TG 2 Team:
Staff Support: Silvia Vivanco
ICANN has been created to provide a global infrastructure to manage worldwide Internet resources like domain names, IP addresses and Internet parameters. To be really “global”, ICANN needs to provide a framework where all stakeholders worldwide can interact on equal footing, without cultural, geopolitical, gender, or other barriers to participation.Moreover, ICANN needs to be accountable to the global Internet community: the globalization of ICANN is strictly linked to the ability of the multi-stakeholders to set checks and balances to verify that ICANN is really independent from local constraining factors limiting the global equal access to the process.
ATLAS II - TG2 - AGENDA (Detailed).docx
Thematic Group 2 Document Store
The final version to be included in the Declaration and endorsed by the ALAC will be placed here.
The final draft version to be endorsed by the ATLAS II participants will be placed here.
The first draft submitted will be placed here.
Thematic Group 2 – Globalisation of ICANN
Thematic Group 2 was tasked with a review of ICANN’s effort to provide a framework where stakeholders worldwide can effectively interact on an equal footing with no barriers to full participation. This framework must also provide the higher levels of transparency and accountability and ensure that the multiple stakeholders have the ability to verify that ICANN is free of any restrictions, domestic or otherwise, that interfere with its ability to provide the required services and support as per its mandate.
The review was therefore divided into the following thematic areas:
1. Inclusion and Diversity
Are there barriers to participation that hinder and limit based on cultural, geopolitical, economical linguistic and gender or other differences?
2. Equal Global MSM
Are there stakeholders groups that are less represented, or have a lesser voice in the PDP?
If so, do we put in place mechanisms to foster equal participation?
What are the mechanisms to ensure the PDP receives global input and addresses the needs and expectations of all stakeholders?
3. Constitution and Legal Mechanisms
Are the bye-laws drafted in compliance with Int’l law principles or are they oriented to a local, not global jurisdiction?
Are contracts - with contracted parties compliant with Int’l law and in any case not in contrast with legal systems other than the home jurisdiction of ICANN?
Are the accountability mechanisms globally fair?
Will all the different global stakeholder groups have the same power to enforce checks and balance on ICANN’s behaviour?
5. Operational Matters
Is communication privileging specific local communities?
Is ICANN’s footprint global, covering the global internet community on equal footing?
Are users worldwide given the same opportunities to contact ICANN and to provide their opinion, advice, comment or complaint?
Is access to ICANN’s facilities equal to all stakeholders?
Are ICANN’s operations sufficiently shielded from local jurisdiction, i.e. can ICANN survive a change of the political attitude in one or more countries without disruption of its operations worldwide?
As a basis and support for the discussions, two subject matter experts provided their perspectives on the areas of focus. This report outlines the nature of the discussions, conclusions and recommendations on the way forward.
The findings and conclusions members of the thematic group are as follows:
II.1 Inclusion and diversity
ICANN has made some progress in being more inclusive but some issues still remain to be addressed. Some of these are outside of ICANNs direct remit and will require partnerships and collaborations to be effectively addressed. Others are directly within ICANN’s control. These are as follows:
If ICANN adopts a mandate to improve the engagement process, it should begin by taking the following steps.
II.2. Equal Global MSM
The discussion here centered on the theme that there is unequal influence and power in the ICANN’s multistakeholder model (MSM). The general belief is that structural as well as capacity differences contribute to this state of affairs. Even within regions, some sub-regions seem to be more represented than others. Achieving equity will involve capacity-building and further support for engagement to stakeholder groups currently less engaged.
ICANN should consider doing more of the following:
Ii.3 Constitution and Legal Mechanisms
The ICANN by-laws do not specifically conflict with principals of international laws but also do not specifically take special cognizance of international law. ICANN is a California corporation and therefore operates in compliance with California law. This means that while the by-laws may not themselves contravene international law or the laws of other nations, the by-laws also do not compel ICANN to take cognizance of or make efforts to remain in compliance with international law or the laws of other nations.
Contracts between the ICANN and contracted parties, as expected, are made in compliance with ICANN’s byl-aws and the laws of California and the United States. It is not unexpected, therefore, that there would be legal conflicts with contracted parties especially since they operate in vastly different legal jurisdictions. ICANN has extended specific provisions, for example, allowing registrars to apply for waivers of contractual provisions in order to remain in compliance with their local laws. But from all reports these provisions appear ineffective, inefficient and hard to implement, and no comprehensive solution has been offered.
The primary recommendation is that ICANN must takes steps to adjust their legal and organizational structures to more comprehensively reduce, if not eliminate, the legal conflicts between ICANN requirements and contracts and national laws. These steps include the following:
The accountability mechanisms of ICANN do not facilitate access and/or input from the global Internet community at present. The primary example of this is the Affirmation of Commitment (AoC) with the U.S. Department of Commerce. Even though the principles of accountability are enshrined in that agreement, the very nature of this bilateral document does not provide global community scrutiny and input.
It is recognized that there is an Independent Review Process (IRP) in place within ICANN internally but there are some issues of transparency in this process. The IANA transition will be a tremendous opportunity to begin to develop an accountability mechanism that is accessible to the global Internet community.
Incorporating ICANN in a different or multiple jurisdictions would provide additional tools for accountability and overcome the perceived obstacle of having to hold ICANN legally accountable through the application of California law in California courts using California attorneys.
ii.5 Operational Matters
It is clear that ICANN’s global footprint does not cover the global Internet community on an equal footing and there are weaknesses that need to be addressed. There was general agreement that ICANN needs to be closer to the members of the global community…especially in the underserved areas. Access to the ICANN’s facilities by the global community can also be improved. The difficulties highlighted included the following:
There was a clear consensus that ICANN needs to improve it global footprint if it is to effectively support its global Internet community. The recommendations include the following:
ICANN should consider expanding the size of such support (e.g. the size of the ALAC and of regional At Large leaderships, the number of people funded to attend meetings, the number of fellowships, the number of languages for translations...) with a specific objective to increase further the internal diversity of global participation.
Incorporating ICANN in a different or multiple jurisdictions, restructuring ICANN and/or relocating ICANN to a neutral country such as Switzerland could assist in shielding ICANN from local jurisdiction bias and politics such that ICANN could better survive a change of the political attitude in one or more countries without disruption of its operations worldwide.
It must be understood that managing the integrity and sustainability of the Internet space, especially considering its rapid growth is an evolving, complicated process. In its sixteen years of existence ICANN has made tremendous steps in ensuring that consistent global stakeholder participation was part of the overall Internet ecosystem. If ICANN is truly to become the global organization, it must ensure that the entire Internet community is comfortable with its level of access, participation and input into decision making processes and production of global policies.