Hi all
 
indeed, after reading the GAC Communique I notice a strong shift in its tone. What we had so far only in the oral presentations of some GAC members we have now in the written (agreed) GAC Communique: The GAC reserves its right to have the last word, at least with regard to issues of "public interest". But what is not "public interest" in the ICANN context?  This will raise further question about the relationship between the GAC and the Board and GAC´s understanding of the multistakeholder model with an open and transparent bottom up PDP. 
 
Here are some more detailed observations: 
 
1. The subject of the High Level GAC meeting was "Preserving and Improving the Multistakeholder Model". Very good subject. However there are no conclusions or recommendations which came out of the meeting. What is GAC´s understanding of "improving" the Multistakeholder Model? Do we have here a similar debate as we had in the UN under "improving the IGF"? For some GAC members "improving" means obviously to move decision making power from the Board to the GAC. This seems in my eyes problematic and would undermine the understanding of the multistakeholder model. Remember the WGIG definition where it is said, that Internet Governance includes "shared ... decision making procedures". The GAC has not delivered a model how decision making on issues related to public policies can be "shared" with other non-governmental constituencies within the ICANN context. It is still a battle for "the right to have the last word", the single decision making power. And this will continue. All sides have still to find "their respective role" (another quotation for the WGIG definition, adopted by 180+ member states of the United Nations in 2005). 
 
2. It is good that the GAC is obviously considerung to jump into ICANNs open and transparent bottom up policy development process at an early stage (GAC Early Engagement / GACEE). However it remains unclear how this will be managed procedurely. Will there be a GAC liaison in all drafting teams? And what is the status of such a liaison? Just as an observer, reporting back to the GAC? Or as an active member who can speak on behalf of the 120+ GACies? Will the OK of the GAC liaison be needed to reach "rough consensus" in a drafting team (which would give the GAC a "veto right" for everything)? A good field for reaching progress by stumbling forward.      

3. It is good that the GAC invites its members to handle "early warning" against individual gTLD applications on the basis of a "collaborative and cooperative approach". It remains to be seen how many cases can be settled via such an approach and how many cases will remain on the table and will lead to a "GAC advice". It sounds rather strong if the GAC advices the Board "that it is necessary for all these statements of commitment and objectives to be transformed into binding contractual commitments, subject to compliance oversight by ICANN". Remains to bee seen how this will be handeld in detail if it comes to cases where both sides have good arguments and the USR will not be able to help.
 
4. It is good that the GAC is looking towards the production of a list for names of IGOs which should get special protection in the new gTLD program both under the 1st and the 2nd level. To use the criteriea for the .int TLD is okay. It is as it was in the early days of the DNS when Jon Postel argued that he is not in a position to decide what a country is and he refered to an existing list (ISO 3166) before handing out delegations to the management of ccTLDs.. To use existing lists is a workable and useful methodology as long there is broad agreement that the proposed list is the right one. Nevertheless the GAC communique does not include International Non-Governmental Organisations (INGOs) in its Communique. Has this any meaning? The GNSO Council proposed to include both IGOs and INGOs in the planned PDP.
 
5. IOC and Red Cross: Here comes a big controversy. The GAC  is seeking "clarification from the GNSO as to its rationale for initiating a PDP" and it adds that its advice does not need a PDP but just implementation.  This is controversial indeed. There is no external legal study which proofs the position that the status of those two organisations is unique under existing national and international law. There are a number of groups who are arguing that there are also other non-governmental organisation which have a similar legal status like the Red Cross and the IOC and would also fall under such a categorization. Insofar the GNSO was very wise to argue, that before doing any policy decision it would be better to have a final legal clarification. Based on such a legal clarification a coherent policy should be developed which would give the two mentioned organisations and others the needed protection to avoid any misuse which would be contrary to the public interests. For many observers a simple "GAC advice" does not constitute such a needed legal clarification. More work needs to be done. Additionally this produces an intersting case for how an open and transparent bottom up PDP within ICANNs multistakeholder model is executed in a triangular relationship between the GAC, the ICANN Board and the GNSO Council with its eight (commercial and non-commercial) constituencies organized in a contracted and non-contracted house. We all will learn how this will be played out. 
 
6. Another surprise in the GAC Communique is an ommssion. There is no reference to the RAAs and the Whois debate. The Toronto meeting made clear that there is a growing controversy about the understanding of privacy and data protection in the DNS and the Whois among various ICANN constituencies, including the GAC. For individual GAC members it means that they have to consult at home both with national state agencies for law enforcement and the data protection commissioner before coming to a GAC meeting and representing the "country´s position". A lot of observers have the impression that such a "national dialogue" on equal footing among law enforcement and data protection is still in its early stage in many countries and the actual debate is dominated the the legtimate requests from law enforcement agencies. However, also the requests from data protection officers are very justified according to the relevant national law. ICANNs Articles of Incorporation states that ICANN will operate within the framework of internaional law and national legislation,. If the Article 29 Working Party of the EU argues that proposed changes in the RAA are "unlawful" under existing European law, than ICANN has a problem. It is certainly correct that the Article 29 Working Party is an advisory body and not the EU Council of Ministers, but the facts laid out in the letter of the Article 29 Working Party are consitent with existing European law and decisions made by the EU Council of Ministers. So what to do? To introduce a differentiated system could lead to conflicts with rules for fair competition among registrars. A complicated constellation. GAC prefered to be silent for the moment. But the issue will not go away. And there is another question which is not yet discusses in this context: What about registrars serving ccTLDs who do not have a contract with ICANN? 
 
We live in interesting times and a lot have to be done :-)))
 
Wolfgang