[governance] limits of technical jurisdiction (was: GeoTLD)

[linda misek-falkoff]

Dear Dan, et al,

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.

Comes up a lot.

So, in tandem, whither appeals? In general that is, since some
organizations, even informal (but vigrouous) ones, as here, do provide for
same.

Again, issue-spotting is a gift to all. Thanks.

Best wishes, seasonal and continuing, LDMF.
Linda D. Misek-Falkoff
*Respectful Interfaces*


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