GAC discussions on issues related to ICANN accountability and new ICANN bylaws

Event report

Throughout the week, the Governmental Advisory Committee (GAC) held several discussions on issues related to the on-going work on enhancing the accountability of ICANN.

At the start of the discussions, the GAC Secretariat gave an overview of the current activities undertaken in the context of the Work Stream (WS2) of the Cross Community Working Group on ICANN Accountability (CCWG-Accountability). Priority areas for WS2 include: jurisdiction, human rights and international law, improving the accountability of ICANN supporting organisations (SOs) and advisory committees (ACs), transparency, and diversity. Although the group will not be able to keep the initial timeline for completing its work (June 2017), it will work on a proposal for a new timeline, to be presented to its chartering organisations.

Among the various priority areas for WS2, the complex work on jurisdiction issues looks into questions related to ICANN’s jurisdiction, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN’s accountability and the actual operation of policies. Some GAC members stressed that jurisdiction issues be tackled not only looking at what is already in place, but also keeping in mind situations that may arise in the future and would need to be addressed, in particular in relation to dispute settlement.

Discussions were held on possible GAC contributions to the various calls for input launched or about to be launched by the various CCWG sub-groups: a questionnaire on jurisdiction-related issues; a draft Framework of Interpretation to assist ICANN in applying relevant bylaws which require the organisation to respect internationally recognised human rights (draft to be soon finalised by the dedicated sub-group); a questionnaire for ACs/SOs, currently under development by the sub-group working on diversity; and draft recommendations for best practices in terms of ACs/SOs accountability (also under development within the dedicated group). While it would be important for individual GAC members to contribute to these calls, the group will also need to consider providing collective responses on issues such as diversity, human rights, and ACs/SOs accountability.

GAC also discussed issues related to the implementation of the new ICANN bylaws, which came into force after the transition of the IANA functions stewardship to the global Internet community. There are several issues to be addressed:

1. A new framework for how the Board is expected to respond to GAC advice

The bylaws define two levels of Board responses to GAC advice:

• GAC advice (irrespective of whether it has been given with or without objections in the GAC). The advice shall be duly taken into account. If the Board acts in a manner that is not consistent with GAC advice, it had to inform the Committee and state the reasons for its decisions.
• GAC consensus advice (full GAC consensus advice with no formal objections within the committee). Such advice may only be rejected by a vote of no less than 60% of the Board. In such a case, the Board and the GAC will try to find a mutually acceptable solution.

Governments held initial discussions on possible procedures to identify whether GAC advice is: based on a full consensus in the absence of formal objections (GAC consensus advice), or based on a broad agreement but with a small number of objections (GAC advice). Several approaches were presented, and they are to be further discussed by GAC intersessionally:

• GAC consensus advice (full consensus, with no formal objections);
• GAC advice/consensus advice (broad agreement, but with up to three formal objections);
• GAC advice (broad agreement, but with a very small number of formal objections;
• communication of range of views to the Board (more than 10 objections).

It was explained that, in the case of simple GAC advice, the committee has the possibility to define modalities for dealing with one or a very small number of objections, in order to prevent cases when one or a very small number of countries could block consensus. Several GAC members underlined the fact that GAC should simply continue to follow its operating principles and only adopt advice on the basis of consensus. There was, however, willingness to explore a possible mechanism to avoid a veto-blocking consensus within the committee.

2. GAC participation in the Empowered Community (EC)

The EC is a mechanism which allows the ICANN community (represented by its ACs and SOs) to hold ICANN accountable through a number of powers such as approving changes to fundamental bylaws and remove Board members. GAC is a decisional participant in the EC, and, in this context, it needs to address a number of issues:

• Guiding principles for its participation in the EC. The proposal discussed by GAC members was for the committee to generally engage with issues that have direct or indirect public implications, and will participate in the early stages of the so-called ‘escalation process’ (steps towards the exercise of community powers) to assist resolution of the issue wherever feasible and appropriate.
• Representation in the EC Administration (ECA), the collective entity of all decisional participants. The proposal is for the GAC Chair to represent the GAC in the ECA.
• Engagement in the escalation process. The escalation process involves four stages: petition, conference call, community forum, and exercise of community power. With regard to the first three stages, it is proposed that the GAC either support or not oppose an issue moving forward. Involvement in the fourth stage would require a consensus GAC position. If consensus is not possible, GAC would abstain from any decision-making process in the EC.  

As discussions on these issues were only initial, governments will continue to explore them in the upcoming period.

The EC is about to be tested. In February, the Board adopted a decision to create a new committee for handling requests for reconsideration (appeals against ICANN decisions). This decision requires a change in the ICANN fundamental bylaws, which requires approval from the EC. It is expected that a part of the third stage in the escalation process (the community forum where decisional participants discuss the issue) will be held during ICANN 59 (June, Johannesburg). GAC members have agreed, in principle, to participate in the initial phases of the escalation process until the June meeting.