[governance] Can governmental powers be limited?

[John Mathiason]

I am afraid that if governments are foxes, they are already in charge  
of the henhouse.  The issue is not that (unless, as I said in an  
earlier e-mail, we can convince them to repeal the Treaty of  
Westphalia or invest some other institution with the task of ensuring  
order and justice in human transactions).  This responsibility for  
order which is one reason that the US Declaration of Independence  
stated "We hold these truths to be self-evident, that all men are  
created equal, that they are endowed by their Creator with certain  
unalienable Rights, that among these are Life, Liberty and the  
pursuit of Happiness. --That to secure these rights, Governments are  
instituted among Men, deriving their just powers from the consent of  
the governed..."

The issue, then, is what just powers should be exercised by  
governments regarding the Internet and how should the consent of the  
governed be reflected.  Here we have the dilemma that State behavior  
is essentially self-regulating and that States determine the rules.   
However, there is (and always has been, but clearly increasing in our  
era) influence on the rules agreed by non-State actors.  Some could  
argue that the strong role given to multi-stakeholder processes at  
WSIS was the most lasting result of that conference.  The debate  
around a Framework Convention turns on how and to what an extent  
States can agree on the self-limiting rules that will provide for an  
orderly, open and secure Internet.

We will certainly lay out these considerations, along with the points  
made by Milton, in our promised paper.

Regards,

John



On Apr 22, 2007, at 5:09 PM, Milton Mueller wrote:

> I've changed the heading.
>
>>>> avri at psg.com 04/22/07 4:32 PM >>>
>> i have heard this argued before but never understood it.
>> it is like saying that putting the fox in charge of the hens
>> will limit their power over the hens.  governments, those in
>> power, have always sought to expand their power over people
>> and have ever attempted to minimize the actual influence
>> of democracy.
>
> I recognize the risk of involving governments, but they are already
> involved, and becoming more so, so we have no choice about taking that
> risk.
>
> What you are saying is that no government has ever been constrained by
> law. Isn't that obviously false?
>
> Think of the First and Fourth Amendments to the U.S. Constitution, or
> the many examples of European privacy/data protection laws being  
> used to
> stop governmental actions. Recently another attempt to impose content
> regulation on the internet was struck down by the supreme court.  
> That is
> governmental power being used against itself; checks and balances.  
> Where
> did those constraints come from? They came from legally binding
> governmental agreements (laws).
>
> I think in the context of an international negotiation, one that  
> allows
> nonstate actors to participate directly, there is some chance of
> imposing direct, strategically placed limits on the possibility of  
> state
> intervention, and getting governments themselves to recognize and
> (usually) respect that limitation.
>
> Again, I am fully aware of the risks of such an approach. But please
> tell me, if we don't establish formal limits that governments  
> themselves
> agree to and ratify, how do YOU expect to constrain state  
> interventions?
> If you have a better way, I am totally open to it. Really; there's no
> "not invented here" syndrome, I just want the result.
>
>> within a FC, no matter what
>> contribution CS believes it can make, governments will be
>> the only ones allowed to negotiate and to decide.  i do not see how
> turning
>> over control of the IG to a deliberative body composed solely of
>> governments will have anything but a deleterious effect.
>>
>> when you write the paper on your proposal for a FC, please expand on
>> the IGP notion and explain why this could possibly be the case.
>
>
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