[soac-mapo] Draft recommendation 5 (Board Voting Threshold)

[Bertrand de La Chapelle <bdelachapelle@xxxxxxxxx>]

Dear all,

Following our discussion yesterday evening and Chuck's request for further
detailing my comments, please find below some elements regarding Draft
recommendation 5, currently worded as follows :

*Draft Recommendation [For further discussion on tomorrow’s meeting]**:* To
reject a string for which a recommendation 6 objection has been filed, there
should be a higher threshold of the board to approve a string / there should
be a higher threshold to reject a string / a sub-set might require a higher
threshold to approve.


Apologies for the length of the email, but I'm trying to be as clear as
possible (including in my own thoughts :-)

In relation with my earlier comments, we are potentially facing *two
types*of public interest objections :

1) invocation of what we could call "global objectionability" : it is argued
that the string is contrary to General Principles of International Law (if I
take Mary's formulation correctly)
2) invocation of more local public interest concerns : one or a few
governments on the basis of their particular legal system (or
"sensitivities" to use the GAC terminology), and maybe this option is also
open to other actors (to be discussed further)


Let's address them separately. This mail is devoted to the first case :
global objections.

In this case (global objection, universally repugnant term, whatever we
label it), I understand from our discussions that the DRSP will, on the
basis of existing international agreements or decisions by international
courts, produce a recommendation. It is likely that this DRSP recommendation
will be rather unambiguous : either the string is contrary to General
Principles of International Law (a new acronym : GPIL) or it is not.

This recommendation would be formal *expert advice but non fully binding for
the Board*. This means that in theory, the Board could either follow the
advice or not follow it. Then, we could envisage the following rule :

If the Board *follows the recommendation*, a simple majority should be
sufficient :

If the string is declared NOT in contradiction with GPIL, the string has
cleared objection and a simple majority should be enough.

If, on the contrary, the string IS found in contravention with GPIL by the
DRSP (ie it recommends NOT to approve the string), the string is considered
extremely objectionable and a simple majority should suffice for the Board
to follow the advice (ie : not approve the introduction of this particular
TLD). This is actually the majority rule for other objections, if I am not
mistaken.


If, on the other hand, the Board d*ecides to go against the recommendation
of the DRSP* (a possibility if we maintain the non-binding principle), it
would have to vote with a super-majority (threshold to be discussed) :

It would be indeed a major decision by the Board to either allow a TLD that
has been considered globally objectionable by the DRSP or, on the contrary,
to refuse a string that has been cleared by it. A high majority threshold
would in my view, be a natural way to give maximum legitimacy to such a
Board decision to overturn a DRSP recommendation. The decision should
probably also be motivated, given its importance and (hopefully) rare
nature.


It is important in that context to remember that the introduction of a new
TLD in the root requires, in all cases, an explicit positive decision by the
Board, even if it is a mere one-liner, like for IDN ccTLDs. As a
consequence, as long as the Board has not taken a decision, the TLD
application remains undecided (which is for all purposes equivalent to being
rejected until proven otherwise and we know the problems if it lasts).
Therefore, requesting a super-majority instead of a simple majority for the
Board to follow a recommendation of rejection could be risky : we could have
a DRSP recommendation for rejection, no super-majority to endorse this
rejection and no possibility to overturn the rejection either, as a
super-majority would be required as well. Hence a blocked situation that
could produce the kind of in limbo situation that we certainly want to
avoid.

In a nutshell, *a super-majority would only be required if we allow the
Board to overturn the DRSP recommendation*. If we ultimately decide to
forfeit this option (de facto making the DRSP binding for global
objections), then we have a simple majority rule for any global objection
(the first category).

I will deal in a separate mail with the other case (more local objections),
as it is the most delicate issue.

I hope this helps

Bertrand


On Mon, Sep 6, 2010 at 11:45 PM, Marika Konings <marika.konings@xxxxxxxxx>wrote:

>  Dear All,
>
> Please find below the draft recommendations that came out of today’s CWG
> Rec 6 WG meeting. For those on the call, please let me know if I’ve missed
> or misstated anything. For those of you that were not on the call, if you do
> not agree with one or more of these draft recommendations, please share your
> objection and reason for objection with the mailing list.
>
> *USE OF MORALITY & PUBLIC ORDER TERMS
>
> Draft Recommendation: *Remove the references to Morality & Public Order in
> the Draft Applicant Guidebook as far as these are being used as an
> international standard and replace them with the term ‘Public Order
> Objections’. Further details about what is meant with ‘Public Order
> Objection’ would need to be worked out to ensure that it does not create any
> confusion or contravene other existing principles such as principle G.
>
> *INTERNATIONAL PRINCIPLES OF LAW*
>
> *Draft Recommendation**:* Give serious consideration to other treaties to
> be added as examples (see list circulated by Marilyn Cade) in the Draft
> Applicant Guidebook, noting that these should serve as examples and not be
> interpreted as an exhaustive list.
>
> *Draft Recommendation:* Clarify that in the current Draft Applicant
> Guidebook, Individual governments are able to file an objection based on a
> national concern. At the end of the day, national governments will block
> what they don't like, but they have to be heard and make their case and the
> potential impact it might have.
>
> *Draft Recommendation:* Clarify terminology by using Principles of
> International Law instead of International Principles of law to make it
> consistent with what GNSO intended (possible implications to be further
> discussed in meeting tomorrow with Jones Day lawyer)
> *
> HIGH BOARD TRESHOLD FOR APPROVING / REJECTING
>
> Draft Recommendation [For further discussion on tomorrow’s meeting]**:* To
> reject a string for which a recommendation 6 objection has been filed, there
> should be a higher threshold of the board to approve a string / there should
> be a higher threshold to reject a string / a sub-set might require a higher
> threshold to approve.
> *
> *If you cannot participate in tomorrow’s meeting in which Carroll Dorgan
> from Jones Day will participate, please share any questions you would like
> to ask him with the mailing list so these can be put forward if time allows.
>
> With best regards,
>
> Marika
>
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> https://mm.icann.org/mailman/listinfo/gac
>
>


-- 
____________________
Bertrand de La Chapelle
Délégué Spécial pour la Société de l'Information / Special Envoy for the
Information Society
Ministère des Affaires Etrangères et Européennes/ French Ministry of Foreign
and European Affairs
Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint
Exupéry
("there is no greater mission for humans than uniting humans")