Regular reviews of ICANN institutions are important, and because of this
they are mandated by the By-Laws.
This Assessment Report of the Independent Examiner conducting the
Nominating Committee Review is, thus, a very important document, and I
would, first of all, like to publicly thank Prof Brown and Drs Engle &
Rafert and everyone involved in its production, including ICANN staff
for their hard work.
The Nominating Committee appoints approximately half of the ICANN Board
and the way it does its job affects and informs the shape and character
of the ICANN Board for the time being.
It appears to me that the Independent Assessment has been well
considered, and identifies many of the actual and perceived problems
with the Nominating Committee, and proposes solutions.
Therefore, overall, and in general, I cordially support the Report and
Conclusions, but with reservations, as set out herebelow.
On the Section on Structure (H.2, Page 27) of their Report, Prof Brown,
and Drs Engle & Rafert review the practice of non-voting members
engaging in preliminary votes, but abstaining from 'final votes'.
Whilst the GAC currently do not participate in the Nominating Committee
(H2, para 2), the structure remains in place for them so to do. This
practice, if maintained, would, I submit, be problematic in any future
NomCom that had GAC membership.
The relationship between governments and the ICANN Board is,
historically, reasonably well defined in ICANN constitutional convention.
It is a critically important founding principle of ICANN that it is, and
remains, a non-governmental, multi-stakeholder organisation.
As an example of this, Article 7.4 of the ICANN By-Laws provides that
"no official of a national government or a multinational entity
established by treaty or other agreement between national governments
may serve as a Director". (Article 7.4 is a Fundamental By-law)
In order to achieve the purpose of the founding principle, this
principle must necessarily extend to the ability of officials of a
national government or multinational entity to be involved in the choice
of Board Members.
Accordingly, should the role of non-voting liaison from the GAC be
maintained (and, in the future, filled), such liaison should not (for
the above reasons) take part in any decision-making (whether at a
preliminary or final decision stage). Their role should be limited to
the liaison role only and provision of public-policy related advice.
Alternatively, it may be the case (and this may more properly be a
matter for the GAC themselves best to consider) that their existing
informal policy of non- participation be supported by amending the
constitution of the NomCom to remove the GAC appointed position (which
in any event is not occupied in practice).
Nigel Roberts
