|Multi-Stakeholder Public Policy Governance and its Application to the Internet Governance Forum|
Governments of states participate in international law by concluding bilateral or multilateral agreements, and through their involvement in intergovernmental organisations that are typically formed by such agreements.
Such intergovernmental organisations may be categorised by their geographical reach, their manifest purposes and their membership base. The geographical reach of an organisation may be global as in the case of the United Nations, or regional as in the case of APEC. Its manifest purposes may be general or specific, as in the case of the OECD in the first instance and the WTO in the second—and if specific, may be political, economic or socio-cultural. Its membership base may be governmental (as in the case of NATO, the North Atlantic Treaty Organization) or hybrid (as in the case of the International Labour Organisation (ILO) which contains both governmental and non-governmental members), and in either instance may be open to all states, or only to a subset, as in the case of the G8.
In this section, four intergovernmental organisations will be described in turn; beginning with the United Nations which is global in reach, general in purpose and governmental in membership, followed by three organisations that differ on one or more of these variables: the WTO which is specific in purpose, the ILO which is of hybrid composition, and the European Union which is regional in reach.
The United Nations (UN) was established following the Second World War in 1945 as an association of 51 states, succeeding the League of Nations which had been established following the First World War in 1919. As at 2008 the United Nations is headquartered in New York City with 191 states as members.
The UN is notable amongst intergovernmental organisations not simply because of its size, but also because of its supranationality; that is, it occupies a realm of international government and international law that prevails over the sovereign authority of the domestic governments and law of their member states.
An example of this is that its member states are required to submit to decisions of its Security Council relating to international peace and security, which (in theory) limits the circumstances in which they may unilaterally employ the use of military force. Even within a member state, its billiard ball shell may be permeated by the United Nations in the case that the state is abusing its citizens’ human rights.
The United Nations is composed of five active principal organs; the General Assembly, the Security Council, the International Court of Justice (ICJ), the Secretariat and the Economic and Social Council (ECOSOC). To use the simplest of analogies to the domestic equivalents of each organ, the General Assembly can be understood as the parliamentary body of the United Nations, the Security Council as its militia, the ICJ as its judiciary, the Secretariat as its public service, and the Economic and Social Council as a peak body of executive ministries.
Taking first the General Assembly, this is a body composed of 191 delegates, one from each member state, whose votes are weighted equally. The General Assembly’s power does not have a “hard legal” character, as it is empowered only to make non-binding recommendations. One of its few substantive powers is to resolve a deadlock of the Security Council in circumstances where there appears to be a threat to the peace, breach of the peace or act of international aggression. The General Assembly has a number of subsidiary bodies, including the newly-formed United Nations Human Rights Council.
The Security Council is the only organ of the United Nations with the power to make decisions that are binding on UN members pursuant to the UN Charter. It is empowered to institute action ranging from the imposition of economic sanctions to the use of armed force in order to maintain or restore international peace and security. The Security Council also has various standing and ad-hoc subsidiary bodies.
The Security Council’s composition is the same today as it was following the second World War, when the United Kingdom, the United States, France, Russia and China were appointed permanent members (Germany and Japan being omitted for obvious reasons). There are ten other seats on the Council, divided into five regional blocs to which members from the applicable region are elected by the General Assembly for two-year terms. However in order for the Council to pass any resolution, the unanimous approval of the permanent members is required, with the result that it is very easy for the Council to become deadlocked.
The International Court of Justice exists to settle disputes between UN members—that is, states. It is also empowered to render Advisory Opinions, but only on the request of United Nations bodies. Fifteen judges are elected by the General Assembly and the Security Council to the ICJ for nine year terms. The main limitation on the effectiveness of the ICJ is that it requires the consent of each party before it can exercise jurisdiction. Neither does its power to render advisory opinions function as a form of compulsory judicial review of the acts of other organs of the United Nations. Whilst a party is not bound to consent to the ICJ’s jurisdiction, once it has done so, the ICJ’s ruling may be enforced by the Security Council.
The Secretariat of the United Nations comprises the staff of seventeen departments and offices who facilitate the operations of its other organs, headed by a Secretary-General who is appointed to a five year term by the General Assembly on the recommendation of the Security Council.
Finally, the Economic and Social Council oversees and coordinates the numerous United Nations commissions, programmes and agencies that exist to promote international economic and social cooperation and development. The Council’s 54 members are elected by the General Assembly from amongst the UN membership to take three-year terms.
Under the Council’s oversight are eight active functional commissions, five regional commissions, ten main programmes and funds, five research and training institutes, and a small number of other programmes, offices and fora.
There are also seventeen specialised agencies under the Council’s oversight, which were either established by treaty, or have formed the subject of subsequent treaties between UN members. These may be categorised into technical agencies, and economic organisations. The technical agencies include the ITU, the UPU, the ILO, the ICAO, the International Maritime Organization (IMO), WIPO and UNESCO.
The economic organisations are the International Bank for Reconstruction and Development (the World Bank) and the International Monetary Fund (IMF), both of which were formed following a conference in 1944 at Bretton Woods, at which it was also intended to form an International Trade Organisation. Whilst the last of these did not then eventuate, the GATT (General Agreement on Tariffs and Trade) that was formed in 1948, both as an agreement and as a loose organisation sharing its name, became the predecessor of the WTO.
The WTO succeeded the GATT in January 1995, following the Uruguay Round of negotiations conducted between 1986 and 1994. Its scope was much broader than that of its predecessor (with services and intellectual property coming within its remit for the first time), and its powers of enforcement were considerably strengthened.
As at 2008 the WTO has 151 members and is headquartered in Geneva, where the most powerful countries have permanent delegations. It is not a body of the United Nations, but operates parallel to it, having the principal responsibility of administrating all multilateral trade agreements and arbitrating disputes that arise under them.
Broadly, the six most fundamental WTO agreements are those establishing the WTO, dealing with trade in goods (GATT), trade in services (GATS), intellectual property (TRIPS), dispute settlement (Understanding on Rules and Procedures Governing the Settlement of Disputes), and review of national trade policies (Trade Policies Review Mechanism).
The WTO meets continuously, but the Ministers of member countries also meet at least once every two years at a Ministerial Conference which is the WTO’s peak authority. In between Ministerial Conferences the General Council, also sitting as the Dispute Settlement Body and the Trade Policy Review Body amongst others, consists of all members represented by their permanent delegations if available.
One of the main functions of the WTO that sets it apart from other intergovernmental organisations is that it provides a mechanism for member states to challenge the laws of other states on the grounds that they function as a barrier to trade. For example, Antigua and Barbuda recently successfully challenged the US prohibition on interstate gambling over the Internet.
Another characteristic of the WTO that sets it apart from other intergovernmental organisations is that its decisions are made by consensus, rather than by weighted voting as at the IMF and the World Bank, or by means of a steering committee as in the case of the European Union (where the European Commission fulfils that role). In practice, little or no effort is made to achieve a grass roots consensus on significant agreements or decisions within the membership at large. Instead, the most powerful countries, particularly the so-called “Quad”—the United States, the European Union, Japan and Canada—broker their own agreements and “sell” these to the rest of the membership. This occurs through a process of informal meetings at which decisions are concluded before being presented to the WTO at large.
Although the WTO itself states that “informal consultations within the WTO play a vital role in bringing a vastly diverse membership round to an agreement,” the lack of inclusiveness and transparency associated with the closed-door informal meetings has engendered much criticism from less powerful WTO members, some of whom have made their own alliances through which to oppose the quad.
In the face of both public and scholarly pressure, the WTO has embarked upon programmes to increase its transparency and accountability, although these have been of limited scope. The WTO’s inaugural public symposium held in July 2001 included a session addressing the relationship between the WTO and civil society, and in May 2002 the General Council increased the availability of WTO working documents on its Web site. However it has been implacable in its opposition to the involvement of non-members in the decision-making processes. Article V of the agreement establishing the WTO provides:
The General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO.
A framework within which such consultation and cooperation could take place was adopted by the General Council in July 1996, but it contained little other than a unilateral commitment to publish derestricted documents on the Internet, an acknowledgment that discussions with NGOs may take place by informal means, and a recitation of the supposedly “broadly held view that it would not be possible for NGOs to be directly involved in the work of the WTO or its meetings.”
Commencing in Singapore in 1996, qualifying NGOs could become accredited to attend Ministerial Conferences, but they were not permitted to speak at them, nor even to circulate documents, until 1998 when the WTO began to circulate a monthly list of civil society position papers to its members, and to accept amicus curiae briefs from NGOs to its Dispute Settlement Body on broader issues engaged by disputes, such as environmental or human rights concerns. In 2001 the General Council agreed to increase its briefings to civil society, and to hear presentations from selected NGOs. However despite these limited reforms, it may still be said that the WTO’s consultations with civil society have been less of a dialogue than a monologue.
Ironically, prior to the establishment of the IGF, the WTO was put forward as a possible model for international public policy governance of the Internet. Yet recalling the manner in which IANA presented its private blueprint for ICANN in response to the US Government’s White Paper as a fait accompli in the guise of consensus, perhaps the suggestion is not so far fetched. Perhaps consensus is simply too unwieldy an instrument for the governance of a large intergovernmental or multi-stakeholder organisation. This is a charge to be investigated further in Chapter 4.
The ILO is as exceptional an intergovernmental organisation as the WTO, but in quite different respects. Formed in 1919 as an agency of the League of Nations, and becoming the first specialised agency of the United Nations upon its formation in 1946, the ILO was structured from the outset to include private sector and civil society representatives as full voting members.
Article 2 of the Constitution of the ILO establishes its three constituent bodies: the General Conference, the Governing Body and the International Labour Office.
The General Conference of the ILO, better known as the International Labour Conference, meets annually in Geneva. Each state delegate may (and most do) appoint a representative from the country’s peak employers’ and workers’ bodies to attend with them. In Australia’s case, these are representatives from the Australian Chamber of Commerce and Industry (ACCI) and the Australian Council of Trade Unions (ACTU). The employer and worker representatives are permitted to speak and vote independently of each other and of their governments. The Conference elects a President and three Vice Presidents, the latter including representatives of governments, employers and workers.
The fundamental purpose of the Conference is to approve by a two-thirds majority Conventions and Recommendations on labour standards and other employment related issues. ILO Conventions, once signed and ratified, become binding international agreements, whereas its Recommendations are “soft law” for the guidance of member states, often supplementing the subject matter of a Convention. The Conference also adopts the ILO’s biennial work programme and budget which are prepared by the Executive Council of the Governing Body.
The Governing Body (also known as the Executive Council) manages the ILO’s work programme between each Conference. It meets three times per year in Geneva and is composed of 28 government members and 14 members each from the worker and employer groups, all sitting for a three year term. Ten of the government seats are reserved for the major industrial powers, and the remainder are elected by the other government delegates of the Conference. The employers and workers each elect their own representatives.
Apart from its tripartite structure, another distinguishing feature of the ILO is the extent to which it supervises the implementation of its Conventions and Recommendations by member states. Each member state is required to present a periodic report on this topic, which must also be submitted to its worker and employer representatives who may present their own reports in response. A Committee of Experts on the Application of Conventions and Recommendations, comprised of 28 independent experts in labour law and policy, receives the reports and compiles an annual report of its own to the tripartite Conference Committee on the Application of Conventions and Recommendations.
An additional check on states’ compliance with Conventions is the facility for employer and worker organizations to initiate “representations” against a member state alleging that it has failed to comply with a Convention that it has ratified. Representations are examined by a tripartite body that submits its findings to the Governing Body. States too can submit complaints alleging that another state has failed to comply with a convention they both have ratified.
Article 12 of its Constitution authorises the ILO to make whatever arrangements it thinks fit to consult with other intergovernmental organisations and with civil society. Pursuant to this Article, in May 2005 the Governing Body agreed upon a policy permitting qualifying NGOs to attend Conferences provided that their request to do so was received at least one month in advance of the opening session of the Governing Body preceding the opening of the Conference.
The complex structure of the European Union (EU) is quite different from that of the United Nations, or that of any other intergovernmental body. Whilst the earliest predecessor of the EU, the Council of Europe established in 1949, was more traditionally intergovernmental in character, the unified face of Europe became increasingly supranational with the establishment of the European Coal and Steel Community (ECSC) in 1951, and the European Economic Community (EEC) in 1958. The ECSC and the European Atomic Energy Community (or Euratom) merged with the EEC in 1965. Following the Treaty of Maastricht of 1993, the EEC—or now the EC; the European Community—forms the first pillar of today’s European Union.
The EU exhibits supranational features to an even greater extent than the UN, in that EU law is capable of overriding the domestic law of its members. For example, the legal sovereignty of the EU is exclusive in areas such as trade, agriculture and customs, as it might be in a federation of states such as the Commonwealth of Australia. The European Court of Justice may also rule against a member state, and to impose sanctions, for its breach of a European Commission Directive. On the other hand sovereignty is shared with its member states in such areas as consumer and environmental protection, and is excluded altogether in favour of its members’ sovereignty in areas such as domestic law enforcement and housing policy.
The EU is composed of five main organs: the European Parliament, the Council of the European Union, the European Commission, the European Council and the European Court of Justice.
The European Parliament is analogous to the General Assembly of the United Nations, the main differences being that that it has proportionately more representatives from the more populous countries, and that since 1979 they have been directly elected by their constituents. Since the passage of the most recent governing treaty of the EU, the Treaty of Nice in 1999, the total number of MPs has been capped at 732. These Members of the European Parliament (MEPs) hold office for five years, and elect a President who serves for half that term. Much of the Parliament’s day to day work is performed within its 20 standing committees organised along functional lines.
The power of the European Parliament has been progressively enlarged from its initial status as a merely consultative body. This began in 1986 with the passage of the Single European Act, and continued in the Treaty of Maastricht when it was first given “co-decision” powers, which were expanded to additional policy areas in the Treaties of Amsterdam and Nice. Co-decision is a process by which the European Parliament must reach agreement with the Council of the European Union on the text of any EU law proposed by the European Commission (which in simple terms is known as a directive if it requires domestic implementing legislation, and a regulation if it does not).
The Council of the European Union is constituted by one serving minister from each of the member states, drawn from their national parliaments. Different ministers may however serve on the Council as it deals with different issues. The Council is the main decision-making body of the EU, responsible for passing laws put forward by the European Commission, subject to the oversight of the European Parliament through the co-decision procedure. Councillors are assisted by a Secretariat on administrative matters, and by a Committee of Permanent Representatives—somewhat like the civil service of a domestic ministry—on policy matters. The Presidency of the Council rotates on a six-monthly basis.
Originally decisions of the Council were required to be made by consensus, but “qualified majority” voting was introduced on certain issues with the Single Europe Act, and subsequently extended to additional issues with the Treaty of Maastricht and the Treaty of Nice. The effect of the latter treaty was also to introduce new weighting of members’ votes and to impose a triple-majority requirement: that the majority of weighted votes be in favour, along with a majority of states voting in favour, and that these represent at least 62% of the EU’s population. This stipulation has proved difficult to satisfy in practice.
The European Commission is composed of up to 27 members who serve for terms of five years. Pursuant to the Treaty of Nice, one Commissioner is appointed by each member state subject to approval by the European Parliament, provided that if there are more than 27 states (which from January 2007 there are), the member state omitted from representation on the Commission rotates. Commissioners do not sit as representatives of their appointing states, but as independent officials of the EU.
The four main roles of the Commission are to propose new policies to form the agenda of the Council of the EU in consultation with member states, to monitor the application of the EU treaties by its members and other EU institutions, to oversee the implementation of EU policies by member states, and to represent the EU in other fora such as the WTO. The Commission is supported in these activities by approximately 35 Directorates General and Services (divided further into directorates and departments) which offer policy, administrative and logistical support.
There is also a European Council (distinct from the Council of the European Union, and from the Council of Europe) which is constituted by the heads of the member states, and the President of the European Commission. The role of the European Council was first formalised in the Single Europe Act, which accorded it the role of peak oversight of the EU as a whole. However the character of this role is one of guidance and persuasion rather than formal legal authority.
Finally the European Court of Justice is akin to the International Court of Justice, save that it not only adjudicates upon disputes between states, but also between states and EU institutions and even between citizens of EU states and EU institutions. Domestic courts can also refer questions of EU law to the European Court of Justice for decision. Its power extends to the ability to declare domestic legislation unconstitutional for inconsistency with EU law.
Apart from the five main organs of the EU referred to above, there are also a number of supporting organisations under the EU umbrella, including the European Ombudsman, and two advisory bodies; the Economic and Social Committee (EESC) which represents the interests of civil society to the organs of the EU, and the Committee of the Regions (CoR) which does the same for sub-national governments.
But not always, as in the case of ICANN’s GAC. Intergovernmental organisations may also be recognised by treaty following their formation: Detter, Ingrid, The International Legal Order (1994), 91.
Charter of the United Nations, 26 June 1945, 1945 ATS No 1 (entry into force for Australia 1 November 1945), articles 24, 25, 33.
The Trusteeship Council, which is no longer active, is excluded from this list.
Charter of the United Nations, 26 June 1945, 1945 ATS No 1 (entry into force for Australia 1 November 1945), articles 10–13
Charter of the United Nations, 26 June 1945, 1945 ATS No 1 (entry into force for Australia 1 November 1945), article 65 para 1
Statute of the International Court of Justice, 26 Jun 1945, 1975 ATS No 50 (entry into force for Australia 1 Nov 1945), article 36.
Statute of the International Court of Justice, 26 Jun 1945, 1975 ATS No 50 (entry into force for Australia 1 Nov 1945), article 94
The principal reference for this section is WTO, Understanding the WTO (2005).
These alliances include the so-called Like Minded Group (LMG) of developing nations, ASEAN (the Association of South East Asian Nations), and the Cairns group, an organisation of seventeen nations, including Australia, arguing for agricultural trade liberalisation: Kwa, Aileen, Cancun Preparatory Process: “Opaque, Exclusive and Rule-less" (2003).
Keohane and Nye have argued that what the WTO lacks is political leadership to intermediate between itself and its constituencies: Keohane, Robert O & Nye, Joseph S, The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy (2000).
Marrakesh Agreement Establishing the World Trade Organization, 15 Apr 2004, 1995 ATS No 8 (entry into force 1 Jan 1995) (WTO Agreement)
See Section 4.4.4.
See generally ILO, The ILO: What it is. What it Does (2004).
Instrument for the Amendment of the Constitution of the International Labour Organization of 28 June 1919, as amended, 9 Oct 1946, 1948 ATS No 8 (entry into force 20 Apr 1948) (ILO Constitution)
ILO Constitution, Article 7
It still exists, though now mainly as a human rights watchdog; see http://www.coe.int/.
Treaty on European Union, 7 Feb 1992, 1992 O J (C 191), 31 ILM 253
Treaty of Nice amending the TEU, the Treaties establishing the European Communities and certain related acts, 26 Feb 2001, 2001 OJ (C 80) 1
Single European Act, 17 Feb 1986, 1987 O.J (L 169) 1, 25 ILM 506
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related acts, 2 Oct 1997, 1997 OJ (C 340) 1, 37 ILM 56