[governance] Shared Decision Making Procedures

Mon Apr 1 10:11:27 EDT 2013

Dear all,

Three elements in this ongoing debate:

*On para 35a of the Tunis Agenda and the rights and responsibilities of
States:*

As we all know, this famous paragraph says:

*Policy authority for Internet-related public policy issues is the
sovereign right of States. They have rights and responsibilities for
international Internet-related public policy issues. (aka IRPPI)*

There are two sentences here. Not just one, but two sentences. And this has
to be meaningful.

The paragraph could easily have read : "Policy authority for national and
international Internet-related public policy issues is the sovereign right
of states". That would have closed the debate and left no room for
interpretation. But this is not what is written.

The only way to understand the existence of two sentences is that the
rights and responsibilities of States are different at the national and the
international levels.

At the national level, the traditional territorial sovereignty paradigm
applies. It is the first sentence. and there is nothing new there.

But the second sentence says "(States) have rights and responsibilities for
international IRPPI". This introduces two important notions:

   - "*States have rights*" rightly affirms that they must be part of
   discussions regarding international IRPPI (contrary to J.P. Barlow's vision
   in his Declaration of the Independence of Cyberspace), but it does not say
   they have "policy authority" as in the first sentence;
   - "*States have responsibilities*" is an even more interesting wording;
   it introduces a notion of balance vis-à-vis the rights (that could include
   for instance the responsibility to establish proper frameworks for the
   development of the Internet and the protection of their citizens'privacy or
   freedom of expression); but it also points towards the particular
    responsibility that States must accept for the trans-boundary impact of
   their national decisions (cf. the 2011 recommendation of the Council of
   Europe in that regard).

The second sentence is therefore very far from meaning that States and
States alone are fully responsible for the development of International
Internet-related public policy, whatever some countries try to argue.

In a nutshell, the global public interest is not the mere aggregation of
national interests; national governments are very legitimate
*local*authorities but at best, assemblies of government
representatives are, at
the global level, the equivalent of a Senate in bi-cameral parliamentary
systems; for a truly democratic international system, a more direct
involvement of citizens at the global level is necessary (and it is made
possible by the development of communication tools and transportation);
their respective governments cannot keep the monopoly of representation of
their interests.

The challenge today is to refine the mechanisms that allow to manage shared
international resources and cross-border online spaces, not to reimpose a
rigid separation of westphalian sovereignties and the exclusive
responsibility of diplomats to define global governance regimes.

*On "their respective roles"*

In repetitive statements in the IGF, I have indicated that these
"respective roles" are not set once and for all. The respective roles of
the different categories of stakeholders vary according to the issues, the
venue where they are discussed and the stage of the discussion.

Considering that all internet-related issues should be dealt within a
single international organization can only lead to a sterile and protracted
competition between potential candidate institutions and no solution to
concrete challenges.

The only viable approach is rather to build on the concept of distributed
governance frameworks, and build issue-based governance networks,
associating in a transparent and accountable manner the "relevant
stakeholders".

What those frameworks are, what form their establishment takes (Mutual
Affirmation of Commitments?), how the "relevant stakeholders" are
determined, how the decision-making procedures function, etc... are the
real and very exciting challenges.

The invention of the printing press triggered our current institutional
infrastructure: the westphalian system of separate sovereignties and
representative democracy. The Internet will no doubt have as strong a
political impact, as it forces us all to define the tools to enable
cohabitation of several billions of people in shared online spaces.

*On the "equal footing" in paragraph 69*

The famous paragraph 69 reads:

*"We further recognize 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."*

This paragraph clearly deals with two complementary dimensions:

1) Equal footing among States. This is the clearest and most explicit
meaning, reaffirming the equality of States that is the supposed foundation
of the international system. As the discussions during WSIS clearly showed,
this was intended to address the singular role of the United States
administration in the management of the domain name system (ICANN JPA and
IANA contracts). Irrespective of the changes introduced by the Affirmation
of Commitments (AoC) and the possible future evolutions of the IANA
framework, this part does not require specific interpretation. As a matter
of example, governments inside the GAC are on a equal footing.

2) Equal footing vis-à-vis other stakeholders. This is the most ambiguous
part and the subject of most of the discussions in the years since Tunis.
It clearly must be interpreted in the light of the other paragraphs.
However, the recent workshops and sessions held during the IGF in Baku and
the WSIS+10 meeting in Paris have shown a desire by most players to move
beyond sterile reiteration of divergent interpretations and explore how
multi-stakeholder cooperations can develop to concretely address pressing
issues. This is encouraging and we must hope that the format of the CSTD
Chair's Working Group on Enhanced cooperation will allow participants to
explore pragmatic solutions to form the issue-based governance networks
mentioned above.

___________

During the last few months, three conferences (IGF, WCIT, WSIS+10) have
helped clarify the landscape:

   - the existing Internet institutional ecosystem (RIRs, standards bodies
   like IETF or W3C, ICANN, etc...) is dealing in a distributed manner with
   the governance OF the Internet, but does not (and should not) provide a
   venue for issues related to the governance ON the Internet (privacy,
   freedom of expression, copyright, security, etc...)
   - management of these issues cannot easily be done through the
   reimposition of separated national sovereignties on a fundamentally
   cross-border infrastructure that produces shared spaces

These recent discussions show that there is a promising middle way
 emerging between a rigid defense of an insufficient status quo and the
perspective of a Digital Cold War:   the development of "*multi-stakeholder
enhanced cooperations*", to take the expression coined by the finnish
delegation in Paris.

Best

Bertrand

On Sun, Mar 31, 2013 at 10:03 AM, "Kleinwächter, Wolfgang" <
wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:

> Thanks Milton for moving the debate from the composition of the WG to the
> substance of enhanced cooperation.
>
> Two comments here:
>
> 1. we should not mix ITU with the UNCSTD WG on Enhanced Cooperation. You
> are right both ITU and some UN member states have their own interpretation
> from the Tunis Agenda (TA). But this are two different processes and it
> should remain separat.
>
> 2. Be reading the Tunis Agenda you have to put para. 35 a into the context
> of para. 34. 35a reads: "a)  Policy authority for Internet-related public
> policy issues is the sovereign right of States. They have rights and
> responsibilities for international Internet-related public policy issues."
> This comes from the Geneva Declaration from 2003. But based on the Geneva
> language, WGIG started its work in 2004 and delivered the wanted definition
> in 2005 which includes not only the language of the "respective roles" but
> adds that this roles has to played out on the basis of "shared principles,
> norms, rules, decision-making procedures, and programmes that shape the
> evolution and use of the Internet."
>
> My interpretation is that governments, if they execute their respective
> role and developing Internet related public policies, according to para. 34
> have to "share their decision making capacity" with the other stakeholders.
> With other words, Tunis went one step beyond Geneva and linked to sovereign
> rights of states to a procedure of sharing decision making with other
> stakeholders. In my eyes, this was the real substantial innovation in
> Tunis. What I have seen from arguments in Dubai, when the IG resolution
> became the subject of a controversy, was that some ITU member states
> (representing the same governments who will be also represented in the
> UNCSTD WG) try to play this game to put Geneva against Tunis by ignoring
> the progress which was reached via the WGIG.
>
> Additionally para. 37 is important in this context. It says "We seek to
> improve the coordination of the activities of international and
> intergovernmental organizations and other institutions concerned with
> Internet governance and the exchange of information among themselves. A
> multi-stakeholder approach should be adopted, as far as possible, at all
> levels." This is certainly an invitation to enhance cooperation among ITU
> and ICANN on an equal footing in their respective roles avoiding the
> duplication of mandates by enhancing communication, coordination and
> collaboration (the famous Meissen EC³). The ITU included in a footnote (for
> the first time in its history) in Resolution 102, 103 and 133 at its
> Plenipotentiary Conference in Guadalajara (2010) which expressed the wish
> for collaboration. But nothing practical came out. However, after Hammadoun
> and Fadi had breakfest in Baku (November 2012) and Dinner in Davos (January
> 2013) and the ITU invited Fadi to speak in Dubai and UNESCO invited Fadi to
> speak in Paris, the climate among the two leaders has moved beyond the
> frosty relationship between Toure and Beckstroem. This does not yet mean
> that we can reach progress quickly. The ITU and Mr. Toure is in the hands
> of the member states (as Fadi is in the hands of the constituencies).
> Insofar both the UNCSTD WG as well as the WTPF will be interesting
> indicators whether we can move forward with "shared decision making
> procedures" among stakeholders.
>
> My impression is that governments did not realize in Tunis what they
> signed when they accepted the definition in para. 34. To be frank, 34
> contradicts 35 fundamentally and it is the challenge now to find out, what
> "sharing" means when it comes to the execution of "sovereign rights and
> responsibilties of states" (will we see the emergence of a concept of
> shared or collaborative sovereignty?) and how this can be further enhanced
> on a collaborative basis with all stakeholders and put into a precedural
> framework. Insofar, the new Ad Hoc IGF Working Group on Internet Governance
> Principles will become another challenging playing ground.
>
> Wolfgang
>
> ________________________________
>
> Von: governance-request at lists.igcaucus.org im Auftrag von Milton L Mueller
> Gesendet: So 31.03.2013 05:28
> An: governance at lists.igcaucus.org; Avri Doria
> Betreff: RE: [governance] Fwd: Final composition of the CSTD Working Group
> on Enhanced Cooperation
>
>
>
> Avri
>
>
>
>
>
> As for the CSTD WG EC itself, as one of those who was honored with the
> choice, what is it this group thinks is important?  I would really like to
> hear what it is this group thinks needs to be done?
>
> [Milton L Mueller] Thanks for posing a useful and constructive question in
> this thread. I will elaborate my thoughts in greater detail in an upcoming
> blog post analyzing the ITU-SG report for the WTPF. But in a nutshell, I am
> concerned about the extent to which ITU and certain other advocates of
> "Enhanced Cooperation" (EC) are emphasizing the definition of
> "multi-stakeholderism" (MuSH) that emerged from the WSIS - i.e., the
> definition that reserves policy making authority to sovereigns and
> relegates the rest of to "our respective roles."
>
> While I recognize that these people have the wording of the Tunis Agenda
> on their side, the TA was in fact a document negotiated by and for states,
> without civil society or the private sector's full and equal participation,
> or consent, and thus imho it has no binding authority on the rest of us.
> Someone needs to uphold a more consistent and new-polity approach to MuSH
> which emphasizes the legitimacy and authority of new internet institutions
> to develop 'public policy', and someone needs to explain to states that
> their monopoly on "public policy" development in their own jurisdictions
> does not automatically translate into the same powers transnationally.
> Unless we take a firmer stand on this, I fear that Internet institutions
> such as the RIRs or ICANN will see it as being in their interests to strike
> an accommodation with sovereigns to give them veto powers or other forms of
> arbitrary intervention in putatively bottom-up policy processes (much as
> ICANN is already doing).
>
> That's for starters...;-)
>
> Insofar as EC is still about US control of the root - I do think that's
> still important, and should not be swept under the rug. As you probably
> know, I still believe that the answer is not "inter"nationalization but
> de-nationalization.
>
>
>
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-- 
____________________
Bertrand de La Chapelle
Internet & Jurisdiction Project Director, International Diplomatic Academy (
www.internetjurisdiction.net)
Member, ICANN Board of Directors
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 greater mission for humans than uniting humans")
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