[discuss] Governmental participation (Was: Problem definition 1, v5)

Fri Jan 24 19:45:34 UTC 2014

Jeanette,

indeed the experience of ICANN to date should not be discarded; I feel
often that we are still lacking the political-science results here, despite
recent progress.

Re Milton, yes, the GAC is a somewhereland, which is better than a
nowhereland. ICANN has made much progress in incorporating governmental
points of view into policy development, much better than the ping-pong (in
cannonades!) that prevailed in earlier times. It still is complicated for
government officials but there is an improvement.

The institutional design for and including the GAC may be better seen as an
experiment in which there are success and failure, and learn from it. I
stop long before calling it "a monstruosity" because I think of the
alternatives to hand till now.

I do agree that there is a worthy challenge in creating a non-governmental
mechanism that is acceptable to sovereigns and in fact does not do away
with the persistent need for government delegated authority.

That BTW can solve the dichotomy between Milton's and Oscar's positions.
The world we know right now requires government authority and a formal
legal basis for contracts; we are not yet in the Insula Barataria of our
dreams. ICANN can evolve in a way that allows contracts to be signed in a
choice of jurisdictions. This is almost purely an administrative measure
and designing against forum shopping is a second-order design constraint
which I think is achievable.

Note on discussion language: if the above were acceptable, Milton, it would
mean that Oscar isn't wrong. Maybe his statement was, or maybe even more,
there was space for disagreement. I do disagree with telling someone "you
are wrong" if his genes apparently conform to human DNA sequences within 3
sigmas of the average.

Yours,

Alejandro Pisanty

On Fri, Jan 24, 2014 at 1:17 PM, Jeanette Hofmann <jeanette at wzb.eu> wrote:

> GAC traumatization should make us ask what can be learned from this
> 'architectural' failure.
> Having governments participate as individual experts may work in specific
> contexts such as the IETF but I don't think it can be generalized. One of
> the differences between IETF and IG matters is that we the structure we are
> discussing here is expected to create binding solutions and cannot just
> delegate the question of acceptance and compliance to the market.
>
> And frankly, I wouldn't want to reduce political conflicts to matters of
> (differing) expertise. There are piles and piles of literature describing
> how politicians, by declaring something as a "technical matter", try to
> de-politicize issues, i.e. foreclosing public attention and opinion
> building. The legitimate structure must try to accommodate the diversity of
> views and roles both within and across stakeholder groups. Reducing
> everyone to an individual expert does not sound like viable solution to me.
> Otoh, the institutional issues of ICANN seem a good starting point to
> think of better solutions.
>
> jeanette
>
>
>
> Am 24.01.2014 19:45, schrieb Milton L Mueller:
>
>> (new header)
>>
>> *From:*Alejandro Pisanty [mailto:apisanty at gmail.com]
>>
>>  OTOH to your perspective: can we add to the governmental participation
>>>
>>
>>  a bit of Slaughter's intergovernmental network perspective? (p. 187 of A
>>>
>>
>>  New World Order carries the title "Enhancing Cooperation")
>>>
>>
>> Slaughter’s concept of transgovernmental networks (TGNs) is indeed
>> relevant here, though not as directly applicable as one might think.
>> Typically TGN research in political science has focused on networks of
>> specialized governmental agencies in the same policy sector, such as,
>> say, telecommunications or environmental regulation. Some of these TGNs
>> (e.g., London Action Plan, which is analyzed in my book and in some more
>> detailed research at Delft) are even multistakeholder in composition.
>>
>> TGNs are relevant to the conversation we are having here in that they
>> involve transnational cooperation among governments below the level of
>> the single, official national position. They are less relevant to this
>> conversation because they are more about knowledge-sharing and
>> coordination among governments in their traditional policy making role
>> at the national level, and not about governmental participation in a
>> transnational, private sector-based MS policy making regime.
>>
>>  >these are spaces where government officials enjoy a bit more
>>
>>  >latitude and in fact it's very likely that the GAC is much more
>>
>>  >than "a body", it is one more node in such networks.
>>
>> But I think this line of inquiry makes it clearer why the GAC is such a
>> monstrosity in institutional terms. You have a dysfunctional and
>> incoherent mixture of the multistakeholder model with
>> intergovernmentalism. What we have in GAC is _/not/_ governmental actors
>> interacting with private sector and civil society actors as peers in the
>> joint formulation of policy. Instead, governments shut themselves up in
>> a room with other governments, all of whom profess to uphold a single
>> official position that purports to be that of a “country.” In short, it
>> has all the trappings and procedures of an intergovernmental
>> organization, yet it is embedded within a private corporation that can
>> impose global policies via contract. The governments are not bound by
>> standard legal checks and balances (GAC positions can have the same
>> force of a treaty but are not ratified by legislatures and cannot be
>> challenged in court). In developing its policy positions, the GAC’s
>> process is completely independent of, and parallel to, the bottom up
>> policy making process, which inevitably leads to contradictions. This
>> puts GAC in a position to second-guess, circumvent or override the
>> bottom up process by giving “advice” to the board. The bifurcated
>> structure also encourages GAC to see their giving of advice as a power
>> struggle in which the whole point of the game is to see how much they
>> can get the board take their position and not the GNSO’s.  Lobbyists
>> routinely exploit this override capability to try to get from the GAC
>> what they failed to get in a bottom up consensus-based process, which
>> undermines the credibility of the GNSO and any commitment actors might
>> make to it.
>>
>> I do not fear a governmental takeover of the Internet, or an
>> unaccountable private sector-based governance of the Internet, half as
>> much as I fear that we will end up with an incoherent and dysfunctional
>> mixture of the two principles.
>>
>> --MM
>>
>>
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-- 
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