“The Sovereign Right of States”: Why Multi-Stakeholder Policy Development is Possible and Necessary

I have applied to speak at the inaugural annual conference of GigaNet, a new network of Internet governance scholars. Here’s what I intend to talk about:

The Tunis Agenda states in paragraph 35(a) that “Policy authority for Internet-related public policy issues is the sovereign right of States”. It is therefore taken that governments are to lead the development of Internet-related public policy within the Internet Governance Forum, and that the appropriate roles of the other stakeholders in this endeavour – that is, the roles of the private sector, civil society and intergovernmental organisations – are merely consultative (see paragraph 68). However there is a tension here between the traditional conception of public policy governance, as a process led by governments in which public input is received through written submissions and public hearings, and the increasingly prevalent understanding that states are no longer sovereign over public policy issues that transcend their borders, and must admit other stakeholders as full co-decision makers if their governance is to be perceived as legitimate. Is it still therefore accurate to say, as the Tunis Agenda does, that the development of transnational public policy is the sole responsibility of governments? If not, was it ever accurate to say so, and if it was, how and when did this change? I propose to speak about these issues by contending that governments alone can no longer legitimately claim sole authority over the development of public policy for the Internet, due to the diffusion of their sovereignty in respect of transnational issues upward, downward and outward to other actors, who whilst not endowed with (legal) authority, are better placed to address them. On this basis it can be understood that the traditional international order of Westphalian states now shares the mantle of transnational governance with regimes in which private sector or civil society stakeholders dominate – that of ICANN, to give one obvious example. Whilst the other stakeholders can add legitimacy to the governance process – for example, the private sector that of the efficiency of markets, and civil society the moral force of the substantive values it represents – they are no more legitimate in their own right than governments are. Rather, it is as a network, in which all stakeholders collaborate, that transnational public policy can be developed most legitimately (and incidentally most effectively). The IGF is, at least potentially, such a network. To suggest that the IGF could develop public policy for the Internet, when it is neither representative nor has yet had the opportunity to develop the perception of legitimacy within either the Internet community or the international order at large, perhaps seems outlandish. And so it is – at the moment. But the potential for the IGF to develop into a legitimate and effective governance network, that is perceived as such, exists now and should not be squandered. What is required in order for this lofty objective to be realised, and to save the IGF from becoming simply another irrelevant “talk shop”? Its multi-stakeholder composition, laudable and important as it is, is not sufficient. The IGF must not only be constituted appropriately, but its structure and procedures must also support its inclusive and collaborative ideals if it is to truly become a multi-stakeholder governance network. In determining what these procedures can be, much can be learned from observing the processes of other bodies already involved in Internet governance, such as the IETF, that successfully make decisions by consensus, and from the theory of deliberative democracy which values opinion formation as much as decision-making, and which is particularly well-suited to bodies such as the IGF in which stakeholders from radically different backgrounds are involved.

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