6.2.1. Policy-setting

One of the fundamental issues about the role of the IGF that has divided the Forum hawks and doves is as to whether it has a decision-making role. Perhaps the strongest denunciation of this prospect has come from Nitin Desai himself, who said shortly before the inaugural meeting, “It’s not a decision-making body. It cannot be a decision-making body. It does not have a membership, so who is going to author a decision? So there’s no way it can ever become a decision-making body.”[1]

To some extent, the division can be blamed on an unfortunate choice of terminology. Decision-making, after all, is a process, not an event. This process is sometimes divided into the separate acts of decision-shaping (or decision-recommending) and decision-taking, in recognition of the fact that these may involve quite different parties.[2]

If decision-making simply meant decision-taking, then Desai would be quite correct, as this phase of the process will often take place outside the IGF, depending on the mechanism of governance employed. In particular, governance by rules will continue to be centred in national parliaments and intergovernmental organisations, no matter how much weight they may give to the IGF’s recommendations. To the extent that talk of a decision-making role for the IGF seems to imply otherwise, and particularly if it is also assumed that the decisions being spoken of are to be binding, the doves’ objections are understandable.

However on closer analysis, the division between Forum hawks and doves on the role of the IGF is more than simply one over terminology. Many doves have been quite explicit that besides not taking decisions, the IGF should not even not make recommendations, and indeed should not be a forum for policy development at all, in spite of the express words of its mandate.[3] This goes far beyond a simple objection to the notion of the IGF making binding decisions (which, by definition, involves governance by rules), but would appear also to proscribe its participation in the development of norms and architecture and in the operation of markets. Indeed, in these cases, there is no real decision-taking phase of the decision-making process.

Even in the case of governance by rules, the division between decision-shaping and decision-taking (or between policy development and policy-setting) is quite an artificial one. Rather than separate acts, they are more of a continuum, along which power is apportioned between those endowed with formal authority and those from whom their authority is derived. At one end of the continuum (with APNIC providing a good example), the authority of the decision-taker is little more than formal, with its constituents retaining the substantive power to set policy. At the other end, those in authority reserve full discretion to disregard or override any recommendations made by the organisation’s stakeholders.[4] Participatory democracy is usually taken to represent an intermediate position, in which the decision-taker is required or expected to demonstrate that the recommendations of stakeholders have been taken into account and given due weight in the final decision.[5]

6.2.1.1. Recommendations

What, then, is the appropriate point along that continuum for the IGF? The notion that it should be at the most restrictive extreme—that the IGF ought not make decisions or recommendations at all—is difficult to sustain, because the effect of this would be to deny its role in providing input to other institutions in the Internet governance regime, in outright contradiction of its express mandate in the Tunis Agenda.[6]

Moreover despite the ardour of the Forum doves on this point, the idea that the IGF ought not to make recommendations is quite a novel one. It was certainly not the view of WGIG, which saw the forum they proposed as one in which “all stakeholders will be represented and feel free to discuss and make recommendations.”[7] Even WGIG, however, was unsure as to the exact point along the continuum of decision-recommendation and decision-taking that the IGF would occupy, saying:

Whether such multistakeholderism can be extended beyond consultations, agenda setting, and technical operations into actual policy decision making, or into extant and exclusionary intergovernmental and private sector bodies, of course remain open questions. [8]

It has been speculated that the motive of the doves in seeking to disempower the IGF can be traced to the investment of these powerful actors in other, less open and transparent institutions and processes, such as the investments of stakeholders such as ISOC, the US government and its allies in the ICANN regime, and those of the private sector in the WIPO intellectual property regime.[9] But the politics behind the doves’ position are of less relevance for present purposes than their arguments.[10]

As the previous chapter’s detailed account of preparations for and follow-up from the first two IGF meetings illustrated, the arguments of the Forum doves for limiting the role of the IGF in making recommendations follow two recurrent themes:

As to the first of these objections, it is true that strategic behaviour and back-room deals are a hallmark of the participation of governmental delegates in intergovernmental negotiation processes. WSIS is as good an example of this phenomenon as any, and there is no reason to think that it would not be replicated within the IGF if its decision-making apparatus were to be modelled on that of a traditional intergovernmental forum.

However, there are two answers to this objection: first, there is no reason that the IGF should make decisions in the manner of a traditional intergovernmental forum; indeed, this is one suggestion that nobody has made. As Chapter 4 illustrated, there are techniques from the literature on deliberative democracy, and others from that on consensual decision-making, that are designed to avoid strategic decision-making in favour of the collaborative development of a rational consensus through a process of deliberation amongst equals. This is a matter that will fall for fuller discussion under the treatment of the IGF’s processes, rather than that of its role.[13]

Second, it is difficult to see how the tendency of governmental (or indeed other) delegates to engage in dysfunctional behaviour, could possibly detract from the mandate of the IGF as expressed in the Tunis Agenda. It is doubtless that IGF meetings will proceed more smoothly without the requirement to adhere to that mandate, but if the smooth running of meetings were an overriding criterion, the mandate ought never to have been drafted to include a policy-setting role for the IGF in the first place. As William Drake pointedly observed during the afternoon of the first consultations on the convening of the IGF in February 2006, “Presumably, when governments carefully negotiated this text, they meant what they said.”

In answer to the second objection of the Forum doves, that it is impossible for a body without a fixed membership to make decisions, this was also addressed in Chapter 4, when it was shown to flow from the misconception that democratic decision-making requires adherence to the principle of “one vote, one value.”[14] In fact, it was shown that the democratic principle can also be legitimately and effectively institutionalised in alternative forms that do not require numerically proportional representation, so long as they engage all affected viewpoints and perspectives in a process of rational deliberation.[15] The difficulties of reconciling this theory with the hegemonic practices of governments have also already been acknowledged,[16] and will be revisited when considering questions of the IGF’s structure below.[17]

Although the two arguments most often expressed as to why the IGF ought not to make non-binding decisions or recommendations have thus been addressed, there is also a third argument that has not been so prominent. This is the fact that the Tunis Agenda makes mention of the IGF making recommendations only in respect of “emerging issues.” Whilst the meaning of this phrase is not defined (in fact, no clear understanding of it had even emerged by the time of the Emerging Issues session in Athens), it can be taken to be narrower than the full gamut of public policy issues that the IGF is called upon to discuss.[18]

There are two responses to this apparent limitation of the IGF’s decision-making role. The first is that the capacity to make recommendations in respect of other issues is inherent in other paragraphs of the IGF’s mandate. In particular, the IGF is charged to “[d]iscuss public policy issues related to key elements of Internet governance,” but not simply in the abstract; it is to do so “in order to foster the sustainability, robustness, security, stability and development of the Internet.”[19]

This clearly envisages that the discussions that take place at the IGF will have a flow-on effect into existing Internet governance arrangements. Indeed, the mandate explicitly states as much, requiring the IGF to “[i]nterface with appropriate inter-governmental organizations and other institutions on matters under their purview.”[20] Even Marcus Kummer has acknowledged that the IGF is to “prepare the decisions that will be taken into consideration by other organizations that do have the decision-making power.”[21] However the IGF’s discussions could not foster the objectives laid out in its mandate if they were to be left irresolute, and neither would there be any purpose in interfacing with other organisations if they were not to be provided with any tangible input.

The second response is that the Tunis Agenda’s omission to empower the IGF to make recommendations other than on emerging issues does not prevent it from doing so, as it is not from the Tunis Agenda that that power stems to begin with. For one thing, although the IGF is a multi-stakeholder network, the Tunis Agenda cannot fairly be described as a multi-stakeholder agreement. As Chapter 5 revealed, for all the claims of the WSIS process to incorporate “the full involvement of governments, the private sector, civil society, and international organizations,”[22] non-governmental stakeholders were permitted only very limited involvement in the process of drafting the output documents. As such, the Tunis Agenda can only be regarded as an intergovernmental agreement, which carries no legitimate authority over transnational non-state actors and networks.[23]

As for states, the WSIS outcome documents do draw from the supranational authority of UN bodies and agencies such as the General Assembly that have been charged with exercising oversight over their follow-up and implementation. However, the Tunis Agenda does not purport to limit states’ power to make recommendations or other soft law in issue areas besides those specified in paragraph 72, either within the structure of the IGF, or indeed in any other venue of their choosing. In fact, the Declaration of Principles states explicitly that “[n]othing in this Declaration shall be construed as impairing, contradicting, restricting or derogating from ... any other international instrument or national laws adopted in furtherance of these instruments.”[24]

If the Tunis Agenda is not competent to limit the participation of non-state actors within the IGF, and is not intended to limit the autonomy of states in pursuing parallel initiatives, then it can present no obstacle to all stakeholders collaborating within the IGF on the consensual development of public policy recommendations in any issue area they see fit. Naturally in practice, this will depend upon the willingness of states to engage in this process on an equal footing with other stakeholders, and on this point, more will be said at Section 6.3.

6.2.1.2. Transnational law

Making recommendations to other bodies is one aspect of policy-setting, but the IGF is also directed to “discuss issues that do not fall within the scope of any existing body.”[25] What is to be the outcome of these discussions, where no appropriate organisation exists to receive any recommendations that may flow from them? Or, indeed, where there is an existing organisation to receive the IGF’s output, does the making of recommendations to that body mark the end of the matter, even if those recommendations are ignored?

To answer these questions, it is necessary to more precisely place the IGF’s position along the continuum from decision-shaping to decision-taking. In summary, it will be argued that:

It is the first case that is to be discussed here, with the second to be dealt with under the following heading.[26]

To state that the IGF should set policy on its own account in issue areas not being dealt with by other bodies is hardly a radical proposition. It implies nothing more than that as a governance network whose structure and processes are demonstrably legitimate for the performance of its assigned role (assuming this to be the case, for now), its policy recommendations carry normative force in their own right, and do not require the imprimatur of any other body. It does not mean that the IGF’s recommendations will become formally authoritative (at least not in the short to medium term); rather as Held argues, “it needs to be stressed that any global legislative institution should be conceived above all as a ‘standard-setting’ institution.”[27]

Like other standards-setting institutions, those of the IGF that prove successful will tend to be adopted and promulgated at domestic and local levels using the mechanisms of rules, markets or architecture; indeed this may be necessary in some issue areas for their effective realisation. However the normative status of its recommendations is derived not from whether or how they have been adopted by stakeholders, but from the multi-stakeholder structure and democratic processes by which they were developed.

Although the success of the IGF’s recommendations is not the source of their legitimacy, it does serve as a kind of “running code” test of their effectiveness[28] that could, in time, serve to further anchor the IGF and its free-floating norms in transnational society, in much the same way as the success of the Incoterms and the international commercial arbitration regime has consolidated the transnational legal force of the new law merchant.[29] The result could be the development of the IGF’s recommendations from mere norms into an independent body of transnational law.[30]

To put this into context, consider if the IGF were to develop an Internet Bill of Rights by consensus amongst its stakeholders, without the intention that it be delivered to an intergovernmental body for formal signature and ratification. Such a document could still have effect as an instrument of governance by norms, to the extent that it informed the decentralised collective action of its stakeholders, who would tend to act in accordance with it or be judged by reference to it. After some time, it might be the Internet Bill of Rights had become sufficiently ubiquitous amongst stakeholders in Internet governance, perhaps even being referred to in legislative instruments in the same way that Internet standards are today,[31] that it could be described in its own right as an instrument that “people identify and treat through their social practices as law.”[32] At this point, the Internet Bill of Rights would effectively have passed into transnational law, and the IGF become a transnational lawmaker.

In order to even commence along this path and thereby build up a track record of “running code,” the authority of the IGF to develop transnational law must not only be formally legitimate, but must also be seen as such by all participants and stakeholders in the Internet governance regime.[33] As noted above, this in turn requires that the IGF possess a multi-stakeholder structure and democratic processes (for example, that its output is the product of open, reasoned deliberation, and that it incorporate mechanisms of democratic accountability and transparency). A further prerequisite of the IGF acting as an autonomous transnational lawmaker is that its legitimacy to set policy in a given issue area is not shared with any other body. If it is, then the development of transnational law will engage the IGF not only in its role of policy-setting, but also in the role of coordination with that other body.

Notes

[1]

The speech in question is referred to at Waters, Darren, Warning Over “Broken Up" Internet (2006), but Desai’s actual words are misreported there. The words transcribed above, which are stronger than those reported in the article, are taken from the audio recording available at http://kierenmccarthy.co.uk/mp3s/nominet-igf-9oct06/nitin-desai-combined.mp3.

[2]

Smith, G, Taking Deliberation Seriously: Institutional Design and Green Politics (2001), 85

[3]

Government of Canada, Questionnaire on the Convening the Internet Governance Forum (2006), 1

[4]

There is no good example of this from amongst the exemplar organisations, but the WTO is an example from the earlier shortlist of forty.

[5]

See Section 4.3.2.1.

[6]

WSIS, Tunis Agenda for the Information Society (2005), para 72(c) (which calls upon the IGF to “[i]nterface with appropriate inter-governmental organizations and other institutions on matters under their purview”), and para 72(g) (which requires it to “[i]dentify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations”).

[7]

Sha’ban, Charles, Proposal for the Establishment of an Internet Governance Forum (2005), 235

[8]

Drake, William J, Why the WGIG Process Mattered (2005), 251

[9]

Mueller, Milton, “A Funny Thing Happened on the Way to the Forum...": Multistakeholderism, International Institutions and Global Governance of the Internet (2006), 10

[10]

Though see Section 6.3.2.1 for further analysis of their underlying motives.

[11]

ICC, ICC/BASIS Feedback on First Internet Governance Forum (IGF) in Athens, Greece (2007)

[12]

Waters, Darren, Warning Over “Broken Up" Internet (2006)

[13]

See Section 6.4.

[14]

The objection also contradicts the experience of WSIS. Ralf Bendrath, from the University of Bremen and the Privacy Dynamic Coalition, pointed out at the February 2007 consultation, “I wouldn’t say just because we don’t have a defined membership it’s not possible to agree on anything. If I look back on the—to the WSIS process, where I participated in civil society, there was no clear membership on who was a member of civil society, who can decide and vote and whatever on our joint documents. But we still managed to come up with a lot of joint documents, a lot of joint statements, and even with two large, about 20 pages each, civil society declarations for the two summits. That was possible. And we just used maybe more innovative, more open, more tolerant mechanisms instead of the diplomatic negotiation mechanism. There are mechanisms like the IETF is using, rough consensus, things like that.”

[15]

See Section 4.3.2.5.

[16]

See Section 4.3.5.3.

[17]

See Section 6.3.

[18]

WSIS, Tunis Agenda for the Information Society (2005), para 72(g)

[19]

WSIS, Tunis Agenda for the Information Society (2005), para 72(a), and see also paras 72(b) and 72(j) respectively regarding the discussion of issues not falling within the scope of any existing body, and of issues relating to critical Internet resources.

[20]

WSIS, Tunis Agenda for the Information Society (2005), para 72(c)

[21]

United Nations Office of the Secretary-General, Internet Governance Forum This Month Will Be Wide-Ranging, Says UN Official (2007)

[22]

WSIS, Geneva Declaration of Principles (2003), para 48

[23]

See Section 3.4.1.1.

[24]

WSIS, Geneva Declaration of Principles (2003), para 18

[25]

WSIS, Tunis Agenda for the Information Society (2005), para 72(b)

[26]

See Section 6.2.2.

[27]

Held, David, Models of Democracy (1996), 356

[28]

See Section 5.4.4.2.

[29]

See also Section 4.2.5.

[30]

See Section 3.5.

[31]

See Section 3.3.2.3.

[32]

Tamanaha, Brian Z, A General Jurisprudence of Law and Society (2001), 194

[33]

See Section 3.4.1.