Open letter to ICANN from the Legal Counsels of intergovernmental organizations

[Dan Krimm]

On Thu, December 22, 2011 1:24 am, Adam Peake wrote:

> Would the world stop if the red cross got what they wanted?

The real point is the nature of the decision process (or if you prefer:
"due process") that leads to such an outcome, thus this is not simply
about RC as an isolated case.  It's about what criteria we might use to
decide that RC is a valid exception to some other rule (and other orgs
that satisfied the same criteria might also be captured as valid
exceptions, but orgs that did not would not).

Any institutional process that is executed as an ad hoc decision takes
power away from the rule of rules (or "the rule of law" if you prefer) and
gives it to individuals or specific collections of people without
meaningful accountability.

The key to a healthy institutional governance process is to put in place
clear and effective structures of accountability, based on decision
criteria that are well-defined and publicly verifiable.

So at root the question is this:

What general/abstract process/criteria could justify a special case for RC
without letting everyone and their brother have the same special
dispensation?

(For example, should I have special consideration for my trademark for
"Music Unbound"?  I can't see any reason why I should, and I don't seek
it.  I believe I can protect my trademark well enough without having to
own all the "musicunbound.tld" domains or the ".musicunbound" or ".munb"
tlds.)

If RC really is deserving, let's spell out exactly and precisely why that
might be so, and consider whether that explication really holds water in
principle.  If we can agree on the principle, then we should have no
problem agreeing on the empirical execution of that principle.

But whatever we (ICANN) do, I think it should be based on a structural,
principled set of criteria, not an ad hoc decision by fiat.

"Ad hoc" = the rule of humans, which is the first thing we want to avoid
in any context of public governance.

Dan


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