[governance] A few reflections on the Framework Convention

Mon Apr 23 14:25:12 EDT 2007

Dear all,

A very interesting discussion indeed  everything from political philosophy
to political invective!

Since Bertrand kindly provided a link to the summary of a presentation I
made at the Oxford Internet Institute a year ago on the theme of Where Now?
A Rough Guide to Internet Governance Post-WSIS, I thought it might be
helpful to provide the attached version of the presentation slides. It
includes detailed talking points, which may be helpful in understanding the
bullets.

Ive also attached a position paper prepared for a May 2005 OII forum on
The Struggle Over Internet Governance: Searching for Common Ground. It
proposes going in a similar direction to the one Jovan and Bertrand have
suggested  namely, towards an IG protocol modeled on the Internet itself.
Bill Dutton and Malcolm Peltus report of this event, entitled Connecting
the Pieces: The Emerging Internet Governance Mosaic, may also be of
interest  particularly the intriguing notion that IG is characterized by an
ecology of governance games. Its available in pdf at
http://www.oii.ox.ac.uk/research/publications.cfm.

Hope all of this helps feed this thought-provoking discussion!

Don MacLean

-----Original Message-----
From: Bertrand de La Chapelle [mailto:bdelachapelle at gmail.com] 
Sent: April 23, 2007 10:54 AM
To: governance at lists.cpsr.org; Jovan Kurbalija
Subject: Re: [governance] A few reflections on the Framework Convention

Dear all,

Following the discussion on the Framework Convention and recalling the
workshope in Athens on that subject, one of the problems people raise is the
term Convention - as it seems to imply a traditional intergovernmental
discussion and this runs contrary to the multi-stakeholder approach that has
been sanctionned by the WSIS in Tunis. In any case, there is no apparent
benefit in making the notion of a Convention a prerequisite for moving
forward : it is a perfectly legitimate option to formalize an Internet
Governance Framework, but one among many. Other terms may apply (Agreement,
MOU, Charter, Bill of rights, Covenant, etc...) and we could even create
one. 

On the other hand, the term framework is a nice general term, at least for
the time being, encompassing very different aspects of how Internet
Governance should be organized. It accomodates those who want highly
formalized or even centralized structures and those who would like a
distibuted system with simple rules.It basically deals with the Principles,
norms, rules and decision-making procedures for Internet Governance itself,
ie its institutional architecture. 

In that respect, one can argue that and Internet Governance Framework
already exists, defined by history, documents and practices, including
(without priority order) :

- the WSIS documents, including all their relevant paragraphs on Internet
Governance

- a few principles, norms and rules, sometimes implicit sometimes explicit
(as Don MacLean outlined in one of his presentations; see :
http://www.oii.ox.ac.uk/events/details.cfm?id=4 )

- the three main existing organizations : including ICANN, ITU and now the
new IGF, with their respective bylaws, mandates and charters)

- plus numerous other organizations dealing with Internet -related issues,
intergovernmental (WIPO, UNESCO) or not (IETF, W3C, etc...)

- decision-making procedures within each of those organizations, including
Policy Development Processes and various Process Documents ....

One of the key questions in that context is not the absence of a framework,
but how to improve it, including the coordination of the activities of
international and intergovernmental organizations concerned with Internet
Governance issues.   

Finally, as Wolfgang and I have often mentionned, 2010 is an interesting
time horizon, milestone or checkpoint, however you want to qualify it :

- the ICANN JPA will end in 2009  

- the ITU's next plenipotentiary is in 2010

- and the IGF will review its first five years

So the key question is not to design a new framework from scratch. It is
simply to examine the two following questions :

1) how the present framework should evolve in the coming years ?

2) how this architecture should be formalized (convention ? agreement ?
MoU(s) ? Protocol ? etc..) 

"The Internet Governance Framework in 2010" seems a natural and legitimate
topic for the IGF, as para 72i of its mandates requests that the IGF
"Promote and assess, on an ongoing basis, the embodiment of WSIS principles
in Internet governance processes." 

Maybe this is part of the way forward. Hope it helps. Nice discussion thread
anyway.

Best

Bertrand

On 4/23/07, Jovan Kurbalija <jovank at diplomacy.edu> wrote: 

Quite an interesting exchange on the Framework Convention! Sorry for posting
this message out of the discussion sync. Here are a few points. 

I share Bill's concern about using analogies with other regimes (mainly
climate change and tobacco). Analogies are usually tricky. They highlight
commonalities and hide differences. One useful logical exercise could be to 
make an "analogy map" showing both commonalities and differences. I won't
repeat commonalities which were already mentioned by John, Miltion, Lee and
others. Instead, I will mention a few differences or specificities of IG. 

1. What should the FC regulate?

The FC shares the destiny of the field it should regulate - Internet
Governance. It is difficult to define. Other framework conventions have a
clearly defined regulatory area (issue to be addressed). For example, the 
Climate Change FC does not regulate the environment in general. Article 2
clearly defines the single issue to be addressed:

".... stabilization of greenhouse gas concentrations in the atmosphere at a
level that would prevent dangerous anthropogenic interference with the
climate system....."

The framework convention approach is used for specific purposes - e.g. to
avoid controversial issues in the first iteration (building trust),  to 
allow more time to negotiate technically complex issues. The conventions are
not vague about the subject of negotiations. One could think about an FC on
spam or Internet infrastructure, but not on IG in general. It seems that the

main argument for the IG FC is driven by form/procedure, not by the issues
to be addressed. This was not the case with climate change and
tobacco/smoking conventions. One possible way to make a reality check is to 
draft the basic elements of the FC on IG (we can use a WIKI for drafting
purposes). Once faced with "paper" we can see if the FC will be "worth the
paper it is written on."

2. Is the FC on IG the only way to integrate IG into international public 
law (e.g. relations among countries)?

There is a wide spectrum of possible techniques apart from
treaties/conventions. Various "soft law" techniques have been extensively
discussed. Even in the realm of "hard law" one can argue that international 
customary rule guarantees national states rights over country domains. We
can find many examples to support the following two criterions for
establishing international customary rules:

- on-going practice (the re-delegation process has put many countries in 
charge of country domains);

- opinion iuris (awareness that practice is legally binding) can be
supported by one of the US-government principles from June 2005 (unilateral
declarations are a source of international law as well) as well as by the 
WSIS final documents.

What is the practical relevance of the international customary law? If a
country's right over country domain is infringed, the country can bring the
case to the International Court of Justice and prove the existence of the 
customary law rule. (In order not to oversimplify, I have to stress that the
establishment of the ICJ jurisdiction requires some pre-requisites -
country's readiness to accept ICJ's jurisdiction, etc.).

As a matter of fact, one can argue that one of the most controversial issue
of the IG debate - national control of country domain - has been already
settled (quietly, with necessary "face saving" mechanisms). Some UN 
declaration may help in reinforcing this customary rule, but the FC on IG
would be overkill.

3. Multistakeholderism

The major difference between negotiations regarding Internet Governance
(narrow definition) and other global negotiations, such as climate change 
negotiations, is that, while in other negotiations, inter-governmental
regimes gradually opened to non-governmental players, in Internet governance
negotiations, governments had to enter an already existing non-governmental,

ICANN-based regime. I am not sure that the FC can be the most suitable means
for reflecting this substantive difference.

There are other aspects. time and "ripeness" for negotiations which have 
been already discussed.

This is all for this iteration. I hope it will contribute to more informed
discussion. Best, Jovan

Bertrand de La Chapelle

Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint
Exupéry
("there is no better mission for humans than uniting humans") 

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