Ron/All
I think you have it basically right:
the IRP is the analogue of the Supreme Court (though I'm hoping it
ends up being defined a little more narrowly, more closely analogous
to a Europoean "Constitutional Court," so that it doesn't get tangled
up in appeals of ordinary Board decision-making but only in
'constitutional' (violation of the Bylaws or Charter) claims )
It is definitely correct to say that up to now there's been no
effective mechanism to appeal Board action, either externally or internally -
you ask: "So how does the IRP enforce its finding, and does the IRP
have the ultimate power to impose a (possibly temporary) dictate to
ameliorate an emergency?"
the question of ultimate power is a tricky one, to say the
least. Take the US constitutional example - the Constitution does
not say which branch has "ultimate power" to decide whether action is
or is not constitutional, and there have been a number of crises
around that question, where the executive refuses to enforce the
judiciary's determination of unconstitutionality. [As Pres. Jackson
put it when the Court declared that his relocation of Native
Americans from GA was unconstitutional: "The Court's issued its
decision; now let them go and enforce it."]
Ultimately, this is the "balance" part of the checks and balances
- the three parts (executive [ICANN Board], legislative [stakeholder
community], and judicial [IRP]) - are co-equal. No one is given
"ultimate power." That's a good thing - if one branch/component has
ultimate power, all I need to do to corrupt the entire institution is
to capture that branch, whichever one it is.
So back to your question: what happens in the "emergency" situation
you posit, where the IRP says "Board Action X is invalid" and the
Board says: "It is inconsistent with our fiduciary obligations to the
corporation to comply with the IRP order"?
The answer has to be: there need to be mechanisms whereby the other
branch [the stakeholders] can resolve the impasse (at least if
there's a strong consensus that one or the other position is the
"correct" one]. In ICANN's case, that could/should include (a) the
power to remove individual Board members or the Board as a whole, and
(b) the same power with respect to IRP members, or perhaps a separate
"veto" power that allows the community to "choose sides" in the dispute.
David
At 06:24 PM 8/31/2015, Ron Wickersham wrote:
>This thread has been very well argued and informative on a complicated
>area that will have great and long lasting consequences.
>
>Do I have it correct that the IRP is ICANN's Independent Judiciary
>with the authority to determine if/when the Board has acted outside
>the power and
>reverse (at presumeably any unlimited future time) the action...thus
>the IRP is the concensus stakeholders' mechanism to appeal to a
>"Supreme Court"?
>
>Is it correct to state that up till now the Boards actions have been
>final without appeal due to respect for this ultimae power of the Board?
>
>If the IRP declares a Board action invalid, ICANN still remains a
>corporation so can the Board declare an emergency and take "marshall
>law" power on the
>basis that ivalidating a critical (in the Board's eyes) operational
>directive would cause irreprable harm/damage to the Internet?
>
>So how does the IRP enforce it's finding, and does the IRP have the
>ultimate power to impose a (possibly temporary) dictate to
>ameliorate an emergency?
>
>-ron
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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose) http://tinyurl.com/c327w2n
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etc. http://www.davidpost.com
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