Wolfgang writes: "Attached are my comments to ICANNs Presidential Strategy Committee which I did send on August, 14, 2006. They are not yet published on the ICANN Forum side, although the discussion has been closed on August 15, 2006."
"Comments to the Presidential Strategy Committee.
By Wolfgang Kleinwächter, University of Aarhus
1. The Legal Personality of ICANN:
One of the problems around ICANN is that it represents an innovation in international politics. It does not follow an established model under contemporary international law. As a private corporation it is not a subject under international law, however ICANN deals with governments by communicating according to vague defined procedures via the Governmental Advisory Committee (GAC). The GAC, although it has governments as members, is not an intergovernmental organisation. It is not a decision making body but an advisory body which is in a formal sense no subject of international law. This is one source of confusion.
To remove the confusion there is no way back to “traditional models”. ICANN has to move forward and to develop new innovative procedures and practices. Taking into consideration that ICANN itself is an innovation it makes only little sense to investigate whether models in international politics are available which could be followed by ICANN. While it is true that special examples, practices and procedures between international non-governmental organisations and individual governments can be a source of inspiration, ICANN and the ICANN community should recognize that ICANN itself is a model which reflects the new needs of the information age for multistakeholder policy development processes.
During the “World Summit on the Information Society” (WSIS) the heads of states of UN members recognized that the principle of multistakeholderism is a fundamental principle for the information society in general and in particular for the governance of the Internet. Multistakeholderism was defined as the “full involvement of governments, private sector and civil society” in policy development and decision making. All three main stakeholder groups are involved in ICANNs policy development and decision making processes. However there is a high level of dissatisfaction among stakeholder groups about the practice of the real involvement in ICANNs policy development and decision making. The only way forward for ICANN is to improve the processes and procedures for policy development and decision making.
2. Procedural Issues for the Interaction among Stakeholders within ICANN
Neither WSIS nor WGIG defined in detail how the interaction among the three stakeholder groups should be formalized. This is an opportunity for ICANN to develop innovative procedures. As a first step ICANN should develop more formalized procedures for interaction among the ICANN Board, the Supporting Organisations (SO) and the Advisory Committees (AC). While some procedures are already in place (one example are the procedures under Article 11, Section 2.1 of ICANN Bylaws for the relationship between the Board and the GAC), the whole system of procedural interaction among stakeholders within ICANN gives still a lot of room for improvement. Very often it is unclear, how the Board has to deal with recommendations coming from SOs or ACs and how conflicts between the Board and SOs/ACs are settled.
While formalized procedures should offer a certain degree of flexibility, it should provide also clarity for stakeholders what they have to do in cases where they either want to make a proposal or a policy recommendation or where they disagree how the Board deals with an issue or a recommendation coming from this specific stakeholder group.
ICANN could consider to establish “Joint Mediation Committees” which would be activated in cases of conflict between the Board and a SO/AC. In such a committee representatives from both sides could discuss the controversial issues and try to find a compromise or “rough consensus”. Such a formalized procedure would allow to channel complaints in a bottom up way and would build trust into ICANNs institutions and the whole PDP system within ICANN.
This relates in particular to the relations between the Board and the ALAC, after ICANNs reform in 2002 abolished the direct election of ICANN At Large directors. It would make sense to consider the establishment of a joint Working Group between the ICANN Board and ALAC, similar to the joint Working Group between the Board and the GAC. It could be also considered, to give more clear guidelines to the NomCom with regard to the nomination of NomCom directors representing the At Large stakeholder group. The fact that the At Large stakeholder group has only one non-voting director in the board is a matter of great concern, undermines the acceptance and legitimacy of ICANN and invites governments, who claim to represent individual Internet users of their country, to step in.
The only way forward is not to go back to a purely intergovernmental or purely private sector group but to improve the process of interaction among the stakeholder in policy development and decision making by recognizing and practisizing the so called horizontal principles of Internet Governance like openness, transparency, accountability, democracy etc.
3. Relationship with the US Government:
ICANNs relationship with the US government is one of the main source of concern for many Internet communities. These concerns have two dimensions: One is the legal seat of ICANN and its incorporation under Californian Law. The other one is the contractual relationship with the Department of Commerce. Both issues are formally not directly linked and should be treated separately.
a. The Place of Incorporation
While the place of incorporation is an issue of concern, it must not be a major barrier for independent ICANNs policy development and decision making. As Janis Karklins has said, a lot here is “perception”. However, symbolism plays a great role in politics.
Hans Correll has proposed to look into models how other NGOs under US federal or state law have made special arrangements to be protected against political interference from the host country. A special US Presidential Executive Order, as mentioned by Hans Correll (with regard to ISDC, IASI and IFPRI), could make sense. It could also make sense to look into the practice of other non governmental global institutions which deal with “global issues” and cooperate with governments.
Next to the “International Red Cross”, the “World Soccer Federation” (FIFA) and the “International Olympic Committee” (IOC) are two interesting cases. Both private organisations are incorporated under Swiss legislation but do not have a formal relationship with the Swiss government or any other government. However, the events both the IOC and FIFA are organizing need a high involvement of governments, in particular of the government of the host country for the Olympic Games or the World Soccer Cup. Both events raise high sensible security issues and need a close relationship between the IOC/FIFA and the relevant government. Both FIFA and IOC have contracts with the relevant governments which define specific rights and responsibilities regardless of the fact, that IOC and FIFA are nongovernmental institutions and insofar not a subject under international law. However both organisation have a questionable record as openness and transparency is concerned and have been also involved in a number of corruption cases which also became the subject of congressional hearings (in the case of the Salt Lake City Olympic Winter Games in 2002).
One other (complementary) option could be to have a second Headquarter and to incorporate ICANN under the jurisdiction of another (European/Asian/African) country. This would give ICANN more flexibility for cases where the legal seat could become a problem. It would be also a confidence building measure for stakeholders who mistrust US policy. And it would offer alternatives to litigation.
Additionally, ICANN could consider to change the name of the corporation. While ICANN is already an established well-known trademark of its own, its name doesn´t say anything that it is an “international” or “global” corporation, different from a “national corporation”. By keeping ICANN in the acronym, the corporation could be renamed into GICANN or WICANN (Global/World Internet Corporation for Assigned Names and Numbers). This would be another confidence building measure and symbolize that ICANN, although incorporated under the jurisdiction of California, is not an American corporation.
b. the Contractual Relationship with the US Government
This relationship between ICANN and the US Department of Commerce has two elements: One is the Memorandum of Understanding (MoU), the other one is the IANA contract. Both contractual arrangements terminate September, 30, 2006.
The MoU between ICANN and the DOC should terminate as soon as possible under the condition that ICANN
a. is embedded into a contractual system with all TLD registries and root server operators (relevant contractual arrangement can have different forms);
b. has a functioning internal and external control mechanism;
c. completes its reform which would guarantee that all processes are managed democratically, openly, transparent and in due course on the basis of agree procedures and under full involvement of all stakeholders and
d. specifies its relationship with the GAC for cases which have a clear public policy component and are related to the political security and stability of the Internet.
It seems to me that there is still more time needed before ICANN can be released into independence.
ii. IANA Contract
The IANA contract is different both with regard to the legal nature and the substance. Historically the US government has moved into a position to make the final decisions with regard to modifications, deletion and additions of TLD Root Zone Files to the Internet Root Server System, including ccTLDs. This is seen as a key element to maintain the security and stability of the Internet. The function to authorize the publication of TLD root zone files is a mainly technical function, however it has raised a high degree of political concern, in particular in the WSIS process. The unilateral oversight role of the US government is also used more and more by individual groups and national governments to justify efforts to develop additional or alternative root server systems which have the potential to undermine the unity of the global internet (in particular if it comes to iDNs on the TLD level).
It makes no sense to “internationalize” the oversight over the root in a way that instead of one government a group of government overtakes the functions as they has been executed by the US government. The Burr/Cade proposal has a lot of risks to contribute to a counterproductive politization of this technical issue. As Karkelins has said, only the question bow to compose such an “intergovernmental oversight group” could lead to endless controversial diplomatic battles.
To reduce the level of concern there could be four interrelated efforts:
a. a unilateral declaration of the US government (along the lines of Article 62 of the Tunis Agenda) that the US government will not interfere into decisions regarding another country´s country code TLD. The language of such a unilateral declaration should go beyond the formulation, used in the declaration of the four principles from June, 30, 2005 and express not only “the recognition” of the concerns by national governments but indicate clearly, that nothing will be done to interfere into the management of the relevant ccTLD root zone file (in particular with regard to deletions of ccTLD Root Zone Files in the hidden root server).
b. A more automated fomalized procedure for modifications of ccTLD root zone files, as developed and proposed under eIANA by NARSK
c. The development of a procedure for bilateral interaction among individual governments and IANA for cases, where a national government has a political concern with regard to the management of the national ccTLD and which can not be managed in cooperation between the ccTLD Registry and IANA.
d. The development of a procedure how to deal with individual cases with regard to deletions, modifications and additions of root zone files to the Internet root server system where two or more national governments have expressed a political concern. Such concerns could be discussed by an ad hoc joint GAC/IANA Committee which would be activated only if a formal request from more than one government for an individual case is made.
August, 14, 2006"
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