second, simply ignoring and rejecting this proposal without trying to find a compromise would send a very negative signal to all the countries participating to the GAC, which remains the most diverse body in ICANN. Saying the community should proceed without taking into account GAC’s comments is irresponsible and diminishes the credibility of ICANN.

In the many rationale that we’ve had regarding Stress Test 18 (risk of governments’ capture, stability, transparency, etc.) I the one from the document Fadi shared with us in Dublin is the clearest.  In point 7 of the document, it is said that the goal of ST18 is to “reaffirm in Bylaws current requirements of Board/GAC consultation on consensus advice” so that the board “gives GAC’s consensus advice special consideration”. There is two ways to do that: a negative way (saying the current obligation of the board to find a mutually acceptable solution only applies to consensus advice) and a positive way (saying it would take a 2/3 majority of the board to reject consensus advice, versus simple majority for hypothetical non consensus advice if GAC was moving from that practice in the future).

Pedro’s proposal does exactly that: preserving in bylaws the special consideration the board should give to consensus advice from GAC, by both restricting the obligation to find mutually agreed solution to consensus advice and by demanding a 2/3 majority of the board to reject such advice.

Plus, if no such solution can be found, the board still has the last word in the current bylaws, which would not change:

“ k. If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities. “

I think one of the remaining issues is the definition of consensus. Nobody here has the intention to define consensus as simple majority. Current practice in GAC is no objection, current practice in ALAC is supermajority. Generally speaking, consensus means no or few objections or super majority, as opposed to simple majority. So a solution could be to modify the Section 1 of Article 11 as follows, restricting definition of consensus to the above mentioned defitions.

ARTICLE XI: ADVISORY COMMITTEES

Section 1. GENERAL

“The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board.

Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus: no objection, few objections or supermajority.” 

Ghislain de Salins (France).