|Multi-Stakeholder Public Policy Governance and its Application to the Internet Governance Forum|
The contention over Internet governance within the Geneva phase that led to the establishment of WGIG can be considered fortuitous, in that as will be seen, WGIG much more faithfully embodied the multi-stakeholder principle than its parent had (or would again, in the Tunis phase). WGIG also considered the issues of Internet governance in a much broader context than would likely have occurred if those issues had remained within the mainstream of WSIS.
Within WSIS, discussion of Internet governance was focused upon a single issue: the control that the United States was seen to unilaterally possess over what WGIG came to call “infrastructure and the management of critical Internet resources,” such as the DNS system, the root servers, and IP address allocation, through its oversight of the administration of those functions by a Californian corporation, ICANN.
Whilst the United States naturally supported the status quo, and many of its close allies including Australia and New Zealand were content to make evolutionary changes to it, developing countries in particular were implacable in their opposition to the prevailing regime. China and Brazil, for example, pushed for more direct international involvement in ICANN’s processes, whilst others such as Pakistan went further and sought that these functions be transferred outright away from ICANN to the ITU. The United States characterised this as a power-play “by those governments who are not very happy with the rapid and innovative changes on the internet, both economically and also with regard to speech, [to prevent those changes] by threatening a veto.”
It was in this context that the Secretary-General of the ITU and WSIS, Yoshio Utsumi, urged WGIG to focus on that specific issue, concluding his welcoming address “with a plea; that we do not reopen all of the issues that were already extensively discussed in the first phase. But instead, let us focus on those few issues of substance that were not resolved during the negotiations; namely on the future reform of ICANN.”
He soon found that WGIG had other ideas.
The first task of Markus Kummer, appointed as Executive Coordinator of WGIG’s Secretariat in July 2004, was to recommend a multi-stakeholder panel of candidates for the working group to the UN Secretary-General. He set about this task over the succeeding months through a programme of informal discussions with stakeholders, together with an open two-day consultation that was held on 20–21 September and chaired by Nitin Desai, Special Advisor to the Secretary-General for the WSIS. He also received a slate of nominations from the CS-IGC, selected through an open process it had devised.
The WGIG eventually formed on 11 November comprised forty members, with a balance of all stakeholder groups and geographical regions, and a reasonably broad demographic and gender distribution. Amongst those selected were all but one of those that had been nominated by the CS-IGC, and Nitin Desai as Chair. Interestingly no representative of the United States government was selected, though in any case, governmental members were selected in a personal rather than a representative capacity, so that there would be no need for them to refer questions back to their ministries before committing to a position.
WGIG met four times in Geneva between November 2004 and June 2005, for a duration of three or four days. Every meeting of the group included an open consultation session at which both written and oral submissions were received from the public. From the second meeting in February 2005, the proceedings of these consultations were transcribed in real-time into the six official UN languages and streamed over the Internet. In addition to the open consultation sessions, one of WGIG’s private meetings was open to observers, and at the others intergovernmental observers were permitted to attend and speak. Documentary submissions received from the public were also posted to the WGIG Web site, and all of these contributions fed into the WGIG’s Background Report.
Between meetings, WGIG members communicated using an email mailing list. Limited use was also made of a Web site site which provided members with an asynchronous online discussion forum and a wiki. At its first meeting, WGIG divided into smaller working groups to deal with specific issues, which had their own mailing lists, and which published working papers to the WGIG’s Web site for public comment. At its final meeting WGIG divided again into smaller working groups to write sections of its final report, reassembling in plenary to review and consolidate these sections, with final editing of the text being conducted in real-time on a computer-projection screen.
WGIG’s mandate was set out in the Plan of Action which suggested that it should:
develop a working definition of Internet governance;
identify the public policy issues that are relevant to Internet governance;
develop a common understanding of the respective roles and responsibilities of governments, existing intergovernmental and international organizations and other forums as well as the private sector and civil society from both developing and developed countries; [and]
prepare a report on the results of this activity to be presented for consideration and appropriate action for the second phase of WSIS in Tunis in 2005.
To take the WGIG’s response to each of the four requests in turn, the first was its proposal of the definition of Internet governance that was first cited in the introduction to Chapter 2. One of the most significant achievements of WGIG was that its definition was incorporated into the Tunis Agenda verbatim at para 34. The definition is broad enough to cover the full gamut of Internet governance issues—technical coordination, standards development and public policy governance. Extending far beyond the limited issues of Internet naming and numbering to which the ITU had urged the WGIG to restrict its attention, the adoption of this definition alone was enough to frustrate those who would have put forward the ITU, or for that matter ICANN, as the peak body of Internet governance, as clearly neither were competent to adopt such a mantle.
WGIG then proceeded to identify thirteen broad public policy issues that its definition of Internet governance encompassed, which have already been referred to in some detail at Section 2.3.1. For each of the thirteen broad issues, WGIG’s Background Report analysed the main sub-issues involved, described the existing institutions and mechanisms of governance already engaged in respect of those issues, and assessed the extent to which those institutions and mechanisms conformed with the WSIS process criteria of being multilateral, transparent, democratic and inclusive.
With this background in place, WGIG proceeded to make ten basic policy recommendations in its main report. Much along the lines of the recommendations in the Geneva Plan of Action, these were rather broad in scope and vague in content; for example, “Ensure that all measures taken in relation to the Internet, in particular those on grounds of security or to fight crime, do not lead to violations of human rights principles.” These recommendations do not call for further discussion here.
The third request made of WGIG in the Plan of Action was that it attempt to develop a common understanding of the respective roles of stakeholders in relation to Internet governance. As already noted, WGIG recognised three distinct groups: governments, the private sector and civil society. As to the roles of these stakeholder groups, WGIG was less limiting than the Geneva Declaration of Principles had been in its definitions of stakeholder roles, which would be repeated in the Tunis Agenda.
For example, the WGIG report acknowledged that all stakeholder groups have a role to play in policy development. For governments, their role is in “[p]ublic policymaking and coordination and implementation.” The private sector’s role is in the “[d]evelopment of policy proposals, guidelines and tools” as well as “participation in national and international policy development” (rather than merely an “important role ... in the technical and economic fields” as allowed by the Declaration of Principles). Civil society has a role in “[e]ngaging in policy processes” and “[c]ontributing to policy processes and policies that are more bottom–up, people-centred and inclusive” (rather than just “an important role ... at community level”).
Although not a consensus document, WGIG’s Background Report, in particular, takes a more progressive view of the new post-Westphalian international order than the Geneva output documents:
This emerging new “tri-stakeholderism” involving governments, the private sector and civil society, would suggest the need for a new conceptual framework which is on the one hand embedded in the existing system of international law, but on the other hand goes beyond this, bringing other type [sic] of norms (for example, “soft law,” self-regulation) to global governance concepts.
The fourth and final part of WGIG’s mandate was the open suggestion that it produce proposals for action. In addition to the ten issues in respect of which substantive policy recommendations were made as referred to above, and of more relevance than these for present purposes, WGIG made recommendations for future Internet governance mechanisms. These recommendations were in turn subdivided into four clusters:
the establishment of an Internet governance forum;
mechanisms for global public policy and oversight;
the need for improved institutional coordination; and
the need for regional, subregional and national coordination.
The last two recommendations above were dealt with scantly in a paragraph each, simply recommending in the first instance that the secretariats of existing intergovernmental organisations and other organisations of Internet governance improve the coordination of their activities and their exchange of information. In the second, WGIG recommended that the multi-stakeholder approach be replicated at regional and subregional levels of Internet governance, and that governments establish a multi-stakeholder national Internet governance steering committee or similar body.
Much more attention was given to the first two recommendations above, which will be discussed next in turn.
Correctly noting that there was “no global multi-stakeholder forum to address Internet-related public policy issues,” the WGIG report proposed the establishment of a multi-stakeholder Internet governance forum linked to the United Nations, which would:
Interface with intergovernmental bodies and other institutions on matters under their purview which are relevant to Internet governance, such as IPR, ecommerce, trade in services and Internet/telecommunications convergence.
Identify emerging issues and bring them to the attention of the appropriate bodies and make recommendations.
Address issues that are not being dealt with elsewhere and make proposals for action, as appropriate.
Connect different bodies involved in Internet management where necessary.
Contribute to capacity-building for Internet governance for developing countries, drawing fully on local sources of knowledge and expertise.
Promote and assess on an ongoing basis the embodiment of WSIS principles in Internet governance processes.
As will be seen, these six suggested functions made their way into the Tunis Agenda in subtly altered form.
An Internet governance forum alone, however, could not easily provide all that was required to bridge the gap between the existing Internet governance regime as it had evolved, and a future regime that would fulfil a more expansive range of possible Internet governance functions. These more expansive functions are referred to as as “global public policy and oversight” in the WGIG report, which more specifically suggests that they may include the roles of audit, arbitration, coordination, policy-setting and regulation.
The WGIG report correctly observes that a consensual network such as the proposed Internet governance forum may not be sufficiently well adapted to fulfil all of these potential functions. However, there was no consensus within WGIG about the need for all of these roles to be fulfilled, nor as to how they should be; one point of view within WGIG being that “[t]here is no need for a specific oversight organization.”
The abstract manner in which this question is considered in the WGIG report seems obscure until it is understood that its implicit context is the issue area of Internet naming and numbering. The real question, therefore—although never stated so baldly in the WGIG report—was whether by making the management of infrastructure and critical Internet resources subject to greater public oversight than exists under the ICANN regime, concerns over US unilateralism would be addressed.
In the end, the only consensus that could be reached on this question was that any new mechanism proposed to fulfil the global public policy and oversight functions should adhere to the following principles:
No single Government should have a pre-eminent role in relation to international Internet governance.
The organizational form for the governance function will be multilateral, transparent and democratic, with the full involvement of Governments, the private sector, civil society and international organizations.
The organizational form for the governance function will involve all stakeholders and relevant intergovernmental and international organizations within their respective roles.
Since no agreement could be reached on a single model for institutional reform of existing Internet governance mechanisms that would accord with the above three principles, WGIG instead presented in the alternative four possible organisational models that its members had considered, without recommending any of them. These ranged from the mere enhancement of ICANN’s GAC to address concerns of US unilateralism in the control of critical Internet resources, through to the establishment of a strongly hierarchical Global Internet Council (GIC) anchored in the United Nations, in which non-governmental stakeholders would participate only in an advisory capacity, and which would supersede the roles of both the ICANN GAC and the NTIA.
WGIG’s report was presented to PrepCom 3 of the second phase in July 2005, following a preliminary report to PrepCom 2 in February. Notwithstanding the equivocation on global public policy and oversight, the report had been adopted by its members by consensus, a feat attributed by one member of the secretariat to its clear sense of direction, the consensus based approach fostered by the appointment of members in their individual capacities rather than as representing factional interests, and its efficient working method that combined face to face meetings with ongoing online discussion.
Though only for the final meeting in June was this transcript archived on the WGIG Web site: see http://www.wgig.org/Meeting-June.html.
That is “webcast”: see the links to each meeting from http://www.wgig.org/.
WSIS, Geneva Plan of Action (2003), para 13(b)
WGIG, Report of the Working Group on Internet Governance (2005), 12. Compare the five potential roles for multi-stakeholder governance networks put forward in Martens, Jens, Multistakeholder Partnerships: Future Models of Multilateralism? (2007) , 21: advocacy, standard setting, financing, implementation and coordination.
WGIG, Report of the Working Group on Internet Governance (2005), 12, drawing in the case of the second and third points from para 48 and 49 of the Declaration of Principles.