[governance] JPA
Jeanette Hofmann
jeanette at wzb.eu
Wed May 27 06:43:08 EDT 2009
Parminder wrote:
[...]
We can say that we see an
> ICANN free from JPA only as an interim arrangement as ways and means of
> its legitimate oversight are worked out.
I would not support such a suggestion. It seems highly unlikely that any
form of effective oversight could be established after ICANN has become
independent.
jeanette
This should be through the
> mentioned treaty system (the precise wording on this can be discussed
> here).
>
> I also think that suggesting an 'international judidical body' for
> adjudication CIR/ related IG issues as a more urgent step would be
> useful, since a full treaty process could take long time. The model and
> legal basis for such a judicial or quasi-judicial body can be discussed. ,
>
> parminder
>
> Ian Peter wrote:
>> When I hear strong and respected voices such as Willie and APC, Bill
>> Drake and Milton Mueller arguing for a continuation of the JPA with
>> specific conditions, it is obvious to me that it will be difficult to
>> get consensus on a statement to the DOC review.
>>
>> While I am inclined to agree with many of the comments, I cannot
>> envisage that a continued JPA will solve any of these issues, and also
>> believe that a continued JPA brings into question ICANN’s legitimacy
>> in the international arena.
>>
>> So I don’t know. We have different opinions here on how to cure the
>> problem. So let me say the following, speaking absolutely in a
>> personal capacity here.
>>
>> The colonial era existed for a long time on the belief that countries
>> and certain races were not mature enough to self govern. I see strong
>> echoes of colonialism in suggesting that ICANN cannot solve its
>> problems without the patronism of the US Government. I echo (as I did
>> in Hyderabad) the opinion of Mahatma Ghandi to the British when they
>> questioned the timing of an independence movement– we would rather
>> have our own bad governance that your good governance.
>>
>> We have chicken and the egg here - which comes first? While I think
>> the international treaty is a good idea, to continue a JPA until we
>> have one lessens the chance of one evolving.
>>
>> But if people wish, lets continue and look for middle ground.
>>
>> I would not argue for an extended JPA under any conditions. I would be
>> prepared to argue for an immediate cessation of the JPA subject to
>> ICANN agreeing to (taking up APC’s points)
>>
>> - abolish the GAC and have governments either participate as a
>> stakeholder directly in ICANN structures e.g. the Board, GNSO etc just
>> as other stakeholders do or specify the role of governments in
>> managing critical internet resources through an international treaty
>>
>> - separate the ICANN global governance regime from national
>> governance e.g. ccTLDs which should be handled at national level
>> with suggested guidelines on how to go about this
>> (multi-stakeholder principle, WSIS principles etc)
>>
>> * an international treaty to govern the management of critical
>> internet resources should be entered into between governments in
>> consultation with the private sector and civil society (that
>> would set the principles and broad parameters for ICANN as an
>> independent international economic regulator but not interfere
>> in its operations)
>>
>>
>> (and I would add embedding the principles referred to below)
>>
>> Is there a way forward along these lines? To me it would need to be
>> absolutely clear that continuance of JPA until these arrangements are
>> in place is not an option.
>>
>>
>> Ian Peter
>>
>>
>>
>>
>>
>> On 25/05/09 8:39 PM, "Willie Currie" <wcurrie at apc.org> wrote:
>>
>> Hi Ian
>>
>> In APC we are exploring whether to make a submission on the JPA
>> expiry on the following lines:
>>
>> Q1: change the principle 'private' to 'multi-stakeholder' and
>> propose WSIS principles
>> Q2 say the ICANN model is flawed as it allows for arbitrary
>> interventions by the GAC to override its decision-making
>> processess as in the .xxx case, does not in its decision-making
>> processes comply with the standards of an economic regulator,
>> confuses public policy regulation with commercial activities,
>> lacks proper accountability whether internal or external, lacks
>> full international legitimacy. ICANN can be internationalised as
>> an economic regulator for the DNS and the JPA allowed to expire
>> after the following steps:
>> - abolish the GAC and have governments either participate as a
>> stakeholder directly in ICANN structures e.g. the Board, GNSO etc
>> just as other stakeholders do or specify the role of governments
>> in managing critical internet resources through an international
>> treaty
>> - separate the ICANN global governance regime from national
>> governance e.g. ccTLDs which should be handled at national level
>> with suggested guidelines on how to go about this
>> (multi-stakeholder principle,WSIS principles etc)
>> - an international treaty to govern the management of critical
>> internet resources should be entered into between governments in
>> consultation with the private sector and civil society (that would
>> set the principles and broad parameters for ICANN as an
>> independent international economic regulator but not interfere in
>> its operations)
>> Qs3,4 & 5: recognise that ICANN has made progress on meeting some
>> of these steps but they are not sufficient in themselves as the
>> overall problems outlined in Q2 have not been met and can't be met
>> within the current governance arrangments for ICANN.
>> Q6: say therefore that the USG cannot let the JPA expire until
>> theconditions outlined under Q2 have been met.
>>
>> This conclusion is somewhat surprising for us to reach as we have
>> argued against the unilateral control of ICANN by one government.
>> We have also been hesitant about arguing for an international
>> treaty but feel the sooner we face up to this as a reality the
>> better. We are worried about a black swan blindsiding the system
>> of managing critical internet resources to the detriment of the
>> internet as a whole and lack confidence in letting ICANN go
>> without there being a legitimate accountability mechanism in place.
>>
>> Willie
>>
>>
>> Ian Peter wrote:
>>
>> JPA
>>
>>
>> There have been suggestions on the list we should comment
>> on the JPA – which I think would be a good idea. Below is
>> DOC’s call for comments with some suggested IGC responses
>> in CAPS. We have until June 8 so we probably need to get
>> something decided fairly quickly if we are to respond.
>>
>> Any suggestions or thoughts? One thing I am suggesting
>> below is that ICANN needs to embed various principles in
>> its operation. These are in by-laws but that would appear
>> to be easy to change. Those closer to ICANN might be able
>> to suggest an appropriate mechanism for this.
>>
>>
>> Ian Peter
>>
>>
>> REQUEST FOR COMMENT:
>>
>> Given the upcoming expiration of the current JPA
>> between the
>> Department of Commerce and ICANN, NTIA seeks comments
>> regarding the
>> progress of the transition of the technical coordination
>> and management
>> of the Internet DNS to the private sector, as well as the
>> model of
>> private sector leadership and bottom-up policy development
>> which ICANN
>> represents.
>> The questions below are intended to assist in
>> identifying the
>> issues and should not be construed as a limitation on
>> comments that may
>> be submitted. Comments that contain references, studies,
>> research, and
>> other empirical data that are not widely published should
>> include
>> copies of the referenced materials with the submitted
>> comments.
>> 1. The DNS White Paper articulated four principles (i.e.,
>> stability; competition; private, bottom-up coordination; and
>> representation) necessary for guiding the transition to
>> private sector
>> management of the DNS. Are these still the appropriate
>> principles? If
>> so, have these core principles been effectively integrated
>> into ICANN's
>> existing processes and structures?
>>
>> IGC BELIEVES THESE PRINCIPLES ARE IMPORTANT AND WOULD
>> LIKELY TO SEE THEM PERMENANTLY EMBEDDED IN THE CONSTIUTION
>> OF AN INDEPENDENT ICANN
>>
>> 2. The goal of the JPA process has been to transition the
>> coordination of DNS responsibilities, previously performed
>> by the U.S.
>> Government or on behalf of the U.S. Government, to the
>> private sector
>> so as to enable industry leadership and bottom-up policy
>> making. Is
>> this still the most appropriate model to increase
>> competition and
>> facilitate international participation in the coordination
>> and
>> management of the DNS, bearing in mind the need to
>> maintain the
>> security and stability of the DNS? If yes, are the
>> processes and
>> structures currently in place at ICANN sufficient to
>> enable industry
>> leadership and bottom-up policy making? If not, what is
>> the most
>> appropriate model, keeping in mind the need to ensure the
>> stability and
>> security of the Internet DNS?
>>
>> IGC BELIEVES THAT THE SECURITY OF THE INTERNET DNS CAN
>> ONLY BE ENSURED BY INTERNATIONAL AND TRANSATIONAL
>> CO-OPERATION. THAT CO-OPERATION WILL BE ENHANCED BY
>> TRANSITION BEYOND THE JPA TO A SITUATION WHERE ALL
>> COUNTRIES, AS WELL AS OTHER STAKEHOLDERS, FEEL THEY HAVE
>> EQUITABLE ARRANGEMENTS FOR PARTICIPATION
>>
>> 3. The original agreement and the first six amendments
>> to the JPA
>> contained a series of core tasks, and in some cases,
>> date-specific
>> milestones. Have these tasks been accomplished and have these
>> milestones been met? If not, what remains and what steps
>> should be
>> taken to successfully address them?
>>
>>
>> 4. In 2006, the focus on specific milestones was
>> adjusted to a
>> series of broad commitments endorsed by the ICANN Board as
>> an annex to the JPA.
>> Specifically, ICANN committed to take action on the
>> responsibilities
>> set out in the Affirmation of Responsibilities established
>> in ICANN
>> Board Resolution 06.71, dated September 25, 2006.\12\ Those
>> responsibilities included activities in the following
>> categories:
>> security and stability, transparency, accountability, root
>> server
>> security and relationships, TLD management,
>> multi-stakeholder model,
>> role of governments, IP addressing, corporate
>> responsibility, and
>> corporate administrative structure. What steps has ICANN
>> taken to meet
>> each of these responsibilities? Have these steps been
>> successful? If
>> not, what more could be done to meet the needs of the
>> community served
>> in these areas?
>>
>> 5. The current JPA called for NTIA to conduct a
>> mid-term review.
>> That review revealed that ICANN needed to take further
>> steps to
>> increase institutional confidence related to long-term
>> stability,
>> accountability, responsiveness, continued private sector
>> leadership,
>> stakeholder participation, increased contract compliance,
>> and enhanced
>> competition. What steps has ICANN taken to address the
>> concerns
>> expressed in the mid-term review process? Have these steps
>> been
>> successful? If not, what more could be done to meet the
>> needs of the
>> community served in these areas?
>>
>> 6. The JPA between the Department of Commerce and
>> ICANN is an
>> agreement by mutual consent to effectuate the transition
>> of the
>> technical coordination and management of the Internet DNS
>> in a manner
>> that ensures the continued stability and security of the
>> Internet DNS.
>> Has sufficient progress been achieved for the transition
>> to take place
>> by September 30, 2009? If not, what should be done? What
>> criteria
>> should be used to make that determination?
>>
>> IGC BELIEVES THAT SUFFICIENT PROGRESS HAS BEEN MADE IN
>> THESE AREAS FOR THIS TRANSITION TO TAKE PLACE.
>>
>> 7. Given the upcoming expiration of the JPA, are there
>> sufficient
>> safeguards in place to ensure the continued security and
>> stability of
>> the Internet DNS, private sector leadership, and that all
>> stakeholder
>> interests are adequately taken into account? If yes, what
>> are they? Are
>> these safeguards mature and robust enough to ensure
>> protection of
>> stakeholder interests and the model itself in the future?
>> If no, what
>> additional safeguards should be put in place?
>>
>> THE PRINCIPLES OUTLINED ABOVE ARE CONTAINED IN ICANNS BY
>> LAWS. THEY NEED TO BE EMBEDDED IN SUCH A WAY AS TO ENSURE
>> THEY CANNOT EASILY BE CHANGED TO EXCLUDE ANY STAKEHOLDER
>> GROUP.
>>
>> 8. The JPA provides that before its termination, NTIA and
>> ICANN are
>> to collaborate on a DNS Project Report that will document
>> ICANN's
>> policies and procedures designed and developed pursuant to
>> the
>> agreement. What should be included in this report?
>>
>>
>>
>>
>>
>>
>>
>>
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