Clarifying the Bylaws

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Clarifying the Bylaws

• Changing the ICANN Bylaws to ensure agreements
  and understandings have been recorded

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International Council15 seats 3 per Region
The Structure in the Bylaws Now Proposed
18 seats 3 per 5 Regions PLUS 3
appointments
Now has up to 7 observers
Policy Develoment Process If within scope
Board cannot amend can Ratify or Remit, not
Remake
Can exchange observers
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The Chairmans request-

• Apparent from careful discussions on List that
  some further clarifications required to the
  bylaws, to ensure agreements reached are properly
  recorded.
• Vint Cerf has asked that this be dealt with by
  providing an explanation of the relevant
  principle as agreed to, and an explanation of the
  proposed wording changes.

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Policies which affect cctlds

• Principles -summary
• cctlds wish for only a limited engagement with
  ICANN, related mainly to IANA function
• ccTLDS are concerned that membership might
  result in policies developed outside the SO ( in
  GAC, ASO etc) being applied to, or somehow
  affecting, cctlds.

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1.Policies which affect cctlds

• Principles- summary
• ccTLDs want all matters which affect them to be
  discussed with them.
• ccTLDs want any serious matters to be passed
  through the cctld PDP (Policy Development
  Process)

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All policies must go through the ccNSO, if they
are to bind cctlds

• The current bylaw ( Art.IX, Clause 4.10) says
• 10. Policies shall apply to ccNSO members by
  virtue of their membership to the extent, and
  only to the extent, that the policies (a) have
  been developed through the ccPDP as described in
  Section 6 of this Article, ..
• Possible ambiguity Policies might mean only
  ccNSO policies,which means other ICANN policies
  are not required to go through PDP, yet are
  binding -stealth effect

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Limiting the policies which bind

• Consider amending Clause 4.10 to something which
  confirms that to be binding, all and any ICANN
  policies MUST go through the ccPDP. For example
• 10. ICANN policies shall apply to ccNSO members
  by virtue of their membership to the extent, and
  only to the extent, that the policies (a) have
  been developed through the ccPDP .
• Makes clear that all policies, not just SO
  policies, are not binding unless consented to

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2.Policies are NOT binding

• Principles -summary
• ccTLDs are responsible primarily to their Local
  Internet Community (including Government), or
  LIC.
• ccTLDs cannot be bound by a policy decision of
  ICANN, unless LIC consents.
• ccTLD do not need to ask for exemptions, but
  simply declare they shall not be bound.

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2. Policies not Binding -bylaw clarity

• Despite a declaration process, the current bylaw
  (Art.IX 4.11) does not say, clearly, that the
  effect of making the declaration is that the
  cctld is not bound. The bylaw begins
• A ccNSO member may provide a declaration to the
  ccNSO Council stating that (a) implementation of
  the policy would require the member to breach
  custom, religion, or public policy (not embodied
  in the applicable law described in paragraph 10
  of this section)

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SO policies - not binding

• Suggest This clause be amended to begin
• A manager shall not be bound if it provides a
  declaration to the ccNSO Council stating that (a)
  implementation of the policy would require the
  member to breach custom, religion, or public
  policy . etc (as above)
• This makes it clear that a cctld can choose not
  to be bound by any policy of ICANNs.

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3.Policies not Binding

• Principles - summary
• Having clarified that a cctld manager can declare
  that they are not bound by any particular policy,
  there is a clause which says policies shall be
  binding.
• This is in possible conflict with the clause that
  says policies are not binding if a manager
  declares they are not bound..

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SO policies- not binding

• Clause 4.10, as proposed to be amended
• ICANN policies shall apply to ccNSO members
  by virtue of their membership to the extent, and
  only to the extent, that the policies (a) have
  been developed through the ccPDP ..
• should begin
• Subject to Clause 4.11, policies shall apply to
  ccNSO members by virtue of their membership to
  the extent, and only to the extent, that the
  policies (a) have been developed through the
  ccPDP ..

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Clarity summarised

• ccTLD Managers will not be affected by policies
  developed outside the ccNSO- all polices which
  might bind cctlds must come through the ccNSO
• Policies developed inside the SO will not be
  binding if a manager declares they are not bound.
• END.. for now.