[governance] Framework convention

Mawaki Chango ki_chango at yahoo.com
Thu Apr 19 08:20:57 EDT 2007 

Hi there,

I’m running behind, but before I stop running altogether, I just
wanted to clarify here some aspects of Bill's earlier questions.
First, I was not part of the IGP team that produced the paper on
the FC and my views are personal, though I read the paper and my
understanding of what that FC might be has been helped by
repeated clarifications provided here by some members of the IGP
team such as Milton.

That being said, your assumption or hunch that the embodiment of
the outcome of an FC (or let me switch to m.a., multilateral
agreement, as a more generic term) is a reasonable, even logic,
one. That is because I envision that body as replacing the GAC
and what the GAC was intended (or is now inclined) to do within
ICANN. So, as far as ICANN purports to deal only with the core
resources of the Internet, that tentative conclusion you drew is
indeed sensible. But I have to admit that in the process of
negotiating an agreement, those functions of the current GAC,
and of the future internet global public policy body (p.p.b.),
may be subject to redefinition.

People don't seem to realize that as it stands, the GAC is a
private club, a component of another private entity. Here is an
example to illustrate what I'm talking about. In the wake of the
vote taken by the GNSO council about the definition of the
purpose of the WHOIS database in April 2006, the GAC delegate
from Australia sent a letter arguing against the result of the
vote on bases that clearly contradicted the law and regulations
regarding individuals' privacy as in effect in her country. NCUC
sent a letter via the GNSO to point that out and ask the
delegate for an explanation; a response never came. In my view,
that was not an incident, but a structural consequence of what
the GAC is. This wouldn't easily happen in the UN where they
have a clear international legal basis, and clear mission and
mandate from their governments, etc. (even if many governments
contravene the law in domestic affairs, they wouldn't go up to
making unlawful statements outside; in any case, that's
certainly not the kind of behavior we would want to advocate.)
So do we realize that with a GAC like this, we are worse off
than the UN that many of us enjoy criticizing?!! The difference
is, they are governed by a legal framework in the UN, but not in
the ICANN/GAC.

Therefore, I see an m.a. as instrumental to define the rules,
process and procedures in order to cure such failings. And here,
as John and Kicki mentioned, we have a great example with the
Convention on the Rights of Persons with Disabilities, and the
antecedent of the WSIS itself, to make sure CS weigh in and has
an imprint on the discussions/negotiations outcome.

Now, when talking previously about the FC I wrote that it should
provide us with:

> 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.)

I envisioned something I’d like to illustrate with the following
features (please note, this is just tossing ideas around  as
food for thought.): 

1. it will NOT be a universal international organization with
about 200 member states.

2. an administrative procedure directive/resolution, etc. must
clearly lay down the roles and responsibilities of the
structure, its scope (public policy matters where it is
beneficial for us to have a global decision, the principles and
conditions for subsidiarity, etc.), the mechanisms for appeal
and for final decision making. no member has a veto. [subject to
international legal advice, this may entirely be part of the
convention itself, or elaborated later on based on the basic
principles laid down by the convention.] 

3. it may include 1 to 3 seats (but same number) for governments
geographically distributed (according to established regional
division so that countries that have some habit of working
together or identifying their interests/problems as close to one
another's, etc. may feel represented and work together.)

4. the government seats may rotate from countries within the
same cluster/region with a term duration to be specified. The
eligible governments must first volunteer to occupy a seat on
the internet p.p.b.

5. relevant international organizations (un, itu, wipo, unesco,
wto? etc.) and the chair of the future icann board of directors
may each have a seat.

6. other members may include Internet/IT-related legal, academic
and technical experts and other personalities of relevance from
what you may call the internet community or the CS. the number
of these seats is fixed and constrained by the size of the
structure which must be kept as concentrated as possible.
vacancies will be publicly advertised, and the p.p.b. will
receive nominations (made by anyone, including individuals and
governments) and candidacies/self-nominations. candidates will
be invited to provide the same types of materials that will be
reviewed by the body, and finalists invited for
interviews/hearings. final decisions and appointments are made
by the structure’s government body as a whole, or by the chair,
for a limited term (to be specified.) Geographic distribution
may be desirable, but not a requirement; the overarching
criterion must be based on how much resourceful the candidates
will be for the work of the p.p.b. 

7. in case there is a serious issue from some governments to be
seated with non-governmental actors in making decisions, the
aforementioned non-governmental actors may form a separate sort
of technical advisory committee (t.a.c.) that will be fully part
of the structure (multi-level.) 

8. the t.a.c. (in case created) can produce at its own
discretion papers, materials, etc. that the government body will
have to consider while examining related issues. contributions
can be requested from outside.

9. any individual or organization can seize the governmental
body on any internet public policy issues. the government body
can examine the issues before them if they deem to be competent,
or refer the issues to existing bodies that are deemed (more)
competent to address them. Alternatively, advice can be sought
from existing governance, Internet, and international
organizations, as well as from existing national (e.g., the US’s
FCC, the South African ICASA, the Singaporean, etc.) or regional
(e.g., WATRO from West Africa, etc.) regulators.

10. the future icann bodies such as the current gnso council may
continue de develop narrow focus policies relevant to the
organization business. these policies may be adopted/voted by
the future icann board in order to give it the imprint of the
organization before, if relevant (if determination is made that
public policy, industry regulation, etc. issues are involved)
those policies must then be reviewed and approved/validated by
the p.p.b. before they enter into effect.

Ok guys, not that I want to run away from you throwing the
stones, but I have to inform you that I need to get back to my
end-of-semester assignments, lest I shall endure the wrath of my
teachers and mentor. Can’t resolve to be castigated on both
ends.
Cheers,

Mawaki


--- William Drake <drake at hei.unige.ch> 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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> ***********************************************************
> 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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