I have to agree with Jean-Jacques. Countries can have the major impact on ICANN, not because they have been given these rights by some treaty or agreement, but because ICANN *wants* these countries to support its existence. Without the support of these countries, ICANN simply could not continue to claim authority over Internet names and numbers. What is different in the present case, is that the various national governments are working in concert to wield the authority which ICANN (fortified by the AOC) has granted them. It is a bit like having children. You want them to grow up, but perhaps you would really like them to follow your every desire instead of theirs. That typically doesn't happen. Alan At 04/03/2011 10:19 PM, JJS wrote:

*Dear Hong,* * * *I agree with your analysis. * * * *But the purpose of my e-mail was precisely to underline that sovereign states, whether or not they have the legal basis to do so, DO HAVE THE CAPACITY TO BLOCK PROCESS, OR TO RENDER A DECISION INAPPLICABLE in a given country. You are (rightly, I believe) defending the case of equal RIGHTS among all ACs and SOs, whereas I was simply stating that we cannot afford to neglect REALITY, which is often quite different. * * * *Hence my proposal that ALAC, on each of the crucial priorities related to "the public interest", draft a position which could then be proposed to other stakeholders in ICANN. In that way, other parts of ICANN could hope to weigh more in the scales, and their joint position contribute to the checks and balances, in addition to the now enhanced dialogue between the Board and the GAC.* * * *Regards,* *Jean-Jacques. * On 5 March 2011 10:48, Hong Xue <hongxueipr@gmail.com> wrote:

...

The GAC communiqué from Brussels is an eye-opening document.

ICANN is not an IGO or an international treaty organization and has no Member States. What it has or claims to have is the stakeholder groups.

It is interesting that the sovereign countries in GAC believes that they should have veto right or more right than any other Stakeholder groups. Can they provide any legal basis in the international law? A number of countries' joint declaration could not constitute such legal basis and is only bound to all the countries involved. A country's sovereignty cannot go beyond the boundary to govern ICANN. Neither can a group country "pool" their sovereignty to reach the same goal. But if ICANN is viewed as a civil subject registered in California, one country where ICANN resides does have the sovereignty against it.

The old or classic international law theory can hardly explain the legitimacy (if any) of ICANN or ICANN-likes. We need new "international" or global law to fit the new global NGOs like ICANN.

Hong

...

* * *- Inequality between the GAC and other ACs or SOs is a reality, whether or not we consider this is justified. Sovereign states can apply national law, and are (usually) bound by international law. ICANN's other stakeholders have a vague moral right to represent segments of the community, the only reference being the ICANN By-laws, which have no international standing, and are legally binding only in the USA.* * * *- This discrepancy is further accentuated by the AoC. We cannot escape this fact. So the question is: apart from the GAC, can other stakeholders achieve a better balance, and how can they do that? I think there's only one way, which is to have cross-constituency agreement on major issues, which so far has proven difficult.* * * *- One area where the ALAC could take a leadership role and strive to gain other stakeholders to its cause, is the general area of "the public interest". Example: in the DAG, some elements may be defensible from an industry point of view, but possibly detrimental to the public interest (privacy, consumer protection, human and civic rights). If we detect a dividing line between, say, the GAC and other stakeholders, for instance regarding fundamental human rights (e.g. religious persuasions, atheism or other philosophical positions, sexual preference, etc), then we should strive to define a broad platform and present it to other stakeholders, seeking their support. Ideally, this could then become a "ICANN minus GAC" position, which would carry more weight than some ALAC-only statement.* * * *Regards,* *Jean-Jacques.*

On 4 March 2011 22:48, Evan Leibovitch <evan@telly.org> wrote:

...

The two components of the message that stuck out to me:

- The emphasis for more *bilateral* discussions. There are more stakeholders than just GAC and the ICANN Board. I welcome the opportunity to more deeply involve the GAC in ICANN processes, but there must be more than lip-service paid to the multi-stakeholder model going forward. As we saw from its near-obsession with trademark issues, in some ways even the GAC can be gamed.

- "*The GAC is committed to take whatever time is required to achieving these essential public policy objectives** -- Saved for the second-last sentence of the statement, this rightfully holds ICANN accountable for its lack of sufficiently inclusive community engagement in early gTLD policy development, and the deliberate shunning of community advice at many stages. It should send a shiver down the spine of most GNSO members, to whom the word "delay" is now officially an obscenity.

-- Evan Leibovitch, Toronto Canada Em: evan at telly dot org Sk: evanleibovitch Tw: el56 _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac

At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: http://st.icann.org/alac

_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac

At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: http://st.icann.org/alac

-- Dr. Hong Xue Professor of Law Director of Institute for the Internet Policy & Law (IIPL) Beijing Normal University http://www.iipl.org.cn/ 19 Xin Jie Kou Wai Street Beijing 100875 China

_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/alac

At-Large Online: http://www.atlarge.icann.org ALAC Working Wiki: http://st.icann.org/alac