[governance] Shared Decision Making Procedures

[Milton L Mueller]

From: Bertrand de La Chapelle [mailto:bdelachapelle at gmail.com]

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.

MM:
Bertrand.
First, I forgive you for creating a new acronym that vies for recognition as one of the world's ugliest: IIRPPI.

Now, I cannot go along with these kinds of verbal games as a guide to what governments intended or, more importantly, what governments actually believe and try to enact. It is just wishful thinking.

As a matter of linguistic interpretation, your argument rests on very shaky ground. The basic subject of the sentence is the term "policy authority." Not "domestic" or "international" policy authority, just "policy authority." The term "Internet-related public policy issues" could easily be read to mean ALL internet-related public policy issues, both domestic and international. There is a bald assertion that "policy authority for IRPPI is the sovereign right of states." Not domestic IRPPI, just IRPPI.  Therefore your idea (and this is the first time I have ever heard that interpretation) that the first sentence applies to domestic and the second to international is very _creative_ shall we say. But not convincing. At all.

Further, we have tons of other contexts in which to interpret the claim of "policy authority" or the idea that "public policy" is the exclusive domain of states. Let's take, for starters, ICANN's own bylaws.

Section 2.1.a. of Article XI says

a.       The Governmental Advisory Committee should consider and provide advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN's policies and various laws and international agreements or where they may affect public policy issues.

Note that this section specifically mentions "laws, international agreements or....public policy issues." In other words, PP is distinct from law and international agreements and there is no distinction in GAC's mandate between domestic and international; indeed, since everything ICANN does is de facto global, the concept of "public policy" in its bylaws MUST apply to international or global pp.

And you know as well as I that in the ICANN context GAC's trump card is the PP word. All they have to do is claim that something is PP and they get to claim authority over the final outcome. At which point GAC becomes nothing more than an intergovernmental organization that dictates PP - only it is, in fact, far worse than any IGO because it is governed by no law, subject to no treaty ratification process, and can make decisions that violate the constitutions of specific countries while giving citizens of those countries no legal recourse.

And how about this WCIT resolution - unsuccessful, to be sure, but reflecting what the sovereigntist states really think and believe. There was a motion in Dubai to add the following phrase to the International Telecommunication Regulations:

"3A.3 Member states shall have the sovereign right to establish and implement public policy, including international policy, on matters of Internet governance...."

Our point of disagreement does not seem to be substantive, in that we would both like to clear a space for new, more open, non-governmental policy making institutions. Where we disagree - and it is an important disagreement - is that you seem to think we have already succeeded in transcending the sovereigntist mindset, and I do not.

I think we are still deeply engaged in a major long term struggle over that principle. We need to explicitly recognize that we are in that struggle and not twist the words of the TA to make it seem as if we have already won. I also think that we are in danger of losing that battle because a very large segment of the people trying to move away from the governmental paradigm are not thinking clearly about it. They are relying on flawed, wrong statements of principle such as the Tunis Agenda or, worse, mouthing platitudes about "The Multistakeholder Model" when there is no single, well-defined MuSH model and the issue of whether MuSH gives states exclusive authority over "public policy" making and confines other SH to "their respective roles" is still a topic of intense debate.

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.

Here we are in violent agreement - although I would not even give states the status of a separate house in a bi-cameral political structure. States do not have rights but are merely delegates of individuals - would you propose also a "corporation house"? I think individuals who happen to work for governments can and should participate on the same basis as everyone else. As in, e.g., the IETF.

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".

Yes, networks focused on specific issues.

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.

Agreed.

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