AW: [gnso-igo-ingo] GAC Durban Communique Issued -- Note references to our WG and our subject matter

["Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@xxxxxxxxxxxxxxxxxxxxxxx>]

Gregory: 
 
I think it would be more proactive, practical and statesmanlike to raise the 
issue now, and at least see what the stakeholder groups and constituencies 
think and/or what the Council thinks.  I think it would show policy leadership 
to face the issue now, rather than letting a series of potentially unfortunate 
events unfold.

At the very least, we should be fully aware that we are rejecting the GAC 
Advice (to the extent we do so).  We have every right to do so, and if that is  
where we end up, so be it.  But I don't think we should proceed down that path 
without considering the results of such a position and why we are recommending 
that the Board and staff backtrack from their implementation of the GAC advice 
in favor of the GNSO policy recommendation.  Our policy recommendation would be 
incomplete if it failed to acknowledge the GAC advice -- just as the GAC advice 
is incomplete by failing to acknowledge our Working Group.

Wolfgang:
Thanks Gregory. I fully support your appaaoch. We are moving into troubled 
waters and the way how we will sail will determine to a certain degree the 
future role of the GNSO and its council. Yes, we have to be proactive and to 
propose new levels and forms of dialogue. That is why I raised during our joint 
meeting with the GAC in Durban the issue of "early GAC engagement" (a promise 
from the Toronto Communique which weas not fullfilled so far by the GAC). 
Unfortunately, there was no clear answer from the GAC. They did not e4xplain in 
Beijing what "early engagement" is and they did it not in Durban The GAC 
addresses first of all the Board. In the triangle between GAC, Board and GNSO 
we are in the weak corner. As you have outlined there could be a situation 
where the GNSO comes with a recommendation which has taken the GAC advice into 
consideration but comes to another conclusion. Who will overrule whom? One 
example: As I argued in the WG, the GAC argument that only IOC and RC are 
proteced in national and international law, is not correct. There are other 
organisations, which have a similar "double protection", as UNESCO with 
interntional treaties and more than 160 national UNESCO Commissions and more 
than 1000 UNESCO Cultural Heritage sites, all regulated in national 
legislations. And more problems come with the IGOs. For me it is still an open 
question why to introduce new mechanisms if the existing mechanisms have not 
yet been tested to identify the gaps and weaknesses of the proposed system (I 
expect that we will end up with a very small number of controversial cases 
which can than be handled by the various instruments we have now in the system, 
but this is - I agree - speculation). Anyhow, the only way forward is a more 
intense dialogue. Probably we should reach out to like minded GAC members and 
to find out, how flexible the GAC advice is. 






-----Original Message-----
From: Thomas Rickert [mailto:rickert@xxxxxxxxxxx]
Sent: Monday, July 22, 2013 4:50 PM
To: Elizabeth Finberg
Cc: Gomes, Chuck; Shatan, Gregory S.; GNSO IGO INGO
Subject: Re: [gnso-igo-ingo] GAC Durban Communique Issued -- Note references to 
our WG and our subject matter

All,
as you know, I have not been in Durban and as I have been away from my desk for 
a few days, I still need to catch up with new developments.

A few observations:

- While it would not be safisfying to work in an environment where a policy 
clash or parallel efforts might occur, I am not sure whether it is our role to 
try to resolve this. As Chuck pointed out, we should come up with 
recommendations and present them to the Community and Council.

- I am not sure whether it is appropriate for us as a WG to seek clarification 
with the GAC. Rather, this would be a matter for the Council and ultimately for 
the Council Chair to correspond.

- Also, I am not sure we should seek clarification. What outcome do you expect? 
The way I read the Communique leaves some flexibility for our work. Asking for 
clarification might further narrow down the options, which might not be a 
desired outcome. It is very well possible that the language has been drafted to 
be somewhat vague. That practice by the GAC is often used (IMHO exactly not to 
prescribe all details).

More thoughts and suggestions are welcome.

Thomas

=============
thomas-rickert.tel
+49.228.74.898.0

Am 22.07.2013 um 18:43 schrieb Elizabeth Finberg <efinberg@xxxxxxx>:

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> On 7/22/13 9:53 AM, "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:
>
>>
>> I think there are reasonable chances that there may be 'policy clash'.
>> Whereas we should consider GAC advice in our work, all we can do is
>> try to come up with recommendations that have at least strong
>> support, submit those to the Council and broader GNSO community.
>>
>> Chuck
>>
>> -----Original Message-----
>> From: owner-gnso-igo-ingo@xxxxxxxxx
>> [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On Behalf Of Shatan, Gregory S.
>> Sent: Sunday, July 21, 2013 11:35 AM
>> To: GNSO IGO INGO
>> Subject: RE: [gnso-igo-ingo] GAC Durban Communique Issued -- Note
>> references to our WG and our subject matter
>>
>>
>> Avri,
>>
>> You didn't see it because it's not there (apologies for the slightly
>> tongue-in-cheek heading).  Our WG did come up in the GAC/GNSO Session
>> on Sunday.  There's no transcript of that meeting (at least not yet). 
>> My basic recollection of that meeting was that the GAC acknowledged
>> that we and the GAC are on "parallel tracks" and that the GAC would
>> be concerned if the GNSO's recommendations differed from the GAC
>> Advice.  Brian Peck
>> (presenting) was rather in the hot seat.  It would be great if others
>> who were present could amplify or correct my recollections of that meeting.
>>
>> If anything, the Durban Communique attempts to paint the Board into a
>> corner by stating that "the ICANN Board, further to its previous
>> assurances, is prepared to fully implement GAC Advice" (on the IGO
>> point at least).
>>
>> There is potential for a complex and difficult situation and, in the
>> crush of events in Durban, it did not get much attention.  Should
>> this WG and/or the GNSO be involved in the GAC/NGPC discussions on
>> this matter even if there is no formal track for such interaction? 
>> What if we show up after the Board implements the GAC Advice and the
>> GNSO then issues conflicting Policy Recommendations? What if the Board votes 
>> it down?
>> What if we are not finished by the time the first roll-outs are
>> scheduled to occur?
>>
>> We should consider these, before there is a "policy clash"....
>>
>> Greg
>>
>> -----Original Message-----
>> From: owner-gnso-igo-ingo@xxxxxxxxx
>> [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On Behalf Of Avri Doria
>> Sent: Sunday, July 21, 2013 11:04 AM
>> To: GNSO IGO INGO
>> Subject: Re: [gnso-igo-ingo] GAC Durban Communique Issued -- Note
>> references to our WG and our subject matter
>>
>>
>> Hi,
>>
>> I guess I need to reread it, while I recall them discussing the
>> subject, I do not remember the GAC acknowledging the existence of the WG.
>>
>> But I read it quickly, so perhaps I missed that part where they ack
>> our group's work, indicate a willingness to work with us and give at
>> least some small indication of respecting the fact that we working
>> hard (some of you harder than the rest of us) on the problem, trying
>> to find a solution that is consistent with international law,
>> Internet openness and the ICANN bottom-up decision processes.
>>
>> Apologies for missing the WG meeting in Durban, ATRT2 filled my dance
>> card.
>>
>> avri
>>
>> On 18 Jul 2013, at 11:51, Shatan, Gregory S. wrote:
>>
>>>
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>>> tm
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