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GNSO COUNCIL REVIEW OF THE COPENHAGEN GAC COMMUNIQUE1GAC Advice TopicGAC Advice DetailsDoes the advice concern anissue that can be consideredwithin the remit2 of theGNSO (yes/no)1. Protection ofthe Red Crossand RedCrescentdesignationsand identifiersRe-affirming previous GACYesAdvice for a permanentreservation of the Red Cross andRed Crescent designations andidentifiers, the GACacknowledges the conclusions ofthe facilitated dialogue heldduring ICANN 58 on resolvingoutstanding differencesbetween the GAC’s previousadvice and the GNSO's pastrecommendations to the Boardon the protections of the namesand identifiers of the respectiveRed Cross and Red Crescentorganizations.Consistent with the conclusionsof the abovementioneddialogue,a. The GAC advises the ICANNIf yes, is it subject to existingpolicy recommendations,implementation action orongoing GNSO policydevelopment work?How has this issue been/isbeing/will be dealt with by theGNSOYesThe GNSO Council discussed theBoard’s request to consider possiblemodifications to the GNSO policyrelating to a limited list of Red CrossNational Society and internationalmovement names, in accordancewith the GNSO’s process as outlinedin the GNSO Policy DevelopmentProcess Manual, at its meeting on 20April 2017. A motion to invoke thisextraordinary process is currentlyunder consideration.1 Only of “Section VI of the Communiqué: GAC Advice to the ICANN Board”2 As per the ICANN Bylaws: ‘There shall be a policy-development body known as the Generic Names Supporting Organization (GNSO), which shall beresponsible for developing and recommending to the ICANN Board substantive policies relating to generic top-level domains.1

GAC Advice TopicGAC Advice DetailsDoes the advice concern anissue that can be consideredwithin the remit2 of theGNSO (yes/no)If yes, is it subject to existingpolicy recommendations,implementation action orongoing GNSO policydevelopment work?How has this issue been/isbeing/will be dealt with by theGNSOYesYesThe GNSO Council refers to itsprevious response to the Board onthis topic, which notes the ongoingwork of the IGO-INGO Access toCurative Rights ProtectionMechanisms Policy DevelopmentProcess (PDP) Working Group. TheGNSO Council appreciates theBoard to:I. request the GNSO withoutdelay to re-examine its 2013recommendations pertaining tothe protections of Red Cross andRed Crescent names andidentifiers (defined as “Scope 2”names in the GNSO process)which were inconsistent withGAC Advice.RATIONALEThe GAC acknowledges theoutputs of the facilitateddialogue on this topic andrequests the Board to proceedaccordingly without delay2. IGOProtectionsThe GAC notes that a dialoguefacilitated by the Board on thistopic has begun between theGAC and the GNSO (including itsrelevant Working Groups). TheGAC expects that thesediscussions would resolve thelong-outstanding issue of IGO2

GAC Advice TopicGAC Advice Detailsacronym protections andunderstands that temporaryprotections will continue toremain in place until such timeas a permanent agreed solutionis found. Based upon thefacilitated discussions up to thisstage,a. The GAC advises the ICANNBoard to:I. pursue implementation of (i) apermanent system ofnotification to IGOs regardingsecond-level registration ofstrings that match theiracronyms in up to two languagesand (ii) a parallel system ofnotification to registrants for amore limited time period, in linewith both previous GAC adviceand GNSO recommendations;II. facilitate continueddiscussions in order to develop aresolution that will reflect (i) thefact that IGOs are in anDoes the advice concern anissue that can be consideredwithin the remit2 of theGNSO (yes/no)If yes, is it subject to existingpolicy recommendations,implementation action orongoing GNSO policydevelopment work?How has this issue been/isbeing/will be dealt with by theGNSOopportunity to participate in thefacilitated discussion with the GAC atICANN58, and the good faith dialoguethat took place.In relation to the GAC’s advice to theBoard to pursue implementation of:(i)a permanent system ofnotification to IGOsregarding second-levelregistration of strings thatmatch their acronyms in upto two languages; and(ii)a parallel system ofnotification to registrants fora more limited time period,in line with both previousGAC advice and GNSOrecommendations.The GNSO Council understands thatthe agreed outcome of the facilitateddialogue session at ICANN 58 wasthat further input from ICANN on thefeasibility of permanent notificationto IGOs is required; and that a3

GAC Advice TopicGAC Advice Detailsobjectively unique category ofrights holders and (ii) a betterunderstanding of relevant GACAdvice, particularly as it relatesto IGO immunities recognizedunder international law as notedby IGO Legal Counsels; andIII. urge the Working Group forthe ongoing PDP on IGO-INGOAccess to Curative RightsProtection Mechanisms to takeinto account the GAC’scomments on the Initial Report.RATIONALEThis Advice capturesachievements made to date inthe facilitated discussions, in thehope that this will beinstrumental in resolving thislong-standing issue at theearliest opportunity.Does the advice concern anissue that can be consideredwithin the remit2 of theGNSO (yes/no)If yes, is it subject to existingpolicy recommendations,implementation action orongoing GNSO policydevelopment work?How has this issue been/isbeing/will be dealt with by theGNSOparallel system of notification toregistrants for a more limited timeperiod, is in line with both previousGAC advice and GNSOrecommendations.In relation to the GAC’s advice to theBoard to facilitate continueddiscussions in order to develop aresolution that will reflect (i) the factthat IGOs are in an objectively uniquecategory of rights holders and (ii) abetter understanding of relevant GACAdvice, particularly as it relates toIGO immunities recognized underinternational law as noted by IGOLegal Counsels. The GNSO Councillooks forward to continuing, in goodfaith, the discussions with the GACand the Board on appropriate nextsteps, but is concerned that the GACadvice in this instance seems tosuggest a predetermined outcome,which the Council believes ispremature.4

GAC Advice TopicGAC Advice DetailsDoes the advice concern anissue that can be consideredwithin the remit2 of theGNSO (yes/no)If yes, is it subject to existingpolicy recommendations,implementation action orongoing GNSO policydevelopment work?How has this issue been/isbeing/will be dealt with by theGNSOAs previously communicated to theBoard, the ongoing PDP on IGO-INGOAccess to Curative Rights ProtectionMechanisms will take into accountthe GAC’s comments on the InitialReport. The GNSO Council notes thatthe Working Group is activelyreviewing all comments received onits Initial Report, including thecomments submitted by the GAC anda number of IGOs.3. Mitigation ofDomain NameAbusea. The GAC advises the ICANNYesBoard to:I. provide written responses tothe questions listed in theFollow-up Scorecard attached tothis Communique, no later than5 May 2017 for appropriateconsideration by the GAC beforethe ICANN 59 meeting inJohannesburg, taking intoaccount that the ICANNPresident and CEO will act ascontact point for the GAC in thismatter.YesThe GNSO Council refers to its inputto the Board regarding the GAC’sHyderabad Communique on thistopic, and reiterates the concerns itstated in that ac-communique-15dec16en.pdf.5

GAC Advice TopicGAC Advice DetailsDoes the advice concern anissue that can be consideredwithin the remit2 of theGNSO (yes/no)If yes, is it subject to existingpolicy recommendations,implementation action orongoing GNSO policydevelopment work?How has this issue been/isbeing/will be dealt with by theGNSORATIONALEThe GAC is seeking to assess theeffectiveness of its Advice to theICANN Board.Annex 1 of the GAC HyderabadCommuniqué listed a number ofquestions to conduct suchassessment in relation to Adviceimplemented as part of the 2013Registrar AccreditationAgreement and the New gTLDRegistry Agreement.The GAC is also interested inassessing the contribution of theSSR and Contractual Compliancedepartments of ICANN to theprevention and mitigation ofdomain name abuse.While ICANN responded toAnnex 1 of the GAC HyderabadCommuniqué, the informationprovided was not sufficient toconduct the necessaryassessments.6

GAC Advice TopicGAC Advice DetailsDoes the advice concern anissue that can be consideredwithin the remit2 of theGNSO (yes/no)4. 2-CharacterCountry/Territory Codes at theSecond LevelIn light of the discussions withYesthe ICANN Board in Copenhagenon the Board Resolution of 8November 2016 and itsimplementation of 13 December2016 regarding two-lettercountry codes as second leveldomains,a. The GAC advises the ICANNBoard to:I. Take into account the seriousconcerns expressed by someGAC Members as contained inprevious GAC AdviceII. Engage with concernedgovernments by the next ICANNmeeting to resolve thoseconcerns.III. Immediately exploremeasures to find a satisfactorysolution of the matter to meetthe concerns of these countriesbefore being further aggravated.IV. Provide clarification of thedecision-making process and ofthe rationale for the NovemberIf yes, is it subject to existingpolicy recommendations,implementation action orongoing GNSO policydevelopment work?How has this issue been/isbeing/will be dealt with by theGNSOYesThere should be no opportunity forthis Advice to cause the Board to reopen their decision on two lettercodes at the second level, ascontained in the Board’s resolution of8 November 2016 and subsequentimplementation, which came at theend of a long process that includedcommunity consultation and input.The Council is also concerned thatthe Consensus Advice contained inSection VI. 4. of the Communiquethat essentially requires the ICANNBoard to negotiate directly, andreach resolution, with individualgovernments on two letter domainnames at the second level is, in ourview, inconsistent with theConsensus Advice mechanism foundin the ICANN bylaws and as suchshould not be considered “ConsensusAdvice”. The GNSO Council regardsthis as an unhelpful attempt tosidestep requirements contained inthe Bylaws to delegate GAC-7

GAC Advice TopicGAC Advice Details2016 resolution, particularly inregard to consideration of theGAC advice, timing and level ofsupport for this resolution.RATIONALEThe GAC noted serious concernsexpressed by some governmentsabout the consequencesintroduced by the changescreated by the 8 November2016 Resolution. In particular,according to the new procedureit is no longer mandatory for theregistries to notify governmentsof the plans for their use of 2letter codes, nor are registriesrequired to seek agreement ofgovernments when releasingtwo-letter country codes at thesecond level, which, forexample, allows registries tocharge governments substantialfees.Does the advice concern anissue that can be consideredwithin the remit2 of theGNSO (yes/no)If yes, is it subject to existingpolicy recommendations,implementation action orongoing GNSO policydevelopment work?How has this issue been/isbeing/will be dealt with by theGNSOequivalent consensus advice toindividual GAC members, rather thanthe GAC as a whole. We note thatthis was discussed extensively duringthe CCWG-ACCT Workstream 1process and was ultimately rejected.Bilateralism between the Board andindividual GAC members also has thepotential to undermine the utility ofthe GAC itself and is also inconsistentwith ICANN’s commitment to theUnited States Government and otherparts of the ICANN Community thatthe GAC or individual governmentswould not end up with more powerin a post-transition ICANN.8

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GAC Advice. RATIONALE The GAC acknowledges the outputs of the facilitated dialogue on this topic and requests the Board to proceed accordingly without delay 2. IGO Protections GAC and the GNSO The GAC notes that a dialogue facilitated by the Board on this topic has begun between the (including its relevant Working Groups). The GAC expects that .