This post is available herehttp://wsis-si.org/IGF/legal-igf.html
and has been sent by email to the secretariat
Some excerpts :
Internet Governance is the topic of the second part of the WSIS Tunis Agenda ( November 2005 ) from articles 29 to 82. The Internet Governance Forum (IGF) is mentioned in articles 67 and 72 -78. The web site of the IGF ( http://www.intgovforum.org
) only features article 72 concerning the Mandate of the IGF, leaving in the shadow articles 73 to 78 dealing with IGF working, function and organization.
On May 17, 2006, the UN Secretary-General established an advisory group to assist him in convening the Internet Governance Forum.
The secretariat of the WGIG ( Working Group of the Internet Governance ) established by the article 13 b) of the Geneva Plan of Action continued as the IGF secretariat under the direction of the same person : Markus Kummer. It is interesting to notice that article 13 b) did not bother to mention the establishment of a WGIG secretariat, whose existence appeared as an obvious clerical necessity that was recognized in the acknowledgments of Article 32 of the Tunis Agenda. Currently, this secretariat was not an executive secretariat, it was just a clerical body.
There were consultations on the convening of the IGF 16-17 February 2006 - 19 May 06 2006, and more recently a stocktaking session on 13 February 2007.
The transcripts of all those consultations ( Morning Session - afternoon Session 16 February 2006 ; morning Session - afternoon Session 17 February 2006 ; morning session - afternoon session 19 May 06 2006, full session 13 February 2007 ) are quite useful in order to take into account the positions and interpretations from stakeholders.
There is an urgent need to offer a clarification of the legal framework of the IGF process. The advisory group mandate is expired, no clear direction has been proposed for the future meetings. Many stakeholders are more getting more concerned about the IGF process.
According to the tradition and spirit of the Civil Society at the United Nations, in every topics ( conflicts, human rights, biological hazards, environment, etc.. ), the Civil Society fights so that the rule of International Public Law prevails and that UN decisions and recommendations are applied by all stakeholders. It would be very dangerous indeed, in consideration of all the processes that are underway at the United Nations, if such principles were not applied when Internet Governance is concerned.
This draft study does not result from an official inquiry at international or national levels. It is a contribution from some Civil Society stakeholders with limited time and means. Despite our efforts in that direction, this study does not claim to be exhaustive. The reader is warned and encouraged to check all the texts and facts mentioned in this study. The authors cannot be held responsible for any misinterpretation that could arise from this study. The goal of this study is simply to spark a clear and constructive discussion among all stakeholders.
The MAG mandate is expired and the Bureau has not been created. The current situation corresponds to a legal vacuum that can no longer persist. The host country undersigned an intergovernmental agreement with the United Nations. The host country is bound within the dispositions of the Tunis Agenda. The host country could be also liable if it has not made its best efforts in order to facilitate the IGF meeting, and therefore the host country is entitled, and obliged, to contact the UN Secretary General if there is any procedural issue that hinders the IGF process. In fact, because of the multi-stakeholder nature of the IGF, any stakeholder may contact, in a legitimate way, the UN Secretary General.
The Internet Governance Forum constitutes a new legal situation at the United Nations. It is both a challenge and an opportunity for all.
In these circumstances, it is required to be cautious, which means to follow all the little guidance that is provided by the WSIS texts. Disregarding the WSIS texts would be indeed very foolhardy and therefore the texts must be applied in their integrity. It is also required to be creative in order to supplement the WSIS texts when these texts are silent.
One may witness the fact that the Tunis agenda is giving no indication concerning the rules of procedures and working methods of this new multi-stakeholder body, which is not a UN subsidiary body, because all UN subsidiary bodies are intergovernmental in nature. We are in a situation where an intergovernmental process has given birth to a more inclusive, more open-ended process that includes an intergovernmental component, but which is larger in scope than an intergovernmental process.
The only guidance that is provided by the Tunis agenda concerning is that a bureau ( article 78 b) ) must be established. We may call this bureau, the IGF multi-stakeholder bureau or simply the IGF bureau. It should be up to the Bureau to formally adopt the new multi-stakeholder rules of procedures and working methods.
According to the discussions held during the IGF consultation meetings, it appears that there is a need, in order to reach an appropriate and effective level of inclusion that four classes of stakeholders ( governments , business sector, internet community, civil society) be recognized. Nothing in Tunis agenda prevents to adopt this level of inclusion as the technical or internet community is quoted twice ( Article 36, Article 72d) ).
Concerning International Organizations, UN rules prevent them to take part in intergovernmental decision making processes, but within a multi-stakeholder approach this obstacle may be partly overcome. The ITU whose role has been acknowledged ( Article 78a) could be included and represented within the Internet Community. International Organization may also contribute to a multi-stakeholder distributed secretariat (cf infra). The issue of the status and involvement of International Organizations is a sensitive and complex question, and our above suggestions are very exploratory, but the fact remains that the multi-stakeholder legal framework could provide very positive opportunities for International Organizations.
There is a consensus that a Bureau has a precise meaning with the UN system as far as relationships between governments are concerned. This demands that the intergovernmental component of the multi-stakeholder bureau, called for the sake of brevity, the intergovernmental bureau, shall be created according to existing UN rules. Chairman Desai mentioned during the consultation meetings that forming such a bureau is rather a routine within the UN system.
Concerning the other constituencies, it is up to them to get self-organized. In a similar fashion the various components of the IGF bureau, could be called for the sake of brevity : the CCBI, the Civil Society Bureau, and the Internet Community Bureau. During the two preparatory phases of the WSIS, the term of a business bureau or a private sector bureau was not used, and the term CCBI (coordinating committee of business interlocutors ) was used instead and could be continued to be used for the business component of the IGF bureau, if the business sector wishes to do so. There is no need for it to be called a bureau as it is a component of the IGF bureau.
The business sector and civil society may build on their own WSIS practices. The internet community is already well self-organized, and since the composition of the MAG has been deemed appropriate by the Internet Community, the members of the MAG could constitute the nucleus of an Internet Community Bureau.
It is without saying that each component of the Bureau should make extensive consultations within their respective constituencies before adopting multi-stakeholders procedures. It is also without saying that the spirit of the IGF Bureau should be flexible and inclusive, it should not consist in formal meetings of four different bureaus which have reached beforehand their own conclusions. Anyway, this kind of rigid approach is not feasible in practice because all constituencies have inside them a wealth of diverse opinions that must shared between all stakeholders.
The Tunis agenda does not forbid the Forum to create any operational body that is needed to fulfill its mandate. It seems that there is a consensus concerning the need of a program committee that is not mentioned in the Tunis Agenda, and the IGF Bureau could indeed adopt the creation of such a program committee that could be chaired by the host country.
Concerning the secretariat, the IGF should determine if the secretariat should stay as a mere clerical body, or would act as the executive secretariat of the IGF bureau, which would be required to carry any of the operational activity according to the IGF mandate. In this context, it would highly appropriate to review the proposal of a Distributed Secretariat. Indeed it would be coherent if the IGF secretariat would also be multi-stakeholder.
It is possible that each constituency ( governments , business sector, internet community, civil society) to held internal discussions and to reach agreements with the procedures and practices in accordance to their own diversity. However it is quite clear that decisions reached only by a constituency should not qualify as an IGF outcome. All constituencies must be in agreement according to the multi-stakeholder procedures before generating an IGF output ( advice, recommendations, publication ) or contribution.
It could be also envisioned that the “enhanced cooperation” process ( Article 69,70, 71) could be linked with the IGF process to avoid redundancy and improve coherence. The rules of procedures concerning the “enhanced cooperation” process that has not started yet, remain to be determined. It might be a good idea if the IGF multi-stakeholder bureau could also determine the rules of procedures and working methods concerning the “enhanced cooperation” process.
Following Prof. Wolgang Kleinwaechter, we may qualify this unique legal situation as terra incognita ( unknown territories). In the middle ages, this terra incognita situation generated much fear as these unchartered territories were supposed to be haunted by dragons : hic sunt dracones ( here be dragons). The fear and the existence of the dragons happened to be finally unwarranted. We are in a similar situation : IGF stakeholders should not be afraid of dragons that do not exist, and should boldly assess the current situation : we are all explorers, and there are no dragons.