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Re: [ICANN-EU] RFD #1: Forum bylaws
Dear all and Jeff,
in international law there is a broad literature about consensus. The
difference between a "consensus document" and an "agreement" is that a
document, adopted by consensus, is not legally binding, it is "politically
binding". A consensus document constitutes aims, principles and normes and
it is adopted if nobody has something against it. To have nothing against it
does not mean that you are in favour. A consensus is not legally binding.
Nevertheless a consensus can be seen as part of an "expected behaviour" but,
as already said, it can not be used by other consensus parties to go to a
court as they can do it with a ratified "agreement". The relationship
between a "legally binding" and a "political" document is difficult.
Sometimes a "consensus document" has stronger "binding effects" than a
legally binding document. The Universal Declaration of Human Rights (1948)
is one example. It is not a legally binding document, but a violation of the
UDHR is seen as an "untolerable political misbehaviour" by the international
community. Jeff, your example with the open window in the bus is not
correct. If 49 agree and one disagree you have no consensus.
The most interesting example for consensus building in international
relations in recent years has been the CSCE Final Act of 1975 when 35
different European countries agreed on the document without ratifying it. I
remember that in the last days before the signing of the Final Act in late
July 1975 Malta blocked the consensus by not agreeing to one single
paragraph related to a special issue on a mediteranean problem. So Malta
blocked the "consensus" and only after a solution was found for the Malta
issue the consensus was reached and the Final Act was ready for signing.
Rough Consensus is a little bit lower than consensus. Agreements need a
"Yes". Consensus needs the absence of a "No". Rough consensus gives
participants to say "I am against it, but if an overwhelming majority is in
favour I will not block it". The "no-sayer" will be neither "legally" not
"politically" bound by the "rough consensus", but he will not overtake the
responsibility for a failure of the whole process. You have certain
similarities in the voting procedure of the UN Security Council. In the UNSC
you need the "consensus" among the five permanent members plus four
non-permanent member votes. If 14 are in favour and one permanent member is
against the resolution failed (known as the "veto" right). In cases where
one of the "big five" is not ready to say "yes" but wants to avoid the
failure of a resolution he can signal that although he is not in favour he
does not intend to block the resolution and a decision can be reached
without the "unanimity" of the five permanent members.
Rough consensus in Internet bodies is that there are no outspoken "No`s" in
the "Hhhmmm" voting procedure. It is a little bit "testing out" the general
atmosphere and than agreeing "let`s go". Jeff´s example of the one strong
opposition vote in the bus is neither consensus nor rough consensus, it is a
clear dissent. If the Lady says I hate open windows but if you need it, go
ahead, than you have "rough consensus". In WG C for new gTLDs "rough
consensus" appeared when neither IBM nor NSI articulated a clear dissent
voice anymore. When Roger indicated in LA that IBM is not really against new
gTLDs, but needs more clarification and transparent and clear rules which
whould respect also other values (including TM) Jonathan could report "rough
consensus" from the WG to the NC.
So there are no clear rules for "rough consensus". You have to develop it
with "your fingertips" and on a case by case basis.
Hope this will help.
wolfgang
"In the field of international relations the most accomplished expression of
agreement is the "convention". It may be that consensus has played a major
part in earlier discussion, but the actual signing of an international
instrument goes beyond consensus and is an act in which the will of a
signatory state is actively declared. On the other hand, for the adoption of
a resolution by consensus all we need is "NON-OPPOSITION". Silence is
interpreted as acquiescene".
"It seems therefore that consensus is a collective procedure tending to
produce a positive outcome but through "negative means"."
"Voting does not always enable nations to declare positively or to abstain.
But if they are permitted to keep silent, they are not worried about a given
resolution being approved"
"For, the power of consensus depends above all else on the sincerity and
authenticity with which the international community in geneal and the
individual nations give it their backing. We have the right to expect that
this backing is offered with generosity."
Quotations from Mario Amadeo`s "Consensus and International Relations" in:
Consensus and Peace, UNESCO, Paris 1980, ISBN 92-3-101851-5.
Hi
wk
----- Original Message -----
From: Jefsey Morfin <jefsey@wanadoo.fr>
To: <icann-europe@fitug.de>
Sent: Friday, September 29, 2000 6:46 PM
Subject: Re: [ICANN-EU] RFD #1: Forum bylaws
> Dmitri,
> A consensus as Esther Dyson recalled it is not an agreement. It
> simply means that the broad majority is not against and there is
> no blocking factor. So it is first a matter of mutual respect. If I am
> in a bus and 50 people are OK for the windows to be open and one
> single person objects to it in good faith, the windows stay closed:
> this is consensus. In other words a consensus cannot impose
> anything but to observe that there si no blocking objection (veto).
>
>
> At 14:04 29/09/00, you wrote:
> >Jeff Williams wrote:
> > > Jeanette Hofmann wrote:
> > >
> > > > Rough consensus would be my favorite option. As long as we
> > > > understand ourselves as open forum, we should stick to informal
> > > > procedures of consensus-building. This list is still too small yet
to
> > > > decide upon rules that will affect all future members.
> > >
> > > How do you propose that "Rough Consensus" be determines or
> > > measured, Jeanette? Our members have many times expressed
> > > a definitive answer to this question that is tangible. What is your
> > > answer/opinion?
> > >
> >As I remember, during pre-ICANN process
> >NSI and US lawyers interpreted "rough consensus" as 60% and more.
> >Is it the same?
> >
> >regards,
> >Dmitri Bourkov
>
>