[ga] Re: [cctld-discuss] Re: (Fwd) a cctld representative

[Peter Dengate Thrush <barrister@chambers.gen.nz>]

Dear Stuart
On Friday, March 14, 2003, at 02:27 AM, M. Stuart Lynn wrote:

> Dear Peter -- I am not sure I have posting privileges, but I am sure 
> you can arrange that.
No problem
>
> One important point to remember is that this appointment is just a 
> temporary one as required by the Bylaws. The Board's role is merely a 
> transition role. The Bylaws call for the ccNSO,  once it is formed, to 
> make the regular appointment to the NomCom. And the Bylaws also now 
> call for the NomCom to make certain Board appointments. And the Board 
> and I must legally follow the Bylaws as they are now written.
>
Which is a surprising state of affairs. It is ICANN that is under a 
contractual ( to the USG ) duty to come to an arrangement with the 
ccTLDs,not the other way around. It is ICANN that needs the ccTLDs to 
join ICANN to provide ICANN with an international perspective if not 
legitimacy not the other way around,it is ICANN that wants to provide a 
forum for making policy binding the cctlds, not the other way around, 
yet ICANN under your leadership continues to pass the bylaws you now 
refer to.

Why would you pass a bylaw which gives the Board power to make an 
appointment to represent a cctld position in the first place? You cannot 
assume that this was going to be acceptable, given ICANN's track record 
of establishing a working relationship with cctlds. That very failure is 
a key reason you refer to in your February 2002 call for major reform of 
ICANN. Of all groups for the board to speak for, do you really think 
cctlds are one?

If you did have to pass such a bylaw ( ignoring the option for the 
moment of simply leaving a slot empty, to be filled if the cctlds decide 
to join ICANN, and choose to take part in the "Appointments" Committee) 
why not discuss it first with the community the bylaw purports to 
represent?

But why then, having decided to proceed the way you did, would you not 
check with the cctlds before announcing the appointment?

I am one who has worked for an SO within ICANN for the cctlds, but this 
kind of conduct makes my task very difficult.

> I will check today as to whether there is anything (such as implied 
> privacy) that inhibits me from sharing the candidate information.
>
Thank you. I should be interested to learn from you whether the comments 
I have seen that there were two nominees, a few days of consultation , 
very short notice to the Board and a few minutes discussion are true.
What I actually asked for was for you to show me where, as you say 
below " nominations were openly posted on our website".
I am concerned not to breach anyone's privacy, but cannot at present 
think how an open and consultative process as you describe of appointing 
representatives or delegates raises privacy issues.

What should I take from your silence on the remaining questions? They 
are (restated):

1. Can you guarantee that cctld time and expense spent in coming to Rio 
to debate the latest AG paper is not wasted, in that the ERC and the 
Board will take into account consensus statements by the ccTLD members  
on aspects of the report such as the appointment by the Nominating 
Committee of outsiders to the International Council, and adopt them in 
the proposed Bylaws? Or is it intended that there be no change to this 
and other aspects of the Blueprint, regardless of what the cctlds say?

I think we all need to understand what is expected. There is no problem 
if the ERC and the Board are determined to create an SO in the manner 
described in the Blueprint. All they need to do, through you, is say so. 
There is a  considerable problem in going through a charade of a public 
consultation process if the matter is predetermined.


2. Do you envisage any kind of process by which the new appointee will 
become appraised of cctld views, or is it your view that he is there to 
exercise his own judgment?
( Does it not give you even a moment's pause to consider that the Board 
has now appointed someone, of its own choosing, to appoint board members 
from among some sitting board members? Do concepts of conflict of 
interest, for example, mean anything to ICANN, or of avoiding the 
perception of them?)

3. If there is a very small take up by cctlds  of membership in any 
eventual SO, will it still be entitled to appoint 2 directors?

My regards

Peter Dengate Thrush

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