GAC meeting to discuss CCWG accountability WS2 matters

Event report

In this session, the Governmental Advisory Committee (GAC) discussed different topics related to the Work Stream 2 (WS2) of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG Accountability). The session was moderated by Mr Thomas Schneider (GAC Chair).

Mr Thomas Rickert (CCWG co-chair) began by giving an update on the state in which the work of the various CCWG sub-groups was in. He said that the public consultations launched by the sub-groups on transparency, good faith conduct, and supporting organisations/advisory committees’ accountability are already closed, while the sub-group on human rights is still looking for public comments. The public comments period for sub-groups working on staff accountability, jurisdiction, diversity, review of the Cooperative Engagement Process (CEP), and Ombudsman are to be determined. 

When it comes to the jurisdiction sub-group, Rickert mentioned that there are two issues that keep coming up in sub-group discussions: relocating ICANN from California to a new jurisdiction, and providing total immunity to ICANN. As these issues have lead to disruptions in the sub-group, the CCWG co-chairs have analysed the discussions and tried to determine whether these points had enough traction to stand a chance of becoming consensus positions at some point. The co-chairs found that the vast majority of group members (as well as the communities they represented) were not in favour of further analysing the issue of moving ICANN to a new jurisdiction, and were against the idea of full immunity. In conclusion, they have advised the sub-group that there could never be consensus within the group on any recommendations to change ICANN’s location or to seek full immunity. He said that this does not rule out the possibility of the group considering any other jurisdiction-related issues or addressing partial immunity as a potential solution if there are no other viable alternatives. He stated that the group should work within the existing setup with ICANN being a nonprofit organisation based in California, and look for responses or remedies within this legal context. The subgroup should resume work after ICANN59, once the CCWG plenary has considered the co-chairs conclusion.

Rickert also talked about the fact that the CCWG has asked for an extension to have one more year to continue its work. The request was approved by the ICANN Board during the ICANN59 meeting. However, the extension does not mean an increase in the budget allocated to the CCWG, as there are still funds left from the initial phase.

Regarding the approval process for the WS2 recommendations, Rickert said that it is a complex process, involving multiple layers: reaching an agreement on individual recommendations in the sub-teams, having the sub-teams recommendations approved in the CCWG plenary, conducting public consultations on the agreements, and, finally, putting together the full package of recommendations. At this final stage, the CCWG will only look at inconsistencies between recommendations, and not re-open discussions on individual recommendations.

Russia also pointed out the importance of considering the issue of jurisdiction, and mentioned that the question of OFAC sanctions (sanctions imposed by the US Office of Foreign Assets Control) – which has been raised in CCWG discussions – should be seriously considered, as a potential risk to the stability of the Internet worldwide. In Russia’s view, this directly interacts with the issue of the interpretation of California law, and the immunity mechanism could somehow help avoid possible problems. Such issues should be analysed in detail, and it would be regrettable if they were not addressed at this point.

China echoed the point made by Russia, and said that the issue of jurisdiction is a critical one, which relates to the legitimacy of ICANN as an international institution, as well as to the globalisation of ICANN.  

Iran said that the CCWG co-chairs have a very optimistic view of the state of jurisdiction within ICANN. He said that the issue of jurisdiction is not in good shape and the question of limited immunity needs to be discussed thoroughly.

Brazil said that it has agreed with the proposal made by the CCWG co-chairs as a way to move ahead with the discussions in the group. It is a pragmatic approach in the light of the deadlock reached in the group. However, for Brazil it would not be legitimate to participate in the context of an organisation in which any dispute settlement could be forwarded to a national court without the country’s agreement. It is still feasible for the jurisdiction subgroup to explore ways in which the dispute settlement mechanisms within ICANN could have a carve-out from the by-default regime, so that in cases of dispute settlements that have a direct bearing to national interest, they are not automatically addressed by US courts, but guided by rules agreed upon by everyone involved.

South Africa said that jurisdiction is key for overall ICANN accountability, and that the CCWG Accountability WS2 needs to pay attention to that. Sovereignty is key in the discussions on jurisdiction: when issues of national interest are discussed within ICANN, countries want to be able to refer back to their own laws, rather than being propelled into a situation where they have no choice other than to resort to the laws of another country.

Rickert said that it is not the case of discussions on jurisdiction or further debates on finding practical solutions being suppressed. Jurisdiction is a multi-layered term, and the place of the incorporation of ICANN is only one aspect. The group can still look at issues such as which country’s law contracts should they govern by and how should dispute resolution work. He said that these discussions will continue and have to continue, explaining that the community has to try to address the current issues under Californian law, and only where problems are encountered, try to find appropriate responses.  

To conclude, Scheinder said that dealing with issues on jurisdiction is not easy and that the community is aware of the importance of the CCWG Accountability WS2’s work.