[governance] Ideas that this mailing list has agreed to

[Jeanette Hofmann]

Hi Hans,

the model of institutional design you present below seems to just one of 
many around. The same is true for the principle of legitimacy. As Ralf 
pointed out here some days ago, there is not one single source of 
legitimacy. Some differenciate between input and output, others stress 
deliberate models of legitimacy.

The fact is that models of legitimacy are as political and controversial 
as the world they describe to conceptualize.
My take on this is that representation is not a good recipe for 
designing something new in the transnational space.

jeanette

Hans Klein wrote:
> The choice between "social control" and "political oversight" is addressed 
> by the hierarchical model of institutional design.
> 
> At a lower level, decisions are made by "social control". This is 
> decision-making by stakeholders (e.g. the ICANN board.)  It is largely 
> technical decision-making.
> 
> At a higher level is political oversight. This is decision-making by 
> representatives of the people (ideally elected governments.)  It is 
> values-based decision-making.
> 
> Most decisions are technical and are made at the lower level.  But in some 
> rare decisions, values may be at stake that exceed the normal Internet 
> technical issues. These are political decisions and require political 
> oversight.
> 
> For example, look at the .XXX decision.  To the technocrats in ICANN 
> (including us civil society groups!) .XXX was largely a technical decision.
> 
> But the values at stake went way beyond technical decision-making.  They 
> were political values: the formal granting of recognition to a 
> controversial kind of content.  Regardless of how anyone feels about that 
> content, we might nonetheless agree that the .XXX decision was 1) a public 
> decision that 2) touched on important values.
> 
> Such decisions are not technical Internet decisions. They are political, 
> and they are appropriately addressed in political forums.  We stakeholders 
> cannot legitimately claim exclusive authority to make such public decisions.
> 
> (The US unilateral intervention over .XXX was problematic too.  But the 
> original .XXX decision revealed a real deficit in ICANN's legitimacy that 
> cried out for some kind of political oversight.)
> 
> In terms of institutional design, the solution is a tiered institution.  It 
> allows for both technical and political decisions, one above the 
> other.  Importantly, it keeps them separate.  At the lower level, the 
> technical decision-making body (e.g. ICANN Board) is continuously 
> active.  At the higher level, the political oversight body (e.g. Council) 
> is only active by exception. (The INTELSAT treaty, cited earlier, defined 
> such a tiered model.)
> 
> Today, ICANN does have a de facto tiered model.  However, the US is the 
> sole political overseer.  Political oversight should continue, but it needs 
> to be internationalized.
> 
> Of course, that raises a burning practical question: can a tiered model 
> protect ICANN from meddling by high-level political authorities?  I.e. can 
> we prevent the proactive injection of values into technical decisions?
> 
> I think we can.
> 
> The solution to meddling is the rule of law.  Political oversight should be 
> *constrained* by law/treaty.  For instance, it could be restricted to only 
> having veto power.  Hopefully, such legal constraints can prevent any abuse 
> of power.
> 
> But political oversight must be there.  The *people* must have a veto over 
> the *experts*.
> 
> Political oversight also ensures good process at the lower level.  It can 
> prevent capture.  Should some stakeholders capture ICANN by re-writing its 
> bylaws to eliminate other stakeholders, political oversight would 
> *hopefully* intervene to prevent such a manifest injustice. ;-)
> 
> Here, the history of US political oversight is mixed.  In 1998 the US 
> prevented business and technical groups from immediately capturing 
> ICANN.  The US required balanced representation on the board.
> 
> In 2002 the US did allow capture of the ICANN board; user representatives 
> were eliminated.  But the US dropped the idea of privatizing 
> ICANN.  Privatizing a captured ICANN would be a disaster.
> 
> In summary,  ICANN needs two tiers of oversight:
> 1. lower-level "social control" by stakeholders making on-going technical 
> decisions
> 2. higher-level "political oversight" by representative institutions who 
> can veto political decisions and who can prevent capture.
> 
> Hans
> 
> 
> 
> 
> 
> 
> 
> 
> At 11:02 AM 11/9/2005, Raul Echeberria wrote:
> 
>>Hans Klein wrote:
>>
>>
>>>I offer here a conceptual distinction that may clarify the idea of
>>>"political oversight."
>>>ICANN need political oversight by *representative* institutions.  But at
>>>the global level that is problematic. The only two candidates are
>>>governments and global elections.
>>>
>>>Explanation:
>>>
>>>ICANN exercises public powers: it makes rules for firms and for
>>>individuals.  It is a regulator.
>>>
>>>As a regulator, it needs political oversight.  ICANN's exercise of public
>>>power must be legitimate.
>>>
>>>
>>>
>>
>>I agree with the second, but not necesarily with the first assertion,
>>and that is exactly one of the major points in this debate.
>>Could oversight be substituted by "social control" ?
>>If the current structures were improved to allow a much better
>>participation of all the stakeholders, also including governments, you
>>don't think that it could work well without specific oversight?
>>This is what seems most exciting to me, the possiility of seriously
>>develop new ways of governance.
>>
>>Raúl
>>
>>
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> 
> 
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