“The Sovereign Right of States”: Why Multi-Stakeholder Policy Development is Possible and Necessary Presented by Jeremy Malcolm at the inaugural conference of GigaNet 29 October 2006

The received wisdom “[The IGF] is not a decision-making body. We have no members so we have no power to make decision.” — Nitin Desai, London, “People say the Internet flourished because of the absence of government control. I do not agree with this view.” — Houlin Zhao, ITU, 2005 “Policy authority for Internet-related public policy issues is the sovereign right of States.” — Tunis Agenda, ¶35

Is open membership an issue? There is no transnational polity crossing all stakeholder groups to give the IGF legitimacy – In particular, the United Nations is not such a body! Cosmopolitan democracy isn't just representation but accountability, transparency and inclusion The openness of participation in the IGF therefore gives it more legitimacy, not less If voting does not work, consensus can

Case study: the IETF No membership except participation Believes in “rough consensus and running code” Its values embedded in the Internet's architecture – Technical architecture (code) as well as social (culture) “But the IETF doesn't deal with policy issues” – RFC 2804 on wiretapping – RFC 3490 on IDN – RFC 3668 on IPR in IETF technology

Is policy authority the right of states? Lack of legitimacy governing transnational issues – The authority citizens delegate to states is not used up Non-state actors do in fact make policy decisions – ICANN's UDRP and other private dispute resolution Policy development by states alone is ineffective – Internet architecture and norms work against it In most areas states retain ultimate power anyway – Co-regulation

Multi-stakeholder policy development? Deliberative democracy shows it is possible – Deliberative poll, consensus conference, citizens' jury There are other bodies attempting similar things – The London Action Plan – ICANN Where it fails, we fall back to other mechanisms – Rules (imposed hierarchically by governments) – Norms, markets and architecture (code)

How is the IGF doing? The Advisory Council lacks legitimacy – Its appointment process was not transparent – Decisions are made on a closed mailing list – Democratic or consensual accountability is absent The format of the meeting lacks effectiveness – Structured as a conference not an organisation – No procedures for building consensus – Remote participants not treated equally

What needs to be done? The Advisory Council should be reformed – It should be smaller and more transparent – An open, multi-stakeholder Nominations Committee should appoint its members for two year terms New structures are needed within the IGF – Workshops should evolve into Working Groups – Formed or dissolved on application to the Council – IGF in plenary ratifies this and their output

How should decisions be made? All decisions should be made by rough consensus – But Advisory Council may fall back to majority vote – Working Groups may adopt their own structures and procedures, by consensus in the first instance – Secretariat may act within the limits of its authority The Advisory Council should elect its own Chairman and a Director for the Secretariat All bodies work online between meetings

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