Re: [ICANN-EU] RFD #1: Forum bylaws

[Jeff Williams <jwkckid1@ix.netcom.com>]

Wolfgang and all,

  First let me thank you for this well done explanation in your opinion
of the meaning of "Consensus" and "Rough Consensus".  Very interesting.
I have a few comments/corrections however.

Wolfgang Kleinwächter wrote:

> Dear all and Jeff,
>
> in international law there is a broad literature about consensus.

  Yes I know I have read it many documents regarding consensus
from my studies (Ongoing) in international legal precepts.  But thank
you for point this out on this list anyway.  >;)

> The
> difference between a "consensus document" and an "agreement" is that a
> document, adopted by consensus, is not legally binding, it is "politically
> binding".

  This is partly correct.  But not completely.  It is only politically
binding
if all of the parties have been involved.  This is not the case with
ICANN
or WIPO.  IN fact as we know it was and has not been the case
with the WTO as well as the conference in december '99 made very clear.

> A consensus document constitutes aims, principles and normes and
> it is adopted if nobody has something against it.

  Exactly right.

> To have nothing against it
> does not mean that you are in favour. A consensus is not legally binding.

  Not correct.  A consensus IS legally binding if that consensus in
unanimous and incorporated within a contract of the parties involved.
It can also be legally binding if the consensus is specifically measured
as well.  However one could mitigate this to mean that this would
not necessarily be a consensus at all.  But the term *Consensus*
can and often is used in this context or is otherwise applied.

>
> 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".

  This is true as you state it here.  However it is not ALWAYS true
if the consensus is arrived at by some measured method that is
previously excepted by all parties involved.

>  The relationship
> between a "legally binding" and a "political" document is difficult.

  Yes it can be.

>
> Sometimes a "consensus document" has stronger "binding effects" than a
> legally binding document.

  This is rare.  I don't believe that I have ever known of a situation
where this would be true.

> The Universal Declaration of Human Rights (1948)
> is one example.

  This is not a good example.  UDHR has little support even in the us
in political parlance's when it comes to trade issues.  The WTO
conference in December '99 is a good example of this being the
case.  So is the GATT agreements.

> It is not a legally binding document, but a violation of the
> UDHR is seen as an "untolerable political misbehaviour" by the international
> community.

  This depends upon whom within the international community to which
you refer.  China for instance would differ with this statement from a
political point of view, and have on many occasions, as many of us
know I am sure.

> Jeff, your example with the open window in the bus is not
> correct. If 49 agree and one disagree you have no consensus.

  It is not my example.  I only commented on it.  But you are
correct. I should have said "Rough 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.

  But this is not a consensus in the strict sense of the term.

>
>
> Rough Consensus is  a little bit lower than consensus.

  I sure is.

> 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.

  Agreed.

> 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.

  Yes and this is now widely viewed as a skewed version of
"Rough Consensus". Hence it is a bad method.

>
>
> Rough consensus in Internet bodies is that there are no outspoken "No`s" in
> the "Hhhmmm" voting procedure.

  Well the "Hhhummmm" voting procedure is not longer valid in most
internet bodies and is not widely excepted amongst stakeholders.
Ergo it has no or little value in decision making or policy making
for Internet policies any longer.  At one time however this was
workable.  But the Internet has out grown this by quite a little
bit.

> 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.

  But many others did.  Hence there was NO "Rough Consensus"...

> 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.

  IBM is just one company and a stakeholder.  It cannot and did not
speak for its customers.  Ergo, such a position from Roger, was
not valid in determining "Rough Consensus".   In addition, many
that wanted to participate in WG-C were denied doing so.  As such
any decisions reached from WG-C were not valid.

>
>
> So there are no clear rules for "rough consensus". You have to develop it
> with "your fingertips" and on a case by case basis.

  Agreed here.  That is why using "Rough Consensus" is no longer
a valid or useful method for determining Internet policy.  And really
it hasn't been for several years..

>
>
> 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
> >
> >

Regards,

--
Jeffrey A. Williams
Spokesman INEGroup (Over 112k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
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