[ga] NC violations of ICANN charters

["Antony Van Couvering" <avc@interport.net>]

Javier Sola wrote,

>You know quite well that the pNC has at no point violated the bylaws.

I think people should know that the Names Council has violated the ICANN
Bylaws in several ways.

The *real* violation is a violation of the spirit of the Singapore
compromise.  It's against the spirit of that compromise that (at a minimum)
a majority of the voting NC members don't think it's worthwhile to listen to
objections raised to their processes, and that their duty to facilitate
consensus in the General Assembly does not seem to imply to them that they
actually pay attention to what the General Assembly thinks.  Also, the NC
makes no effort to draw public attention to the policy issues being
considered (only 10 comments to WG-A), and they dismissively and defensively
rebuff all attempts to help the process become more open. At least, that is
the attitude of those who have bothered to communicate their reasoning at
all.

But for none of this, as Javier and others have so eloquently pointed out,
can the Names Council be censured, because none of it violates a specific
provision of the Bylaws.  That surely is the fault of the drafters of the
Bylaws, and should be corrected by amendment (e.g., notices should be
*prominently* displayed...).   So let's stick to the text, since the spirit
of Singapore has been thrown out the window by the current Names Council.
I'll enumerate, then explain:

1. The Names Council has not complied with Article VI-B.2.b., which states:

	"The NC is responsible for ensuring that all responsible views have been
	heard and considered prior to a decision by the NC. "

Although to anyone reviewing the record of the Names Council, which has done
such a poor job of publicizing WG-A that only 10 comments were received,
from 7 commentators, of which one was the (on balance, very commendable)
Chair of the WG-A, there is simply no question that the Names Council has
done nothing to encourage participation or to solicit input, the members of
the Names Council were able to vote, apparently in good conscience, that
"all responsible views [were] heard and considered."  Can anyone seriously
contend, in open debate, that this happened?  If it didn't, the Names
Council violated the ICANN Bylaws.


2. The Names Council has not complied with Article VI-B.2.j, which states:

	"The NC shall establish, subject to review and approval by the
	Board, an appropriate mechanism for review of grievances and/or
	reconsideration. "

Given the rancor within the DNSO community, which predates even the
authoritarian bungling by the Names Council, this should have been a first
priority.  Yet even Working Group D, which is charged with looking at DNSO
procedures, has no mention of this in its charter.  We may hope that because
Bret Fausett, who was so instrumental in helping us draft the review and
grievance mechanisms that were so prominent a part of the Paris Draft, is
co-chair of WG-D, he may help us correct this error.  Still, the omission is
egregious.  Exactly when did the Names Council plan to get around to this?

3.  Finally, the Names Council has violated the ICANN Bylaws by refusing to
aid in the creation of the General Assembly, thereby effectively preventing
the General Assembly from exercising its rights to nominate candidates to
the ICANN Board.  Maybe when Joe Simms drafted the DNSO section of the
Bylaws, he thought that it was obvious that the General Assembly needed to
be properly constituted.   Apparently not, however.   Although the Names
Council (in what we now can see was a grave error) is charged with selecting
the three ICANN Board members from the DNSO, it is the General Assembly who
must nominate them.

What is the General Assembly?  The General Assembly is *not* simply the sum
of the constituencies.  The constituencies are just one part of the General
Assembly - they do not make up the entire General Assembly.  The ICANN
Bylaws (VI-B.1.b) tell us what the General Assembly is:

	"The DNSO shall consist of (i) a Names Council .... and (ii) a
 	General Assembly ("GA"), consisting of all interested
	individuals and entities."

The Names Council, as I mentioned above, has the responsibility of selecting
the three ICANN Board members from the DNSO.  This may well be their most
important responsibility.  But what have they done to make it possible?
Answer is, nothing.  The Names Council has done nothing to help create the
General Assembly.  Javier Sola, despite what the bylaws say about who the
General Assembly, seems to think that Names Council representatives from the
constituencies are the same thing as the General Assembly.

Until the General Assembly is established - and is kept informed - any
elections to the ICANN Board will be a sham.  The Names Council had several
proposals before it which suggested that for practical purposes the General
Assembly ought to be the same as the ga@dnso.org list.  What a useful
suggestion - it would allow discussion and voting to take place on the list,
and allow the General Assembly to meet online in a useful way.  The
suggestion was tabled, however, and to my knowledge has not been taken up
again.

A further point.  If all participants in the DNSO process were happily
members of constituencies, this would be a lesser problem.  But even the
Names Council should know that there are two as-yet unrecognized
consituencies:  the non-commercial constituency, whose role the ICANN board
has recognized; and the individual domain name holder's constituency, which
seems to have considerable support.  Suffice it to say that there are many
"interested individuals and entities" who do not fit within the recognized
constituencies.   There is one place for them to participate - the General
Assembly list, which a bare majority of the Names Council even bother to
read.

So I say again, the Names Council is preventing the *useful* formation of
the General Assembly, and is thus obstructing the election process (not to
mention the discussion and debate) of ICANN Board members from the DNSO.  If
Names Council members who read this think my analysis is wrong, I would ask
them to venture a definition of what the General Assembly is, and how it
should meet, and what the Names Council has done to foster its formation.  I
send gales of laughter in advance to those who suggest that it exists
because it meets in person in Santiago.  On the Internet, at the brink of
the 21st century, we need online methods of communciation - dependence on
face-to-face meetings is an absurdity.  It is up to Names Council, since the
General Assembly has no decision-making power, to provide the means and
methods for the effective *online* functioning of the General Assembly.

This is a just an ad-hoc listing of violations.  It should be clear to
everyone that the Names Council is not functioning properly.  It needs to be
able to take criticism without being dismissive or patronizing, especially
as it is the only effective decision-making power within the DNSO - people
have nowhere else to go with their complaints.  It needs to comply with the
spirit, not just the letter, of the Singapore compromise.  The Names Council
is broken, and it is disheartening that the response from Javier Sola to
those who note the fact is unfounded and mean-spirited accusations.

Antony Van Couvering