On Nov 17, 2015, at 5:55 PM, <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> wrote:

Dear Keith

We are having very interesting discussions in the ST-18 subgroup. Would be really good to discuss your points there.

Just briefly to respond that the GAC Dublin consensus input to the CCWG supports the autonomy of ACs to establish their own definition of consensus, that for the GAC it is currently so that it decides on its own definition of consensus (which triggers the mutually accepted solution procedure), and that the “decisional role” is being offered not only to the GAC but all interested SO and ACs. As to the 2/3 threshold it is nothing new and it was part of the GAC Dublin consensus input.

Sorry to quote one message but refer to a good number of them, but I noticed a good number of GAC Members mentioning what the GAC Dublin consensus input means; frankly, I've read it a few times and it still seems to have some "creative ambiguity" around, which usually indicate some sort of compromise among GAC members to postpone non-consensus positions to other date and fora, such as CCWG. So, I would be extremely careful in applying the GAC Dublin input as meaning some of what has been mentioned here as what it means. For instance, the passage below: "In assessing the specific accountability recommendations put forth so far by the CCWGAccountability, the GAC considers that whatever the final outcome of this process may be, the new accountability framework to be agreed upon must preserve the current role of governments in ICANN" could be interpreted as blocking any change such as the 2/3 threshold, since that wouldn't preserve but increase the role of governments. OTOH, the Dublin input suggests that a proposal is forthcoming, and such a proposal might be more clear in many aspects. Rubens

Hi, This makes sense, but isn't it up to the GAC to realize this? avri On 17-Nov-15 17:24, Mueller, Milton L wrote:

I completely agree with Keith’s statement below.

But there is another element to the ST18 discussion that has been overlooked. Under customary and formal international law, states are all sovereign and equal. That is why it is standard procedure for the UN to rely on full consensus (no objection from any member). A majority of states, for example, cannot require any other state to sign a treaty. Any other arrangement would effectively erode state sovereignty, making states unequal because a majority of some states could impose obligations or commitments on another state or states.

Any deviation from full consensus by GAC would have substantially the same effect. It could allow one group of states to impose their will on other states regarding what advice should be given to the board. In deciding whether to follow the Advice, it would also force ICANN to choose between following the advice of some states and following the preferences of other states. Since ICANN’s policies are effective globally, it is only appropriate for GAC advice to be based on a global consensus of _/all/_ states. Redefining GAC consensus as anything other than full consensus is inconsistent with sovereignty. Further, it dramatically reduces a healthy political constraint on GAC advice, opening the door to political conflict, and games of dominance, among states over GAC advice.

--MM

*From:* accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Drazek, Keith *Sent:* Tuesday, November 17, 2015 2:41 PM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] ST-18 and 2/3 Threshold Proposal

All,

Here are my current thoughts on our ongoing discussions around ST-18, the 2/3 threshold issue, and the GAC’s participation in the community mechanism:

The CCWG’s mandate is to empower the community _as a whole_ to better hold ICANN and its Board accountable. Our mission is not to modify the influence of one SO or AC relative to the Board, or to one another, nor to enable or encourage such change in the future. This process should not be used by individual groups to seek increased influence relative to others. That’s why we are proposing a unified community as the sole Designator, and set thresholds for decisions supported by multiple ACs and SOs.

Under the current discussions, it appears that a subset of GAC members want three new “powers” that do not exist today: (1) the right to hold a decisional role in the community mechanism, (2) a 2/3 threshold for Board rejection of consensus advice, and (3) the ability to adjust the definition of consensus that would trigger the Board’s special obligations. Why is the CCWG now focusing on the 11th-hour introduction of the 2/3 board threshold along with flexibility to change current practice on the definition of consensus? Both of those stand to increase the influence of the GAC alone over the Board and other community groups.

No one is trying to tell the GAC how to define consensus for its internal deliberations or advice. Rather, ST-18 simply reinforces the current practice that the Board’s obligations kick in only when the GAC’s consensus is consistent with current practice – reflecting the UN definition/absence of formal objection. Any change to this practice must be viewed as empowering the GAC alone over the Board and potentially in a disproportionate way relative to others.

By participating in the community mechanism as a co-equal, the GAC will be able to contribute to this joint community empowerment in a decisional way, if it chooses to do so. This is already a big change (that some are uncomfortable with) but it shows that the rest of the community respects the important role of governments and the GAC in our community processes.

In my view, the CCWG should resist pressure to intentionally or inadvertently increase the relative influence of any one group, and stay focused on the joint community empowerment envisioned in our charter. This should not be an opportunity for any group to secure individual benefits they have previously been denied.

Thanks and regards,

Keith

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Hi, I had not meant to start a parallel thread. But if answering an email means I need to join another list, and since a kind suggestion is a very strong rebuke, can someone please add me to the appropriate list? avri On 18-Nov-15 00:57, Jorge.Cancio@bakom.admin.ch wrote:

Hi all.

I think the GAC is mindful of the need of a very high degree of consensus - that is why it always has voluntarily committed to this rule.

At the same time, I feel we all are also mindful of the GAC's merely advisory nature where decisions are taken by a private-led body in a very fastly evolving environment - i.e. far away from deciding on international law or treaties as Milton seems to suggest. After all we are not in the UN system...

However, I would kindly suggest not to open parallel tracks and to take part in the discussions in the subgroup.

regards

Jorge

Von meinem iPhone gesendet

...

Am 18.11.2015 um 00:09 schrieb Avri Doria <avri@acm.org>:

Hi,

This makes sense, but isn't it up to the GAC to realize this?

avri

...

On 17-Nov-15 17:24, Mueller, Milton L wrote:

I completely agree with Keith’s statement below.

But there is another element to the ST18 discussion that has been overlooked. Under customary and formal international law, states are all sovereign and equal. That is why it is standard procedure for the UN to rely on full consensus (no objection from any member). A majority of states, for example, cannot require any other state to sign a treaty. Any other arrangement would effectively erode state sovereignty, making states unequal because a majority of some states could impose obligations or commitments on another state or states.

Any deviation from full consensus by GAC would have substantially the same effect. It could allow one group of states to impose their will on other states regarding what advice should be given to the board. In deciding whether to follow the Advice, it would also force ICANN to choose between following the advice of some states and following the preferences of other states. Since ICANN’s policies are effective globally, it is only appropriate for GAC advice to be based on a global consensus of _/all/_ states. Redefining GAC consensus as anything other than full consensus is inconsistent with sovereignty. Further, it dramatically reduces a healthy political constraint on GAC advice, opening the door to political conflict, and games of dominance, among states over GAC advice.

--MM

*From:* accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Drazek, Keith *Sent:* Tuesday, November 17, 2015 2:41 PM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] ST-18 and 2/3 Threshold Proposal

All,

Here are my current thoughts on our ongoing discussions around ST-18, the 2/3 threshold issue, and the GAC’s participation in the community mechanism:

The CCWG’s mandate is to empower the community _as a whole_ to better hold ICANN and its Board accountable. Our mission is not to modify the influence of one SO or AC relative to the Board, or to one another, nor to enable or encourage such change in the future. This process should not be used by individual groups to seek increased influence relative to others. That’s why we are proposing a unified community as the sole Designator, and set thresholds for decisions supported by multiple ACs and SOs.

Under the current discussions, it appears that a subset of GAC members want three new “powers” that do not exist today: (1) the right to hold a decisional role in the community mechanism, (2) a 2/3 threshold for Board rejection of consensus advice, and (3) the ability to adjust the definition of consensus that would trigger the Board’s special obligations. Why is the CCWG now focusing on the 11th-hour introduction of the 2/3 board threshold along with flexibility to change current practice on the definition of consensus? Both of those stand to increase the influence of the GAC alone over the Board and other community groups.

No one is trying to tell the GAC how to define consensus for its internal deliberations or advice. Rather, ST-18 simply reinforces the current practice that the Board’s obligations kick in only when the GAC’s consensus is consistent with current practice – reflecting the UN definition/absence of formal objection. Any change to this practice must be viewed as empowering the GAC alone over the Board and potentially in a disproportionate way relative to others.

By participating in the community mechanism as a co-equal, the GAC will be able to contribute to this joint community empowerment in a decisional way, if it chooses to do so. This is already a big change (that some are uncomfortable with) but it shows that the rest of the community respects the important role of governments and the GAC in our community processes.

In my view, the CCWG should resist pressure to intentionally or inadvertently increase the relative influence of any one group, and stay focused on the joint community empowerment envisioned in our charter. This should not be an opportunity for any group to secure individual benefits they have previously been denied.

Thanks and regards,

Keith

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-----Original Message----- Hi,

This makes sense, but isn't it up to the GAC to realize this?

avri

If it's the right thing to do, then it's the right thing to do. Are you saying that if the GAC doesn't realize this it isn't valid? As others have noted, we are not talking about how the GAC runs its own procedures, we are talking about the status of GAC advice in the overall ICANN process, and about how that advice is treated by the board. It is the community as a whole, not the GAC unilaterally, that gives GAC advice its special status, via the ICANN bylaws. Therefore it is not just up to the GAC to realize this, but up to the rest of us as well.

Hi, Even more than usual, I don't have a strong opinion about the right outcome (except for "finished"). Still, I want to ask a question. On Tue, Nov 17, 2015 at 10:24:16PM +0000, Mueller, Milton L wrote:

Any deviation from full consensus by GAC would have substantially the same effect.

Is the GAC's position that it wants to be able to have some option according to whatever the GAC decides (that is, it is setting a floor for what the bylaws might say about how the GAC might decide), or is it a commitment by the GAC for how it's going to decide? Surely, GAC members also recognise the issue Milton is worrying about. If so, then all we are really discussing is what minimal threshold the CCWG can expect. I only ask because I am not sure it would be a good thing for the CCWG to start trying to set rules about how various groups make their determinations. Once we start in that direction, the decision making in all the other ACs and SOs should properly be part of the deliberation too; and I recall that previous drafts have suggested that accountability inside SOs and ACs is not on the work list at least for WS1. Given the messages that have gone around on this topic, I'm sure I've overlooked something that would tell me what exactly we're discussing. But my lazy look at the archive didn't straighten me out, so an application of clue-by-four would be appreciated. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com