|Multi-Stakeholder Public Policy Governance and its Application to the Internet Governance Forum|
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The Tunis Agenda indicates that the purpose of the IGF is to address the “many cross-cutting international public policy issues that require attention and are not adequately addressed by the current mechanisms.” It is notable that this does not imply that the public policy issues in question were not being addressed at all, because in many cases they were; however they were addressed either relatively ineffectively, illegitimately, or (most often) both.
Specifically, prior to the IGF’s establishment, as described in Chapter 2, issues of Internet related public policy tended to be addressed only by the private sector and/or civil society (usually by their preferred mechanisms—markets, norms and architecture) to the exclusion of governments, or to be addressed by governments (generally through domestic regulation) to the exclusion of the other stakeholder groups. Even where governance did take place through networks, these were not multi-stakeholder but were dominated by one stakeholder group.
The unilateral policy decisions of these stakeholders have been undemocratic in that they have failed to consider the perspectives of all affected parties. For example, when governments have prohibited or restricted the use of Internet services within their borders (for example, many developing nations have outlawed the use of VoIP telephony), there has been no representation for the interests of those affected by the transnational impacts of that decision. But by the same token, civil society and the private sector have also exhibited a tendency to act unilaterally on matters of policy, without inviting the participation of governments; as seen for example in the case of the W3C’s PICS initiative and the IETF’s policy on wire-tapping.
There are limited exceptions, in which governments have sought to involve certain private stakeholders in the policy development process. For example, Australia has by and large adopted a “light-touch” approach to Internet regulation, relying predominantly on industry self-regulation in the issue areas of spam, DNS management and content regulation. Even so, in this process civil society (let alone transnational civil society) has not been engaged as an equal stakeholder, but only as an interest group to be consulted in accordance with principles of participatory democracy.
Since the establishment of the IGF, which provides an institutionalised framework for multi-stakeholder public policy development within the Internet governance regime, there is no longer any excuse for Internet-related public policy to be developed in such an unaccountable, parochial fashion as it has been to date. A good indication of the IGF’s success might therefore be gauged by determining the extent to which actors in the Internet governance regime have begun to look to the multi-stakeholder process of the IGF to lubricate and legitimise their own policy processes.
There is scant evidence of this to date. Arguably the Council of Europe’s 2007 Recommendation on promoting freedom of expression in the new information and communications environment, which emphasises the “importance that member states, the private sector and civil society develop various forms of multi-stakeholder co-operation and partnerships” to this end, is one of the early fruits of the IGF at an intergovernmental level. However this did not represent the outcome of a multi-stakeholder consensus, judging by the strong opposition to the Recommendation that has emerged from civil society.
On this basis, the IGF can not yet be judged a success, as all stakeholder groups have largely continued to act unilaterally in their activities in the Internet governance regime, even where public policy issues of transnational and cross-stakeholder impact are clearly engaged. For example:
in 2005 governments intervened to prevent the addition of the xxx gTLD into the DNS root following its provisional approval by the ICANN board, and have drafted a policy that asserts the right for any GAC member government to do the same for any other proposed new gTLD;
as for the private sector, in March 2007 industry body Music Industry Piracy Investigations (MIPI) wrote to Australian ISPs suggesting that they should voluntarily disconnect their users’ Internet accounts if accused by MIPI of trading copyright music; and
even civil society has bypassed the IGF and the input of governments in working with the private sector towards the development of a code of practice on private sector involvement in national Internet regulation.
Since the IGF exists to provide a forum for policy development in just such cases as these, why is it not being employed for that purpose? Whilst an obvious part of the explanation is that the IGF is yet in its early days, two further possible answers will be suggested here. The first is that the IGF is not yet equipped to fulfil its appointed role, and unless significant reforms are made, it will never be. Instead, it has been fashioned by its Secretariat principally as a forum for the discussion of Internet issues, with a bias towards development. In other words it is not, at present, an Internet governance forum at all, but simply an Internet issues forum.
The required characteristics of a new IGF capable of fulfilling its policy-setting role, rather than just its operational role for the promotion of capacity building and ICT development, has been described in some detail in this chapter. This new IGF will need to comprise:
a Secretariat that is accountable to the IGF through its multi-stakeholder bureau, rather than merely to the UN Secretary-General, and which is no longer to carry out substantive functions such as the preparation of documents or the design of the IGF’s structures and processes;
a multi-stakeholder nominating committee, containing equal numbers of randomly-selected volunteers from each stakeholder group, to appoint members from that same stakeholder group to the IGF’s multi-stakeholder bureau, as well as appointing an appeals committee for the IGF, in each case pursuant to criteria developed in open consultation with the IGF at large;
a multi-stakeholder bureau which:
contains equal members from each stakeholder group acting as representatives of that group, and which although deliberating as a unitary body, ultimately gives each stakeholder group within the bureau a separate power of veto over its decisions;
appoints its own co-chairs (from different stakeholder groups on a rotating basis), and a chair for the nominating committee, along with any liaisons and advisors for either body;
also appoints moderators and panelists for plenary sessions and open fora, taking into account the IGF’s mandate and the need for balanced representation of all stakeholder groups;
is to assume the other functions of the existing Advisory Group and those taken from the Secretariat, in addition to functions that have yet been unassigned, such as assessing the consensus of the plenary body and preparing any soft law instruments required to give effect to that consensus; and
is to conduct these functions independently of the UN Secretary-General, except in a strictly formal sense;
dynamic coalitions which satisfy criteria of multi-stakeholder composition and democratic process developed in open consultation with the IGF at large, and which may deliver recommendations that have demonstrably been made by consensus to the bureau for consideration by the plenary body; and
a plenary body which:
at open consultation meetings instructs the bureau on the agenda to be set for plenary meetings and on the development of the structure and processes of the IGF according to multi-stakeholder, democratic principles;
at annual plenary meetings is empowered to engage in democratic deliberation towards the end of achieving a rational multi-stakeholder consensus, through mechanisms such as the speed dialogue; and
continues its work intersessionally through online mechanisms, particularly in respect of matters that are too complex or otherwise unsuited for resolution at an annual meeting.
Whilst these reforms are significant, they are both consistent with the Tunis Agenda, and also practically achievable; particularly in comparison to other proposals for the democratisation of Internet governance such as ICANN’s 2000 At-Large elections.
There is however more doubt as to whether they are yet politically achievable, and this constitutes the second reason why other actors in the Internet governance regime are not having recourse to the processes of the IGF: that the transaction costs of moving to an open, democratic and multi-stakeholder process are greater than those of bypassing the IGF and continuing to act unilaterally or in narrower, less accountable governance networks.
The transaction costs of acting through the IGF rather than in narrower private networks are likely to be highest for the regime’s most powerful actors, the Forum doves; and to that extent this second reason for the failure of the IGF largely underlies the first, since it is at the behest of the Forum doves that the IGF has been structurally and procedurally disempowered since its formation was first proposed by WGIG and subsequently agreed at WSIS. Whereas the Tunis Agenda establishes a broad mandate for the IGF that unequivocally involves it in making substantive policy recommendations, the Forum doves have been resolute in downplaying the IGF’s policy-setting role, as their submissions outlined in Chapter 5 demonstrate time and again.
This has been justified by some by pointing to the division between the IGF as a venue for multi-stakeholder discussion, and the government-led “enhanced cooperation” process as the locus of policy-setting authority. But in fact there is no clear division between the role of the IGF and the process of enhanced cooperation in the Tunis Agenda; rather the former is treated as an integral component of the latter. What can be taken from this is that whilst governments will continue to maintain sovereignty over the authoritative statement of public policy principles in international and domestic law, those principles are to be developed in a multi-stakeholder forum, the IGF (from where they may equally find implementation through other, non-legal mechanisms of governance).
Regardless of the terms of the Tunis Agenda however, the role of civil society in the enhanced cooperation process (and hence the role of the IGF) has been played down by governmental actors in Tunis’ wake; for example in EU Commissioner Viviane Reding’s description of it as a “process of enhanced cooperation between governments.” In any case, the disunity of states following WSIS on exactly what the content of a new model of enhanced cooperation should be seems effectively to have ground that broader process to a halt. Thus the momentum of the programme of multi-stakeholder democratisation of Internet governance that began at WSIS has since been lost (or perhaps unmasked as expedient politics), leaving the IGF as its only extant remnant.
This makes it all the more important that the role of the IGF in multi-stakeholder policy development is not forsaken. This in turn can only ultimately be assured through change at a political level. It must, in short, become more politically expensive for intransigent governments and other Forum doves to continue to bypass the IGF than for them to embrace it. This is, doubtless, quite a hope. As one commentator observed ahead of the Athens meeting, “There is no indication that rulers of China, Tunisia or Iran will take any notice of what is said in Athens, and no real hope that the Western governments will step back from their own campaigns to control, regulate and censor the net.”
Yet there are cases in which, as liberal institutionalism predicts, governments have been willing to restrain their authority in the interests of making longer term absolute gains through cooperation with other stakeholder groups. For example, governments have for the most part been content to leave ccTLD administration to private, bottom–up coordination, as in the cases of auDA, Nominet and SIDN amongst others. With slightly less universal contentment, they have also acquiesced in ICANN’s administration of the global DNS root and IP addressing system.
WGIG is another prominent example of governments sharing responsibility for policy development with other stakeholder groups. Although this occurred in a somewhat more controlled environment than the IGF, it well illustrates the significant effect that a body without formal decision-making authority can nevertheless have on policy development at a higher, more authoritative level; after all, there would certainly be no IGF were it not for WGIG. Outside the Internet governance regime, a number of similar examples have already been given, including the processes by which the Mine Ban Treaty and Disability Convention were developed with the integral involvement of civil society.
So whilst political change is required in order for the IGF to be allowed to take its place as the multi-stakeholder forum for policy development that the Tunis Agenda describes, provided that a good case can be made for such change, there is no cause to rule it out as utopian, particularly given the progress that has already been made towards the realisation of multi-stakeholder democratic Internet governance through WSIS, WGIG and the establishment of the IGF (for now) as a venue for freeform discussion.
This thesis has endeavoured to make that case, by demonstrating that performing public policy governance of the Internet through the mechanism of a democratic multi-stakeholder network (generally compatible with the model proposed for the IGF in the Tunis Agenda):
is more legitimate than the use of hierarchical mechanisms of governance, because states do not even conceptually possess sole authority over public policy issues that have substantially transnational rather than domestic effects;
is also likely to be more effective than the use of rules, which is at odds with the architectural values of the Internet such as decentralisation, openness, egalitarianism and cosmopolitanism that continue to permeate its culture;
does not however threaten the existing political and economic power of governments or other stakeholders, because of its inherently non-binding, consensual form, and even less so given the consociational structure for the bureau that has been devised in this thesis; and
does not even detract from the need for states to exercise an independent policy-setting role, since when consensus cannot be achieved on a particular issue, it will fall through to be dealt with on a decentralised basis by other mechanisms, including rules.
As strong as the case for reform of the IGF may be, its implications will not be self-executing. In none of the other cases referred to above in which international public policy-setting has been opened up to other stakeholders (the WSIS process and the Mine Ban and Disability treaties), did this occur without sustained pressure from civil society. Therefore it will be incumbent upon democracy activists and academics to catalyse the political change required for the IGF to undergo the reforms that this chapter has shown necessary, and for that new IGF to be accepted as legitimately filling the policy void referred to in the Tunis Agenda.
Part of what this involves is refusing to accept the curtailment of the IGF’s mandate by stealth. If the Forum doves are no longer willing to share their responsibility for policy development with other stakeholders through an empowered and effective IGF, this agenda should be unmasked and debated transparently rather than being quietly effected through the inaction of its Secretariat and Advisory Group and their imposition of inappropriate institutional strictures on the IGF.
This is not to downplay the significant achievement that has been made already, in attracting all stakeholder groups to share their perspectives on issues of Internet governance in an open and egalitarian discussion forum. This is an important foundation for the fuller implementation of multi-stakeholder governance in the future. Given time, the IGF might even evolve naturally into the body envisaged by the Tunis Agenda, as trust between stakeholders is earned and the social capital of the governance network develops. However, as the IGF has only five years to establish itself before its existence is reviewed, it does not have the luxury of time. Further, structural inertia will make change more difficult the longer it is left.
If, on the other hand, the IGF does come to fulfil its potential, the implications of its success should resonate throughout the Internet governance regime, perhaps leading other Internet governance fora such as ICANN and the ITU to progressively develop their own structures and processes along similar multi-stakeholder lines. In fact, there is no reason why the example of the IGF should not extend far beyond the regime of Internet governance. Conceptually, multi-stakeholder governance calls for application to many other issue areas of transnational public policy development, such as the environment, intellectual property, trade, peacekeeping and human rights. The IGF may therefore represent not only an innovation for Internet governance, but the vanguard of a new paradigm for the post-Westphalian age of international relations.
For example, by the private sector in the case of the Global Business Dialogue on Electronic Commerce (GBDe), and governments in the case of the OECD. (As to the GBDe see http://www.gbd-e.org/ and Kleinwächter, Wolfgang, Global Governance in the Information Age: GBDe and ICANN as “Pilot Projects" for Co-regulation and a New Trilateral Policy? (2001), 17–21.)
This does not simply mean the interests of those outside the country’s borders, because the transnational social entities that are affected by the decision may be partially located within the country.
See Section 2.2.2.
Council of Europe, Recommendation of the Committee of Ministers to Member States on Promoting Freedom of Expression and Information in the New Information and Communications Environment (2007). A subsequent recommendation falling into the same category is Council of Europe, Recommendation of the Committee of Ministers to Member States on Measures to Promote the Public Service Value of the Internet (2007) .
Sunday Mail, Music Pirates to be Cut Off (2007). A similar scheme has already been adopted in France and is likely to be adopted in the United Kingdom, in each case in the shadow of the threat of regulation: Computer Business Review, Illegal Downloaders Could Lose Web Access (2008) .
CDT, Companies, Human Rights Groups, Investors, Academics and Technology Leaders to Address International Free Expression and Privacy Challenges (2007). Compare calls for a similar code of conduct for bloggers (see BBC News, Call for Blogging Code of Conduct (2007) ) and for a bill of rights for the Social Web (see Smarr, Joseph, A Bill of Rights for Users of the Social Web (2007)).
However after the five year initial mandate of the IGF expires, the IGF could be reconstituted as an international organisation in its own right, without even formal UN oversight.
See Section 5.4.3.
Mueller describes the experience of the IFWP in much the same way: Mueller, Milton, Ruling the Root: Internet Governance and the Taming of Cyberspace (2002), 5.
See WSIS, Tunis Agenda for the Information Society (2005), paras 67–72, in which the middle paragraphs on enhanced cooperation are sandwiched by those calling for the establishment of the IGF.
See Section 126.96.36.199.
See Section 188.8.131.52.
Similarly, when only a limited or partial consensus can be reached, this can narrow down the issues that would otherwise be at large for the policy maker: Mathiason, John, The Road to Rio and Beyond: Results-based Management of the UN Internet Governance Forum (2006), 2.