[governance] Shared Decision Making Procedures

Tue Apr 16 14:44:49 EDT 2013

Where I think Bertrand has a point in his hermeneutic exercise ;) of para
35a of the Tunis Agenda, is that in the context of nation-states there is
no such thing as "international sovereignty" unless this is meant to refer
to the international recognition of a state's sovereignty (or maybe by a
recognized formal mechanism to delegate national sovereignty to a
supranational body.) The fact is, such mechanism does not exist in the case
of the GAC, nor did WSIS set up that kind of body. Therefore we can
reasonably presume that whenever state sovereignty is claimed in this
context, it is being claimed over national jurisdiction (in other words,
domestic policy may legitimately be presumed or inferred from the mere
reference to "sovereignty" in that first sentence of para 35a.) Now,
accepting this to be true does not prevent any government from pursuing
their wildest dreams to gain or claim soverignty over international public
policy matters (which quickly leads to contradictions and conflicts that
precisely defeat the purposes of the Westphalian concept.) While such claim
may be considered as clear evidence of the objective of those particular
governments, I fail to see why it should be considered as evidence of our
understanding of a globally negotiated text being wrong.

This is the same basis for why the GAC advice to ICANN is not sovereign, no
matter how hard GAC members would like to pretend it is --and irrespective
of their sovereignty wrt to their national laws and domestic PP. In other
words, GAC members can object to ICANN's policies if they contradict, eg,
existing national laws and they are meant to apply over entities that are
legally responsive to that state or to interfere with the enforcement of
national legal provisions (*), but they can't or certainly shouldn't be
able to use ICANN processes to claim and exercise such sovreignty in
international public policy.

I do not think however that anyone in their right mind here believes this
battle won, and that we are happily living in a harmonious post-sovereignty
era of international politics and public policy. Didn't we just fight hard
to be included as CS in one of those processes, last December?

Now, the good news (as we all seem to recognize) is that we do not need to
all agree on a textual interpretation of TA before we can move forward in
various fashions of cooperation.

Best,

Mawaki

(*) Even in that case, ICANN Board may not take such objection into account
in the final decision, but I believe they then have to explain why... if
I'm not mistaken.

On Tue, Apr 16, 2013 at 4:59 PM, Diego Rafael Canabarro <
diegocanabarro at gmail.com> wrote:

> This thread is very enlightening. But, Bertrand, I would like to ask you
> for one clarification over the following statement: "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. "
>
> How should one deal with the fact that the "definition of global
> governance regimes" is, itself, an integral part of public policy making
> within national jurisdictions as well?
>
> Regards
> Diego
>
>
>
> On Wed, Apr 3, 2013 at 3:52 PM, Milton L Mueller <mueller at syr.edu> wrote:
>
>>  ** **
>>
>> ** **
>>
>> *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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>
>
> --
> Diego R. Canabarro
> http://lattes.cnpq.br/4980585945314597
>
> --
> diego.canabarro [at] ufrgs.br
> diego [at] pubpol.umass.edu
> MSN: diegocanabarro [at] gmail.com
> Skype: diegocanabarro
> Cell # +55-51-9244-3425 (Brasil) / +1-413-362-0133 (USA)
> --
>
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