BMW proposals for further disucssion

[Amadeu Abril i Abril <Amadeu@nominalia.com>]

The supporters of the so-called Barcelona/Monterrey/Washington (BMW) proposal
have been engaged in discussions with the Paris drafters and other
stakeholders designed to produce a document that has even broader support than
the document submitted prior to the February 5thdeadline. 

The BMW group has been discussing some possible changes and improvementsto our
draft in order to incorporate some of the ideas coming out of these
conversations, with the goal of developing some form of "merged" draft or,
more precisely, and modestly, merging some of the rationales behind the
choices made..

Below is a summary of the work we have achieved so far, with the indication of
the degree of (internal) consensu each propeosal might have.

We are reviewing language modifcations related to several points, trying, as
stated, to address legitimate points made by the drafters or supoorters of the
Paris draft and ohtr relevant stakeholders:

1.  Implementation Statements (and specific language to address the so-called
"sovereignity issue")

2 Participation of individuals in the decision-making process (within the
research committees).

3. Mechanism to ensure geographcial diversity.

We offer now this proposed new language for comments. 


1. IMPLEMENTATION LANGUAGE

A) We have tried to provide more specific language that would bring our
proposed "minority reports" more in line with what the Paris draft
"pre-implementation review" attempted to achieve. 

We think it is fair to say that the following language has the suport of the
vast majority of the BMW supporters and is also accepted by many among the
Paris draft supporters or drafters:

A new paragraph to be added at the end of Article II. Section A (Substantive
Internet Policies)

"Recognizing that some proposals for policy recommendations may have a
potential for impact on the members of a constituency or constituencies that
is significant from the standpoint of such proposals having the potential for
an effect on:

        i. existing agreements with the Corporation [i.e.ICANN]; or
        ii. other existing agreements or business relationships; or 
        iii. compliance with applicable law, including, without limitation,
anti-trust or competition laws;

the Names Council shall, upon request of either (a) a majority of members of
any such constituency or constituencies, or (b) a majority of the Names
Council representatives of any such constituency or constituencies, allow such
members to prepare an implementation statement explaining the significance of
the proposed recommendation. The implementation statement shall be identified
as such and shall accompany any recommendation by the Names Council that is
adopted and transmitted to the Corporation in accordance with the provisions
of this Section A"

B) Implementation + sovereignity.

The ccTLDs have often emphasized that implementing ICANN policies could
sometinmes conflict with the legitimate interests (and laws, or directions
given by Governments) of sovereign nations that tend to view such ccTLDs as a
national asset.

Recognizing this concern, we propose the following language that could be a
substitue for the previous provision, or more likely an addition to it.

The language reproduced has some support from within the BMW group and has
been well received by some ccTLD representatives, but has not yet been widely
disucssed, let alone endorsed by the BMW group.

The provision would read as follows:

A new paragraph to be added at the end of Article II. Section A (Substantive
Internet Policies)

"Further recognizing that some proposals for policy recommendations may have a
potential for impact on the country code (ISO 3166) Top Level Domain
registries (the "ccTLD registries")  because of the relationships that exist
between the ccTLD registries and the countries to which the country code is
delegated, the Names Council shall, upon request of  at least xx% of the ccTLD
registries, refer the policy recommendation proposal to the Government Affairs
Committee of the Corporation  [i.e. ICANN] ("GAC") and shall allow GAC to
prepare an implementation statement regarding the impact of the proposed
recommendation. The implementation statement shall be identified as such and
shall accompany any recommendation by the Names Council that is adopted and
transmitted to the Corporation in accordance with the provisions of this
Section A."


2. PARTICIPATION OF INDIVIDUALS WITHIN THE DECISION-MAKING PROCESS.

This is clearly an area whee there are still some differences, and some
choices will need to be made.

The BMW group acknowledges the need to let interested individuals (who are not
members of any constituency as defined) participate in the process of
elaboration of DNSO policy recommendations. But there is no genral agreement
as to the exact mechanisms.

Below we propsoee to different languages. The first one allows for what could
be characterized as the minimum of participation we all agree on. The second
one is a more ambitious proposal that has some support within our group, but
it fails short form being our common position.

2.A) Individuals and reserach committees, version 1

Modification of Section IV A, fourth paragraph(whole text copied;
modifications within brackets)

Constituencies may provide initial input to the Names Council on a given
topic.  If  the Names Council undertakes consideration of a topic, or if a
constituency requests consideration of a topic, the Names Council shall
designate one or more research or drafting committees, as appropriate,
[consisting of members of constituencies] and shall set a time frame for the
draft. [The research committees shall be obligated to solicit and consider
testimony and statements from members of constituencies, DNS experts, and
individuals who have a legitimate interest in the DNS.  Such testimony and
statements shall be submitted during research committee hearings and/or via
listserves, both of which all members of the Internet community shall have
access to without prejudice.  The research committees shall be obligated to
include summaries of such testimony and statements in their report to the
Names Council.]  

The draft shall then be returned from the committee for review by Names
Council. The Names Council may either accept the draft for submission back to
constituencies for comment and consultation or return the draft to the 
committee for further work. After the draft is submitted to the constituencies
and the comment period for the constituencies is over, the Names Council shall
evaluate the comments to determine whether there is the basis for a consensus
recommendation. 

2.B Individuals and reaserch committees, version 2.

This second version, which I sinsit falls short of having genral approval,
would create a new class of members, "associate members" and a "genreal
assembly" as their place within DNSO.

This amendment would in fact, if adopted, consist of three related
modifications of the current draft:

Revised Article I, Section A - MEMBERSHIP IN THE DNSO:

The DNSO membership shall consist of constituencies, as described below. There
shall be an additional class of associate members, consisting of individuals
and entities that are not eligible, or choose not, to become members of a
constituency. Each constituency shall self-organize and determine its own
criteria for membership.  Such criteria shall be publicly available.  Each
constituency shall meet at least once a year, and all the constituencies
combined shall meet as a general assembly at least once a year. The DNSO shall
maintain an open online forum in which associate members may participate.
Associate members shall be eligible to participate in the research and
drafting committees referred to in Article II, Section A.

***************

Add to the first sentence of Article I, Section B. MEMBERSHIP IN THE DNSO:

Input from associate members shall also be a component of the decision process
for modification of the constituency structure.

**********************

Add a new second sentence in the fourth paragraph of Article I. Section C:

Such committees may also, at their own discretion, seek input or add further
members from either the membership or the associate membership. 


3. Geographic diversity.

We all acknowledge the need to find a mechanism that guarantees a diversfied
geographical presnece within all DNSO organs, most specially the Names Council.

But even if this one of the most discussed issues in Barcelona and Mnterrey,
we all have failed so far to provide a mecahnism acceptable to all parties. It
is a complex issue that will probably need a complex solution.

Partially because of that complexity our draft does not provide for any
specific solution, letting this for future developemnts and aligning with
future ICANN decisions. But we do recognize that the language provided in the
Paris draft is more specific, and therfore superior. In this regard, we assume
that nearly all our suporters would agree on a formlation as formulated below:
 
Add a new sentence at the end of the second paragraph of Article I, Section E:

Each representative of a given constituency must be from a different
geographical area as described in Section C. above; no two or more
representatives of a given constituency from the same geographical area may
serve on the Names Council at any time.

************

Where there is not general agreement is in the provision of the Paris draft
that in case any given region would fail to be represented thorugh the above
mechanism some temporary, regional extra-consituency members of the Names
Counciol would be elected. This is indeed a possibility, but we feel that this
issue should be further discussed and we encourage commentns on this.


We hope that this changes, that are in fact more "convergence" towards the
points made by the other application form than absolute novelties, will help
clarifying the situation or at least focusing the discussion.


Amadeu Abril i Abril
Legal & Policy Advisor
Nominalia