Multistakeholder Governance - Principles and Challenges of an Innovative Political Paradigm

MIND #2
Internet Policy Making
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PROPOSITION

Bertrand de La Chapelle

Abstract

The Internet is like Galileo’s telescope. The famous Italian’s invention allowed scientists to make observations that challenged the Ptolemaic vision of the universe. This ultimately led to the scientific paradigm shift that was the Copernican revolution. In a similarly revolutionary manner the Internet, due to its lack of technical borders and the complex public policy issues that is raises, reveals the limits of an international “Westphalian” system based on a community of sovereign nation-states delimited by territorial borders. It calls for a new approach to policy-making for a global community of billions of people: a political paradigm shift known as “multistakeholder governance”. This paper explores the principles and challenges of this new approach.

Multistakeholder governance is not a replacement for other modes of governance. Nor does it require or foresee the disappearance of nation- states. Necessary for cross-border issues like those related to the Internet, it leverages existing structures such as governments, civil society organizations, businesses, international organizations, etc., and provides a way of making their heterogeneous governance frameworks interoperable, just like the Internet protocol enabled hundreds of thousands of heterogeneous networks to act as one unified communication platform. Multistakeholder governance can foster democracy, enrich existing representative frameworks and empower citizens in our interconnected and interdependent world.

Principles and Challenges of an Innovative Political Paradigm

Introduction

Throughout history, mankind has continually endeavored to find better and better ways of organizing ever increasing human societies. The Internet, because of its borderless nature and the connections it enables among almost two billion people, triggers a profound restructuring of human communities and poses particular challenges in terms of policy-making within these new trans-border spaces.

On November 18, 2005, the representatives of 174 sovereign governments solemnly adopted the closing documents of the second phase of the World Summit on the Information Society (WSIS). One of them, the Tunis Agenda, contained the following definition of Internet Governance:

“Internet Governance is the elaboration and application, by governments, civil society, the private sector and international organizations, in their respective roles, of shared principles, norms, rules, decision-making procedures and programs that shape the evolution and use of the Internet.”

For the first time, the need for the involvement of all categories of actors (aka multistakeholder governance) was officially recognized in a United Nations document, potentially making WSIS a turning point in the global approach to policy-making. This official endorsement did not, however, imply a clear and common vision of how to implement the multistakeholder approach. Worse, the wording “in their respective roles” was a perfect example of what diplomats usually describe as constructive ambiguity: an agreement on terms that conceal a disagreement on substance.

Six years later, a growing number of actors have been exposed to two major processes that operationalize this innovative concept: the Internet Governance Forum (IGF) and the Internet Corporation for Assigned Names and Numbers (ICANN). As a result, multistakeholder governance in Internet matters has now gained enough visibility to raise a growing amount of interest in various circles, but also opposition from actors who may feel threatened by it. And it is still young enough to be vulnerable to criticism regarding its current modalities.

In this context, the present paper intends to:

1) explain why multistakeholder governance was deemed necessary in Internet matters 2) draw some common implementation principles from the two main experiments 3) identify issues that must be addressed for this new governance paradigm to fulfill its potential

This paper is not a mere defense and illustration of a model which, to a large extent, is still under development, nor does it pretend to be exhaustive. Conceived as a support for further discussion, it is structured as a series of numbered points to facilitate comments, arguments, criticism and improvements, in the hope that a collaborative effort will further enhance this critical toolbox for Internet policy-making.

Why a New Approach is Needed: The Limits of the Westphalian System

In the current international order, policy-making is conducted on the basis of a fundamental distinction between state-regulated activities inside national borders on the one hand, and on the other hand, trans-border interactions governed by international arrangements negotiated between governments only. This model is described as “Westphalian” in reference to the 1648 Treaty considered as the origin of national sovereignty through the principle “cujus regio, ejus religio” (the religion of the ruler is the religion of the territory). The institutional embodiment of this international architecture is a society of independent nation-states and a network of intergovernmental organi- zations, including the United Nations family, the Bretton Woods financial institutions, and various regional or economic groupings. The fundamental bases of this system are national sovereignty, non-interference, territoriality of national jurisdictions and a monopoly of representation of citizens by their government at the international level.

This hierarchical and intergovernmental system was developed in a world with few countries, clear frontiers and simple interactions, mostly among governments and a few commercial actors. But dynamic tensions appear between a technically borderless Internet and bordered nations. Furthermore, separating territories becomes less important than managing “commons” and growing cross-border interactions. Both national regulations and international processes clearly encoun- ter operational and legitimacy limits in an intercon- nected and interdependent world, with 190 countries of very diverse sizes, power, democratic credentials or stability. Below are some of the challenges that show the limits of the Westphalian model and require a new, more inclusive approach to addressing Internet policy issues: “multi-stakeholder governance”.

Common Space(s)

Social media platforms are fulfilling William Gibson’s vision. Beyond a technical tool for academia or busi- ness, the Internet has truly become cyberspace, a common social space, shared by nearly two billion people, and growing. But cyberspace is not a separate continent: even people not connected to the Internet are impacted by what happens on it, as the Arab Spring powerfully demonstrates. Nor is cyberspace a single space: it contains many sub-communities, from the fully public to the very private.

Unevenly distributed around the world, ever more diverse in their religious, political, moral and cultural affiliations, millions of people connect and fight, con- gregating in a variety of different human networks and communities, both loosely and tightly-knit. If policy-making is the process of defining rules of coex- istence for the inhabitants of a given territory, what is policy-making for the Internet space(s)? How do two billion people define and adhere to common rules of coexistence? And how can a corresponding global governance framework remain viable with three, four or more billions of participants?

Complex Policy Issues

The Internet is far from being unregulated: numerous national laws directly or indirectly impact human activities on the Internet, whether we like it or not. Moreover, most public policy issues regarding the Internet are not new and include, for instance, free- dom of expression, protection of privacy and personal data, fighting criminal behavior, rules governing intellectual property, taxation, etc.

These issues may be similar to those encountered in national settings. But scale (an inherently global cross- border network), speed (as we move into real-time feeds) and the number or diversity of actors involved make the Internet a difficult space for policy-making. Furthermore, dense interconnections produce strongly non-linear effects that are difficult to anticipate, let alone remediate through traditional means. The “burn a Koran day” initiative of a lone pastor in Florida triggered, in a matter of hours, demonstrations in Pakistan that led to several deaths. Traditional policy issues take a different and complex twist on the Internet.

Integrating New Actors

he main transformation triggered by the Internet is the multiplication of human groups with transnational or even global influence. In the economic space, the Internet triggered and enabled globalization. Companies with larger turnovers than some countries’ GDPs and with transnational networks of employees, customers and suppliers have developed. Even the youngest web start-ups immediately reach international audiences and large social media platforms attract hundreds of millions of users. Likewise, most human networks now have the means by which to spread across borders: families, associations, NGOs, diasporas, etc. can now be globally connected, increasingly in real-time, also through the almost universal dissemination of mobile phones.

Such networks do not replace traditional actors, such as states. But, in some cases, their growth has led them to become comparable in scale or even larger. They grow by accumulating members from all over the world in a fractal manner, thus making humanity more interconnected. This interconnection has prob- ably now reached a point where humanity can be considered a complex society rather than a juxtaposition of separate national communities with limited interactions. This does not, of course, mean that everyone is connected to everyone; but that the density of links has dramatically increased. As the saying goes in complex dynamic systems theory: more is different. The global society is a patchwork of multiple overlapping communities, each eager to take part in global discussions regarding the spaces they share.

Diversity of Stakeholderships

Most state actors view the emergence of trans-border corporations or civil society networks as a challenge to their own power. Yet citizens, as users, suppliers or clients of such companies, may have a personal stake in their success or be concerned by their behavior. Citizens may at the same time have personal interests in issues that their own government does not prioritize or even opposes; accordingly, they may place their trust in non-governmental organizations to ensure that their views are duly taken into account in international discussions. In addition, national decision- making processes, even the most democratic ones, have the natural result of reducing the diversity of visions to a single position, which means that minority approaches are rarely taken into account in inter- national governmental discussions.

Individuals still want their governments to represent their interests as citizens of a national community. Nation-states will neither disappear nor become irrelevant. But citizens now have other more diversified stakes in the evolution of the Internet, its ecosystem and the rules applicable to it. For a growing number of people, citizenship is one among several stakeholderships. They want the diversity of their interests and concerns to be fully taken into account in the deter- mination of a global public interest that cannot merely be the aggregation of national public interests.

Conflicts of Jurisdiction

National laws remain a key instrument of policy-making. Nonetheless, uncoordinated proliferation of potentially incompatible national norms, for instance those governing privacy or freedom of expression, generates conflicts of jurisdiction. It is difficult for global platforms to respect this diversity of rules. Fur- thermore, activities of individuals conducted over the Internet often exhibit a cross-border nature, which brings particular difficulties in terms of enforcement. Finally, national decisions by a particular government can have direct or indirect effects on the territory of another. If sovereignty is the capacity to exercise supreme authority over a territory, the Internet is a direct challenge to the territoriality of law, one of the key components of the Westphalian model.

A "Fractalization" of Sovereignty

More significantly, the emergence of large social media platforms have led to an unexpected state of affairs: their users, irrespective of their effective physical loca- tion, become bound by Terms of Service (ToS) that establish the jurisdiction of the country of incorpora- tion of the company, or, at best, of the country in which its data centers are located. This phenomenon amounts to a “fractalization” of sovereignty, where the jurisdiction and legal frameworks of a country become de facto applicable to citizens of another one, extending the reach of the former and proportionally reducing the sovereign authority of the latter.

Digital Territories

The popular press often quips that if Facebook were a country, it would be the third largest in the world. But this comparison is inappropriate. Being a country requires much more than a mere collectivity of users, whatever its size. However, as long as they remain on its servers, the more than 600 million users of Facebook are first and foremost under “Facebook Law” (its ToS) with respect to freedom of expression and privacy protection, for instance. This framework represents the common rules under which a growing number of people spend increasing time interacting across borders.

Without pushing the reasoning too far, we may be witnessing the emergence of “digital territories”, foreshadowing the development of a new geography for cyberspace, potentially organized around large communities on social media platforms. These platforms, trying to find common rules of coexistence for their millions of users, have a de facto policy-making role. But this role, being conducted under exclusive corporate guidance, is at best that of a benevolent ruler, rather than fully respectful of the democratic principle requiring the involvement of the governed. The tension between this new virtual geography and the physical borders that took centuries to establish is likely to grow in the years to come.

Competing International Institutions

If national laws encounter major challenges on the trans-border Internet, could international treaties represent an appropriate solution? In theory, yes. Several useful instruments have been developed to try and address major issues. A good example is the Budapest Convention on cybercrime that has signi- ficantly raised awareness around the world for the necessity of closer cooperation, triggered some harmonization between national legal frameworks and established clearer rules for law enforcement efforts. However, not only do such instruments take an extremely long time to develop, they are rarely universal, usually having been initiated by specialized or regional agencies. And as the Internet grows in visibility, more and more intergovernmental organiza- tions compete for leadership, according to their respective mandates, reproducing at the global level the incoherence and potential incompatibilities exist- ing between different national laws.

Democratic Accountability

The international system is based on the principle of the sovereign equality of states. This translates in most international discussion into mechanics of consensus where the representative of one government, if sufficiently vocal and influential, has the potential to prevent the adoption of necessary measures if they are contrary to his/her perception of national interest. Unfortunately, this can give an extraordinary quasi veto power to individuals representing undemocratic governments or delegates who may even unfaithfully convey the views of their own government.

Furthermore, governmental participation in most pro- cesses is not even handled by elected officials from the executive branch, let alone by parliamentarians, but increasingly by low-level civil servants. Members of different administrations from the same country sometimes convey different points of view in different orga- nizations and citizens have no way of knowing what their “representatives” say on their behalf behind the closed doors of intergovernmental deliberations. All in all, the existing international framework provides very weak democratic accountability for global regulatory efforts that have significant and direct impact on the daily life of world citizens. This situation predates the emergence of the Internet, but it becomes less and less acceptable when new communications tools provide opportunities for higher transparency and participation.

Minilateralism

Recognizing this situation, many democratic countries are currently tempted to rely less on the universal insti- tutions of the United Nations family and to retreat to more regional or like-minded fora, such as OECD, the Council of Europe or, more recently, the G8. This so-called “minilateralism” might better ensure that the principles of openness of the Internet and human rights will be respected and fostered. It is hard to decide, however, whether this can be more than a temporary patch against the limits of universal institutions. Will the approach ultimately hurt the ambition of a single universal Internet if such limited initiatives are not endorsed by a significant number of other actors? More innovative ideas are probably needed.

A Mutual Recognition of Stakeholders

Largely because of the above, the World Summit on the Information Society, after four painstaking years, led to a mutual recognition between entities that, previously, barely respected one another. Governments recognized that businesses and civil society provide sorely needed technical expertise but also that they are increasingly needed to enforce national regulations and therefore need to be more closely involved in the development of such rules. Conversely, non-state actors accepted that governments could not be kept at bay and were unavoidable – and legitimate – stakeholders in policy-making.

As a result, the WSIS documents produced the above- mentioned definition of Internet governance, which recognizes the multistakeholder approach. And with the Internet Governance Forum (IGF), the WSIS also created a type of new laboratory in which to experiment with this approach. This laboratory now operates in addition to the pre-existing Internet Corporation for Assigned Names and Numbers (ICANN). Have ICANN and the IGF, despite their relative short existence, demonstrated the viability of the multistakeholder approach?

A Political Paradigm Shift: Principles and Practices from ICANN and IGF

Internet standard-setting bodies such as the IETF first established several of the principles and practices adopted by ICANN and the IGF. Today, these two organizations are nonetheless the main laboratories trying to implement the multistakeholder approach. ICANN was created in 1998 to coordinate the management of the Internet domain name system (DNS). The IGF, established in 2006 by WSIS as a dialogue space on policy issues, has held five annual meetings in Athens, Rio, Hyderabad, Sharm el Sheikh and Vilnius and its mandate has recently been extended for another period of five years.

Instead of a detailed description of the manner in which they function, itself the subject of numerous articles, this paper builds on a comparative analysis to identify common general principles of the two organizations, leaving aside the very varied working methods that result from their differing mandates. The non-exhaustive and very succinct list below is an attempt to highlight the fundamental traits of the multistakeholder approach and its striking differences with the Westphalian model.

Openness

Both ICANN and IGF processes are open to anybody wanting to participate, including individuals. This stands in stark contrast with the monopoly of citizen’s representation by governments in traditional intergovernmental processes and their corresponding very restrictive and heavy accreditation procedures for non-state actors. Although it was never formulated as such, the multistakeholder approach rests on a fundamental principle: the right of any person to participate in governance processes dealing with issues of interest or concern to them. Most implementation modalities follow from this paradigm shift; a shift from the principle of representation to the principle of participation.

Transparency

As much as possible, sessions are webcast or audiocast and can be followed remotely, including through self-organized remote hubs in the case of the IGF. The most important sessions are even fully transcribed in real-time and archived for later access, representing again a radical departure from closed meetings in the international system. All documentation and process documents are freely accessible on the respective web sites.

Equal Footing

All participants in IGF workshops and main sessions are on an equal footing, be they from government, civil society, business, technical community or inter- national organizations. No sub-structure by constituencies has been established within the IGF, apart from the Multistakeholder Advisory Group (MAG – see below). ICANN also endorses the principle of equal footing for its public forums and comment peri- ods, but has established a relatively complex architecture of constituencies, supporting organizations and advisory committees in order to produce actual policies and decisions. As the name implies, advisory committees are not supposed to exercise a similar role as the rest of the participants. However, the development of the new gTLD program has showed that the term “advisory” does not prevent governments in the GAC from exercising effective influence.

Bottom-up Agenda-Setting

Intergovernmental processes have very strict rules regarding how to put an issue on their Agenda, which usually requires consensus within their governing body (Council or equivalent). This often leads to important delays before an issue can be effectively addressed, if one or a few governments are opposed to it. By contrast, both ICANN and IGF have very open agenda- setting procedures, including the open call for workshops in the case of the IGF and the rules for initiating policy development processes in the case of ICANN.

Iterative Consultation Processes

Both ICANN and IGF heavily rely upon completely open consultations processes through physical meet- ings and calls for online comments, complemented, in the case of ICANN, by formal contributions from advisory structures (ACs) and constituencies. Synthe- sized by the secretariat (IGF) or staff (ICANN), such comments are iteratively integrated in successive drafts. This open call for contributions, on an equal footing, is an essential part of the multistakeholder approach, where intergovernmental organizations naturally limit the right to contribute to member governments.

A Governance Workflow

The IGF is a dialogue space, a watering hole for all actors dealing with Internet-related policy issues. As such, it has no direct decision-making capacity and only contributes to a comprehensive framing of issues and a more coordinated distribution of responsibilities between different processes and actors. This decision- shaping role represents the first phase in any governance workflow and is critical for taking into account the different dimensions of an issue. ICANN, as the de facto global regulator of the domain name space, enjoys effective decision-making powers and also possesses the four other requisite competencies in the governance workflow: regime drafting, validation, implementation and enforcement.

Self-Organization

Both organizations have developed their rules of pro- cedure through iterative trial and error. For the annual IGF, a Multistakeholder Advisory Group (or MAG), and not a purely intergovernmental bureau, acts as a program committee on the basis of participants input. With the support of the secretariat, it structures the main sessions and schedules workshops organized by the participants themselves. Likewise, working groups within ICANN establish their own charters and sup- porting organizations; advisory committees do the same for their rules of procedure. This may have its drawbacks when process discussions delay the actual start of substantive work, but this approach provides a flexibility that rigid rules of procedure in many inter- national structures do not offer.

Links with the Initial Legitimating Authority

Both ICANN and IGF remain somehow connected to the entities that gave them their initial legitimacy. Although it is becoming increasingly autonomous, in particular since the recent Affirmation of Commit- ments (AoC), ICANN is still under contract with the US Department of Commerce (DoC) (which initi- ated and presided over its creation in 1998) as regards key IANA functions. The IGF, likewise, is still formally convened by the UN Secretary General, who appoints the chair of the MAG and validates its members. Each annual IGF is held on UN territory. Such links remain useful in terms of legitimacy, but it is expected that the structures will ultimately stand on their own when they have sufficiently matured.

Self-Improvement

Constant refinement of operating rules is a hallmark of multistakeholder processes, probably due to their relative newness. Every annual meeting of the IGF includes a stocktaking session to identify possible improvements for the next event. ICANN has put in place a regular review of each of its main structures and constantly updates its bylaws to reflect the corre- sponding changes. This can create a sense of instability but, as time passes, will hopefully lead to a more stable and perfected model.

These ongoing self-improvement measures are complemented at regular intervals by other reviews involving the original legitimating entity (the US DoC and the UN), but not conducted exclusively by it: in ICANN, an Accountability and Transparency Review is undertaken every three years by a multistakeholder panel including a representative of the US DoC; likewise, after an IGF has existed for five years, a multi- stakeholder group examines the potential for improve- ments, under the auspices of the UN Commission on Science and Technology for Development (CSTD). It is important that these reviews are conducted by fully multistakeholder groups, even though this principle has not been entirely complied with up until now.

Forum - Working Groups - Steering Group

At first glance, the structures of ICANN and the IGF appear very different. But upon closer look, a common pattern, seemingly characteristic of the multistakeholder method, becomes apparent. This pattern is typified by interaction between 1) an open forum (in physical form or online) that allows anybody to join and contribute, 2) topic-based smaller working groups constituted on an ad hoc basis, and 3) a steering group to pilot the deliberation or drafting process and foster consensus. This may seem very similar to traditional hierarchical institutions and processes. However the full openness of the forum level, the variable composition and char- ters of working groups and the facilitation role of the steering groups introduce very original dynamics. The MAG in the IGF, the Board and various Councils in ICANN are examples of such steering groups. The IGF has not established working groups yet because of strong resistance from certain participants. But it may do so in the future through the so-called dynamic coalitions which, in spite of their current limitations, are an indication of things to come. Within ICANN’s gNSO, the change from rigidly structured task forces to a more open working group format was a step towards fuller multistakeholderism.

Replication Format

he IGF was created with little more than a few lines of mandate in the Tunis Agenda, the designation of the UN Secretary General as convener and his nomi- nation of a chair and an Executive Secretary. The sub- sequent development of a set of informal procedures and practices has produced an unanticipated result: the emergence of numerous national and regional IGFs loosely based on the global IGF format. ICANN’s relatively complex structure does not spon- taneously replicate in the same way, but many anticipate that the introduction of new Top Level Domains (gTLDs) and Internationalized Domain Names will give rise to the question of how best to scale up the model. Some sort of replication involving, for instance, the grouping of registries by categories and/or by type of script, may be the solution. Likewise, many new registries are likely to adopt some form of multistake- holder consultation process – similar to ICANN’s – to define their second-level registration policies.

Shifting from a principle of representation to a prin- ciple of participation has produced a set of practices that now self-replicate in new structures. Examples of this are the network of national, regional and global IGFs and the potential fractal replication of the ICANN model in the internal governance of future gTLD registries. This capacity to spread and build a larger infrastructure from a relatively limited seed is similar to the way in which the Internet and the World Wide Web developed out of a few connected nodes or a single online database. This is a promising indication with regard to the growth potential of these experiments. One should, however, remain vigilant with respect to key implementation challenges and even dangers of things going astray.

Avoiding Implementation Pitfalls

The multistakeholder governance approach has worked efficiently in the background for many years in the ad hoc technical organizations that steered the production of standards for the Internet and the World Wide Web. However, applying this approach in the policy-making realm is a qualitatively different endeavor, and is encountering resistance from estab- lished players. It is all the more important to not be blind to potential pitfalls or limitations of the new model in order to fix them before they are exploited to discredit this innovation. Some of the challenges are listed below. In many cases, the appropriate response is not easy to find.

Ensuring Really Inclusive Participation

The right to participate and the open nature of multistakeholder processes do not by themselves guarantee the effective participation of relevant stakeholders. On the one hand, due to lack of awareness, funds, or time, many disadvantaged actors do not take part in the Internet Governance “traveling circus” of meetings around the world, often held in expensive venues. Proactive measures like remote participation and fellowship funds, as well as the replication of IGFs at national and regional levels, alleviate part of this problem and must be strengthened. This new approach is certainly not perfect, but the alternative is remaining in a traditional system that offers no capacity for marginalized actors, let alone individuals, to be heard. On the other hand, very important commercial actors are not always willing to participate yet, because they are uncertain of the balance of risks and benefits, and because they may prefer the better-known route of lobbying governments directly. One of the strengths of national governments is the capacity to impose constraints of national public interest upon actors not willing to discuss them. Internet governance, on the contrary, is a form of co-regulation and demands the participation of all relevant stakeholders to be effectively balanced. One of the biggest challenges is establishing rules of good standing that compel stake- holders with a critical weight or power to participate in the definition of regimes applicable to them. ICANN’s capacity to force contracted parties to respect future “consensus policies” is, for instance, what makes them participate in the policy development process (PDP).

Fighting Information Overload

One of the drawbacks of extreme transparency is information overload. Thousands of pages of tran- scripts, memos, drafts, studies, minutes, etc. are available on the ICANN and IGF web sites. They will be an amazing treasure trove for future historians. But they represent an extreme work burden for the staff producing them and a herculean task for volunteers with limited available time to digest them and identify the really important points. Further improvements in support staff working methods are critical to ensure that this mass of information is organized in a more accessible manner.

Synthesizing Discussions

Multistakeholder deliberations need to produce regular outcomes that chart progress, identify domains of agreement and issues to explore further. Otherwise, oral arguments, exchanged over and over again, produce an endless loop with no progress. But the elaboration of such synthetic documents is a critical task. To avoid falling into typical UN-style collective resolution drafting, this task is usually left to a secretariat. But even when this support staff is perfectly neutral and trusted, part of the benefit of collaborative production of solutions is lost, and participants’ buy-in is reduced. Developing new collaborative drafting meth- ods that establish a proper balance between these two aspirations will be essential.

Preventing Capture(s)

Any policy process introduces its own dynamics and establishes a particular balance of power between the different groups involved. Different risks of capture by particular groups have been suggested in the cur- rent experiments. These include the over-representation of actors from developed countries in the IGF and in the Governmental Advisory Committee (GAC) of ICANN, the overwhelming presence of major Amer- ican private sector companies within the business sec- tor, the weight of the contracted parties within ICANN, and the hidden hand or agenda of the secre- tariat (in the IGF) or staff (in ICANN). The dangers of imbalances are real and should not be overlooked. However, for any group, capture is always what the other groups are guilty of. The fear of capture is there- fore a sound component of a multistakeholder process; it generates mutual vigilance about potential biases. It cannot however replace, albeit sometimes facilitate, the adoption of proper transparency and accountability mechanisms.

Composing Diversified Working Groups

Complete equal footing of participants is appropriate for the agenda-setting and issue-shaping phases of discussions. However, the phase in which a governance regime is actually drafted, requires more structured processes and, in particular, the formation of small, sufficiently diverse working groups. Elections spontaneously suppress minority views, when the essence of multistakeholder processes is to ensure as long as possi- ble the most comprehensive representation of the diversity of viewpoints. Defining simple, fair, transparent and relatively reproducible methods to compose such diverse working groups will be critical to helping the multistakeholder model establish its credibility.

The Neutrality of Steering Groups

Contrary to very structured institutions, multistakeholder processes rely on the intense engagement of a large number of volunteers. This has many positive benefits: flexibility, commitment, expertise and reduced costs, among others. However, whenever the resulting regimes have a direct financial impact on some stakeholders, the way steering groups are constituted and the management of conflicts of interests among their members are of high importance in terms of ensuring appropriate neutrality.

Various modalities have been experimented with during the formation of the ICANN Board, and the manners in which members of the IGF MAG are designated differ between stakeholder groups. As yet, no definitive model for forming MS steering groups has emerged. However, the use of nominating committees is an important innovation, and one which complements electoral processes. The benefits and limits of the two modes of designation require more discussion than is possible in this paper. But one thing is clear: steering groups composed of volunteers that remain active stakeholders in the community make it more difficult to ensure neutrality and independence.

Reaching Closure

Bottom-up participatory processes are able to gener- ate a surprising amount of consensus. But very few rules exist as regards bringing closure to discussions when complete consensus cannot be achieved and the diversity of stakeholders does not allow for voting. Decision-making rules are nonetheless necessary in order to prevent unending procrastination. The notion of “rough consensus” developed by technical standard- setting bodies is promising but it may be difficult to transpose for policy issues with strong commercial implications. A major pitfall in this context is the risk of seeing a steering group moving away from a facili- tation and guidance role in an attempt to become the actual decision-maker.

Building Legitimacy

Traditional Westphalian institutions gain their legitimacy through their foundation, which involves trea- ties or solemn international instruments and the support of high-power governments. Multistakeholder processes have had much more modest births. The creation of the IGF, for instance, was decided almost as an afterthought, a last minute solution to avoid deadlock in the second phase of WSIS. It was launched with no budget, no rules, a small team of very dedi- cated individuals and a potential host. The early days of ICANN were likewise fraught with uncertainty. Neither structure has a group of formal members or signatories of their charter (the IGF doesn’t even have one). They should be envisaged more as shared tools than institutions, even if they potentially grow in recognition.

Like technical specifications that become real standards only through their level of adoption, multistakeholder processes must build their legitimacy a posteriori rather than enjoying it a priori. The repli- cation of the IGF at national and regional levels as well as the growing participation of governments in the ICANN GAC are barometers of the growing endorsement these experiments begin to enjoy. But such legitimacy is always fragile and must always be earned through constant justification in terms of relevance and utility.

The above identification of challenges is far from exhaustive. It should be considered as a mere invitation to expand the list and help find even better solutions to help the multistakeholder approach fulfill its potential.

Conclusion

The Internet is like Galileo’s telescope. The famous Italian’s invention allowed scientists to make observa- tions that challenged the Ptolemaic vision of the uni- verse. This ultimately led to the scientific paradigm shift that was the Copernican revolution. In a similarly revolutionary manner the Internet, due its lack of tech- nical borders and the complex public policy issues that is raises, reveals the limits of an international “West- phalian” system based on a community of sovereign nation-states delimited by territorial borders. It calls for a new approach to policy-making for a global community of billions of people: a political paradigm shift.

Recognizing the limits of an existing political frame- work does not mean agreement on its replacement or how much change is needed. Alternative approaches usually compete for a while until one imposes itself by its stronger capacity to peacefully organize human societies. “Multistakeholder governance” is such an attempt to address differently the Internet-related policy issues that the traditional intergovernmental system has difficulties managing. Beyond the some- what formidable name, lies an effort to implement a simple but revolutionary principle: the right of every- one to participate in the policy-making processes related to issues that they are concerned with. ICANN and the IGF are the two laboratories trying to trans- late this fundamental principle into concrete pro- cesses. Beyond the remarkable potential of this new approach, particular efforts remain necessary in order to address key implementation challenges.

Some critics of this approach consider that it weakens democracy by the role it potentially gives to major actors, particularly from the business sector, and by removing the legitimating process of elections of representatives. While this is a valid issue worthy of further developments beyond this paper, let us not forget that large corporations already have as powerful and less transparent capacities of influence through traditional lobbying and that true representative democracy is far from established in all regions of the world, thus tainting international processes that rely exclusively on governmental representation.

But this innovative approach deserves more than mere defense. Not only does the multistakeholder approach not weaken democracy, it can actually deepen it. After all, if broader individual participation of citizens and entities in governance processes is now possible thanks to lower transportation costs and new electronic communications, why should it be prevented? Why would representation be more democratic than appropriately accountable processes enabling anyone to participate?

Conversely, many governments are afraid that multi- stakeholder processes weaken their legitimacy and will result in their demise. But not all scientific revo- lutions require the previous paradigm to be discarded entirely. Of course, Ptolemaic and Copernican visions could not coexist: either the Earth orbits the sun or the other way round. But quantum physics and rela- tivity theory did not replace the classical Newtonian framework, which remains valid outside of atomic scales or extreme speeds. Each theory has its own range of validity.

Similarly, multistakeholder governance is not a replace- ment for other modes of governance. Nor does it require or foresee the disappearance of nation-states. It is particularly necessary for cross-border issues such as those related to the Internet, and it leverages existing structures such as governments, civil society organizations, businesses, international organizations, etc. It provides a way of making their heterogeneous governance frameworks8 interoperable, much in the way that the Internet protocol enabled hundreds of thou- sands of heterogeneous networks to act as one unified communication platform.

Rather than being a challenge to democracy, multi-stakeholder governance can foster it, enriching existing representative democracy frameworks and empowering citizens in our interconnected and inter- dependent world. Multiplying multistakeholder forums and participatory deliberation processes and connect- ing them with existing governance structures is the only way to create a distributed global governance framework that is not a global government.

Comments welcome. The author can be reached at the following email address: [email protected]