|Multi-Stakeholder Public Policy Governance and its Application to the Internet Governance Forum|
As described above, the IGF’s role of coordination includes the process of establishing how and by whom the objectives that were determined during the policy-setting phase should be pursued. For example, this may involve the IGF forwarding its recommendations to appropriate other bodies to be implemented through some other mechanism of governance such as rules, when they cannot be effectively implemented through the political and moral force of the IGF’s self-developed norms.
If the IGF’s independent policy-setting role has been controversial, then its coordination role has been accepted much more readily. For example, the opening remarks of the UN Secretary-General that were transmitted to the Athens meeting noted that “while the Forum is not designed to take decisions, it can identify issues that need to be tackled through formal intergovernmental processes.”
Apart from intergovernmental organisations, the IGF also has a role to play in coordinating with non-governmental actors; most notably the other specialised Internet governance institutions that preceded the IGF. Although only ICANN and the RIRs are referred to in the Tunis Agenda in this regard (and then only obliquely rather than by name), other notable organisations in this category are those involved in the standards development sphere, which has been largely isolated from any public policy oversight to date.
The role of coordination is also broader than the making of recommendations, particularly in that the Tunis Agenda makes it clear that the process is to be two-way; speaking of it in terms of “discourse between bodies,” “engagement,” and the need to “interface” and “exchange.” Thus in appropriate cases, just as the IGF can forward its output to other organisations, so other organisations can provide material to the IGF as an impetus for or an input into multi-stakeholder deliberation. For example, the OECD could submit its Anti-Spam Toolkit for multi-stakeholder endorsement by the IGF (which in fact it did, in a sense, by submitting it as a contribution to the Athens meeting).
Whether the IGF makes a recommendation to another body on its own initiative, or in response to input submitted by that body, the case where only one such other body is involved will be discussed under the heading of subsidiarity below, because in both cases the purpose of coordination between the two organisations is to ensure that the relevant governance roles (such as that of policy-setting and rule-making) are taken at the most appropriate level.
A slightly more complex case is that in which the implementation of policy requires several stakeholders to engage in coordinated collective action. Since the stakeholders participating in such a programme thereby form a governance network in their own right, this case will be discussed below under the heading of network building.
It is also useful to distinguish a third aspect to the role of coordination, though it is inherent in the other two. It was determined above that there is no reason why the IGF should be precluded from making recommendations in any issue area of Internet governance not already inhabited by an existing body of comparable democratic design and multi-stakeholder composition. However, the analysis of forty other organisations earlier in this chapter suggests that that proviso is likely to apply to few other organisations. This leaves the IGF at the centre of a network of other actors that make up the Internet governance regime, most of which lack the IGF’s legitimacy in dealing with public policy issues.
Does this mean that these other organisations present no limitation upon the IGF’s legitimate policy-setting role? If so, how can this be reconciled with the political reality of those organisations’ existence and claims of authority? These vexed questions will be discussed under the heading of meta-governance below.
The principle of subsidiarity reflects the facts that governance incorporates a number of distinct roles, including those of policy-setting, audit, arbitration, coordination and regulation that were used to categorise the organisations short-listed earlier in this chapter, and that different organisations may be more effective in performing certain of these roles than others.
This understanding is inherent in the Tunis Agenda’s constitution of the IGF as “a neutral, non-duplicative and non-binding process” that is to “have no involvement in day-to-day or technical operations of the Internet.” It also underlies the definition of the separate roles of stakeholders in the Geneva Principles.
This principle of subsidiarity will thus be engaged by recommendations of the IGF whenever another organisation can legitimately exercise one or more of the governance roles associated with the implementation of that recommendation more effectively than the IGF alone, either because it operates using another mechanism of governance (such as rules), in another sphere of governance (such as standards development), or at another level of governance (such as the domestic level).
This will likely be so in all cases other than those where norms alone are a sufficient mechanism for the implementation of the recommendation, and where no other organisation is legitimately involved in the development or promulgation of norms in that issue area.
As well as being a key principle of transnational democracy, EU law, and indeed the very concept of federalism, the principle of subsidiarity has also long been evident in Internet governance. Although decentralisation is the more general value around which the Internet architecture was designed, where hierarchy is found on the Internet, it tends to be qualified by subsidiarity. For example, in the sphere of technical coordination it is inherent in the structure of the DNS system, whereby each level of a domain name is separately administered. Similarly in standards development it has been observed that the IETF formally abnegated responsibility for the development of standards for the World Wide Web in favour of a more specialised body, the W3C.
The principle applies in a similar manner to the public policy sphere of governance inhabited by the IGF. Thus in simple cases, where the IGF’s recommendations require application at a level of governance beyond its competence (such as rules), and where there is only one legitimate body exercising authority at that level of governance in the issue area in question (such as ICANN or WIPO), the effect of the IGF’s mandate is that it should make recommendations to that body so that it in turn can take the appropriate further action. This is how WGIG foresaw the IGF’s role, with one of its members recording the view that:
In the event that an issue may currently be addressed to an established entity, this fact shall not preclude the forum from discussing the issue in question and passing recommendations to the competent responsible entity.
Even in cases where there is no existing body to take the IGF’s recommendations forward, for the IGF to call for action to be taken at an intergovernmental level can still be seen as exercising a coordinating role in accordance with the principle of subsidiarity. Thus WGIG expected that the IGF “may also invite—or recommend that the United Nations invites—member states to discuss a certain issue in an official capacity, or via a vote in the United Nations General Assembly.”
There are, of course, cases in which the application of the principle of subsidiarity raises greater practical difficulties than acknowledged above. These include the case in which there is more than one relevant existing body to which the IGF’s recommendations might be addressed, and that in which the other existing body and the IGF both purport to exercise policy-setting authority in the same issue area. The first of those cases will be dealt with next, and the second under the following heading of meta-governance.
Where the effective governance of a particular issue requires the collaboration of multiple bodies, coordination between them requires more than the unilateral process of transmitting a recommendation or the bilateral process of dialogue; it requires multilateral interaction between stakeholders such as is only possible within a governance network incorporating deliberative democratic or consensual processes.
Since the IGF is (let us continue to assume for now) such a network, and is open to all stakeholders, the ideal case would be for all such bodies to participate in the processes by which the IGF builds consensus upon the issues to be addressed and the means by which they are to be addressed. However, without preempting the discussion on the IGF’s structure or processes, if this entails participation in plenary meetings, the overhead involved in developing the norms of trust and cooperation that a diverse plenary group requires to function may deter some stakeholders from participating. Thus the very open and consensual nature of the IGF may work against its effectiveness.
A possible solution to this is for the IGF to act in the coordinating role of facilitating the decentralised collective action of its members, through their own, self-organised smaller networks. Its particular mandate to do this is found in the call to “[f]acilitate discourse between bodies dealing with different cross-cutting international public policies regarding the Internet.” This is also the model of the GKP, whose motto is “Sharing Knowledge, Building Partnerships,” and which has facilitated the formation of a number of smaller global and regional multi-stakeholder networks.
Another example of an Internet governance issue around which which a smaller multi-stakeholder network has come together is that of private sector involvement in governmental Internet filtering and surveillance. The IGF’s contribution to debate on this issue occurred during the Openness panel in Athens, when panelists Fred Tipson from Microsoft and Art Reilly from Cisco Systems, and from the floor, Vinton Cerf of Google, were interrogated over their companies’ participation in Internet content regulation in China.
Assuming that the IGF had the structural and procedural capacity to deliberate on public policy issues of any kind, the polarisation of the debate in Athens demonstrated that this particular issue would likely be a very difficult one to begin with. Absent a strong culture of trust, equality and cooperation to provide a bedrock for deliberation, the likelihood of a consensus position being developed on it within the plenary forum could only have been described as remote.
Thus the Athens meeting ended without any attempt having been made at conciliation of the opposing views on this issue, let alone deliberation upon how they might be balanced in, say, a code of conduct on private sector involvement in national Internet regulation. And yet, less than three months later, it was announced that Microsoft, Google and Yahoo were amongst the members of a new multi-stakeholder network that aimed to produce just such a code. Bringing together an academic initiative, the work of private sector group Business for Social Responsibility and that of civil society’s Centre for Democracy and Technology, the network has no affiliation with the IGF.
If more focused networks such as this can be formed in particular issue areas without reference to the IGF, does this make the latter superfluous? Certainly this was the view of the ITU prior to the IGF’s formation, with the Director of its TSB, Houlin Zhao, stating in 2005 that “if ICANN, ITU, UNESCO and WIPO see each other as complementary and try to work together, we don’t need to have a special agency.”
However, whilst there is nothing to prevent any stakeholders from forming their own networks, the IGF will retain a legitimate role in receiving and deliberating upon the output of any such networks that do not fulfil the same criteria of multi-stakeholder composition and democratic process as the IGF itself. This includes the (yet-unnamed) network described above, which apart from having no Chinese members, contains no governmental representatives either (other than a Special Representative to the UN Secretary-General).
The appropriate role for the IGF, then, in order to balance the flexibility and effectiveness of smaller networks with the legitimacy of a larger and more open group, is to foster the formation of networks between its members, but also to ensure that their output is subjected to multi-stakeholder deliberation, both within those smaller networks if possible, and finally within the IGF at large. One possible framework within which for this to be accomplished is through the IGF’s dynamic coalitions, as will be discussed below.
It has been concluded that the legitimacy of the IGF’s policy-setting role flows (or rather, should flow) from its multi-stakeholder structure and democratic processes. Many of the organisations and networks it must coordinate its activities with do not share those virtues, yet assume a role preeminent to that of the IGF. How is the IGF to relate to these other bodies and reconcile their governance programmes with its own?
Two possible answers to this question can be dismissed in short order. The first is that the claims of other institutions with lesser legitimacy than the IGF to exercise authority in Internet governance should be denied, and that the IGF should purport to act as the sole legitimate policy-setting body for the regime. This answer fails on three counts. First, it contradicts the Tunis Agenda, which prohibits the IGF from duplicating the work of any existing body. Second, were the IGF to make such an audacious claim, it could no longer expect the impugned institutions to continue to participate in the network. The third reason, which underlies the others, is that even in the new medieval age, formal authority still matters.
To elucidate, the IGF is a microcosm of the mythical greater public sphere in which democratic deliberation takes place. This public sphere does not take decisions on its own account, but must be linked with formal decision-making bodies such as parliaments and courts. So it is too with the IGF, whose role it is to coordinate with bodies holding formal authority, such as domestic governments and international organisations, not in order to usurp their function, but in order to elevate them to greater levels of democratic legitimacy. Therefore they cannot be regarded merely as functional appendages to implement or enforce the IGF’s recommendations, but rather as the formal policy-setting authorities that can give force to those recommendations in the international system.
To give an example, the IGF might seek that its recommendations in a particular issue area—say on the Internet Bill of Rights, to return to an earlier hypothetical case—be given force in the international system. In order for this to be achieved, it could petition the General Assembly to resolve that a new treaty or convention on this topic be drafted. States would, as always, formally take the leading role in this process, but there is no reason why they could not utilise a document prepared by the IGF as their first draft; indeed, they would have every reason to do so if they participated in the process by which it was prepared within the IGF. The IGF could also be consulted during the intergovernmental negotiation process (much as, imperfectly, civil society was consulted during the WSIS negotiations), with the result that the final treaty, although de jure intergovernmental, would de facto be a document of multi-stakeholder ownership.
Lest this example be thought far-fetched, it closely describes the process by which the Mine Ban Treaty, and more recently the Disability Convention, were prepared largely at the initiation and with the integral involvement of civil society.
If the first possible response of the IGF to the involvement of less legitimate bodies in Internet governance was to oppose their claims, and this response has been rejected, then the second and contrary response is to yield to those claims, and thereby for the IGF to allow its own recommendations to be accorded only the weight that other institutions would accord them. In this case, if WIPO should insist that it remain the sole venue for policy-setting in relation to intellectual property issues, and the WTO the only proper forum in which for the development of international trade policy, then the result would be the IGF’s recommendations carrying little if any weight within those bodies.
This response is also clearly problematic, for two reasons. First, along the continuum between decision-shaping and decision-taking, whilst the IGF is not to act as a decision-taker in place of existing governance bodies that exercise that role, neither can it be relegated to the position of just another stakeholder submitting input into higher-level policy-setting processes.
To do so would be to deny the individual autonomy of its participants who have delegated to the IGF the function of expressing their collective interests. This makes its recommendations more than the expression of individual preferences such as would be received as input into a “participatory democracy-style” open consultation, and having a purely advisory status, but rather the culmination of a policy development process that is democratically legitimate in its own right.
Second, it would significantly weaken the IGF’s policy-setting role if its capacity to make recommendations and have them implemented were left to the whim of other bodies without regard to those bodies’ legitimacy. Although the IGF is directed to be non-duplicative in its operation, this cannot be taken to be merely a reference to duplication of the substantive issues being addressed, but also that of the procedures by which they are addressed. Where the IGF’s recommendations are developed through multi-stakeholder, democratic deliberation and those of another body addressing the same issues are developed through a less inclusive and legitimate process, it is not accurate to describe the IGF’s activities as duplicative.
So if the IGF is not to reject the parallel claims of authority of less legitimate organisations, but nor to automatically accede to them, what is the IGF’s responsibility when faced with a clash between existing bodies’ authority and its own? The Tunis Agenda suggests the answer. It states that the IGF is to “[p]romote and assess, on an ongoing basis, the embodiment of WSIS principles in Internet governance processes.”
This means that in interfacing with “appropriate inter-governmental organizations and other institutions on matters under their purview,” the IGF is to assess the extent to which they satisfy the WSIS process criteria that “international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations.”
The result of this assessment will then inform the IGF’s relationship with these other organisations. If an external body adequately fulfils the WSIS process criteria in its own right, then in order to remain non-duplicative, the IGF’s role will be narrower than in the case of a body that does not fulfil those principles. In the latter case, the IGF’s role of coordinating with that body will require it to provide an overarching multi-stakeholder democratic framework by which to augment the body’s structures and processes so that the WSIS principles are fulfilled for that issue area within the governance regime as a whole. An implication of this is that the IGF is not precluded from participating in any area of Internet-related public policy unless the body by which such issues are already being dealt with is adequately democratic and multi-stakeholder in composition, such that the IGF’s involvement would be redundant.
Interestingly, much the same concept was raised during the plenary session on security of the Athens meeting of the IGF, in which the moderator Ken Cukier asked the panel whether the IGF had a role to play in putting forward technical standards designed to address public policy issues, into bodies such as the IETF. Gus Hosein of the London School of Economics was amongst those who responded that there was a legitimate role for the IGF here, but that it was at the level of establishing general principles that standards bodies and other organisations of Internet governance could take into consideration in their work, rather than in assuming responsibility for that work directly.
Of course, the IGF has no authority to enforce its assessment of another body’s compliance with the WSIS process criteria, but that is where its mandate to “promote” those principles comes in. One way in which to do so is for the IGF to hold bodies that do not adequately fulfil the process criteria accountable for their implementation of the IGF’s recommendations through a public follow-up process. Another is to discuss the structure and processes of other Internet governance organisations and to make recommendations for their reform. This could be done through the open forum sessions that made their debut at the Rio meeting, if these were appropriately facilitated to achieve this end.
Thus the meta-governance role of the IGF is to promote, assess and where necessary provide, a common standard of governance for interconnected governance organisations, analogous to the common TCP/IP protocols by which Internet hosts are interconnected. This is a programme that would fulfil the transnational democratic ideal at its most ambitious: to extend the principles of democracy on a transnational basis across all applicable levels of governance.
It is also, inevitably, a highly charged political process, and therefore one that the IGF has perhaps naturally been slow to embrace. For example, although ICANN purports to be a democratic and multi-stakeholder forum in its own right, because it is not yet adequately democratic according to the reckoning of this thesis, there remains a legitimate role for the IGF in setting policy for the management of critical Internet resources. Yet this is clearly not a role that ICANN will be inclined to accept, nor that the IGF has yet sought.
As contentious as the process will be, the appropriate way forward is for the extent of the IGF’s role in setting policy for critical Internet resource management, and other grey areas of the IGF’s mandate such as the divide between public policy and technical issues in this area, to be discussed between ICANN and the stakeholders of the IGF in an agenda-setting process that is itself conducted on a democratic, multi-stakeholder basis.
Though in cases where policy-setting authority is shared with another body, the two phases overlap: see Section 22.214.171.124.
Unfortunately this fell rather flat, as the IGF had not developed the procedures necessary for it to deliberate upon or respond to the input.
See Section 126.96.36.199.
Some may also be more legitimate than others; a question to be dealt with at Section 188.8.131.52.
WSIS, Tunis Agenda for the Information Society (2005), paras 63 and 77.
Although rather than focusing on which organisations should perform which roles, it simply attempts to allocate the roles between the stakeholder groups, whilst recognising that no individual stakeholder group is competent to assume overall responsibility for Internet governance: WSIS, Geneva Declaration of Principles (2003), paras 35 and 20.
Or at least, where consensus cannot be reached upon the need for any other mechanism to be employed.
See Section 184.108.40.206.
Subsidiarity is one of six cross-cutting principles for effective Internet governance in the Asia-Pacific region as recommended by the UNDP-APDIP: APDIP, Internet Governance in the Asia-Pacific Region (2005), 64.
For example, the Youth Social Enterprise Initiative (YSEI); see http://www.ysei.org/.
At one extreme, a Chinese government delegate, Yang Xiokun, denied that there even were any restrictions on access to Internet content in China, to the surprise of panelists who had been personally affected by such restrictions. At the other extreme, Amnesty International presented a petition of 50 000 signatures later that week containing a “call on governments to stop the unwarranted restriction of freedom of expression on the Internet—and on companies to stop helping them do it.”
See particularly Section 220.127.116.11, Section 18.104.22.168 and Section 22.214.171.124, and also Section 6.4 below. This was one basis upon which the IGF was justified in focusing on less divisive issues first, in order to leave room to develop such norms and build the social capital upon which it would need to draw in later tackling more contentious issues such as critical Internet resource management: Allen, David, The Role of Intellectual/Academic Work in a Policy Forum (2006), 7.
The OpenNet Initiative; see http://opennet.net/.
See Section 126.96.36.199.
Convention on the Rights of Persons with Disabilities, 6 Dec 2006, A/61/611 (not yet in force)
Cameron, Maxwell A, Global Civil Society and the Ottawa Process: Lessons From the Movement to Ban Anti-Personnel Mines (1999); Lord, Janet E, Mirror, Mirror on the Wall: Voice Accountability and NGOs in Human Rights Standard Setting (2004) and see Section 188.8.131.52.
See Section 184.108.40.206.
See Section 220.127.116.11.
However in February 2008 the IGP suggested that it should do so, in putting to the NTIA “that a new external oversight arrangement for ICANN be set up by leveraging the innovation and experimentation of the Internet Governance Forum”: IGP, Comments of the Internet Governance Project on The Continued Transition of the Technical Coordination and Management of the Internet’s Domain Name and Addressing System: Midterm Review of the Joint Project Agreement (2008), 5.
It is adequately clear that the IGF could provide recommendations to ICANN on, for example, the privacy implications of its WHOIS database, the ramifications of IPR and A2K policy on the UDRP, and the relevance of the WSIS principles to the introduction of multilingual domain names. But what about the introduction of new gTLDs into the global root—is this a purely administrative function, or, as the GAC would have it, one that engages public policy interests (see GAC, GAC Principles and Guidelines on Public Policy Issues Regarding the Implementation of New gTLDs (2006))?