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[Comment-Irac] Improvement of the first IRAC's draft, before the Berlin Meeting.

May 19, 1999.  16:00 EST TIME

TO		: 	ICANN Board of Directors 
SUBJECT		: 	Comments on the May 7, 1999 Interim Report of the Advisory
Committee on 
   			Independent Review 
FROM		:  	Javier Rodriguez   jrl@mail.lima.net.pe
DATE		: 	19 May, 16:00 EST TIME

Dear Gentlemen:

My name is Javier Rodriguez and I speak in behalf of the Peruvian
Association of Internet Users and ISPs (AXISNET).  Before I continue I
must ask your pardon about my broken english, but I know you will
understand that for non english native speakers there is a double task
since we have to manage ourselves to survive in waters that are not
natural for us.

This message has been done after reading the proposal from the IRAC and
the proposal form David G. Post and his fellows that are experts in law,
internet, telecomunications and other related themes.  We congratulate
to all the participants about seeing that the road to a democratic and
open administration of the Internet is in full motion.

We understand that the goal is to form a totally independent body able
to review the decisions of the ICANN.  We should say just "independent"
without the "totally"... because or you are independent or you are not
independent! the medium term "more or less independent" doesnt exist,
independency is independency, any kind of restriction to this
independency is a sinonymous of "non independent".

We will keep the denomination of IRP, Independent Review Panel, as it
has been call.  This for clearness sake.

We see with some concern that many of the most important subjects and
future decisions of the IRP will be left to the "good will" of some
people.  The justice is a matter of law, regulation, common sense,
jurisprudency (sp!)... and history if you want.  But the "good will" is
not a substantive matter to form the IRP.

We can see, accept and participate in some process were there has been
not a democratic election (as the election of the members of the ICANN
board, this just as an instance, without further implications to the
personal cualifications of its members).  In the first moment you have
to start from some point, and some positions have to be "designated" and
not "elected" because there is not a "population" organized to do the
election process in a democratic way.  But, if we follow what this first
DRAFT guides, without further correction, we are going to be in front of
the perpetuation, the consolidation of non democratic ways to manage the
internet affairs.  Everything can be changed later... but we dont have
to let the baby be born with deep sickness under the skin.

The main points that we think must be improved are:
1. Lack of real independence with relation to the ICANN board.
2. Lack of recognition of the Geographic Diversity.
3. Lack of real power to guarantee the following of the resolutions or
reviews of the IRP.
4. Lack of recognition of the category of the IRP.
5. Lack of clearness in the election process.
6. Lack of credibility of the future members of the IRP

We understand that some of this point can be against the bylaws... but
for the sake and the sanity of this process we must admit that the
bylaws have been changed according to the neccesity, and that no
organization can be a static dead body, tied in their bylaws.  The
general community that is forming the ICANN has the power to change any 
article that deserve to be changed in behalf of a democratic and
transparent process.  Nothing more important that establish the
neccesity to guarantee real justice to the internet community worldwide.

1. Lack of real independence with relation to the ICANN board.
7 If the ICANN board is going to pay the expenses to the members of the
IRP and this will happen when it got the money... what kind of
independence are we talking about ? Where is the guarantee that the
future ICANN boards dont use the "power of the money" to put presusre
over the IRP members? Money has its own laws... let dont try to re-write
these.   Money is one of the powers on this world and it is deepply bad
that there is a way to put pressure over the IRP members with the
easyness of saying "there is not money yet...".
7 If the IRP is going to be comfirmed by 2/3 of the Icann Board... what
is the guarantee that future boards dont use this "veto power" to its
own convenience ?
7 In wich law system, country, or democratic organization the person who
will be judged has the power to elect its own judges ? (because the IRP,
without doubt, is going to do "judging" over the actions of the ICANN
Board that third parties feel are going against the bylaws... so lets
call the things by its own name, the IRP will act as a judge over the
actions of the ICANN board, without the powers of a judge who will spend
money and time going to them in a process to look for repair for
correcting the actions of the Icann Board ?  We think that the IRP will
act as a Supreme Court, as a justice system, and the time will confirm
the neccesity to get a system based on separation of powers with an
independent  justice body.)

2. Lack of recognition of the Geographic Diversity.
7 There is many lines recogniting the neccesity of Geographic Diversity,
and there is the promise that it will be taken in count, and it is sayed
one time and again in many parts of the documents.  So, we can conclude
that the recognition of the Geographic Diversity has consensus or at
least a vast majority.  Then, the question comes... why is not put in
"black and white"? why it has to be in hands of the "good will" of
nominating committee? who will pay the damage if the nominating committe
forget this or that region? who will protec the nominating committee
against the presure of companies, money, goverments, and many interests,
to forget "this small region" to open a place for a member of one of
this or other interests ?  Why we have to give to some people, who is
not clear how they will be elected and by whom, the responsabilty to say
what is Geographic Diversity and what is not?  Are we not able to define
this by ourselves and establish a solid concept by a broad consensus?

3. Lack of real power to guarantee the following of the resolutions or
reviews of the IRP.
7 The power of the IRP is just for recomendations.  And the personal
qualities of the members of the IRP are the "guarantee" that the ICANN
board will hear their recomendations.  Again we are establishing a whole
administration system based on the "good will" of the people who will be
directly related by this theme, and, what is wors, directly afected by
the decisions of the IRP.
7 If the power of the IRP is just for recomendations... here we go
again... who is going to spend money and time and who will see them as a
real body that can guarantee something when ICANN board do something
wrong ? If they are not usefull in a strong way, the majority of people
who will have a complaint against the ICANN will choose to go to a
court, a civil court, inside the California State or wherever the future
ICANN will be placed.  So, if the IRP has not real power then there is
no reason for ist existence.  But we believe that there is a reason for
its existence and it is that it must be a specialized body, proficient
in the internet themes.  A justice system with universal aproval, a new
way to establish justice around the Internet world.
7 Lets imagine this situation.  The IRP has done some recomendation. 
And the ICANN board doesnt follow the recomendation.  And this happen 2
or 3 times...  who will go again to lost time and money consulting with
the IRP? So, the ICANN board, this or future, have and easy way to be
free of any "Independent Review", it needs to dont follow the first
recomendations of the IRP and for the rest of its life this IRP will
lost the moral authority and the global recognition as and real
independent review body.

4. Lack of recognition of the category of the IRP.
7 The IRP should be called Internet Supreme Court.  Easy and plain. (We
know that is the oposite, nothing of this is easy and plain! So this
line must serve as a recognition of the work done by the ICANN board,
the IRAC committe, the different bodies and constituencies.  What we are
doing is not easy and plain, and there will be mistakes.  We expect that
they will be corrected as soon as they are recognized.)
7 According to this, the members of this Internet Supreme Court should
have members who should be called judges.
7 A whole system of Regional Courts, National Courts, should be
developed in a manner that we specialice this courts to take notice not
only of the ICANN Board actions.  The problems that are seen in this
moment in the formal justice system of each country could be seen under
this new system as a way of arbitration. 
7 The final message is that we can go as far as we want or as we can...
but what is designed as a justice system to see the actions of the Icann
Board is very far of what can be done.  And the global community of the
Internet deserves something with more "substance and power" to balance
the powers that the Icann Board have or it will have.

5. Lack of clearness in the election process.
7 The norm says that the members of the IRP must be independent from the
ICANN Board.  In terms of its elections and its procedures.  It has been
proposed that the members of the IRP been confirem by 2/3 of the ICANN
Board.  And they will be nominated by a "Nomination Committee".  In
other words, the future "judges" of the actions of the ICANN Board will
be elected by a Nominating Committe (elected by who? the ICANN BOARD?
other bodies?) and a "veto" power  used by the 2/3 of the ICANN Board.

6. Lack of credibitlity of the future members of the IRP.
7 Finally, any person who are willing to serve in the IRP, by the only
fact that he/she is willing to participate in this so limited body lacks
credibility and it will acused by hundreds of internet users to be at
the service of particular interests and not at the service of justice. 
Many, many, top candidates to fill one place in the IRP will not
nominate themselves or will not accept to participate in a body that
have so small power and that can be used to "clean" the face of the
actions of future Icann Boards.  So by this way, the lack of the
credibility, there is the risk that the IRP will become not useful for
what is intended for: give some guarantee of justice and a balance of
power for the internet users against any problem that can arise related
to actions done or originated by Icann Board decisions.

7 Look for economic independece.
7 Do consulting with the GAC (Governamental Advisory Committee). 
Looking for real economic independence for the expenses and retribution
for the members of the IRP.
7 Think about the posibility of establish a fixed amount for each dollar
received by the ICANN related to the registration of domains, with
minimum and maximum tops, according with a annual budget.
7 Set a tarif system, according with the damage that has been done, or
what the person who presente the complaint expects to recover or to
receive as compensation.
7 Recognize the Geographic Diversity as a principle that must be follow
in the election and nomination of the members of the IRP.
7 Do consulting with the MAC (Membership Advisory Committe).  Looking
for learning what they have reach as the best way to hold an electionary
democratic process for the election of the ICANN members.  The same
system could be used to elect the members of the IRP.  Further study is
neccesary but there is a ton of hours developed in the MAC and could be

Mainly all this goes by the election of the members of the IRP.  A
democratic, open, transparent process must be done.  From this
electionary process the real power will come.  From the democratic
election arrives its capability of bring justice for the internet
affairs.  It is well said that the democratic system is the less
imperfect system... and it continue been the best one.

Lima, Peru.  May 1999.

Javier Rodriguez