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: A Legal Analysis of the Internet Governance Forum process  ( 22205 )
Registered User

: 6

« : May 21, 2007, 09:13:48 PM »

This post is available here
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.


Overall analysis

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.

Registered User

: 6

« #1 : May 28, 2007, 11:12:47 PM »

Further legal comments 28 May 2007 :

From the Tunis Agenda, It is our understanding that according to the first paragraph of article 72  and  the first paragraph article 78 the UN Secretary General was to bootstrap the IGF process, by convening the first IGF meeting.  After the inaugural meeting, the IGF process should be managed by a multi-stakeholder bureau according to article 78 b). The only direct involvement of the UN Secretary General occurs, five years later, in article 76 in order to examine the desirability of the continuation of the IGF. In the mean time, the involvement of the Secretary General,is according to article 75, is limited to report to the UN membership on the operation of the forum. Therefore, after the first convening of the IGF meeting, the UN Secretary General, his representatives have no legal basis to convene nor organize the subsequent IGF meetings.  It follows that after the inaugural meeting, the only task that can be assigned to an advisory group to the UN Secretary General would be to help him, or his representative, to draft the report to the UN membership. The advisory group, by nature, cannot be entitled to accomplish a larger task that the one that is given to the Secretary General. The UN Secretary General has no legal basis to create an advisory group towards the goal of convening and organizing the subsequent IGF meetings.

The problem is that the UN Secretary General, his representatives, or the group that has been formed to advise the Secretary General on the convening of the IGF inaugural meeting, has not facilitated the creation of structures according to articles 78 a) and b), to ensure a proper convening and organization of the second IGF meeting. At the moment no one appears to be legally in charge of the process. We are in a situation of a legal crisis endangering the legitimacy of the IGF process.
   This raises two questions :
 1/ first of determining the responsibility for the current crisis and to take appropriate actions.
  2/ the second one of determining who is in charge concerning the preparation of the second IGF meeting. It is an accepted legal principle that the entity who is responsible, because of its own negligence, for a difficult situation shall not be rewarded for its own negligence by being allowed to continue to be in charge. If we follow this sane approach, the only stakeholder that has any legal ground to take a leading managerial role, to solve the current crisis, is the host country of the second IGF meeting, through its host country agreement with the United Nations. Conversely if the host country does not take the appropriate steps to facilitate a resolution of the crisis, then this country is engaging its responsibility. In this regards, it has been taken due notice that Brazil proposed the formation of a multi-stakeholder bureau and appears quite suitable to take a leading managerial role in the preparation of the second IGF meeting.
   Therefore, in matter of procedures, we ask and we would support, in this specific situation, the host country to act as expeditiously as possible, and to take the lead in the process of convening and organizing the second IGF meeting, while putting on as the most pressing issue on the IGF agenda, the creation of the multi-stakeholder bureau according to article 78 b).   
   Concerning matters of content of the agenda of the Rio meeting, we should rely on UN best practices as mentioned by chairman Desai :  (17 Feb 06 PM)  I incidentally here mention that the very normal practice in the United Nations when you have a host country which is taking on the responsibility of organizing a meeting which the United Nations has been asked to convene, it's fairly normal practice to request the host country to provide the chair for the process. That has been the case with all the summits that we have run. The host country could therefore chair an international group committee that the host country may constitute in consultation with all stakeholders.
   It appears that there has been regrettable lapses of procedures on May 24 and May 25 that compromised the inclusion and fairness of the consultation process. Many stakeholders made travel plans only to attend the May 23 meeting. According to what appears to be a widely held and plausible hypothesis, a closed two-day meeting of the MAG was  planned on May 24 and 25.  However, since the MAG was defunct, there was no legal  ground to held a closed meeting, and therefore the consultation meeting was open, at the last moment, resulting for all practical purposes into a closed meeting for many civil society stakeholders ( to be distinguished from Internet Community stakeholders ).
   Since the MAG was no longer existing, according to this hypothesis, it was expected a renewal of the MAG in its current composition before May 23, by the UN secretary general. According to our legal analysis, it is clear that such renewal would be have been made without any legal ground, and we commend the UN secretary general on his caution and for not having yielded to haste or pressure.
As a provisional conclusion, the IGF process constitutes a unique opportunity to achieve a new level of multi-stakeholder mutual recognition through a new enlarged  legal framework. We firmly believe that, under the leading managerial role of Brazil, a truly inclusive and transparent multi-stakeholder process can be ensured and that IGF process may start in Rio to fulfill its mandate and to produce tangible outcomes towards solving the very urgent problems of the Information Society.
Registered User

: 6

« #2 : June 07, 2007, 01:05:27 AM »

The text of a follow-up note has been sent to the IGF secretariat on May 31.
Since, according to the IGF secretariat," delays happen due to the fact that we are short handed at times
for the amount of inflow we receive"  and  this can be understood when one notices
that that this forum must be cleaned on a daily basis from pollution.

Therefore, without having to wait,  readers may read this timely note at this URL
and directly
Registered User

: 4

« #3 : November 15, 2007, 06:33:08 PM »

It's too hard to assess the implications of process that is not even looking at outcomes.

I'll pass.

Registered User

: 1

« #4 : October 30, 2008, 01:36:32 PM »

i can hardly known it!
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