5.1.4. Second phase

The high level segment of the second phase of WSIS was held from 16 to 18 November 2005 in Tunis.[1] Again, there were numerous associated private sector and civil society events held in the lead-up to and alongside the high level segment that do not call for discussion here.

Again also, the actual process of negotiation was over by the time the summit officially reopened—although not long over, with more last-minute compromises being thrashed out during the final hours of an extended PrepCom 3. In the process, there had been a regression from the open and inclusive working methods of WGIG, with attempts by many governments to exclude civil society and private sector representatives from PrepCom 3 drafting sessions.[2]

Of the two outcome documents from the Tunis phase, only the Tunis Agenda calls for treatment here, as the Tunis Commitment, the shortest of the four outcome documents, was largely confined to confirming the parties’ agreement to the Declaration of Principles and reaffirming their commitment to pursuing the initiatives set out in the Plan of Action.

Neither does all of the Tunis Agenda require to be dealt with here. It is divided into an introduction and three substantive parts. The first two substantive parts deal with the two issues omitted during the Geneva phase—financing and Internet governance. The third deals with implementation and follow-up, building on the eleven action lines and the eight subsidiary lines of the Geneva Action Plan.

Of these, only the second substantive part on Internet governance requires our attention. It begins by adopting without further comment the working definition of that term developed by WGIG, yet repeats unaltered the more restrictive description of the respective roles of the stakeholder groups from the Declaration of Principles.[3] It recognises the academic and technical communities as cutting across the other stakeholder groups—an insight inherited from WGIG[4]—and affirms the importance of adopting a multi-stakeholder approach “as far as possible, at all levels.”[5]

The Tunis Agenda then proceeds to record the resolve of the parties to address many of the Internet governance issues isolated by WGIG, as set out in tabular form at Section 2.3.1, in very general terms similar to those of the Plan of Action; for example, on spam:

We resolve to deal effectively with the significant and growing problem posed by spam. We take note of current multilateral, multi-stakeholder frameworks for regional and international cooperation on spam, for example, the APEC Anti-Spam Strategy, the London Action Plan, the Seoul–Melbourne Anti-Spam Memorandum of Understanding and the relevant activities of OECD and ITU. We call upon all stakeholders, to adopt a multi-pronged approach to counter spam that includes, inter alia, consumer and business education; appropriate legislation, law-enforcement authorities and tools; the continued development of technical and self-regulatory measures; best practices; and international cooperation.[6]

The more significant paragraphs of this part of the Agenda however are those relating to the reform of Internet governance institutions. This topic is addressed in two ways: through setting in place a process of “enhanced cooperation,” and by establishing the Internet Governance Forum that WGIG had recommended. As these were by far the most divisive issues discussed during negotiations at the Tunis PrepCom meetings, some more background of these negotiations is required before discussing the eventual agreement which found form in the Tunis Agenda.

5.1.4.1. Enhanced cooperation

The WGIG report had not been received with such consensus within WSIS at large as within WGIG itself. Perhaps predictably, the most dissent in respect of its recommendations for a new regime for global public policy and oversight came from the United States, which, along with private sector representatives such as the CCBI, responded to the report by arguing that no significant changes to the status quo were necessary.[7] They also expressed concern that in outlining the respective roles of stakeholders, the role of governments had been overstated and that of the private sector and civil society diminished.[8]

On the other hand, it could be taken that the ITU was not particularly pleased with the WGIG report either (though it did not publish an official response). Although its Secretary-General had painted the ITU as “a multilateral organization with greater international legitimacy and democratic processes” than ICANN, WGIG had found that in fact the ITU was far from this. Relatively few Internet businesses were members, and the ITU’s exclusion of civil society from its processes prevented it from fulfilling the multi-stakeholder principle demanded by the Geneva principles.[9]

Thus although three of the oversight options proposed by WGIG proposed new intergovernmental oversight mechanisms for the ICANN function, none of them considered the ITU a serious candidate. Only at its 2006 Plenipotentiary Conference in Antalya did the ITU begin to investigate whether there was scope “to draft any possible amendments to the ITU basic texts that might be needed in order to facilitate the participation of all relevant stakeholders in the activities of ITU related to WSIS.”[10]

If neither the United States nor the ITU were particularly happy with WGIG’s recommendations, most of the rest of the world was, with a coalition of developing countries specifically supporting the GIC model for oversight of naming and numbering functions.[11] Although conducted the following year, a 2006 review of ICANN conducted by the NTIA supported WGIG’s view that that no single government should have a pre-eminent role in international Internet governance, with over 87 percent of respondents in favour of the transition of naming and numbering functions to an international model.[12]

Thus in the lead-up to its third meeting of the Tunis phase, PrepCom faced essentially two choices on the global public policy and oversight issue: the status quo, which was the only option acceptable to the United States, or some measure of internationalisation of the NTIA’s oversight function as most of the rest of the international community demanded.

In the end, the United States forced the issue. Following the completion of the WGIG report, but pre-empting its publication, the NTIA issued a statement in June 2005 affirming its resolve to “maintain its historic role in authorizing changes or modifications to the authoritative root zone file.”[13] This effectively ruled out each of the four models WGIG had put forward, save for the status quo, with possible “enhancement” of the GAC.

The reaction both from civil society[14] and many governments[15] was immediate and negative. But it was not until PrepCom 3 had commenced in September that the EU made what the United States described as “a very shocking and profound change,”[16] proposing the following text to a drafting session:

In reviewing the adequacy of existing institutional arrangements for Internet Governance and policy debate we agree that adjustments need to be made and we propose accordingly: ...

The new model for international cooperation ... should include the development and application of globally applicable public policy principles and provide an international government involvement at the level of principles over ... naming, numbering and addressing-related matters ... .[17]

Although this left the United States isolated, it was in a strong position to maintain its stand. First, the only alternative to the cooperation of the US in reform of Internet naming and numbering was the establishment of a new internationally-administered alternative DNS root, which although technically feasible, was still a radical step that had not yet been seriously considered at an intergovernmental level.[18]

Second, given the United States’ record of exceptionalism in other contexts,[19] the prospect that the US could stymie the achievement of a WSIS resolution on Internet governance was seen as very real. As aptly noted in another context (that of reform to the UN Security Council), “the idea that the remaining superpower will continue to participate—politically or financially—in an institution whose purpose has become to limit its power has no precedent.”[20]

Thus PrepCom 3 ended its scheduled term in September in deadlock, with only the days preceding the Tunis Summit available for further negotiation. The outcome of those last-minute negotiations was that the status quo would indeed be preserved for the time being, on the strength of an undertaking from the US that it would not interfere with other countries’ ccTLDs, and with the inclusion in the Tunis Agenda of a tip of the hat towards the EU’s “new cooperation model,” in the form of the promise of “enhanced cooperation in the future.”

The Tunis Agenda introduces this topic by acknowledging the success of the existing Internet governance regime in adapting to a dynamically changing Internet, largely led by the private sector and civil society, but also facilitated by the enabling environment fostered by governments. The Agenda acknowledges the importance of preserving the “security and stability” of these arrangements, which was also the language used in the NTIA’s June 2005 statement on Internet naming and addressing when referring to the desirability of maintaining a single authoritative DNS root.[21]

The Tunis Agenda then however notes that Internet governance extends beyond naming and numbering issues, to include a wide variety of social, economic and technical issues many of which are not addressed by current mechanisms.[22] This points to the need for a new transparent and democratic multilateral process involving all stakeholders, that balances the importance of maintaining an enabling environment for an adaptive and evolving Internet, with the legitimate interests of states in controlling their own ccTLD space and the desire to strengthen cooperation among stakeholders in public policy making for the gTLDs.[23]

This sets the stage for the request that the UN Secretary-General convene a new forum for multi-stakeholder policy dialogue in which governments can take an equal role and responsibility for Internet governance and policy making in consultation with all other stakeholders. Although in doing this they are not to intervene in “the day-to-day technical and operational matters” of existing bodies such as ICANN and the RIRs, those bodies must in turn provide a role for governments to lead the development of globally applicable public policy principles and to also safeguard national and regional interests in management of their own Internet resources.[24]

At first glance, it might be assumed that the IGF is being spoken of here; and, indeed, it clearly is in part. After all, there is no other existing forum within which for governments to consult with all stakeholders on Internet policy issues. Neither is there any reason to assume that the enhanced cooperation process is to be limited to the issue of Internet naming and numbering to the exclusion of other public policy issues.[25] Moreover, there is no textual division between the discussion of enhanced cooperation and discussion of the IGF.

However on a closer reading, the Agenda speaks more broadly of a “process towards enhanced cooperation” between all “relevant organisations,” to be commenced by the end of the first quarter of 2006 (whereas the IGF was to be established by the second quarter), and requests that each such organisation publish an annual performance report on its progress towards this end.[26]

Thus the preferable view is that the enhanced cooperation process is a broader initiative that includes, but is not limited to, the establishment of the IGF. Whilst the IGF has an initial five-year mandate, enhanced cooperation is a model of multi-stakeholder governance for the future, based upon bottom–up coordination subject to a framework of general principles. Even so, whilst there is conceptually a degree of separation between the two processes, there is no reason why they might not interweave, should the IGF become a permanent forum following the completion of its mandated term.

In March 2006, the UN Secretary-General requested Nitin Desai to begin informal consultations on how to start the process of enhanced cooperation,[27] pursuant to his mandate in the Tunis Agenda. In response to this, Desai commenced informal bilateral consultations with governments in May 2006 in a closed process, of which no documentary record was published. No such similar discussions are known to have taken place with civil society or the private sector.

At a consultation meeting organised by the Secretariat of the IGF in February 2007, Desai indicated that he had, at some time following his consultations, submitted a report on them to the then Secretary-General, describing the respondents’ expectations of a process leading to enhanced cooperation. Desai thus considered that his own mandate had been fulfilled, and that the matter had been left in the Secretary-General’s hands.

In the meantime, the ITU commenced its own process towards enhanced cooperation, resolving at its 2006 Plenipotentiary Conference in Antalya “to take the necessary steps in ITU’s own internal process towards enhanced cooperation on international public policy issues pertaining to the Internet,” and “as a concrete step, to organize consultations on these issues among the ITU membership and other relevant stakeholders, in order to prepare and submit proposals ... to the 2007 session of the Council.”[28]

5.1.4.2. The Internet Governance Forum

In comparison to the wrangling over enhanced cooperation, agreement upon the establishment of the IGF could almost have been described as smooth. Following the report of WGIG, most governments had expressed their favour for the formation of the forum by the time of the September session of PrepCom 3. The United States was again a notable exception. In the same statement in which it reasserted its authority over the root DNS, and pointedly addressing the WGIG report, it stated:

Dialogue related to Internet governance should continue in relevant multiple fora. Given the breadth of topics potentially encompassed under the rubric of Internet governance there is no one venue to appropriately address the subject in its entirety. While the United States recognizes that the current Internet system is working, we encourage an ongoing dialogue with all stakeholders around the world in the various fora as a way to facilitate discussion and to advance our shared interest in the ongoing robustness and dynamism of the Internet.[29]

A possible compromise suggested by the United States during the resumed PrepCom 3 in November was that the IGF should become an activity of ISOC; a proposal that was supported by Australia, but rejected by developing country governments. Eventually, the US and the other OECD governments came around to the idea of an IGF independent of ISOC by the inclusion of language to make it clear that it would be a multi-stakeholder body (rather than just a “multilateral” one), that it would not be bound by UN procedures, and that it would not be empowered to create binding obligations.[30]

The private sector was also initially dubious about the merit of an IGF, as was ISOC.[31] In fact by the conclusion of the first round of PrepCom 3, ISOC was one of only two WSIS participants on record as opposing the creation of the IGF.[32]

Most of the balance of civil society had long supported the proposal, although the CS-IGC for one would have preferred that it be established as a legally free-standing entity rather than being anchored in the United Nations.[33] Its view of the role of the IGF was that:

The forum should not by default have a mandate to negotiate hard instruments like treaties or contracts.  However, in very exceptional circumstances when the parties all agree that such instruments are needed, there could be a mechanism that allows for their establishment.  Normally, the forum should focus on the development of soft law instruments such as recommendations, guidelines, declarations, etc.[34]

This was largely consistent with how the proposal eventually found form in the Tunis Agenda. It requested the UN Secretary-General to form an Internet Governance Forum for multi-stakeholder policy dialogue, with the full involvement of all stakeholders, and with a mandate that is to be set out in full below.[35]

The Secretary-General was directed to invite all stakeholders to participate at the IGF’s inaugural meeting, giving consideration to the need for balanced geographical representation, and drawing on resources from all interested stakeholders. An effective and cost-efficient bureau was to be established to support the forum, ensuring multi-stakeholder participation. The Secretary-General was also directed to review whether the forum should continue in operation within five years of its creation, and to report on its operation to UN members periodically.[36]

The Tunis Agenda states that the IGF should be multilateral, multi-stakeholder, democratic and transparent in its working and function, with a lightweight and decentralized structure that is subject to periodic review. It is not to replace other relevant fora in which Internet governance issues are discussed or to exercise oversight over them or have any binding decision-making power. In particular, it would have no involvement in day-to-day or technical operations of the Internet, but would work in parallel with those organisations that do, taking advantage of their expertise.[37]

Notes

[1]

See http://www.smsitunis2005.tn/.

[2]

Drake, William J, Why the WGIG Process Mattered (2005), 250

[3]

WSIS, Tunis Agenda for the Information Society (2005), paras 34 and 35

[4]

WGIG, Report of the Working Group on Internet Governance (2005), 8, 10; Doria, Avri, WSIS, WGIG, Technology and Technologists (2005)

[5]

WSIS, Tunis Agenda for the Information Society (2005), paras 36 and 37

[6]

WSIS, Tunis Agenda for the Information Society (2005), paras 41

[7]

WSIS Secretariat, Compilation of Comments Received on the Report of the Working Group on Internet Governance (2005), 3, 36–43

[8]

WSIS Secretariat, Compilation of Comments Received on the Report of the Working Group on Internet Governance (2005), 29–30

[9]

Utsumi, Yoshio, First Meeting of the Working Group on Internet Governance (WGIG) (2004), 257

[10]

ITU, Study on the Participation of All Relevant Stakeholders in the Activities of the Union Related to the World Summit on the Information Society (2006) and see http://www.itu.int/council/groups/stakeholders/.

[11]

Drake, William J, Why the WGIG Process Mattered (2005), 261

[12]

McCarthy, Kieren, US Government Told to Take Its Hands Off Internet (2006)

[13]

NTIA, US Principles on the Internet’s Domain Name and Addressing System (2005)

[14]

CS-IGC, Initial Reactions to the WGIG Report (2005), 12

[15]

Most vocally those of Russia, Brazil, Iran and China: McCullagh, Declan, Power Grab could Split the Net (2005); Wright, Tom, EU Tries to Unblock Internet Impasse (2005) .

[16]

Wright, Tom, EU Tries to Unblock Internet Impasse (2005)

[17]

EU, Proposal for Addition to Chair’s Paper Sub-Com A Internet Governance on Paragraph 5 “Follow-up and Possible Arrangements" (2005)

[18]

Although certain countries had begun to supplement the ICANN root with their own independent TLDs; see Section 2.3.1.7.

[19]

Such as its withdrawal from the Anti-Ballistic Missile Treaty, and its failure to accede to the Kyoto Protocol on climate change or to endorse the International Criminal Court: Mayer-Schoenberger, Viktor & Ziewitz, Malte, Jefferson Rebuffed: The United States and the Future of Internet Governance (2006), 35.

[20]

Weiss, Thomas G, The Illusion of UN Security Council Reform (2003), 153

[21]

WSIS, Tunis Agenda for the Information Society (2005), paras 54–57

[22]

WSIS, Tunis Agenda for the Information Society (2005), paras 58–60

[23]

WSIS, Tunis Agenda for the Information Society (2005), paras 61–64.

[24]

WSIS, Tunis Agenda for the Information Society (2005), paras 67–70 and 38

[25]

See paras 58, 59, 60 and 61, though contra para 70.

[26]

WSIS, Tunis Agenda for the Information Society (2005), para 71

[27]

United Nations Office of the Secretary-General, Preparations Begin for Internet Governance Forum (2006)

[28]

ITU, ITU’s Role With Regard to International Public Policy Issues Pertaining to the Internet and the Management of Internet Resources, Including Domain Names and Addresses (2006)

[29]

NTIA, US Principles on the Internet’s Domain Name and Addressing System (2005)

[30]

Heinrich-Böll Foundation, Negotiations Closer to Agreement: Consensus on Internet Governance Forum and—Almost—ICANN Oversight (2005)

[31]

WSIS Secretariat, Compilation of Comments Received on the Report of the Working Group on Internet Governance (2005), 31–35

[32]

The other was WITSA; the World Information Technology and Services Alliance, which had been a co-founder of the CCBI. The ICC had already dropped its opposition by this time.

[33]

CS-IGC, Initial Reactions to the WGIG Report (2005), 3

[34]

CS-IGC, Initial Reactions to the WGIG Report (2005), 3

[35]

WSIS, Tunis Agenda for the Information Society (2005), paras 72 and 74 and see Section 5.2.

[36]

WSIS, Tunis Agenda for the Information Society (2005), paras 75, 76 and 78

[37]

WSIS, Tunis Agenda for the Information Society (2005), paras 73, 77 and 79.