[rpd] Clarifying a few points

[JORDI PALET MARTINEZ]

Hi SM,

Responding below, in-line as [Jordi].
 
 

El 15/12/20 1:34, "S. Moonesamy" <sm+af at afrinic.net> escribió:

    Dear Jordi,
    At 02:12 PM 14-12-2020, JORDI PALET MARTINEZ via RPD wrote:
    >I totally fail to understand each of your points from your email and 
    >the referenced documents in your email.

    Sorry about that.

    >Could you put that in context or explain them a little bit better?

    It may be easier to have a conversation about that.

[Jordi] I'm happy if you want to organize a conference call to clarify everything.

    >Regarding the last one (5), it is clear to everybody that AFRINIC 
    >*business practices and procedures* are out of the scope of the PDP. 
    >EXACTLY the same as AFRINIC (as an organization) decisions when 
    >affect the PDP *must* follow the PDP itself. That means that the 
    >Board can't use *any other mean* to modify the PDP than the PDP itself.

    I'll comment below.

    >You can't "invent" a ToR if it is affecting the PDP interpretation 
    >and call it ToR or procedure or addenda, or whatever you want. 
    >Changing the name doesn't authorize it. Anything that is, in some 
    >way, modifying, expanding, interpreting, restricting, enhancing, 
    >etc., etc., etc., the PDP, MUST BE a policy proposal, and 
    >consequently follow the PDP and become an integral part of the CPM.

    It has been a few years since the decision was taken: 
    https://www.afrinic.net/board/meeting/2017/min-1126

[Jordi] That's doesn't matter. We continuously make mistakes, that are only discovered after a while. This is the reason we update laws, change procedures, amend protocols, etc., etc. As I've repeatedly said, I'm sure that the board that wrote and adopted the ToR did that in good faith, but they missed the point that there are sections of the ToR that are re-interpreting the PDP and that means that you need to update the PDP, via the PDP itself, not publish additional documents.

    >Never mind if you ask for a "vote" or "community review" in the 
    >list, *it must be a policy proposal and follow the PDP*. The PDP 
    >doesn't provide *any other mean than following the PDP itself*.

    The usual practice is that the delegation of powers to a "standing 
    committee" is done through a terms of reference.

[Jordi] It is not a matter of usual practice. I understand that some parts of the ToR are "internal" because they are under the mandate of the PDP to the board to create the Appeal Committee and no further details on that. So, I'm personally fine (in principle) with section 2, 3 and 4 (1 is just an intro), but section 5 is *interpreting* the PDP in a different way as I can read it (and I'm not alone on this). Section 5 is asking for additional details and imposing additional restrictions to the text of the PDP. That means the PDP is being, in fact, modified, without using the PDP, which is the only *valid* way to do that.

    I read the following: 
    https://lists.afrinic.net/pipermail/rpd/2020/011587.html  What would 
    be the possible consequences if the "terms of reference" were removed now?

[Jordi] I fail to understand the relation of that email with this topic. Just in case I can guess what you mean, have you read my response to the Legal Counsel? https://lists.afrinic.net/pipermail/rpd/2020/012123.html The Board has many choices, for example, delay the ratification of the policy until the appeals are completed, withdraw the section 5 of the ToR (this will not affect any existing or future appeal), if they believe 5 is right, then send a policy proposal for that, etc., etc.. You can do this in many combinations, any of those will work.

    >This is also stated in the bylaws. Even for an emergency policy, 
    >which by the bylaws is only authorized for Internet resources 
    >management (not the PDP itself), it must be endorsed by the 
    >community as a policy, in the next meeting.

    AFRINIC has not invoked those articles of the Bylaws for any of its 
    PDP-related policies.

[Jordi] EVEN WORST! Because this clearly shows that you've even *less* reasons to modify the PDP. As said, section 5 of the ToR is amending the PDP and the only way this could be done will be by means of an emergency policy if *really needed*. As I've already explained several times, I'm convinced that the actual bylaws allow only to use 11.4 when it is related to policies regarding the management of Internet number resources, and the PDP is not about that.

"11.4 Notwithstanding, the provisions of Article 11.2 the Board may adopt such policies regarding the management of internet number resources where it considers that the same is necessary and urgent, having regard to the proper and responsible usage of these resources. "

By the way there is a very important typo there: It is not the same Internet as internet. In this case it is clear that it should be Internet, as we are talking about "public" resources, not the "private" parts of the networks.

    Regards,
    S. Moonesamy

    Board Chair, AFRINIC
    Mobile: +230 5824 5410 




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