[governance] GAC reform

Thu Aug 18 06:06:14 EDT 2005

Dear list,

All the discussions around .xxx make clear, that the procedures for the interaction among governments with regard to Internet Governance and between governments and ICANN are not sufficient established. 

This case makes clear, that the GAC has a number of weaknesses. The GAC is an advisory body which works on the basis of consensus, but individual governments reserve always the right to express their own individual positions, as they did it for the first time during the Bucharest GAC meeting when the GAC discussed ICANN reform. The GAC Communique is the only official GAC output, but it has no clear legal status. The process inside the GAC is more informal. The basic constitutional legal document of the GAC is called "The GAC Operating Principles", recently renewed in Mar del Plata in April 2005. The "Principles" are not a treaty, although so they look like. It is difficult to clarify the legal status of these "Principles". I would describe them as "soft law" (like a UN GA Resolution). Certainly, in theory the "Principles" could be transformed into something like a "constitution" for an intergovernmental treaty organisation, which would need a ratification by national parliaments. But I am sure, that the majority of GAC members have no interst to do this. BTW, in such a case there would be a need to clarify the "membership" section, which includes now also "distinct economies as recognised in international fora". Is Taiwan, certainly a "distinct economy" also "recognized in international fora"? And BTW, did somebody explore, what China thinks about .xxx? China is not a member of the GAC.    

Anyhow, it is intersting to re-read the "Principles". They define the scope of the GAC and also, in Section XII, the procedures for "advice". 

ARTICLE I - SCOPE OF THE GOVERNMENTAL ADVISORY COMMITTEE

Principle 1

The Governmental Advisory Committee (GAC) shall consider and provide advice on the activities of ICANN as they relate to concerns of governments, multinational governmental organisations and treaty organisations, and distinct economies as recognised in international fora, including matters where there may be an interaction between ICANN's policies and various laws and international agreements and public policy objectives. 

Principle 2

The GAC shall provide advice and communicate issues and views to the ICANN Board. The GAC is not a decision making body. Such advice given by the GAC shall be without prejudice to the responsibilities of any public authority with regard to the bodies and activities of ICANN, including the Supporting Organisations and Councils.

Principle 3

The GAC shall report its findings and recommendations in a timely manner to the ICANN Board through the Chair of the GAC.

Principle 4

The GAC shall operate as a forum for the discussion of government and other public policy interests and concerns.

Principle 5

The GAC shall have no legal authority to act for ICANN.

ARTICLE XII - PROVISION OF ADVICE TO THE ICANN BOARD

Principle 46

Advice from the GAC to the ICANN Board shall be communicated through the Chair.

Principle 47

The GAC shall work to achieve consensus; however, where consensus is not possible, the Chair shall convey the full range of view expressed by Members to the ICANN Board.

Principle 48

The GAC may deliver advice on any other matter within the functions and responsibilities of ICANN, at the request of the ICANN Board or on its own initiative. The ICANN Board shall consider any advice from the GAC prior to taking action.

There is no voting procedure. Everything is rather informal and based on "communication" (see other parts of the "Principles") . Insofar I am not sure, that Sharil´s letter is not an advice in the understanding of Section XII, Principle 46. I think it is. As I said in  an earlier mail, there is no documented discussion about .xxx on the GAC website. I was in the room in Luxembourg, when the subject was raised in the joint GAC-Board meeting, and I did not have the impression that the concerns raised by some governments, reflected a consensus of the whole GAC. But there was also no intervention in favour of .xxx. My impression was that the majority was "neutral" and accepted Pauls and Vints explanations. BTW, more than half of the GAC members did not participate in  the Luxembourg meeting. It is rather unclear what the "silent majority" of governments thinks about the issue. Did anybody hear some clear governmental statements in favour of the ICANN Board decision to start negotiations on .xxx?  All this are good arguments for the WGIG call to reform the GAC. 

The second weak point are the procedures for interaction between GAC and ICANN. The relevant articles of the ICANN bylaws describe this interaction rather vague. It is also more "informal" via "communication" than strict formalized.  But obviously we see here a "clash of cultures" between the bottom up policy development culture of the Internet Community and the top down negotiation culture of the intergovernmental system. Paul Twomey refered in Luxembourg to the "open comment period" on the ICANN website, an established procedure for policy development in the Internet Communicty. Some governments argued in private discussions in the coffee break, that such a procedure does not fit into the governmental schemes and that they do not feel that they should participate in such open comment endeavour. They expected that ICANN will ask the GAC for advice before it acts an such issues which have a clear public policy dimension. Paul Twomey interpreted the silence of governments in the open comment period at least as "no objection", because no governmental concerns have been raised. 

There seems to be no problem to have different cultures in different bodies. But if it comes to interaction, it creates problems, misunderstandings and tensions. The vague institutionalzed interaction between GAC and ICANN in ICANN´s bylaws is something like a hybrid mixture. To a certain degree this is also a power struggle. At the end of the day, there are three options:

1. ICANN wins

2. GAC wins

3. there will be a continuation of informal for-and-backward moving trying to develop some new unusual procedures for this new territory.

I expect that Option 3 will be with us for a couple of years. 

As Richard Baeird form the US Department of State has said recently in Milton´s conference, governments are mainly occupied by a domestic agenda. In this respect I do not see any big differences between the USG and other governments, including governments in Denmark and Germany. It is true that the some governments "internationalize" their domestic agenda, but it remains primarily a "domestic agenda". The (Internet) constituencies have no national agenda, they approach specific issues from a more general and global perspective (or from the individual interests of their specific (transnational) constituency. 

This conflict will remain for the years to come. The good thing is that it could become also a driving force for the development of some new innovative procedures for global policy development. 

Best

wolfgang

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