6.3.1. Existing structures

The existing structures that are to be considered here are the annual plenary meetings of the IGF, the Secretariat, the Advisory Group, the open consultation meetings, the workshops and dynamic coalitions organised by stakeholders, and finally the open fora that were first held in Rio.

6.3.1.1. Plenary

The application of the democratic principle to the Internet governance regime requires that all stakeholders impacted in respect of a given issue should be empowered to participate in the policy development process. However exactly which stakeholders are so impacted will vary from one issue to another, and therefore the weight that should legitimately be accorded to the input of each of those stakeholders will vary accordingly.[1]

To manage this, there are two basic templates for designing a democratic Internet governance institution that relates the participation of stakeholders in policy development to how directly and how often their interests are engaged by the issues within its remit. These templates can be understood as being drawn from the theory of representative democracy and that of deliberative democracy respectively.

The representative democratic approach is to determine antecedently which stakeholders are impacted by the issues within the organisation’s mandate and to what extent, to divide them into stakeholder groups on that basis, and to institutionalise the representation of those groups within the organisation in a fixed structure. An example of this approach is found in auDA, whose supply-side and demand-side members each vote only for representatives of their own stakeholder groups to serve on the body’s board of directors, thus preserving a balance of the presumed different interests of suppliers and consumers of domain names in fixed proportions within the organisation’s decision-making organ. Other examples of the representative democratic approach from the exemplar organisations include CGI.br (with its governmental, private sector, civil society and technical stakeholder representatives) and ICANN (with its three Supporting Organisations and their various constituency groups).[2]

In addition to the more general shortcomings of representative democracy discussed at Section 4.3.1.2, such an approach suffers from the following problems:

The second, deliberative democratic approach overcomes these problems. Central to this approach is to structure the organisation’s plenary decision-making body as an open forum to which all interested stakeholders have access,[5] and to determine the weight that particular stakeholders’ input into that forum should be accorded subsequently rather than antecedently, by subjecting that input to a process of reasoned public deliberation.[6]

On the surface, this may seem to suggest that the structure of the IGF’s plenary body accords quite closely with the deliberative democratic ideal. It is open to all stakeholders, including—uniquely for a UN body—unaffiliated individuals. Stakeholder groups are not segregated. There is no cost to attend, other than travel and accommodation costs or the costs of obtaining Internet access through which to participate remotely.[7] However, where the plenary structure of the IGF falls down is in its disempowerment to perform its policy-setting roles, such as the making of recommendations.

This shortcoming is of course not the result of oversight, but design. Nitin Desai has consistently argued, as he did again at the open consultations in May 2007:

If you are going to have agreed recommendations, who are the people who will have a right to sit at that table? To recite this [agreement]? Because we do not have a membership defined for IGF, because we only defined it as an event. And in a multi-stakeholder environment, there is a genuine problem in talking in terms of membership. Are you going to say all those who are present [decide]? Then let’s be very realistic. With the under-representation that you will always have, [and] continue to have from developing countries, all those present will probably give you a geographically unbalanced mix. It will also vary depending on where the meeting is held.

The appropriate response to this line of argument depends on how strongly it is taken. In its strongest form, it implies not merely that the plenary body of the IGF cannot make recommendations in its present, imperfectly-constituted form, but that no open plenary body, however constituted, is capable of fulfilling a policy-setting role. This is an objection that goes to the heart of the IGF’s mandate, and has been answered earlier in this chapter, when it was reiterated that although such a body may be unsuited as a representative democratic forum, it can be perfectly well suited for democratic deliberation, provided that the perspectives of all those significantly affected are able to be voiced during the discussion.[8]

If on the other hand the above argument is taken simply as pointing to the fact that many stakeholders who would otherwise participate in the IGF will be precluded by cost and distance from attending its annual plenary meetings in person, then it should be understood that this disadvantage impacts upon each of the roles in the IGF’s mandate, not merely its policy-setting role. The appropriate response to this disadvantage is therefore not to disregard the most inconvenient paragraphs of the IGF’s mandate, but rather to attempt to address the underlying causes of the problem. Indeed, this itself falls within the IGF’s mandate to “[s]trengthen and enhance the engagement of stakeholders in existing and/or future Internet governance mechanisms, particularly those from developing countries.”[9]

There are a number of specific strategies by which the disadvantage of those who cannot attend annual meetings of the IGF can and should be redressed, such as:

In summary then, the basic structure of the IGF’s plenary body as an open forum has been found to be well-suited to the fulfilment of its policy-setting roles through appropriate deliberative democratic processes,[17] and although the argument that it is improper for such a body to engage in policy development at all has been rejected, this argument has drawn attention to the need for the IGF to foster fuller participation by disadvantaged stakeholders, through a number of strategies including the development of regional and online fora that can be coordinated with the main plenary forum, the facilitation of dialogue between the plenary meeting and remote participants, and the provision of support to those who wish to participate in the plenary forum but are otherwise unable to do so.

Despite all this, it may still be that the IGF’s plenary body ought not become its peak decision-making organ. Whilst it cannot be questioned that the IGF has a mandate to perform policy-setting roles, those roles might in practice be more effectively distributed between the open plenary body and more highly institutionalised organs of the IGF. It has already been noted that, regardless of how sound the conceptual justification may be for policy development to be conducted by a body of indeterminate size and composition, governments will be loathe to concede any more than the weakest advisory authority to such a body,[18] and that a more substantial connection to the existing international system is likely to be required if the IGF is to progress any further along the continuum from decision-shaping to decision-taking.

Were the plenary body therefore to delegate the formal part of its policy-setting authority to some form of subcommittee with a more tightly defined membership, the balance of the plenary’s own activities would draw it somewhat closer to the role espoused by the Forum doves: it would become less of an assembly, like the General Assembly of the United Nations, and more of a think tank or a public policy institute. Its principal function would remain to engage in democratic deliberation, with the aim of reaching consensus on issues of Internet-related public policy, but it would no longer be called upon to declare its own consensus, nor to draw the output of that discursive process together into an agreed form suitable for input into other organisations. Those functions would instead lie elsewhere.

The question then becomes, where? If the plenary meeting is not to act as the peak body for policy development within the IGF, who else is to do so: the Secretariat, the Advisory Group, or some other organ or organs altogether?

6.3.1.2. Secretariat

The suggestion that the Secretariat should take on these substantive functions, or a subset of them, may seem difficult to countenance of an institution that traditionally carries out only clerical duties, and in the case of the IGF, is appointed unilaterally by the Secretary-General of the United Nations rather than by a multi-stakeholder process.

But in fact it is naïve to imagine that the clerical duties of the Secretariat could be neatly separated from underlying substantive issues relating to the role of the IGF, its structure and processes, even if responsibility for those substantive issues were institutionalised in another body. Rather, just as in the regime of Internet governance public policy issues are often engaged in the notionally value-free spheres of technical coordination and standards development, so too the responsibilities of the IGF’s Secretariat have engaged it in making deeply political decisions.

To illustrate this, consider three of the most visible functions the IGF Secretariat has performed for the Athens and Rio meetings:

If it were even possible to perform such functions with neutrality as to the substantive content of the IGF’s mandate, then a case can be made that the IGF Secretariat has in each case failed to do so:

The Secretariat’s apparent partiality should be understood in the context that Marcus Kummer and Nitin Desai are both veterans of WSIS. In fact their programme for the IGF can be seen as the continuation of that of WSIS: a development-focused summit at which civil society’s proposal for an Internet Governance Forum, put forward through WGIG, was part of a political bargain struck to postpone the clash between developing countries and the US government over Internet naming and numbering.

It should not therefore be particularly surprising that the Secretariat may have its own agenda for the IGF rather than being a neutral organ for the implementation of policy developed by stakeholders; indeed, this is almost a truism, as one commentator explains:

a “real” or “pure” international bureaucracy, in the sense of being politically neutral, must be viewed as imaginary in many if not most of the various agencies of the United Nations system. The reality more closely approximates the highly politicized bureaucracies of most of the member-states. Just as it is often true that the national bureaucracies are viewed as bearing the responsibility of ensuring the continuation in power of the dominant political party or perhaps military faction, and not as ready to serve any other parties or factions that may be standing in the wings, it may equally be more “real” that, at best, international bureaucracies inevitably are intended to preserve the current political mandates of their organizations and thus inevitably are vulnerable to accusations of political partiality (as well as laziness, corruption, etc) by those elements of the membership opposed to the status quo.[22]

However as inevitable as it may be that the Secretariat should privately hold preferences of its own, it is unacceptable that it should be allowed to appear to shape the structure and processes of the IGF to favour particular substantive positions and thereby to influence the content and direction of the IGF’s work programme. As a multi-stakeholder governance network, the task of setting its agenda, structure and processes can only legitimately be performed on a multi-stakeholder, democratic basis.

This has two implications for the IGF’s Secretariat. First, regardless of whether its partiality is real or only apparent, its technical roles should be separated from its substantive roles. Indeed, there is no reason why both should be performed by the same body, and every reason why the latter should not be performed by a UN-appointed Secretariat unilaterally. While the Secretariat continues to be appointed by the UN, it should thus be limited to the role of a technical secretariat like that of WSIS, and deal only with organising meetings, coordinating stakeholders and the like, while a separate substantive secretariat carries out activities such as reviewing and synthesising contributions and drafting briefing documents to focus discussion.[23]

The second implication for the IGF Secretariat is that it must be made accountable to the stakeholders at large. Presently, its lack of accountability stems not only from its appointment solely by the UN Secretary-General, but from the fact that it has gone about its role with very limited transparency, which has limited stakeholders’ ability to supervise the Secretariat’s activities.[24]

One proposal to address the above concerns was made early on by the Internet Governance Project in a submission by which it suggested that “stakeholder groups, especially the academic community, should be considered part of a ‘Distributed Secretariat’ to the extent that they facilitate forum activities and are willing to undertake the substantive support functions.”[25] Such a distributed secretariat would also offer the flexibility of allowing different configurations of stakeholders to support the IGF in different ways, much as different groupings of stakeholders come together in dynamic coalitions covering different issue areas.[26]

A limitation of the Distributed Secretariat proposal is that it does not solve, but in fact multiplies, the problems of ensuring the Secretariat’s impartiality on substantive matters and its accountability. Even accepting the IGP’s suggestion that the academic community is more likely to be politically neutral then other stakeholders (as well as being likely to be technically competent), it would not intrinsically be any more accountable for this neutrality than other stakeholders or the UN-appointed Secretariat.

The only effective way in which to ensure both the legitimacy and the accountability of a substantive secretariat is for it to be appointed by and accountable to the stakeholders; that is, the IGF at large. But this also raises practical difficulties, in that the plenary body of the IGF, as noted under the last preceding heading, has been designed without any decision-making capacity. The IGP’s proposal is therefore for the Advisory Group to be entrusted with the role of approving applications from groups of stakeholders to act as nodes of a Distributed Secretariat. However this is not a satisfactory solution either, as it will be seen that the Advisory Group has significant problems of its own.

6.3.1.3. Advisory Group

The Advisory Group was established with a narrow mandate “to prepare the substantive agenda and programme for the first meeting of the Internet Governance Forum.”[27] It might therefore reasonably be assumed, particularly given the group’s size and multi-stakeholder structure, that it had effectively been established to act as a meritocratically-appointed programme committee for the IGF, as a number of stakeholders had suggested in the consultations prior to its formation.[28]

However following the completion of its mandate for the inaugural meeting, Nitin Desai made a decisive move to downplay the significance of the Advisory Group and to confine it to its formal role of advising the UN Secretary-General. At the May 2007 open consultation, he urged those present “to keep a sense of balance” about the Advisory Group’s role, which he described as mere “fine tuning” of the structure and the parameters of the IGF’s meetings. He asserted that:

We could have done everything that we did without a formally constituted Advisory Group, simply by consulting those individuals individually as a UN secretariat. But we chose to constitute it as an Advisory Group precisely because we felt that it was important to get people involved in the process who were connected with the broader community from which they came.

In either case, the fundamental problem with the structure of the Advisory Group is that it lacks legitimacy.[29]

In the first case given above, where the Advisory Group is conceived as a meritocratically-selected executive committee for a multi-stakeholder governance network, its illegitimacy arises from the undemocratic manner in which it was convened. It will be recalled from Chapter 4 that the only legitimate means by which a meritocracy can be selected are consensual or democratic.[30] In no sense could the Secretariat’s selection of candidates for the Advisory Group, in a closed process pursuant to criteria that were never published, be described as consensual or democratic.

Neither was this a shortcoming only of the initial selection process, as the same deficiencies were repeated in the Advisory Group’s reappointment. At the open consultation in May 2007, Nitin Desai assured those present that “fairly extensive consultations have taken place, with missions, with stakeholder groups, before the Secretary-General takes a decision,” but without identifying who had been consulted, by what means, or how those who were not fortunate enough to have been consulted could participate in the process or put their names forward for selection.

If on the other hand the Advisory Group is effectively powerless in its own right, merely serving as a focus group to be consulted for its opinions on the substantive agenda and programme of the IGF before the UN Secretary-General and the Secretariat make their own decisions independently, then the deficiencies of the process of its appointment become secondary, and the illegitimacy of the Advisory Group reflects that of the hierarchical power lying behind it.

Whilst the most accurate characterisation of the Advisory Group—whether as an empowered multi-stakeholder programme committee or a weak instrument of the Secretary-General—is to some extent a matter of perspective, one factor tending to institutionalise it in the latter mould is its sheer size. In the absence of an effective deliberative process, this “empowers the Secretariat of the Forum, run by Markus Kummer and Nitin Desai; this group will be too large and diverse to do much on its own and will rely quite heavily on the Secretariat for organization, agenda-setting, and results.”[31]

It is illegitimate for the United Nations thus to exercise leadership of a multi-stakeholder governance network, because the UN remains fundamentally an intergovernmental organisation, which allows for only limited participation in certain of its activities by civil society and the private sector, and is not accountable to them as it is to states.[32] It is for the same reason that it was argued above that the Secretariat should be limited to performing technical roles.

But an additional reason for excluding the UN from maintaining hierarchical control over the Advisory Group is that the Tunis Agenda itself appears to limit the Secretary-General’s role to the establishment of that group, providing no warrant for the continuing role that he has assumed.[33] The only ongoing roles provided for the Secretary-General by the Tunis Agenda are to periodically report back upon the IGF’s progress to the General Assembly, and to re-assess the IGF’s mandate following its fifth meeting.[34]

Therefore, reform of the Advisory Group is necessary. The most pressing reforms are twofold. First, like the Secretariat, it must be appointed by multi-stakeholder, democratic means, though as also noted in respect of the Secretariat, this implies a parallel reform that would provide the means for the stakeholder groups each to nominate or appoint their own representatives to smaller committees of the IGF. Whilst this reform is yet to be discussed in detail,[35] it would hardly be much of an innovation, as it was in like manner that civil society’s representatives were appointed to WGIG.[36]

At the September 2007 open consultation, Nitin Desai acknowledged this possibility for the first time, explaining the UN’s current leadership of the IGF on the basis that

the United Nations itself is not a player in Internet governance directly. And to that extent, the Secretary-General is a disinterested party. And to some extent I suppose somebody like me, who is his representative, is also seen as a disinterested party. Not a representative of any particular stakeholder group. But we have never thought of that as anything more than an interim measure till the thing stabilizes.

The second required reform is not so much one for the Advisory Group, as one that the limitations of the Advisory Group make necessary. It is the need for another body to take up functions that exceed the mandate of the Advisory Group and Secretariat. Some of these are functions that they have taken upon themselves regardless of this being in excess of their mandate; such as setting the structure and working methods of the IGF.[37] Others are functions that they have not attempted to address at all, such as facilitating the development of recommendations, as Brazil emphasised during the May 2007 open consultations in pressing for the establishment of an IGF bureau.[38]

6.3.1.4. Open consultations

Nitin Desai’s response to the discussion of a bureau during those consultations was to argue that there was no need for another such body, because in addition to the purely supportive or facilitative role of the Advisory Group, the IGF already had another body whose function was to address the substantive preparatory process; namely, the open consultation meeting itself. Desai described this as “the most influential body” in defining “the structure and the parameters of the meeting, including the themes.” Importantly, he also acknowledged the enhanced legitimacy lent to this process by the use of an open, multi-stakeholder group, in saying:

The real role is of this large body which meets regularly. And that is why we always persisted with the process of this open consultation. ... We had it for the Working Group [on Internet Governance] and we always had it after that, because this is our substitute for the [bureau] process. In the [scil that] sense, this is what lends it a certain legitimacy and credibility.

What is interesting about this is that the large body of which Desai speaks is essentially indistinguishable from the IGF’s plenary body: both are open, multi-stakeholder meetings, free to attend, unsegregated, and held in person with some (albeit limited) accessibility for those wishing to participate remotely. As the Greek delegate put it at the first open consultation in February 2006, “The cornerstone of the forum is basically everyone represented in this room. We are the forum.”

In this light, Desai’s acknowledgment of the legitimate authority of the open consultation meetings in shaping policy for the development of the IGF’s structure and processes makes a striking contrast to his denial of the capacity of what is essentially the same plenary body to develop substantive recommendations when it convenes at annual meetings of the IGF.[39]

The distinction however is that the open consultation meetings have a hidden layer of hierarchical structure that the plenary meetings do not: the former, like meetings of the Advisory Group, in most cases generate a range of views, which it falls to the Secretariat to decide between or to forward in a report to the UN Secretary-General for his decision. Thus the consultation meetings, although open and bearing the trappings of participatory democracy, are not truly democratic, because ultimate decision-making authority is vested in those who are not democratically accountable.

Furthermore, the consultation meetings suffer from all of the other limitations of the plenary body of the IGF, and in some cases to an even greater extent. Thus, those who cannot afford to attend annual meetings of the IGF are also disadvantaged in their ability to attend open consultation meetings; but even more so, given that less funding is available to assist them. Similarly, the lack of attention that has been paid to the provision of online mechanisms to facilitate remote participation in the IGF’s plenary meetings equally affects the open consultations.

Finally, whilst none have argued that the open consultations ought to be precluded from making recommendations on the structure and process of the IGF, these meetings are no better equipped than the plenary meetings with the procedural means of developing such recommendations. That is, the meetings are not designed to foster democratic deliberation.[40]

In summary then, the structure of the open consultation meetings lies somewhere in between that of the plenary body of the IGF and the Advisory Group. Like the IGF in plenary session, the greatest strength of the open consultations meetings is that their open and multi-stakeholder composition potentially provides them with greater legitimacy than the UN-appointed Advisory Group to shape decisions about the structure and processes of the IGF. However this potential is undermined by the subordination of the meeting’s recommendations to the hierarchical power of the United Nations (much as in the case of the Advisory Group), and also by the failure of the meeting’s chair to make use of deliberative democratic or consensual processes.

In addressing the shortcomings of the Advisory Group and Secretariat, it was suggested that another body should be formed to take up functions that exceed their mandate, with a more defined membership than the plenary body which would be appointed by democratic or consensual means. The existence of such a multi-stakeholder subcommittee of the IGF could also overcome the limitations of the open consultation meetings in their present form, were those meetings to make their recommendations to that body, rather than to the UN-appointed Secretariat or the Advisory Group. This in itself would be sufficient to constitute the open consultation meeting as a participatory democratic institution (or a deliberative democratic institution if its own processes were simultaneously reformed).

Alongside this reform, the disadvantage of those unable to attend open consultation meetings should be addressed by the same means as it was suggested above should be adopted to reform the plenary body of the IGF.[41]

6.3.1.5. Workshops and dynamic coalitions

Another important institutional structure of the IGF are its dynamic coalitions. These are to be treated here together with the IGF’s workshops, because the group of stakeholders that comes together to organise a workshop can be regarded as a short-term dynamic coalition formed for that specific purpose, and a successful workshop can also serve as a precursor to the formation of a dynamic coalition with an ongoing work programme, just as in the IETF a successful BOF session is required before a new working group may be formed.[42]

Having said that, there is no need here to discuss the workshops themselves, as distinct from the groups that coordinate them, as these form part of the programme of the IGF’s annual plenary meeting rather than part of its structure, and in that context will be discussed further in the section on the IGF’s processes.

It was noted above that dynamic coalitions include three quite different types of group, which were described as networks, working groups and BOFs. Each of these serves a different purpose for the IGF as a governance network, and accordingly they are served differently by the existing institutionalisation of dynamic coalitions (or the lack thereof) within the IGF.

Taking them in turn, networks have the capacity to further the IGF’s mandate of coordination. It is the network that may in fact have inspired the choice of the term “dynamic coalition,” which was not known to scholars before it was invented for the IGF, but which carries echoes of the concept of a “governing coalition”; an informal emergent form of “civic cooperation based on mutual self-interest between government and non-governmental actors.”[43]

The second type of dynamic coalition, the working group, can conveniently be thought of as one which broadly meets the IETF’s definition of that term:

a group of people who work under a charter to achieve a certain goal. That goal may be the creation of an Informational document, the creation of a protocol specification, or the resolution of problems in the Internet. Most working groups have a finite lifetime. That is, once a working group has achieved its goal, it disbands.[44]

Similar bodies exist in most of the exemplar organisations.[45] Early on, it was anticipated by the Forum hawks, particularly those from civil society,[46] that the IGF too would form working groups that would provide reports or recommendations to the plenary body. However as the establishment of such groups as formal subcommittees of the IGF was strongly opposed by the Forum doves,[47] dynamic coalitions were the resulting compromise. Dynamic coalitions as working groups have the potential to serve the IGF’s role of policy-setting.

Third and finally, dynamic coalitions as BOFs are those that do not yet have an explicit programme to contribute to the fulfilment of the IGF’s mandate, but which may still provide a deliberative space within which interested stakeholders may discuss policy issues, thereby contributing indirectly to the IGF’s policy-setting roles.

The lack of institutionalisation of dynamic coalitions within the IGF creates two problems, the first of which affects each of the three types of dynamic coalitions in much the same way, and the second of which is specific to working groups.

First, dynamic coalitions are entirely self-organised, with no procedure by which to be recognised or accredited so as to attain a formal affiliation to the IGF (save that they may informally request the Secretariat to list their contact details on its Web site). This contrasts with the case of workshops, which are required to be approved by the Advisory Group and must comply with specific selection criteria directed to their relevance, capacity and multi-stakeholder structure.[48] It also contrasts with other organisations, including GAID whose Steering Committee is required to approve proposed CoEs by reference to an open set of criteria,[49] and ICANN’s RALOs which approve the participation of their constituent At-Large Structures.

In consequence, there are no institutional checks and balances to ensure that the structure of a dynamic coalition is (and remains) multi-stakeholder and democratic, nor that its procedures are accountable and transparent. In the absence of such democratic safeguards, dynamic coalitions will tend towards oligarchy,[50] becoming narrow interest or advocacy groups,[51] inclined to fragment into competing coalitions in the same issue areas.[52] Whilst there is nothing wrong with stakeholders forming such groups, the problem is that without some criteria to distinguish them from more open and diverse deliberative fora, the plenary body of the IGF is to have no way of knowing whether to treat any recommendations that they might make as mere advocacy statements, or as the outcome of a deliberative democratic process.

The second significant problem caused by the under-institutionalisation of dynamic coalitions, which specifically affects working groups, is that there is no formal mechanism by which their reports or recommendations may be received by the IGF’s plenary body as an input to its policy-setting role. In contrast the working groups of other organisations such as APNIC and UNICTTF[53] support and are coordinated with the programme of their plenary bodies; for example, an APNIC policy proposal that meets with consensus at the level of its originating SIG is then required to be tabled at a plenary Open Policy Meeting and reach consensus there also.[54]

In contrast, the activities of the IGF’s dynamic coalitions are quite divorced from those of the annual plenary meeting, with no occasion other than the brief daily “summing-up” (for Athens) or “reporting back” (for Rio) sessions available for them to informally present their output to the meeting, and no means for that meeting to deliberate upon the output in turn.

The effective outcome is that deliberation within dynamic coalitions, and the development of policy within the plenary body, flow in separate streams.[55] Thus following the Rio meeting, APC[56] and even the Swiss Government[57] were still calling for the convening of working groups of the IGF to develop policy recommendations.

Both of the problems noted above point to the need for stronger institutionalisation of the relationship between the IGF and its dynamic coalitions. This initially requires a mechanism for dynamic coalitions proposed by stakeholders to be recognised by their parent body, which would again most conveniently fall to a multi-stakeholder subcommittee of the IGF to be charged with that task. This was foreshadowed by the Internet Governance Project, amongst others, in proposing during the earliest open consultations in February 2006 that a multi-stakeholder bureau should approve the formation of working groups and appoint their facilitators, whilst consideration of their output would remain the responsibility of the plenary body:

The Plenary has the following role:

  • It deliberates and discusses general issues and Working Group products, guided by the Chair and the Agenda;

  • Any accredited participant or group of them can petition the Bureau to create a Working Group

  • It reviews, discusses and approves or refuses to approve Working Group reports. Approval is based on “rough consensus” called by the Chair after sufficient deliberation. Approved reports are issued and publicized as IGF reports. [58]

By the date of the Rio meeting, this proposal had re-emerged in refined form, with support being widely expressed in the closing “Way Forward” session for the IGF’s policy development function to be devolved to its specialist multi-stakeholder dynamic coalitions, much as the decentralised design of the Internet locates its intelligence at the edges of the network rather than at the centre. Ultimately however, the output of the dynamic coalitions must still be endowed with democratic legitimacy through the endorsement of the plenary body at large, and be cast in written form suitable for promulgation into other fora by a body such as the IGP’s proposed bureau.

Whilst it is a given that such a bureau must be appointed by democratic or consensual means (as will be discussed under the following heading), its operation must also be democratic, which means that it must be accountable and transparent in the process by which it recognises new dynamic coalitions on the plenary’s behalf. Central to this is that the process should be conducted by reference to a set of criteria that are cast in general terms, are public, not retrospective, are intelligible, not contradictory or impossible, relatively stable, and administered as proclaimed—in short, that fulfil Fuller’s definition of the rule of law.[59]

In order for dynamic coalitions to legitimately contribute towards the fulfilment of the larger IGF’s mandates of policy-setting and coordination, it is necessary that the criteria by which such coalitions are recognised include a minimal set of key principles mirroring those that apply to the IGF itself, including a subset of the structural criteria distilled at Section 6.1 along with some of the basic procedural principles that will be discussed at Section 6.4. These will include:

There is much room for more detailed criteria, consistent with these basic requirements, to be specified by multi-stakeholder, democratic or consensual means.[61]

6.3.1.6. Open fora

The final existing institutional structures of the IGF that are to be briefly examined are the open fora that made their debut in Rio.

One of the shortcomings of these open fora was that the subject organisations were not required to design them so as to support the fulfilment of the paragraphs of the IGF’s mandate that had prompted the establishment of open fora in the first place. Specifically, the IGF is called upon to “[i]nterface with appropriate inter-governmental organizations and other institutions on matters under their purview,”[62] and to “assess, on an ongoing basis, the embodiment of WSIS principles in Internet governance processes.”[63] These form part of the IGF’s role of coordination, and in particular that of meta-governance.[64]

The fulfilment of this mandate will require more than a one-way channel of communication from the other organisation to the IGF, yet because that organisation alone currently determines the content of its open forum, and because there is no formal interface between its session and those of the plenary body, there are no means by which the IGF and the other organisation can engage in dialogue with the object of fulfilling the above paragraphs of the Tunis Agenda.

To address this, an open forum should be conducted not by a single stakeholder seeking to defend its position in the Internet governance regime, but by a multi-stakeholder panel similar to those that organise workshops, and accredited in a similar manner. If no such panel can be organised through the decentralised action of stakeholders, it is appropriate that one be appointed, just as the Advisory Group currently appoints panels of speakers for the plenary sessions.[65]

The working processes appropriate to an open forum, and to workshops more generally, are to be discussed below at Section 6.4.2.1.

Notes

[1]

See Section 4.3.5.3.

[2]

Although not one of the exemplar organisations, an even clearer example of the representative democratic approach is given by the ILO, with its division between governmental, employer and worker representatives.

[3]

Johnson, David R & Crawford, Susan P, What’s Wrong With ICANN—And How to Fix It (2000)

[4]

The only exception is in the case where stakeholder groupings can be determined objectively, but the only common such case is that of geographical division. Even then, the determination can be incorrect or over-simplistic, as in ICANN’s case: Centre for Global Studies, Enhancing Legitimacy in the Internet Corporation for Assigned Names and Numbers (1992), 4.

[5]

This does not exclude the need for outreach to disadvantaged stakeholders, however: see Section 4.3.5.2.

[6]

This does not mean that stakeholder groupings may not be used within the organisation, as such groupings serve more than one purpose. Their purpose for the IGF as theorised in this thesis is to ensure that the legitimacy of the organisation as a governance network is drawn from a balance of each of the sources that the various stakeholder groups contribute. Importantly the IGF’s plenary body, however, acts as an amalgam of all four groups.

[7]

But see Section 6.4.4 regarding the limitations of the latter.

[8]

See Section 6.2.1.1.

[9]

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

[10]

Both of these deficiencies have been well noted by stakeholders. The need for regional meetings was discussed at the February 2006 and 2007, and May 2007 open consultation meetings, and criticisms of the IGF’s lack of support for online participation have been referred to at Section 5.2.3.2.

[11]

See Section 4.4.3.2 and compare also the similar case of the IETF: Froomkin, A M, Habermas@discourse.net: Toward a Critical Theory of Cyberspace (2003), 803.

[12]

But see also Section 6.4.4.

[13]

See Section 5.2.2.4.

[14]

See Section 5.3.

[15]

See Section 6.4.4.

[16]

The largest of these has been Canada’s contribution of $100 000 for fellowships for developing country experts announced during the May 2007 open consultation meeting. Japan also announced in September 2007 its contribution of 10 million yen for this and related purposes.

[17]

The nature of which are to be discussed separately at Section 6.4.

[18]

See Section 4.3.5.3 and Section 5.4.4.

[19]

This was done in conjunction with the Advisory Group for the Athens meeting, but for the Rio meeting there was no Advisory Group when the first draft agenda was prepared.

[20]

For example, ETNO criticised the post-Rio synthesis paper as unbalanced at the February 2008 open consultations.

[21]

See Section 5.2.1.2.

[22]

Jordan, Robert S, “Truly" International Bureaucracies: Real or Imagined? (1998), 438

[23]

Mathiason, John, The Distributed Secretariat: Making the Internet Governance Forum Work (2006), 1

[24]

See Section 6.4.3.1.

[25]

IGP, Building an Internet Governance Forum (2006), 4

[26]

Mathiason, John, The Distributed Secretariat: Making the Internet Governance Forum Work (2006), 4–5

[27]

United Nations Office of the Secretary-General, Secretary-General Establishes Advisory Group to Assist Him in Convening Internet Governance Forum (2006)

[28]

See Section 5.2.1.1 and Section 5.2.1.2.

[29]

There are also problems with the working processes of the Advisory Group, including its lack of accountability and transparency, but these will be dealt with separately at Section 6.4.

[30]

See Section 4.2.3.2.

[31]

Mueller, Milton, The Forum MAG: Who Are These People? (2006)

[32]

See Section 3.4.1.1.

[33]

WSIS, Tunis Agenda for the Information Society (2005) paras 72, 74, 78 and 82; Muguet, Francis, A Legal Analysis of the Internet Governance Forum Process (2007) , 5; IGP, Building an Internet Governance Forum (2006), 5

[34]

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

[35]

See Section 6.3.2.1.

[36]

de la Chapelle, Bertrand, WSIS: The First Summit of the Internet Age? (2005), 281

[37]

Muguet, Francis, A Legal Analysis of the Internet Governance Forum Process (2007), 6

[38]

See Section 5.2.4.1.

[39]

Muguet, Francis, A Legal Analysis of the Internet Governance Forum Process (2007), 7

[40]

See Section 5.2.1.2 and Section 6.4.

[41]

See Section 6.3.1.1.

[42]

See Section 2.2.1.1.

[43]

MacLeod, Gordon & Goodwin, Mark, Restructuring an Urban and Regional Political Economy: On the State, Politics and Explanation (1999), 701

[44]

IETF, Internet Users’ Glossary (1996)

[45]

Including APNIC (as SIGs), auDA (as panels and committees), CGI.br, GAID (as Communities of Expertise or CoEs), the GKP (as Working Committees), and UNICTTF.

[46]

IGP, Building an Internet Governance Forum (2006), 6; Bertola, Vittorio, An Implementation Proposal for the Internet Governance Forum (2006) , 2

[47]

See Section 5.2.1.1, Section 5.2.1.2 and Section 5.2.3.1.

[48]

See Section 5.2.2.3.

[49]

GAID, Business Plan for 2006--2007 (2006), Annex B

[50]

See Section 4.2.2.

[51]

As in the case of the A2K@IGF dynamic coalition, which includes only members with a programme of liberalisation of IPRs, and none with a balancing—even if reactionary—perspective such as Microsoft, the MPAA or WIPO. In contrast the Dynamic Coalition on Open Standards announced at its formation that “divergent viewpoints on topics of study are welcomed. Should the IGF DCOS not be able to reach a rough consensus, our goal will be to provide clarity around the argument, the divergence and its origins (who has different views and why) so that more informed decisions can be made”: DCOS, IGF Dynamic Coalition on Open Standards (2006), 2.

[52]

This does not mean that multiple dynamic coalitions in the same issue area should be prohibited, since this would exclude the potential benefits of regulatory competition (see Section 3.4.3.1). However only if competing recommendations are the output of equally multi-stakeholder and democratic processes can the plenary assess them on a level footing.

[53]

UNICTTF, Strategic Plan (2002), 8

[54]

With the superadded requirement of ratification by APNIC’s Executive Council: see Section 4.4.3.2.

[55]

Allen, David, The Role of Intellectual/Academic Work in a Policy Forum (2006), 8

[56]

APC, APC Statement on the Second Internet Governance Forum (2007)

[57]

Swiss Federal Office of Communication, Swiss Comments on the Second IGF Held in Rio de Janeiro in November 2007 and Recommendations for Future IGF Events (2008), 3

[58]

IGP, Building an Internet Governance Forum (2006); and see MMWG, Internet Governance Forum Input Statement (2006) , 2.

[59]

See Section 4.3.3.

[60]

See Section 6.4.3.1.

[61]

More broadly, Martens has suggested that the increasing importance of multi-stakeholder networks involving private sector actors, of which dynamic coalitions are an example, requires that “the United Nations should develop an effective regulatory and institutional framework for its relations to the private sector” which would include not only the positing of criteria for the formation of such networks, but also the appointment of a UN ombudsman as a contact point for complaints ( Martens, Jens, Multistakeholder Partnerships: Future Models of Multilateralism? (2007), 6). The establishment of the proposed UNMSP discussed at Section 5.4.4 could be one manner of eventually realising this recommendation.

[62]

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

[63]

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

[64]

See Section 6.2.2.3.

[65]

Indeed, when the concept of the open forum was raised at the February 2007 consultations, it was accompanied by the suggestion that the IGF should be able to initiate its own workshops on key issues, rather than relying on individual stakeholders to do so: IT For Change, Taking Stock and the Way Forward (2007), 2.