Glad to see you back on the list.
bylaws make no mention at all of GAC having anything at all to do with
ICANN's "legal obligations", and they are perfectly clear that ICANN is not
required to follow any GAC advice. Now, it is theoretically possible that
I think you've overlooked the interlocking provisions of para. 4 of
the Articles of Incorporation and Art. VII, Sec. 3.a. of the Bylaws.
As you may recall, it was the EU that insisted on these interlocking
provisions during the drafting effort. This is an effectuation of
the EU model spelled out at the Washington 8 Oct 97 CILP meeting that
significantly predates your involvement.
We are in agreement that strictly speaking the ICANN Board may ignore
the GAC findings and recommendations. On the other hand, considering
the GAC purports to be a constituted body of States collectively
effecting agreements on these findings and recommendations, and
considering their representatives have stated they "give legitimacy
to ICANN," their advise is rather compelling.
Clearly what is being crafted is a new species of international
law, but one which bypasses normal checks and balances, and
constitutes a serious undermining of the international legal system.
That it is also autonomous and self-defining in its jurisdiction,
authority and processes is also a cause for considerable concern.
I'm certainly not alone among legal scholars (and many others) in
this view.
On your question, since any national government can join GAC by simply
saying so, the GAC is by definition those governments that care enough
about these issues to participate in it.
The GAC was not constituted by random self-organization. With only
a couple of exceptions, the ITU's member list became the basis for
GAC membership. These are typically the PTT and PTO regulatory
ministries in each country - who typically have strong hostile interests
and preconceived views about the Internet and the role of government.
These are the troglodytes of the telecommunications field.
are simply recommendations to the board. Why it is that the notion that
ICANN should not try to involve interested governments in its processes, so
that they feel invested in and (hopefully) protective of ICANN and its
consensus-building efforts, is somehow threatening to anyone is beyond me.
You comments ignore the last 20 years of telecommunications
and information policy and law, as well as the actual experiences
in dealing with these players. It also ignores the tenets of the
White Paper which calls for the the involvement of government staff
as peer users in the various activities of NewCo, not as a collective
independent intergovernmental body meeting in secret among themselves
to promulgate findings and agreements.
We can't wish them away, and since they are governments, they have the
power to pass laws that could be inconsistent with the private-sector,
consensus-building approach of ICANN. Under those circumstances, I would
think that the best way to minimize the risk that governments might act
inconsistently with ICANN is to make sure they are fully involved in and
knowledgable about ICANN, and have a way to make any concerns known within
the ICANN structure.
There is nothing about the coordination of the names and numbers
for private shared networks and network resources that should give
rise to the need for a permanent intergovernmental body.
regards,
--tony
