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Geographic diversity on the ICANN board
Esther, during Thursday's meeting we discussed the issue of
geographic diversity on the ICANN board, and more particularly the suggested
amendment to the bylaws affecting this issue. You asked me to provide more
details on the issue, and to recommend an alternative. Below is an overview
of the problem, as I see it, and the recommendation to resolve it. Of
course, you may pass this comment on to others as you see fit. Also, I
would be happy to discuss this issue in more detail if you would like.
Note, my recommendation was suggested by the MAC in Singapore, which differs
drastically from the "Staff Proposal."
But first, a disclaimer. I fully, completely, and unequivocally
believe that the board must be geographically diverse. My remarks should
not be construed, in any way whatsoever, to suggest that the board not be
geographically diverse. Further, I do not suggest any change to the
delicate balance of geographic representation that has already achieved
global consensus. I do, whoever, believe the Staff Proposal fails to remedy
the problem addressed.
THE PROBLEM
During the work of the Membership Advisory Committee (MAC), a serious
weakness in the bylaws pertaining to the geographic diversity of the board
was discovered. In an effort to achieve geographic diversity three
constraints were replaced on the composition of the board, they were:
(1) at least one citizen from each of the (5) geographic regions shall
serve on the Board (other than the Initial Board) at all times;
(2) no more than one-half (½) of the total number of at-large Directors
serving at any given time shall be from any one Geographic Region, and
(3) no more than one-half (½) of the total number of Directors, in the
aggregate, elected after nomination by the Supporting Organizations, shall
be citizens of countries located in any one Geographic Region.
Bylaws for Internet Corporation for Assigned Names and Numbers [hereinafter
Bylaws], Art. V Sec. 6, As Revised, November 23, 1998,
<http://www.icann.org/bylaws-pr23nov98.html>.
When applying the above constraints, and in particular numbers 2 and 3, it
is foreseeable that an otherwise legitimately elected Director could be
precluded from being seated. For example, if each of the three Supporting
Organizations (SOs) were currently represented by two Africans each, and
during an At-large election, three additional Africans were legitimately
elected (making a total of nine Africans) only two of the three elected
Africans could be seated. The last seat (the 9th seat that would have gone
to the African) now will go to a non-African who received the next highest
number of votes.
A more troubling scenario occurs When the at-large seats are filled, and
the SOs must elect Directors. Consider if the at-large seats contained six
Africans; no more then two additional Africans could be elected by the SOs.
Given this constraint, it is likely that an SO would attempt to hold its
election before the other SOs hold theirs, to ensure the constraint is not
applied to its Directors.
This arrangement is confusing, and creates competition to hold the first
election among competing SOs. More troubling is the unequal allocation of
voting power -- based on the geographic composition of the board at the time
of the election.
SEVERAL RECOMENDATIONS WERE MADE TO REMEDY THE PROBLEM
This problem was partially explored at the Berkman workshop in January,
1999 during the Representation in Cyberspace Workshop, in the breakout
session on "How should directors be nominated and elected," and reported by
Jean Camp. The group commented "(Major recommendation): Current bylaws on
geographic representation limit voter autonomy and are infeasible.
(Automony problem is that SO vote will limit options of at large members).
This [bylaw] should be revisited and revised."
<http://cyber.law.harvard.edu/rcs/realtime/scribe2.html#reports>, RCS
Real-Time Scribe Notes, (visited March 20, 1999).
The suggestion of the breakout session was further debated by the MAC,
who later agreed that the bylaw should be amended. They wrote,
Art. V Sec. 6 of the Bylaws sets three conditions
to reach the laudable goal of regional diversity.
Unfortunately, they are mutually inconsistent and fraught
with unnecessary complication . . .
. . .
This leads to confusing situations in which elections of
the at-large directors might be upset by prior inconsistent
nominations by the SOs. Voters in the at-large membership have
no way of knowing whether their vote for a particular regional
candidate will be effective.
While sophisticated mathematical calculations, or superseding
recommendations of a Nominating Committee, could resolve these
complexities, they would necessarily occur after the fact of
voting and still leave the at-large member at a significant
disadvantage.
ICANN MAC's Singapore report [hereinafter MAC report],
<http://cyber.law.harvard.edu/rcs/macsing.html#5.3>, (March 3, 1999).
Of course the danger in amending the bylaws is tampering with the already
delicate balance of international interests. Any attempt to remedy the
deficiencies of the bylaws in this area must both maintain the substance of
geographic diversity, and not upset the aforementioned balance. After very
carefully considering the issue, and all of the attendant difficulties, the
MAC reached the conclusion that the bylaws should be amended. Further, the
MAC provided explicit suggestions for the amendment, which taken as a whole,
maintain the delicate balance and remedy the bylaw's flaws. The committee's
report reads as follows:
Q43: Should the Bylaws be amended to provide for more
simple voting procedures to effect regional representation?
MAC consensus: Yes. Article V Section 6 of the current
Bylaws should be amended to provide as follows: no two
directors from the same SO may be from the same region;
the at-large membership must include at least one director
from each region and may have no more than 4 from the same
region. The regional cap on the total Board aggregate of
directors should be eliminated.
Id. In other words, the MAC correctly believed geographic diversity on the
board could be retained, while at the same time providing a viable voting
mechanism, free from the previous defects, for both the SOs and the at-large
constituencies. If the recommendations were to be fully implemented, the
revised text of Art. V Sec. 6 would likely read:
Art. V: Structure of the Board of Directors
Sec. 6 International Representation
In order to ensure broad international representation
on the Board: (1) the at-large membership must include
at least one Director from each region; (2) the at-large
membership may have no more than four Directors from the
same region; (3) No two Directors from the same SO may be
from the same region. As used herein, each of the following
shall be a "Geographic Region": Europe; Asia/Australia/Pacific;
Latin America/Caribbean Islands; Africa; North America. The
specific countries included in each Geographic Region shall be
determined by the Board, and this Section shall be reviewed by
the Board from time to time (but at least every three years)
to determine whether any change is appropriate, taking account
of the evolution of the Internet.
Recently the ICANN staff proposed a set of changes to the bylaws "designed
to establish the framework for the creation of the three Supporting
Organizations called for in the Bylaws as originally adopted." Staff Draft:
Dnso Amendments to ICANN Bylaws,
<http://www.icann.org/dnso/dnsobylaws1.html>, (March 15, 1999). This draft
implements several new (additional) Articles pertaining to SOs. New Art.
VI: Supporting Organizations, Sec. 2: Responsibilities and Powers, states
that: "No two Directors selected by any particular Supporting Organization
shall be citizens of countries located in the same Geographic Region, as
defined in Art. V, Sec. 6." Id., Art. VI: Sec. 2.
It is first critically important to note that absent any change to Art. V
Sec. 6, this new Article imposes yet another constraint on the board's
composition. That is to say that there are now for constraints, the first
three from Art. V Sec. 6, the last from the new Art. VI: Sec. 2:
(1) at least one citizen from each of the (5) geographic regions shall
serve on the Board (other than the Initial Board) at all times;
(2) no more than one-half (½) of the total number of at-large Directors
serving at any given time shall be from any one Geographic Region, and
(3) no more than one-half (½) of the total number of Directors, in the
aggregate, elected after nomination by the Supporting Organizations, shall
be citizens of countries located in any one Geographic Region.
(4) No two Directors selected by any particular Supporting Organization
shall be citizens of countries located in the same Geographic Region.
While this additional constraint lessons the severity of problems mentioned
above, it is clear, as under the original bylaws, that this modification
further complicates the process, and still does not remedy the ills of the
original bylaws. SOs must still compete with each other to maximize the
number of regions from which their Directors may hale. For example,
consider a scenario where six at-large seats are filled by a single region,
only two remaining seats may be filled from that region. This is likely to
create a situation where some votes casts in the various SOs elections have
no force, because the candidate hales from the "wrong" region.
A SOLUTION
The MAC proposal simplifies the voting process, and more importantly, it
allows for elections where every vote counts - and all the votes from a
particular constituency, be it the at-large membership, or a SO, have the
same force. An additional benefit is that each SO is free from any outside
contraints, in that their election is not dependant upon how other
organization have voted, nor on the current composistion of the board.
Additionally, such a structure avoids pitting one SO against another in an
attempt to provide its membership candidates from more geographic regions.
The constraints of the recommended system are as follows:
(1) the at-large membership must include at least one Director from each
region;
(2) the at-large membership may have no more than four Directors from the
same region;
(3) No two Directors from the same SO may be from the same region.
I recommend the Board reconsider the proposal submitted by the MAC
to resolve this problem. I do, however, agree with both proposals in that
the present system is inadequate and must be changed. Certainly the most
appropriate time to implement this change is before the recognition and
inclusion of Supporting Organizations. While that is not to say that such a
change cannot take place at a later time, any change made after Supporting
Organizations hold elections will have far reaching implications.
Thank you for you consideration in this matter.
djs