[governance] APC - Forum draft?

[Jovan Kurbalija]

Let me include my congratulations to APC for compiling this valuable
contribution. Here are a few comments..:


Page 9.

APC TEXT: The forum will not have a mandate to negotiate hard instruments
like treaties or contracts.

SUGGESTION: The forum will not have a mandate to negotiate international
legal instruments, such as treaties and conventions.

COMMENT: If the forum is a legal entity it will have to conclude contracts
(private law contracts - e.g. employment contracts, outsourcing, printing).
Although hard vs. soft law formulations have become a part of IG parlance, I
would suggest omitting them from serious policy documents. This distinction
is a source of considerable debate in international legal circles. All in
all, it results in more confusion than insight.



APC TEXT: However, in very exceptional circumstances, when all stakeholders
agree that more formal arrangements are desirable, the forum could request
an appropriate international organisation to negotiate such an instrument.

SUGGESTION: However, in very exceptional circumstances, when all
stakeholders agree that international legal instruments are desirable, the
forum could propose the negotiation of such instruments.

COMMENT: The word "request" implies the presence of a hierarchy. The forum
should not have such legal standing. Conventions and agreements can be
negotiated in various international setups (not only international
organisations).



APC TEXT: The forum focusses on the development of soft law instruments,
such as recommendations, guidelines, declarations, etc.

SUGGESTION: Forum deliberations should result in the adoption of
recommendations, guidelines, declarations, etc.

COMMENT: Try to avoid the use of "soft law," we can leave this to academics'
papers and analyses.



APC TEXT: In addition, the scope of the work...

In the context of the evolving public and technical policy landscape of the
Internet, there will be a need to CONCRETISE binding international
agreements.

COMMENT ON TWO PARAGRAPHS: Any example involving a concretisation process?
Is it related to specific obligations (e.g. the child convention) or
implementation? Some international agreements in the field of human rights
are very concrete (the child convention). The main problem is enforcement.
Does this paragraph refer to enforcement?



APC TEXT: We propose that the forum be constituted as an independent
international organisation incorporated under national law in any country
that provides the legal establishment of international not-for-profit
institutions.

COMMENT: The entity has to be "national." Its activities can be
international but, legally speaking, it has to be registered as a national
entity. Possible exceptions are the Council of Europe countries, which have
ratified a convention granting NGOs international status: Austria, Belgium,
Cyprus, France, Greece, Portugal, Slovenia, Switzerland, Macedonia, and the
United Kingdom. These states recognise the international status of NGOs.




PAGE 12 - Multistakeholder Convention on Universal Human Rights and Internet
Governance


GENERAL COMMENT: Let me suggest a few questions that may help in developing
this idea further:

- Why is the Convention's focus on Human Rights (and Universal Human Rights
in particular)? 
- Who would negotiate and adopt such a convention? Currently, the
conventions are only adopted by nation states and international
organisations (even in such areas as the environment and sustainable
development, where a mutlistakeholder approach has been promoted, the
conventions are still adopted by nation states). The solution to this
problem will require a lot of creativity and imagination.


I hope this comments will be of some help. Regards, Jovan



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