AW: [governance] Framework convention

Thu Apr 19 03:56:47 EDT 2007

Dear list,

the debate on the FC is stimulating. However we are circling around the hot potatoe and this is to challenge the eixsting systems and mechanisms as we know them from the last 200 years. Looking forward the main challenge is no to recycle existing insturment but to invent something which is new. We are playing with known instruments and institutions (which come - as Jon has remembered us - from the Westphalian System and are part of the body of international law as its has been developed from Hugo Grotius via the League of Nations to the Charter of the United Nations and the Vienne Convention on the Law of Treaties). 

The basic question in the biderless cyberspace is do we continue on the basis of the existing system - adding new elements to it - or do we are facing a fundamental system change? In the old (hierarchical) system governments always hat the last word: States, with clear defined territorial borders and represented via its governments, were the only subject of International law (together with intergovernmental organisations which got also the capability to sign legal contracts as far as they got the mandate to do so from their member states). The whole system is based on the recognition of the principle of national sovereignty, or, as it is said in the UN Charter "sovereign equality". 

This has worked for the 19th and 20th century (with a lot of wars among sovereign states). The question is, will the 21st century, where the Internet has underminded the traditional understanding of clear defined territorial borders, see a more network based system where governments are only one actor among others and where we have different "political territories" of rights and responsibilities? 

One of the challenges is to figure out how the relationship (in legal and political terms) among the stakeholders can be organized (and formalized), probably on a case by case basis. In a paper for WGIG (Internet Co-Governance) I proposed a model, where you have basically a trilateral mechanism for each of the IG issues (as listed in the WGIG report), but for each issues the triangel would be different. Governmental leadership would be needed in the fight against cybercrime, but also here the involvment of private sector and civil society is needed. On the other hand, the management of the DNS should by led by the private sector (but also here a certain involvment of governments and civil society is needed). In WGIG we listed 18 relevant IG issues, which would mean 18 different governance models, based on multistakeholderism, that is of a specific triangular relationship. With other words, we would have 18 different triangels. I have called this IG model the "Tower of Triangels". But again, when we accept, that we are moving towards a system change, then we have to go beyond refering to existing (legal and political) instruments and have to invent something which is new.  BTW, the majority of todays war are not among sovereign states. Al Kaida is not a sovereign nationstate, it is a network :-((((.

Wolfgang

________________________________

Von: Anriette Esterhuysen [mailto:anriette at apc.org]
Gesendet: Mi 18.04.2007 23:40
An: governance at lists.cpsr.org; William Drake; John Mathiason
Betreff: Re: [governance] Framework convention

Keep in mind what has been achieved with the
UN Economic Commission for Europe's Aarhus
Convention on Access to Information, Public
Participation in Decision-making and Access to
Justice in Environmental Matters.

It secure rights to participation and access
information.

http://en.wikipedia.org/wiki/Aarhus_Convention

I.o.w. the modalities for participation of non-
state actors in the 'implementation' of a
framework convention (or any other multi-
lateral agreement) could theoretically be
determined by a linked convention established
specifically for that purpose.  And, it can
address some of the concerns that has been
raised.

Anriette

> Bill,
>
> I'll retain a copy of your notes and try to answer some of your
> comments in the paper.  I know that for inexplicable reasons we are
> on different sides regarding the Framework Convention idea (we
> clearly did not agree in Athens) and I will try to convince you with
> the power of argumentation and, even, facts in the paper.
>
> Just to clarify one small point:  a Convention is a treaty (it is a
> multilateral treaty as defined in the Vienna Convention -- see -- on
> the Law of Treaties).  The other things you mention (declarations,
> resolutions, recommendations, guidelines, informal agreements) are
> probably morally binding on those that agree to them, but as might be
> said -- paraphrasing an old lawyer's maxim: "a moral agreement is
> worth the convention it is written in."
>
> We'll have fun continuing our discussion of this.
>
> Best,
>
> John
> On Apr 18, 2007, at 14:56, William Drake wrote:
>
> > Hi Lee,
> >
> > There are about twenty different conversations now running under the
> > heading, "Re: AW: [governance] .xxx. igc and igf."  If we could
> > please separate this thread from the interpersonal pissing matches
> > etc.  that'd be helpful, I've accidentally deleted some bits and had
> > to go find  them in the list archive.
> >
> > On 4/18/07 5:26 PM, "Lee McKnight" <LMcKnigh at syr.edu> wrote:
> >
> >> Bill, Wolfgang,
> >>
> >> As John notes it's hard at end of semester to keep up with this
> >> list, sorry for fading in and out of the dialog.
> >
> > You're not alone
> >
> >> I also did a short paper  adapting from John's on my views on the
> >> framework convention also a couple years back for an OII meeting,
> >> but I admit that was also very sketchy.  I'll dig that out though
> >> and  John and I can argue some on what we IGPers mean and get
> >> something put  together by the time John suggests, for the rest of
> >> you to throw stones at.
> >
> > Sounds good.  But I have an antecedent question.  Why are we 
> > talking about a
> > Convention per se?  Why fix on this particular institutional form,
> > rather than say a standard treaty, a Declaration, a Resolution, a
> > Recommendation, Guidelines, an MOU, a multistakeholder informal
> > agreement, or  something else?  I can't help wondering if the basic
> > rationale isn't,  'because the UN has done conventions in other,
> > unrelated fields, let's have one  here too,' which to me wouldn't be
> > a compelling answer.   Normally one would  think form should follow
> > function, but it seems like you guys are saying first we should
> > agree there needs to be a Convention and then secondly we'll  figure
> > out what it's for, which seems odd.
> >
> >> For now let's just say the rules objectives etc for an Internet
> >> framework convention are yet to be defined, and an Internet
> >> Framework
> >
> > Right.  I really don't mean this in a nasty way, but please tell me
> > why this isn't ass backwards.  Why not work from a precise problem
> > definition => bounded range of institutional options, pros and cons
> > of each => the selection of a solution?
> >
> >> Convention could be more or less like the precedents John & Adam
> >> have cited.  Anything to avoid reinventing wheels makes sense, on
> >> the  other
> >
> > Uh, that's how the ITU has made decisions for over a century.  They
> > didn't invent something new when the telephone came along, they
> > grafted  language onto telegraph arrangements.  The international
> > standardization and diffusion of telephony was slowed in
> > consequence.  Ditto  datacommunications. Institutionally embedded
> > history's not always the best guide within  much less across global
> > policy domains.
> >
> >> hand eg i would imagine a greater emphasis on coordinating remote
> >> participation given the Internet crowd.
> >>
> >>  Yeah in the end there might be the framework of frameworks signed
> >> 
> >> only
> >> by States,and translated to domestic legislation but under and
> >> around that umbrella a pile of private and public agreements and
> >> commitments may be made, and revised over time, also by non-state
> >> actors, ie business, civil society, and individuals.   Without
> >> ICANN, APWG, etc
> >
> > How would non-state actors revise a Convention done under the UN
> > (meaning ECOSOC, which doesn't allow their participation)?
> >
> >> etc, then the framework is pretty empty.   As Bertrand notes, the
> >> GAC is putting forth basic 'good governance' notions to frame its
> >> own activities, that is certainly to be preferred to alternatives.
> >> So  it's not like the framework precludes the need for various
> >> groups to do  what they are doing, as well as they can. It may
> >> however help institutionalize other Internet governance processes,
> >> to the degree there is interest and a ratioanle for doing so.
> >
> > Sure
> >
> >> And as for Rio, I guess as Vittorio and Jacqueline agree, there's
> >> nothing stopping a discussion on ICANN there; who participates,
> >> and the agenda, and the eventual ICANN response to any
> >> recommendations  emanating from the discussion, will determine its
> >> ultimate utility, or lack thereof.   A discussion on the framework
> >> convention would also merit another workshop I'd think.  Maybe
> >> Parminder and John can coorganize that.
> >
> > Sure, sure
> >
> >> Neither of which is to take anything away from work on access and
> >> many other critical issues, at IGF, ICANN, or beyond, which IGP
> >> also looks forward to contributing to the degree we are able.
> >
> > Ok.  Hope you all understand, I'm not being hostile, I'm just
> > puzzled by the reasoning, and in consequence by the frequent
> > invocations of the  solution.
> >
> > Thanks,
> >
> > Bill
> >
> >>
> >>>>> wolfgang.kleinwaechter at medienkomm.uni-halle.de 4/18/2007 9:44 AM
> >>>>>
> >> John,
> >>
> >> can you explain me exactly who would negotiate and who would sign
> >> the "Framework Convention" or however you title such a documented
> >> arrangement?
> >>
> >> Would it be a convention under the Vienna Law of Treaty Convention?
> >> Would it go through a national ratification procedure? How
> >> non-governmental actors would be included into negotiations? How
> >> these non-governmental actors, if they would be included, would
> >> join such a convention? Just by signing? What about accountability?
> >>
> >> Content of a FC is important, but here the formalities are even
> >> more important.
> >>
> >> Best wishes
> >>
> >> wolfgang
> >>
> >>
> >> ________________________________
> >>
> >> Von: John Mathiason [mailto:jrmathia at maxwell.syr.edu]
> >> Gesendet: Mi 18.04.2007 15:39
> >> An: governance at lists.cpsr.org; DRAKE William
> >> Betreff: Re: [governance] .xxx. igc and igf
> >>
> >>
> >>
> >> Bill,
> >>
> >> Any Framework Convention on Internet Governance would have to cover
> >> all of the major policy areas that need some agreement in order to
> >> ensure the orderly development of the Internet and clearly would
> >> have to go beyond core resources, but the core resources would have
> >> to be dealt with as a key issue.  The scope of an FC would be
> >> subject to negotiation but, to anticipate one of the criteria to
> >> apply, should deal with issues where existing regimes overlap or
> >> conflict.
> >>
> >> Best,
> >>
> >> John
> >> On Apr 18, 2007, at 9:26, DRAKE William wrote:
> >>
> >>> Hi John,
> >>>
> >>> Great, look forward to it, it will be helpful to the discussion.
> >>> In the meanwhile, maybe you could help me and Mawaki out here and
> >>> indicate whether this would be intended to address just the
> >>> governance of core resources, or IG more generally?
> >>>
> >>> Cheers,
> >>>
> >>> Bill
> >>>
> >>> John Mathiason wrote:
> >>>> Bill,
> >>>> An interesting challenge, which deserves to be taken up.  There
> >>>> are  now enough ideas out there to try to put together a more
> >>>> complete  analysis of what a Framework Convention on Internet
> >>>> Governance might  look like.  In addition to the Climate Change
> >>>> Convention (UNFCCC), we  now have the WHO Tobacco convention
> >>>> (http://www.who.int/tobacco/ framework/en/) which is a framework
> >>>> convention in that it specifies  principles (tobacco is bad) and
> >>>> norms (public policy should address  demand) but leaves many of
> >>>> the details to further negotiation. Both  provide interesting
> >>>> precedents on which to draw.  It being the end-of- semester in
> >>>> the groves of academia, the revised paper may take a  couple of
> >>>> weeks, but we (IGP) will plan to have it ready before the  next
> >>>> IGF consultations on 23 May. Best, John On Apr 18, 2007, at 3:48,
> >>>> William Drake wrote:
> >>>>> Hi Mawaki,
> >>>>>
> >>>>> On 4/18/07 5:36 AM, "Mawaki Chango" <ki_chango at yahoo.com> wrote:
> >>>>>
> >>>>>> First, I was bit confused when I read Bill's message below; it
> >>>>>> sounds as if an FC (or let call it an "international agrement"
> >>>>>> of some sort though "international" sounds more modern than
> >>>>>> postmoder ;)) was intended to take care of all things IG. To my
> >>>>>> understanding, this is intended to define and give a legal
> >>>>>> basis to the norms and rules, the mechanisms and processes, in
> >>>>>> sum, the legitimate authority to deal with relevant public
> >>>>>> policy issues pertaining to the others numerous issues of IG.
> >>>>>> And so far, there is no assumption on the nature or form of
> >>>>>> such authority, except that most of us seems to agree that it
> >>>>>> shouldn't be another intergovernmental kind of org. That could
> >>>>>> as well be a concentrated, scalable, multi-level structure
> >>>>>> where governments may get to make final decisions (again, only
> >>>>>> on public policy) but not without accepting external inputs
> >>>>>> (technical community, academia, CS, etc.)
> >>>>>
> >>>>>
> >>>>> Your understanding seems a lot more narrowly focused than what
> >>>>> John  proposed in his paper three years ago, which to my
> >>>>> knowledge is IGP's only  written statement on the matter.  And
> >>>>> that was just a four page concept paper, more of a teaser than
> >>>>> an elaborated proposal.  Absent further specification, it's
> >>>>> natural that people will differently imagine what it is intended
> >>>>> to  entail, and differently react to the recurrent suggestion
> >>>>> that it could be The Solution.  That's why I suggested yesterday
> >>>>> to Milton that you guys  take the next step and spell it out.
> >>>>> Otherwise we'll just go around and around talking past each
> >>>>> other.
> >>>>>
> >>>>> On your formulation, much of IG broadly defined already has
> >>>>> clear  legal bases to its norms and rules, and it's not obvious
> >>>>> how a FC would  relate to and further clarify the disparate bits
> >>>>> of national and international law underlying the shared rule
> >>>>> systems pertaining to IPR, e-commerce and trade, security,
> >>>>> consumer protection, and so on.  I'm guessing that you actually
> >>>>> mean IG as popularly defined pre-WSIS, i.e. just core resources,
> >>>>> and that this is why you found my comment confusing.  There are
> >>>>> legal bases  there too but to the extent they're unclear or
> >>>>> problematic I guess the idea  is to change them.  Fine, but then
> >>>>> maybe you should call it an FC on the governance of core
> >>>>> resources to avoid further misunderstanding. And spell out what
> >>>>> it might look like so people have something concrete to react
> >>>>> to, rather than trying to imagine what you all have in mind.
> >>>>>
> >>>>> Cheers,
> >>>>>
> >>>>> Bill
> >>>>>
> >>> ____________________________________________________________
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> >>
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> >
> > ***********************************************************
> > William J. Drake  drake at hei.unige.ch
> > Director, Project on the Information
> >   Revolution and Global Governance/PSIO
> >   Graduate Institute for International Studies
> >   Geneva, Switzerland
> > http://hei.unige.ch/psio/researchprojects/Drake.html
> > ***********************************************************
> >
> >
> >
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