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Re: [ga] Retroactive Application of ICANN 2009 Bylaws on the GA

  • To: GA List <ga@xxxxxxxxxxxxxx>
  • Subject: Re: [ga] Retroactive Application of ICANN 2009 Bylaws on the GA
  • From: Avri Doria <avri@xxxxxxx>
  • Date: Sun, 27 Sep 2009 23:34:57 -0400


As I said previously, I sent a request to the ICANN Legal Counsel asking for clarification of the status of the GA List and of its relationship to the GNSO council.

I am not a lawyer. So instead of interpreting, I will wait for an official interpretation.


On 27 Sep 2009, at 22:47, Hugh Dierker wrote:

The ICANN BoD is specifically leaving the GA alone. Denise, Rod, Chuck and Avri this remedial overview is for you. The real kicker is 2nd from the bottom.

Generally speaking when something is amended, it is only changed as to those matters particularly and articulately addressed.

Generally speaking if something is titled the "amended" then that new amended document is the whole document. Clearly good "legal" process demands the appropriate addressing of all matters to be altered in any way. ie. resolutions, redlining, bluelining, notice, etc.

Here are the bylaws that established the continuation of the GA.
This mandate has never, subsequently been altered.

Here are the posted existing bylaws; 
These do not address the pre-existing GA and mandates there about.

Here are the proposed "amendments" to the ICANN bylaws.
http://icann.org/en/announcements/announcement-03aug09-en.htm Note they are entitled: Proposed Bylaw Amendments Related to GNSO Restructuring (Version 2)
These proposed "amendments to" do not address the GA.

Here is a dandy discussion on how certain matters apply and how others do not: http://www.wwtld.org/meetings/cctld/20031026.CENTR-LR- StephanWelzel.pdf

Here is an excellent 1999 discussion of the at-large amendments to the by-laws.

It is clear that these new amendments specifically address the conduct and process of the GNSO and attached Council. It is very clear that the BoD and lawyers are aware of the GA and the council resolutions regarding the GA. Therefor it is perfectly clear that the BoD in adopting these new bylaws is not changing the requirements of maintaining the GA. There has never been an open forum or comment period on removing or abandoning the GA because it has never been proposed until now, and only as threats or excuses for lack of compliance. The finger is being pointed down by those who have failed from above.

(In case your wondering, yes I have a degree in linguistic philosophy and am perfectly able to read the meaning of words and interpret what they restrict and allow and command.. Cogito Ergo Sum.)

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