Re: [ga] NC violations of ICANN charters

[Javier <javier@aui.es>]

Antony,

>The *real* violation is a violation of the spirit of the Singapore
>compromise.

Once again, all the real agreements are in the bylaws. We are a committee
of ICANN and we are run by its bylaws. The bylaws are fruit of the
agreements in many places, including Singapore in 1998 and 1999.


>
>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...

A "spirit of Singapore" different than the bylaws might be in your mind,
but is not a reality.

>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.

We could have posted them in the New York Times and prepared a couple of
television spots, but somehow nobody offered to pay for it. We used the
means that we have to publish them. Are you prepared to pay for more?

>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. "

You are a member of WG D (procedures). Why don't you recommend a procedure
in the WG instead of claiming that we are violating the bylaws. If the NC
had tried to set up a procedure without a WG you would have cried "bloody
murder". If we create a WG to do it, you also scream "bloody murder"
because we still don't have the procedures.... Screaming in the GA list is
easy. We are actually working on procedures, WG D is the place to do it. We
have not heard you yet say anything about this issue in the WG.

>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.  

This is obviously false. Otherwise this list would not exist.

>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.

You keep saying that the bylaws should be different and that is why we
violate what they should be... they are what they are.

>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.

You should speak for yourself, you might go wrong saying what I think.

>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.

What for? so that anybody who feels like it can insult them? For each
interesting mail that comes to this list, there are 20 that are pure
bullshit, personal attacks, etc.... Of course, we are not allowed to use
filters either, we have to read anything that anybody writes provided that
it comes to this list...  there is a difference between being a member of
the NC and being a masochist.

>
>So I say again, the Names Council is preventing the *useful* formation of
>the General Assembly

Can you tell specific actions of the NC that have prevented the GA from
meeting? I would like to remind you that all actions of the NC regarding
the GA have been promoted by the ccTLD, and specially by Bill Semish,
creator your organisation. Blame him (or coordinate with him). 

Anything else we have violated ?

Javier