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

International Council 15 seats: 3 per Region Policy Develoment Process: If within “scope” Board cannot amend: can Ratify or Remit, not Remake Latin America Asia PacificAfricanEuropean North America Member ccTLDS Now has up to 7 observers LACTLD APTLD AFTLD CENTR NATLD Regional associations “designated” Secretariat: Can provide own staff,or use ICANN staff 2 seats on ICANN Board 18 seats: 3 per 5 Regions PLUS 3 “appointments” Few Rules -Members can set up Procedures for directing Council Can exchange observers The Structure in the Bylaws Now Proposed

The Chairman’s 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.

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.

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)

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

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

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.

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)

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 ICANN’s.

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…..

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 …..”

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….