Re: [IFWP] GAC: mandatory or advisory advice?

[A.M. Rutkowski]

Mark, you missed my point.  ALL GAC advice is advisory; none is mandatory.
The ICANN Board is free to give it whatever weight it (the Board) feels it
deserves.  I note again that any national government is free to participate
in the GAC; if they choose not to, that is their choice, not ICANN's or the
GAC's.

Hi Joe,

I think you probably missed my counterpoint from your
last note.  It bears reiteration:

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 so-called 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.

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.

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.

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.

--tony