Jorge,
What capture are you talking about? Even under current procedures outlined by OP 47 the GAC can forward advice to the Board if some countries oppose it.
From my perspective, Julia’s proposal is an attempt to reconcile between internal GAC positions in response to Pedro’s earlier proposal.
Our group should be seeking a compromise between that proposal and those in the community concerned about giving the GAC greater authority in this regard. I
have proposed such a compromise – even though I am concerned that it gives too much away – but have gotten no response:
·
“The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption
of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC advice
approved by a GAC consensus, defined as the absence of any formal objection, may only be rejected by a vote of more than two-thirds (2/3) of the Board. Any GAC advice approved by a GAC consensus with objection(s) may be rejected by a majority vote of the Board.
In both instances, the Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”
This enshrines the GAC’s ability to send advice forward even if it lacks full consensus (thus avoiding capture) but says that the 2/3rds threshold only applies
if the advice is supported by the full consensus. It even obligates the Board to “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution” for both types of advice.
Thanks,
Brett
From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch]
Sent: Tuesday, November 17, 2015 2:02 PM
To: Schaefer, Brett; Paul Rosenzweig
Cc: s18@icann.org
Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Brett
I really have to disagree with you. Julia’s proposal, which I and many others support, is a very carefully crafted compromise proposal.
Wordings can always be improved, but there is no rationale to impose unanimity for the GAC, especially considering that we (Julia and others) are committing
to a very high threshold, well beyond that applicable to GNSO or ccNSO supermajorities.
Imposing unanimity is imposing the real danger of capture.
Let us find the narrow path where the language assures colleagues and addresses concerns, but does not impose a danger of capture by a single delegate or a
very tiny minority.
Regards
Jorge
Von: Schaefer, Brett [mailto:Brett.Schaefer@heritage.org]
Gesendet: Dienstag, 17. November 2015 19:58
An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>
Cc: s18@icann.org
Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground proposal
Jorge,
You are proposing to enshrine a consensus requirement that is in effect no requirement at all.
Brazil's proposal is:
1.
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.
Denmark’s proposal is:
2.
For purposes of this section, GAC “consensus” does not include reaching a decision based on majority voting whereby disagreements with or objections by a minority of GAC representatives
may be overridden. It is also understood that “consensus” does not necessarily mean “unanimity” or a broad measure of agreement that would allow a GAC member or a very small minority of GAC members to block the determination of consensus.
In other words, under the Brazil proposal, the Board must accept as a consensus position whatever GAC says it is and, even if that advice is rejected by 2/3rds
of the Board, must find accommodation with the GAC. Under the Demark proposal it is unclear exactly what consensus is.
This is not acceptable nor a compromise in my opinion. If the GAC wants to increase the threshold for Board rejection of GAC advice, it needs to assuage concerns
about how that could be misused in the future.
I agree that the GAC can and should be able to define consensus however it wants, but the 2/3rds rejection threshold and the obligation to try in good faith
to reach a compromise should apply only if that advice is supported by a full consensus, i.e. unanimity. GAC advice short of this threshold can obviously be sent to the Board, but existing rules should apply and the Board should be under no obligation to try
to reach a compromise with the GAC (although it could and likely would).
As for the narrower Mission statement and increased accountability, those would have been community goals in the transition process regardless of the GAC proposal.
Brett
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom
Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097
heritage.org
-----Original Message-----
From: s18-bounces@icann.org [mailto:s18-bounces@icann.org]
On Behalf Of Jorge.Cancio@bakom.admin.ch
Sent: Tuesday, November 17, 2015 12:04 PM
To: Paul Rosenzweig
Cc: s18@icann.org
Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
Dear Paul
As to current practice in the Board: as far as I know it's higher than 2/3... and to know the current and historic practice could clarify whether there is any
real change or increase here, which has been the concern brought forward by some on this point.
The consensus requirement and a commitment to it at bylaws level is btw the new element which has triggered all this debate... so we are trying to strike a fair
balance for all involved for a future environment where public policy consensus advice should receive simply the same deference as to threshold as policy proposals and implementation guidance from the GNSO or ccNSO...
and what about the other arguments? i.e. that during the public comment period in 2014, when the 2/3 threshold was originally proposed, there were calls for
enshrining the consensus requirement (which we are doing right now), calls for a narrower Mission statement (which is also being done) and for a consideration within the wider accountability discussion (which was nascent at that time, and we are in the midst
right now), as prerequisites for accepting the 2/3.
best
Jorge
Von meinem iPhone gesendet
> Am 17.11.2015 um 17:48 schrieb Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>:
>
> Dear Jorge
>
> You know the answer to "practice" but in terms of long-term legal
> structure its irrelevant. We are talking about the legal mandate.
> However, if you want to keep the current practice, I'll agree to that -- absolutely no
> change at all. :-). You can't cherry pick the portions you like (informal
> Board 2/3rd requirement) and drop the ones you don't like (GAC OP47
> and formal majority rule for rejection).
>
> Paul
>
> Paul Rosenzweig
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> Link to my PGP Key
>
>
>
> -----Original Message-----
> Sent: Tuesday, November 17, 2015 10:36 AM
> Subject: AW: [S18] ST18 -- variations on Denmark's Common Ground
> proposal
>
> Dear Paul and all,
>
> Perhaps we would benefit from information from the Board as to how
> they presently treat GAC consensus advice, i.e. with what thresholds
> do they decide in such cases in practice. Perhaps, in practice, the
> 2/3 threshold does not mean any substantial change or "increase".
>
> And as to accountability measures which will be available to address
> and contain any hypothetical mission creep by the Board as a
> consequence to an hypothetical GAC advice to do so: I feel we would
> need to agree that the means for the community to check such
> hypotheticals will be increased very significantly and the IRP
> definitely will be strengthened by the CCWG proposal.
>
> Apart from that I would remind colleagues that during the public
> comment period in 2014, when the 2/3 threshold was originally
> proposed, there were calls for enshrining the consensus requirement
> (which we are doing right now), calls for a narrower Mission statement
> (which is also being done) and for a consideration within the wider
> accountability discussion (which was nascent at that time, and we are
> in the midst right now), as prerequisites for accepting the 2/3.
>
> Hope these considerations are helpful
>
> Regards
>
> Jorge
>
> -----Ursprüngliche Nachricht-----
> Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com]
> Gesendet: Dienstag, 17. November 2015 15:35
> An: 'Julia Katja Wolman' <jukacz@erst.dk>;
s18@icann.org; Cancio Jorge
> BAKOM <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael'
> Betreff: RE: [S18] ST18 -- variations on Denmark's Common Ground
> proposal
>
> I think that Julia and Finn's proposal regarding the definition of
> consensus is very forward going. But I do not think they are quite as
> successful in the context of the 2/3 vote. One of the principal
> conditions of the NTIA was to avoid having it's oversight replaced by
> an accountability mechanism with under government influence. I think
> that adding the 2/3 vote requirement at this point is directly
> contrary to that directive. Consider
>
> Under current practice GAC consensus advice is provided without formal
> objection and the Board may rejected by majority vote. The
> possibility of government "capture" of the process is therefore
> dependent on unanimity among goverments and 51% of the Board. Under
> Julia's proposal that will be reduced -- the government position now
> would be advanced by a near full consensus (almost all) but will be protected by a 1/3rd vote of the Board.
> No colorable argument can be made that this is not an increase in
> government influence and that, in turn, is contrary to the broad
> principles laid out by NTIA
>
> Finally, I would have thought it didn't need saying, but to respond to
> the "changed circumstance" point the argument Julia makes about a
> "narrow Mission statement" is fair. But that limitation is, I think,
> not any stronger than the current weak NTIA oversight -- it is
> intended as a replacement and is not likely to be a real enhancement
> of restraint. In that situation, again, it seems to me that adding
> more GAC authority when other accountability measures are not getting
> stronger (and perhaps are getting weaker) is not conducive to responding to the NTIA's concerns.
>
> Paul
>
> Paul Rosenzweig
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> Link to my PGP Key
>
>
>
> -----Original Message-----
> From: Julia Katja Wolman [mailto:jukacz@erst.dk]
> Sent: Tuesday, November 17, 2015 8:43 AM
> To: 's18@icann.org' <s18@icann.org>; 'Jorge.Cancio@bakom.admin.ch'
> <Jorge.Cancio@bakom.admin.ch>; 'Perez Galindo, Rafael'
> Subject: Re: [S18] ST18 -- variations on Denmark's Common Ground
> proposal
>
> Dear colleagues,
>
> Adding to Jorge and Rafael's comments, here are a few remarks from our
> side trying to address some of the comments on the ST18 list:
>
> 1) The " common ground" proposal was carefully drafted, in good faith,
> to address the different concerns expressed in the discussions - both
> in the CCWG Accountability and the GAC, including taking into account
> the GAC Dublin Communiqué and the elements to consider herein, which
> was drafted on the basis of serious discussions and concessions in the GAC.
>
> As pointed out by Jorge and others, one element in the GAC Dublin
> Communiqué is the call for flexibility with regard to the ACs ability
> to define consensus. The language of the footnote was carefully chosen
> to balance the different positions. That balance, we believe, is best
> achieved by not positively defining what consensus is but instead describing what it is not.
> The wording in the proposal cautiously indemnifies the room for
> maneuver with regard to AC consensus decision-making but still has an
> inbuilt flexibility that does not constrain the AC's to unanimity.
>
> 2) Another element is to avoid that the GAC is singled out and this is
> reflected by making the text regarding the Boards obligation to duly
> taking into account advice from ACs generic. Moreover, as other
> colleagues pointed out on the ST 18 call yesterday, this generic text
> also addresses the ATRT recommendation stating that the Board should take advice from all ACs duly
> into account.
>
> 3) With regard to Paul's earlier comments, the words "try", and "to seek"
> should be seen as equivalent and as other colleagues have pointed out
> we could certainly find better wording if needed.
>
> With regard to the proposal that requires 2/3 of the Board to be
> against an advice in order for the Board to reject it, this has to be
> seen in the larger context that we are in. We are considering the
> future framework as a whole and there are other safeguards being
> introduced, including a narrow Mission Statement and a commitment for
> consensus in the Bylaws. This proposal also underlines the Board's
> commitment to take AC advice duly into account.
>
> One could also turn the argument around. In practice the Board has
> rejected GAC consensus advice on the basis of consensus and as such
> the 2/3 requirement would "allow" that the Board could reject a
> consensus advice based on a 2/3 majority decision and not consensus
> with "the blessing" of the GAC as the GAC itself was among those that proposed this threshold.
>
> We sincerely hope that colleagues will consider this proposal in the
> spirit of reaching a constructive compromise.
>
> Best,
>
> Finn and Julia
>
>
> -----Oprindelig meddelelse-----
> Fra:
s18-bounces@icann.org [mailto:s18-bounces@icann.org] På vegne af
> Perez Galindo, Rafael
> Sendt: 17. november 2015 10:28
> Cc:
s18@icann.org
> Emne: Re: [S18] ST18 -- variations on Denmark's Common Ground proposal
>
> Let me chime in to support Jorge's remarks.
>
> In order to achieve a language that satisfies us all and complies with
> the GAC Dublin consensus communiqué, we have to walk a thin line
> between two points that should be avoided: imposition of unanimity
> (that could yield to
> capture) and possibility of majority rule (that should not be permitted).
>
> Julia's proposal has been carefully crafted to walk that line. And let
> me add that it is a good faith proposal, which tries to address
> everyone's concerns, including the ones that originated the inclusion
> of this Stress Test in the first place, and which constitutes already
> a major concession for many governments.
>
> Apart from needed language tweaking (such as replacing "seek" for "try
> to find" as Paul R. suggested), I kindly call and invite you to read
> Julia's proposal spirit, and reflect on whether you could live with
> such a common ground language, in order to put this to bed and move
> forward with the overall CCWG proposal.
>
> Warm regards,
>
> Rafael
> GAC_SPAIN
>
>
> -----Mensaje original-----
> De:
s18-bounces@icann.org [mailto:s18-bounces@icann.org] En nombre de
>
Jorge.Cancio@bakom.admin.ch Enviado el: martes, 17 de noviembre de
> 2015 7:00
> Para:
sdelbianco@netchoice.org
> CC:
s18@icann.org
> Asunto: Re: [S18] ST18 -- variations on Denmark's Common Ground
> proposal
>
> Dear Steve
>
> In what is the third variation different from the second?
>
> How would the two variations answer and adress the call for
> flexibility for ACs in defining consensus contained in the GAC Dublin consensus?
>
> I feel they do not and that the solution is not to impose one
> definition, but to find a narrow path between unanimity (which should
> not be imposed) and majority rule (which should not be allowed).
>
> Without that narrow line, any AC to which such a definition would
> apply would easily be captured by one single delegate/member or a very
> tiny minority, without any possibility to react to such a situation.
>
> This narrow line is in my view achieved in Julia's proposal.
>
> Hence I urge colleagues to work on that proposal, which already
> channels significantly the principle of flexibility on defining
> consensus called by the GAC in Dublin.
>
> regards
>
> Jorge
>
> Von meinem iPhone gesendet
>
> Am 17.11.2015 um 00:37 schrieb Steve DelBianco
>
> Mathieu asked me to document some variations on the Common Ground
> proposal that circulated before today's ST18 call.
>
> I showed the original text in column 1 of the attached 1-page document.
>
> I added three "bracketed" variations on using a footnote, per
> discussion on today's call:
>
> The 1st bracketed text is a close copy of Denmark's original.
>
> The 2nd bracketed text documents the GAC's present practice for consensus.
>
> The 3rd bracketed text indicates GAC consensus matches whatever the UN
> is practicing as "consensus" at that time.
>
>
> -
> Steve DelBianco
> Executive Director
> NetChoice
> +1.703.615.6206
>
>
> <Variations on Common Ground proposal for ST18.pdf> <Variations on
> Common Ground proposal for ST18.docx>
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