[governance] A few reflections on the Framework Convention

[Jovan Kurbalija]

Quite an interesting exchange on the Framework Convention! Sorry for posting
this message out of the discussion sync. Here are a few points.
 

I share Bill's concern about using analogies with other regimes (mainly
climate change and tobacco). Analogies are usually tricky. They highlight
commonalities and hide differences. One useful logical exercise could be to
make an "analogy map" showing both commonalities and differences. I won't
repeat commonalities which were already mentioned by John, Miltion, Lee and
others. Instead, I will mention a few differences or specificities of IG. 
 


1. What should the FC regulate? 

The FC shares the destiny of the field it should regulate - Internet
Governance. It is difficult to define. Other framework conventions have a
clearly defined regulatory area (issue to be addressed). For example, the
Climate Change FC does not regulate the environment in general. Article 2
clearly defines the single issue to be addressed:

".... stabilization of greenhouse gas concentrations in the atmosphere at a
level that would prevent dangerous anthropogenic interference with the
climate system....." 


The framework convention approach is used for specific purposes - e.g. to
avoid controversial issues in the first iteration (building trust),  to
allow more time to negotiate technically complex issues. The conventions are
not vague about the subject of negotiations. One could think about an FC on
spam or Internet infrastructure, but not on IG in general. It seems that the
main argument for the IG FC is driven by form/procedure, not by the issues
to be addressed. This was not the case with climate change and
tobacco/smoking conventions. One possible way to make a reality check is to
draft the basic elements of the FC on IG (we can use a WIKI for drafting
purposes). Once faced with "paper" we can see if the FC will be "worth the
paper it is written on." 



2. Is the FC on IG the only way to integrate IG into international public
law (e.g. relations among countries)? 

There is a wide spectrum of possible techniques apart from
treaties/conventions. Various "soft law" techniques have been extensively
discussed. Even in the realm of "hard law" one can argue that international
customary rule guarantees national states rights over country domains. We
can find many examples to support the following two criterions for
establishing international customary rules:

- on-going practice (the re-delegation process has put many countries in
charge of country domains);

- opinion iuris (awareness that practice is legally binding) can be
supported by one of the US-government principles from June 2005 (unilateral
declarations are a source of international law as well) as well as by the
WSIS final documents. 

What is the practical relevance of the international customary law? If a
country's right over country domain is infringed, the country can bring the
case to the International Court of Justice and prove the existence of the
customary law rule. (In order not to oversimplify, I have to stress that the
establishment of the ICJ jurisdiction requires some pre-requisites -
country's readiness to accept ICJ's jurisdiction, etc.).

As a matter of fact, one can argue that one of the most controversial issue
of the IG debate - national control of country domain - has been already
settled (quietly, with necessary "face saving" mechanisms). Some UN
declaration may help in reinforcing this customary rule, but the FC on IG
would be overkill.

 

3. Multistakeholderism 

The major difference between negotiations regarding Internet Governance
(narrow definition) and other global negotiations, such as climate change
negotiations, is that, while in other negotiations, inter-governmental
regimes gradually opened to non-governmental players, in Internet governance
negotiations, governments had to enter an already existing non-governmental,
ICANN-based regime. I am not sure that the FC can be the most suitable means
for reflecting this substantive difference.


There are other aspects. time and "ripeness" for negotiations which have
been already discussed. 

This is all for this iteration. I hope it will contribute to more informed
discussion. Best, Jovan





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