[PC-NCSG] Fwd: [liaison6c] GNSO Council resolutions 12 April 2012

Fri Apr 13 07:53:45 EEST 2012

Hello and sorry I couldn't update everyone before now (was at meetings
all day and had an evening work event; got back to emails only around
midnight EST). 

Alain, I hope that you and NPOC will find the MP3 and transcripts of
the meeting useful, when they are released. Essentially, they speak to
Bill's point of clarification, as well as Avri's. The Council
understands clearly why NCSG wanted to include the phrase "international
legal personality", but many felt it would create unnecessary confusion
to include it expressly in the motion. You'll see that the motion as
finally agreed on mentions the possibility of criteria being developed
to determine protections for IGOs, thus implicitly acknowledging the
possibility of an international legal personality test being developed.
As Avri says, there will be ample time and opportunity during the
process involved in an Issue Report to point out specific criteria and
possible tests, as well as comment on the issue more generally. Frankly,
even if an NPOC member was on the Council, I'm pretty sure the result
will have been the same. 

I hope you'll convey the details of what actually happened to NPOC
members, since none of us want any misunderstandings arising as a result
of the fact that no one listened in to the Council call as it was
happening (which is a service ICANN provides) and so it is possible that
misinformation may have already occurred. I'll also update the NCSG
membership with these details once the MP3 and transcript recordings are
available, so that members can verify our representations and statements
themselves at that time. 

Thanks and cheers 
Mary

Mary W S Wong
Professor of Law
Director, Franklin Pierce Center for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH
03301USAEmail: mary.wong at law.unh.eduPhone: 1-603-513-5143Webpage:
http://www.law.unh.edu/marywong/index.phpSelected writings available on
the Social Science Research Network (SSRN) at:
http://ssrn.com/author=437584 
As of August 30, 2010, Franklin Pierce Law Center has affiliated with
the University of New Hampshire and is now known as the University of
New Hampshire School of Law. Please note that all email addresses have
changed and now follow the convention: firstname.lastname at law.unh.edu.
For more information on the University of New Hampshire School of Law,
please visit law.unh.edu 

>>> 

From:  
Alain Berranger <alain.berranger at gmail.com> 

To: 
William Drake <william.drake at uzh.ch> 

CC: 
<pc-ncsg at ipjustice.org>, <npoc-voice at icann.org> 

Date:  
4/12/2012 4:30 PM 

Subject:  
Re: [PC-NCSG] Fwd: [liaison6c] GNSO Council resolutions 12 April 2012 

Bill, 

I'm glad you are feeling better... Your testimony is very useful to my
comprehension - thank you. Thanks Mary for your valiant effort and
apologies for not having assumed you would defend the position we had
agreed to... Bill, note than NPOC was not there to do any horse trading.
Sorry my frustration appeared to be arrogance...we sometimes say things
we do not mean or are interpretated differently as what they are meant
to or what we meant to say... like you going to dinner in San Juan!...
;-)... 

I suppose ignorance about ILP is what it is... is ignorance ever a
justification? There is not only one book and one review about ILP but a
full body of knowledge that goes back decades... PhD thesis are written
about it and international lawyers use it in international cases and
courts. 

What concerns me more is that we ALL (including myself) forgot about
INGOs and the resolution ends up being about IGOs only... I hope that
can be resolved.... Yes, some INGOs have ILP (that is why I felt it was
necessary in a whereas clause) but they are not IGOs.... who was working
for INGOs on the Council earlier today? The omission of INGOs may have
been inadvertent but it is real. 

I hope Avri is right and that we can include INGOs in the issues
report... 

Alain

On Thu, Apr 12, 2012 at 3:01 PM, William Drake <william.drake at uzh.ch>
wrote:

Other stakeholder groups were leery about the motion and many people
voted against. The registries ultimately agreed to support the motion
but first wanted the mention of "International Legal Personality"
dropped on the grounds that nobody really knew what it meant and what
its inclusion might imply. Mary valiantly tried to propose several
formulations for retaining its inclusion on the grounds that NPOC cared
about it and had shared a URL to an academic article that mentions it,
but not so astonishingly our business colleagues were not moved by that
rationale. It's just not how things work, and to berate councilors
without understanding this is naive and arrogant. Such utter
disappointment can sometimes be avoided in the future by undertaking
such things as outreach and persuasion. One has to make a case for a new
idea, in a clear way, in a place people see, and then work the other
stakeholder groups and do some horse trading and consensus building on
language. If people don't know what ILP would mean in this context,
that's on you, Alain. "Because NPOC wants it" is not enough.

On Apr 12, 2012, at 8:08 PM, Avri Doria wrote:

> I am assuming the language its what the g-council members could agree
on as there were two competing motions.
> Also I am sure the issues you want considered in the issues report
will be. otherwise that is something that can be commend on during the
review.
>
> I don't understand the basis for reproach. We are just at the start
of the PDP process - plenty of time to get everything considered.
>
> Avri
>
> Alain Berranger <alain.berranger at gmail.com> wrote:
>
>> Colleagues,
>>
>> I just read the last resolution past today - see below. I must state
my
>> utter disappointment, for 3 reasons:
>>
>> First at the Stakeholders' Group level, it was agreed in NCSG-PC
>> exchanges
>> that the concept of "International Legal Personality" flushed out
by
>> NPOC
>> in San Jos?, was valuable and would be part of a "whereas" clause
of
>> our
>> motion or any friendly motion supported by NCSG GNSO Councillors. I
>> note
>> with regret that this was not respected.
>>
>> Second, the resolution deals only with IGOs (International
>> Governmental
>> Organizations). It exclude International Non-Governmental
Organizations
>> (INGOs), a major current and future constituency of NPOC. The Red
Cross
>> for
>> instance is not an IGO, it is an INGO with "International Legal
>> Personality". In a multi-stakeholder organization like ICANN, the
place
>> and
>> voice of civil society must be equal to that of governments,
>> individuals
>> and private sector. Not including INGOs in this resolution is not
>> adhering
>> to that principle and places civil society as "last amongst
equals".
>> Including only IGOs places Governments as "first amongst equals".
>>
>> Finally, it is also very disappointing that after a long period of
>> systematic complaints by NCUC members about the lack of
participation
>> in
>> policy debate by NPOC members, that the very first substantive
proposal
>> by
>> NPOC since Dakar is brushed aside. I wrote at least two recent
emails
>> to
>> indicate the NPOC position was clear and strong about insertion of
the
>> concept of "ILP" in a "Whereas" paragraph. So much for NCUC-NPOC
>> agreement
>> of collaboration agreed to in San Jos?. In retrospect, with all
GNSO
>> Councillors for NCSG coming from NCUC, it was naive of me to assume
and
>> trust that NPOC's relatively well balanced suggestion would not be
>> eroded
>> little by little until it was totally diluted out in the statement:
>> *"And
>> whereas various possible criteria for the grant of protective rights
to
>> such organizations was suggested at the ICANN meeting in Costa
Rica".
>> *I
>> know of only one criteria proposal suggested in Costa Rica: the use
of
>> the
>> International Legal Personality test proposed by NPOC. The Portugal
>> representative statement at the GAC meeting alluded possibly to
this
>> generic concept but was not as carefully and sharply worded as the
NPOC
>> proposal. Very disappointing and quite a missed opportunity to work
>> together... It only means that we need to get NPOC members elected
to
>> GNSO
>> positions. Unfortunatley, with the NCSG voting landscape as it now
>> stands,
>> this is very unlikely for a long long time!
>>
>> ---------- Forwarded message ----------
>> From: Glen de Saint G?ry <Glen at icann.org>
>> Date: Thu, Apr 12, 2012 at 12:04 PM
>> Subject: [liaison6c] GNSO Council resolutions 12 April 2012
>> To: liaison6c <liaison6c at gnso.icann.org>
>>
>>
>> ** **
>>
>> Dear All,****
>>
>> ** **
>>
>> The GNSO Council passed the following resolutions at the meeting
>> today, 12 April 2012.****
>>
>> A recording of the meeting is available at:****
>>
>> http://audio.icann.org/gnso/gnso-council-20120412-en.mp3
>>
>> Please let me know if you have any questions.****
>>
>> ** **
>>
>> Thank you.****
>>
>> Kind regards,****
>>
>> ** **
>>
>> Glen****
>>
>> ** **
>>
>> ** **
>>
>> *1. Motion to delay the ?thick? Whois Policy Development
Process*****
>>
>> Whereas the GNSO Council requested an Issue Report on ?thick? Whois
at
>> its meeting on 22 September 2011 (see
>> http://gnso.icann.org/resolutions/#201109);****
>>
>> Whereas a Preliminary Issue Report on ?thick? Whois was prepared by
>> staff and posted on 21 November 2011 for public comment (see
>>
http://www.icann.org/en/announcements/announcement-2-21nov11-en.htm);****
>>
>> Whereas a Final Issue Report on ?thick? Whois was published on 2
>> February 2012 (see
>>
http://gnso.icann.org/issues/whois/final-report-thick-whois-02feb12-en.pdf);****
>>
>> Whereas the Final Issue Report recommends that the GNSO Council
>> proceed with a Policy Development Process limited to consideration
of
>> the issues discussed in this report, and the General Counsel of
ICANN
>> has indicated the topic is properly within the scope of the ICANN
>> policy process and within the scope of the GNSO;****
>>
>> Whereas the GNSO Council initiated a Policy Development Process at
its
>> meeting of 14 March 2012 (see
>> http://gnso.icann.org/resolutions/#20120314-1);****
>>
>> Whereas at its wrap up session on 15 March, also taking into
account
>> the current workload of the GNSO community, the GNSO Council voiced
>> support for a delay in the start of the PDP until contract
>> negotiations on the .com agreement are complete, as the results of
>> that negotiation may determine whether a PDP on ?thick? Whois is
still
>> required.****
>>
>> THEREFORE BE IT:****
>>
>> Resolved, the next step (creating a drafting team to develop a
>> charter) of the ?thick? Whois PDP will be delayed until the .com
>> negotiations have been completed by 30 November 2012.****
>>
>> Motion to delay the ?thick? Whois Policy Development Process****
>>
>> Whereas the GNSO Council requested an Issue Report on ?thick? Whois
at
>> its meeting on 22 September 2011 (see
>> http://gnso.icann.org/resolutions/#201109);****
>>
>> Whereas a Preliminary Issue Report on ?thick? Whois was prepared by
>> staff and posted on 21 November 2011 for public comment (see
>>
http://www.icann.org/en/announcements/announcement-2-21nov11-en.htm);****
>>
>> Whereas a Final Issue Report on ?thick? Whois was published on 2
>> February 2012 (see
>>
http://gnso.icann.org/issues/whois/final-report-thick-whois-02feb12-en.pdf);****
>>
>> Whereas the Final Issue Report recommends that the GNSO Council
>> proceed with a Policy Development Process limited to consideration
of
>> the issues discussed in this report, and the General Counsel of
ICANN
>> has indicated the topic is properly within the scope of the ICANN
>> policy process and within the scope of the GNSO;****
>>
>> Whereas the GNSO Council initiated a Policy Development Process at
its
>> meeting of 14 March 2012 (see
>> http://gnso.icann.org/resolutions/#20120314-1);****
>>
>> Whereas at its wrap up session on 15 March, taking into account the
>> current workload of the GNSO community, the GNSO Council voiced
>> support for a delay in the start of the PDP until both ICANN staff
and
>> GNSO resources are available to deal with this. ****
>>
>> THEREFORE BE IT:****
>>
>> Resolved, the next step (creating a drafting team to develop a
>> charter) of the ?thick? Whois PDP will be delayed until the first
GNSO
>> Council meeting after 30 November 2012.****
>>
>> ** **
>>
>> *Motion to request an Issue Report on the protection of names and
>> acronyms of IGOs*****
>>
>> Whereas on September 7, 2007 the GNSO Council approved by
>> supermajority vote a PDP on new gTLDs with a number of
>> recommendations, none of which afforded special protection to
specific
>> applicants;****
>>
>> Whereas the GNSO Council passed a resolution approving new
protections
>> for the first round of the new gTLD program as recommended by the
>> GNSO's International Olympic Committee (IOC) and Red Cross/Red
>> Crescent (RC) Drafting Team;****
>>
>> Whereas this resolution indicated that further discussions were
>> required on associated policies relating to protections for certain
>> international organizations at the second level, if any;****
>>
>> Whereas comments have been received coincident with the motion that
>> included requests from international governmental organizations
>> requesting the same protective rights as those for the IOC/RCRC for
>> the current and future rounds of the new gTLD program;****
>>
>> And whereas various possible criteria for the grant of protective
>> rights to such organizations was suggested at the ICANN meeting in
>> Costa Rica.****
>>
>> Now therefore be it resolved,****
>>
>> The GNSO Council requests an issue report to precede the
possibility
>> of a PDP that covers the following issues:****
>>
>> - Definition of the type of organizations that should receive
special
>> protection at the top and second level, if any; and****
>>
>> - Policies required to protect such organizations at the top and
>> second level.****
>>
>> ** **
>>
>> Glen de Saint G?ry****
>>
>> GNSO Secretariat****
>>
>> gnso.secretariat at gnso.icann.org****
>>
>> http://gnso.icann.org****
>>
>> ** **
>>
>>
>>
>> --
>> Alain Berranger, B.Eng, MBA
>> Member, Board of Directors, CECI,
>>
http://www.ceci.ca<http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
>> Executive-in-residence, Schulich School of Business,
>> www.schulich.yorku.ca
>> Treasurer, Global Knowledge Partnership Foundation,
>> www.gkpfoundation.org
>> NA representative, Chasquinet Foundation, www.chasquinet.org
>> Chair, NPOC, NCSG, ICANN, http://npoc.org/
>> O:+1 514 484 7824 ( tel:%2B1%20514%20484%207824 ); M:+1 514 704 7824
( tel:%2B1%20514%20704%207824 )
>> Skype: alain.berranger
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

--
Alain Berranger, B.Eng, MBA 

Member, Board of Directors, CECI, http://www.ceci.ca

Executive-in-residence, Schulich School of Business,
www.schulich.yorku.ca 

Treasurer, Global Knowledge Partnership Foundation,
www.gkpfoundation.org 

NA representative, Chasquinet Foundation, www.chasquinet.org
Chair, NPOC, NCSG, ICANN, http://npoc.org/
O:+1 514 484 7824; M:+1 514 704 7824
Skype: alain.berranger

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