[governance] Enhanced Cooperation

Wolfgang Kleinwächter wolfgang.kleinwaechter at medienkomm.uni-halle.de
Wed Jan 10 06:21:14 EST 2007

Dear list,
my understanding and knowledge is that the UN SG has asked Nitin on March, 2, 2006 "to consult informally on how to start a process aimed at enhancing cooperation on international public policy issues related to the Internet." see: http://www.un.org/News/Press/docs/2006/sgsm10366.doc.htm
As a result of this formal invitation, Nitin had a series of bilateral consultations with group of governments in May 2006 in Geneva. The mandate for Nitin was restricted. He should "consult informally how to start a process". It was not his mandate to start the process itself. Insofar the mandate given by the WSIS to the UN SG and Nitin has been fulfilled. It should be clear that the relevant para. 71 says nothing more than: "The process towards enhanced cooperation, to be started by the UN Secretary-General, involving all relevant organizations by the end of the first quarter of 2006, will involve all stakeholders in their respective roles, will proceed as quickly as possible consistent with legal process, and will be responsive to innovation. Relevant organizations should commence a process towards enhanced cooperation involving all stakeholders, proceeding as quickly as possible and responsive to innovation. The same relevant organizations shall be requested to provide annual performance reports.". 
To take this litarelly, Kofi Annan and Nitin Desai did what they had to do. It is now upon the stakeholders to "proceed as quickly as possible consistent with legal process." 
Here the confusion starts. The other paragraph, para 69, singles out governments (without a special reference to the UN Secretary General) by recognizing "the need for enhanced cooperation in the future, to enable governments, on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet, but not in the day-to-day technical and operational matters, that do not impact on international public policy issues." 
My interpretation is that 69 defines "enhanced cooperation on a lower level" (among governments themselves as one stakeholder group) to enable governments to participate in the "enhanced cooperation on a higher level" (among all stakeholders groups) as defined in 71. In a certain way, 69 is restrictive. It says that governments should be enabled "to carry out their roles and responsibiliteis" which is further down interpreted as issues with an "impact on international public policy issues". Excluded are the "day-to-day technical and operational matters". 
The problem is that there is no definition what "the roles and responsibilities" of governments are. Helpful could be Para. 30 from the WGIG Report which says:
" The roles and responsibilities of Governments include:

        * Public policymaking and coordination and implementation, as appropriate, at the national level, and policy development and coordination at the regional and international levels.

        * Creating an enabling environment for information and communication technology (ICT) development.

        * Oversight functions.

        * Development and adoption of laws, regulations and standards.

        * Treaty-making.

        * Development of best practices.

        * Fostering capacity-building in and through ICTs.

        * Promoting research and development of technologies and standards.

        * Promoting access to ICT services.

        * Combating cybercrime.

        * Fostering international and regional cooperation.

        * Promoting the development of infrastructure and ICT applications.

        * Addressing general developmental issues.

        * Promoting multilingualism and cultural diversity.

                *              Dispute resolution and arbitration"
Very broad, very controversial, open for all kind of interpretation. But it is useful to compare Para. 30 of the WGIG report with the following Paras 31 and 32 which define in a similar broad and general (and controversial) way the roles and responsibilities of private sector and civil society. WGIG had no time to take the needed next step and to discuss a  formal mechanism for the interaction among the three stakeholders groups (on an equal footing based on the specific/respective roles and responsibilties). This highly needed "new quality of multistakeholder nework partnership"  is not yet discussed. Great opportunity for the IGF. But so far next to ICANN there is no pratical project in place. 
Another open question is how to define the borderline between the "day-to-day technical and operational matters" and "international public policy issues". Is the launch of new gTLDs a "technical issue" or is it a "international public policy issue". Are the switches to IPv6 or the introduction of iDNS "operational issues" or are they "public policies"? 
The formulation "to enable governments" could be interpreted as a call for a process to teach governments that they understand and finally define what their "respective roles and responsibilities" (within the defined limitations) are so that they can participate effectively in the process of "enhanced cooperation" on a broader level with the other stakeholders. Insofar to start a process within the GAC to enable the GAC to make better contributions to the broader process would be one step in a right direction, compatible with Para. 69. But it would be only part of governmental involvement, because Tunis accepted the WGIG proposal for a broad interpretation of Internet Govnernace that IG is much more than "names and numbers". 
All this has not yet cleared so far and no government has really started a process. I have also my doubts that governments understand fully what they decided in Tunis. The interpretation of EU Comissioner Reding, that para. 69 and the inter-governmental process is the "core" of everything and that all the the other processes, including the collobration among relevant organisations and the IGF, are more or less circles around the "core", is wrong. Neither 69 nor 71 creates a hierachie. 69 rejects a "hierarchie" among governments themselves, calling for an "equal footing". Para 71 creates a network of stakeholders which has to be included in "their respective roles and responsibilities". This says clearly that a. there are individual fields of responsibilities for each stakeholders and b. there is no sub-ordination of one stakeholder group under another staekholder group but diversified responsibilties which should complement each other (in a multilayer multiplayer mechanism of  communication, coordination and cooperation). . 
Insofar, 69 is nothing more than one element which "enables governments" to make a contribution into the broader process of "enhanced cooperation" which, accordingly to para 71 "will involve all stakeholders in their respective roles" and will be "responsive to innovation". 
BTW this additon "responsive to innovation" is important. It appears twice in 71. My interpretation from this part is that it should block public policies which can be seen as a barrier for innovation. Is it in accordance with the Tunis Commitment when African governments declare - in the "interest of public policy" - VOIP as illegal and surpress innovation for security or economic reasons? 
Para 71 raises another issue and points to a deficit: The second sentence says: "Relevant organizations should commence a process towards enhanced cooperation involving all stakeholders, proceeding as quickly as possible and responsive to innovation. The same relevant organizations shall be requested to provide annual performance reports.". 
Here are also a number of open questions: What are the "relevant organisations"? ICANN, ITU, NRO, IETF, UNESCO, ISOC, IGC....? Which organisation has "to commence" a process? Should this become a "network of organisations", something like a "Global Association of Relevant Internet Organisations Towards Enhanced Cooperation" (GARIOTEC)? And are all organisations obliged, as the text of this second sentence in para 71 says, to involve "all stakeholders"?    
My interpretation of the ITU resolution 102 is that the ITU has "commenced" this process, but does exclude some stakeholders. ICANN is more or less silent about this, waiting for "Godot" and hoping for the death of "enhanced cooperation". Others are confused. 
Next question: Who should "request" relevant organisations to "provide annual performance reports"? The US governments, in the new Joint Project Agreement (JPA), requests an annual report from ICANN. ITU Resolution 102 ask member states, the ITU Secretary General and the ITU Council to report on a regular basis. It remains to be seen who reports to whom what and who is collecting all these reports? Is there a central depositary? Could or should the IGF Secretariat become the place where all these reports are collected and put on the Website?  
Furthermore, the whole subject is even more complex and is indeed the most political hot potatoe because in Para 69, a four word insert, opens another "pandora box". The call for the process to "enable governments" to "carry out their roles and responsibilities" is linked to the obligation to do this "on an equal footing". This is aimed clearly against the US government which has a special position with regard to the authorization of the publication of TLD Zone Files in the Root and with regard to oversight over the Hidden Server based on the IANA contract and the contracts with VeriSign as the operator of the Hidden Server. This is not "equal footing". 
My interpretation of the US interpretation is that the US government sees its role and function as part of the "day-to-day technical and operational matters" which does not involve inernational public policy issues. Other governments, including the EU, argue that the authorization and oversight function is a public policy issue. 
So what? What has changed since Bangemann and Daley agreed on basic issues in September 1998? Read the EU intervention from February 1998 to the DOC and Magaziner´s reply during a Hearing in the US Congress in March 1998 and the exchange of letters between Daley and Bangemann and you can be sure that 
a. the issue will not walk away and
b. there is stuff for another "Internet Summitt" after a round of five IGFs in 2011.
This is part of the global power struggle. And this will continue. But the interesting new dimension is that is not only a power struggle among governments - as we know from history - this is now also a power struggle among stakeholders. And this is new. And this is the future. Great challenge for GIGANET.  
Best regards
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