<div>Dear Dan, et al,</div>
<div> </div>
<div>not really a negative ("depressing") message - raises thoughts about the general absence of judiciary agents, instruments, or acts themselves under any label, in civil society at large. </div>
<div> </div>
<div>Comes up a lot.</div>
<div> </div>
<div>So, in tandem, whither appeals? In general that is, since some organizations, even informal (but vigrouous) ones, as here, do provide for same.</div>
<div> </div>
<div>Again, issue-spotting is a gift to all. Thanks.</div>
<div> </div>
<div>Best wishes, seasonal and continuing, LDMF.</div>
<div>Linda D. Misek-Falkoff</div>
<div>*Respectful Interfaces*<br><br> </div>
<div><span class="gmail_quote">On 12/24/07, <b class="gmail_sendername">Dan Krimm</b> <<a href="mailto:dan@musicunbound.com">dan@musicunbound.com</a>> wrote:</span>
<blockquote class="gmail_quote" style="PADDING-LEFT: 1ex; MARGIN: 0px 0px 0px 0.8ex; BORDER-LEFT: #ccc 1px solid">At 6:39 PM +0100 12/23/07, Michael Leibrandt wrote:<br><br>> ... The core function of ICANN is that of a technical co-ordination body,
<br>>and wherever possible, it should stick to that role.<br><br>Indeed, this rhetorical statement seems to be universally agreed in<br>principle by all associated with ICANN and IG in general. So, why do we<br>continue to have such persistent disagreements about it?
<br><br>It comes down to the interpretation of *very* vague words such as:<br>"wherever possible" -- the ultimate loophole, because such qualifications<br>have no clear definition anywhere in ICANN's bylaws. In particular:
<br><br><a href="http://www.icann.org/general/bylaws.htm">http://www.icann.org/general/bylaws.htm</a><br><br>Article I, Section 2 has some relevant phrases:<br><br>2. "... limiting ICANN's activities to those matters within ICANN's
<br>mission requiring or significantly benefiting from global coordination."<br><br>But what exactly is "within ICANN's mission" or "requiring or benefiting<br>from global coordination"? How much benefit qualifies for such
<br>intervention? How broadly does such benefit have to extend to qualify<br>(i.e., who benefits, and in what way)?<br><br>Followed by the disclaimer at the end of Section 2:<br><br>"These core values are deliberately expressed in very general terms, so
<br>that they may provide useful and relevant guidance in the broadest possible<br>range of circumstances. Because they are not narrowly prescriptive, the<br>specific way in which they apply, individually and collectively, to each
<br>new situation will necessarily depend on many factors that cannot be fully<br>anticipated or enumerated; and because they are statements of principle<br>rather than practice, situations will inevitably arise in which perfect
<br>fidelity to all eleven core values simultaneously is not possible. Any<br>ICANN body making a recommendation or decision shall exercise its judgment<br>to determine which core values are most relevant and how they apply to the
<br>specific circumstances of the case at hand, and to determine, if necessary,<br>an appropriate and defensible balance among competing values."<br><br><br>So, great: the writers of these bylaws have completely punted here in the
<br>sense of utterly refusing to create a "rule of law" to govern these<br>decisions, leaving the decisions to the "rule of man" or more specifically,<br>the rule of those who have the greatest resources to influence the
<br>policy-making processes at ICANN -- within an "ICANN body [exercising] its<br>{necessarily subjective} judgment".<br><br>Make no mistake, this seems to have been *intentional* and not an<br>oversight, because if it was an oversight it was inexcusably egregious.
<br><br>There is no institutional separation of powers, such as creating a truly<br>independent "judiciary" to evaluate the outcomes of PDPs etc. There is no<br>way to contest the "defensibility" and "balance" of their judgments in a
<br>formal process of *independent* review. The Board ultimately approves<br>policy, and the Board is also the power to which appeals are directed (see<br>Article IV, the Board establishes the Reconsideration Committee to handle
<br>such appeals), which also means that the Board ultimately has the<br>responsibility for determining who has standing to (i.e., what is<br>"materially affected by an action of ICANN" and who decides). If the
<br>ultimate authority for redress is the same as the ultimate authority for<br>making the original policy, that is a joke from a procedural standpoint.<br>Where is the "independent supreme court" of ICANN? It does not exist.
<br><br>And I could go on and on about the structural issues inherent here, but I<br>won't repeat myself for the moment. The point here is that if we can't<br>agree on this very basic fundamental starting point (what is or is not
<br>within ICANN's legitimate jurisdiction, based on what is or is not a<br>legitimate institutional structure for governance -- and the answer to<br>these two questions is partly interdependent: what is an appropriate
<br>institutional structure depends partly on the jurisdiction, for example<br>IETF's governance structure may work acceptably within its relatively<br>narrow technical jurisdiction [and often "noncritical" -- if consensus
<br>fails, the community merely agrees to disagree and moves on] but does not<br>scale well to general political governance), none of the important (and<br>thus disputed) details we discuss here will be tractable, because all of
<br>those specific details proceed from this structural origin.<br><br><br>The devil is in the details, but in this case, the lack of details in what<br>is formally stated in ICANN's "constitution" is what creates the devilish
<br>dynamics in dealing with details as they arise.<br><br>There is simply no hope that RC-squared (rough consensus and running code)<br>as a governance model could ever be successful in fairly addressing the<br>full range of political disagreements (ever heard of "the tyranny of the
<br>majority"? -- even if the standing issue can be fairly resolved, which may<br>not be the case if there is any limitation on participation or<br>representation at all), and even the relatively narrow realm of IP/DNS will
<br>have increasingly "generally political" ramifications if the boundaries are<br>not strictly delimited.<br><br>All roads lead to this question, and as long as the IG community as a whole<br>fails to address the institutional structure question head on, it will
<br>continue to be embroiled in contentious debates of increasing volatility.<br><br>You think we've had a rough autumn? Unfortunately I believe this is just<br>the beginning, unless the structural governance issue is put clearly on the
<br>table and engaged outright on the merits.<br><br>Politics have invaded IG (indeed, they likely have been there from the<br>beginning), and there is no escape. Resistance is futile, because politics<br>are not even a codified enemy like the Borg in Star Trek -- they are an
<br>inherent characteristic of human communities emerging from our basic<br>nature, and they are as inevitable as breathing.<br><br>Humans are intrinsically political creatures, similarly human societies are<br>inescapably political, and our governance institutions are as well.
<br><br>Sorry for this depressing message on Xmas eve, but perhaps this is an<br>opportune moment to consider the interests of those who cannot represent<br>themselves, and to be explicit about devising a governance structure that
<br>can fill that gap and ultimately do justice to the global commonwealth as a<br>whole.<br><br>Dan<br>____________________________________________________________<br>You received this message as a subscriber on the list:
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