[discuss] governments and rule of law (was: Possible approaches to solving...)

David Cake dave at difference.com.au
Wed Feb 26 18:36:34 UTC 2014

On 26 Feb 2014, at 7:47 pm, Peter Dengate Thrush <barrister at chambers.gen.nz> wrote:
> In operational terms, if its possible to alert the GAC early to policy developments, and keep them posted about what is going on, and for the GAC to develop its own positions earlier, and share them with the MS policy development process, thats all much to the good. That should shorten lead times and reduce surprises and ambush.

	I want to reassure those that GAC-GNSO efforts that I referred to earlier are of this nature. We have discussed the working methods of the two bodies, and the need for them to be more aware of the others processes etc. We've discussed, for example, that if the GAC early on in the GNSO process would identify areas that it feels have public policy considerations, that would be helpful to both. And fairly mundane issues, like ensuring that the GAC knows what working groups are actively working on policy within the GNSO, and what stage they are at, and letting the GNSO know who the GAC topic leads are, so they know who to talk to about an issue. But discussion has been very much in terms of coordinating the two separate processes of the two bodies, with acknowledgement that there will be times when the two disagree (and that perhaps simply throwing all areas of disagreement to the board to sort out is perhaps not the best process). 

> Further, ICANN is much stronger institutionally and procedurally than it was in 1999. It is likely to be better able to consider the GAC engaging in a wider context 

	While I was not around in 1999, I agree that ICANN seems now strong enough to deal with GAC engagement in a wider context. 

> All I would counsel is that the vast disparity of bargaining power be kept constantly in mind, and that not all members of the community can now be assumed to hold dear the same "Internet values" that have so well served the Internet and its institutions so far.
> I disagree with Milton that the solution is to disarm the GAC. I say again that the better approach is to strengthen the board, and related process, and to be able to hold the board accountable.
> Delay as a tactic can be dealt with by requiring that GAC advice should be given and processed according to a strict timetable, with the default favouring the advice being rejected. (The opposite of the current position over .Amazon and .spa).
> A board that abandons an MS-made policy without compelling reasons should be subject to recall. Knowing that the board was to be held accountable like that would help it in its negotiations with the GAC.

	A good suggestion.
	And it has been my experience that the existing accountabiiiy procedures are not great for this specific purpose. 


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