The Resolution No. 3 called "To Foster an Enabling Environment for the Greater Growth of the Internet" became the subject of a rather substantial controversy during the recent World Conference on International Telecommunication" (WCIT) which ended last week in Dubai. Some people have argued that they did not understand the noise around the short text which just summarizes references to already existing language adopted by other WSIS and ITU conferences and has no concrete operational articles. However a second reading of the ten paragraphs makes you sensitive that this "harmless resolution" could become also a "Trojan Horse".
Where this resolution came from? In his opening address to the WCIT, ITU Secretary General Hamadoun Toure repeated several times that Internet Governance is not the subject of the negotiations for new International Telecommunication Regulations (ITR). But the other day Russia tabled its Internet Governance document for inclusion into the new ITRs. The proposal included definitions for the Internet, Internet Governance and a new concept called "national Internet segment". How to settle the conflict?
WCIT-Chair Sheikh Mohamed Nasser Al-Ghanim tried it with "informal consultations" but had nothing to report at the end of Week 1. The heat was growing when the United Arab Emirates announced on Friday afternoon that they will table a new "consolidated" document sponsored by a handful other governments, including Saudi Arabia, China, Iraq, Bahrain, Sudan and Algeria on Monday. The document No. 47-E included nearly all controversial elements of the Russian proposal. A hectic weekend followed.
This was the moment when Toure himself stepped in and tried to broker a compromise. His idea was to exclude the Internet from the legally binding treaty, but to include it into a non-binding resolution. Toure's efforts got a lot of credit however the text of the resolution itself remained controversial.
Imbalances and Hidden Language
The text has two parts. Part 1 just refers to a number of documents adopted by WSIS and ITU at previous conferences. Part 2 invites the ITU member states and the ITU Secretary General to engage in Internet related public policy issues by using the multistakeholder model. What was wrong with this language?
The six preamble paragraphs look rather harmless, but if you go to the references in the WSIS documents, you discover a one-sided approach. Para. 35 is language from the Geneva summit in 2003 which refers to the role of the various stakeholders in Internet Governance. It includes the statement that "policy authority for Internet-related public policy issues is the sovereign right of States". This was before the WGIG report which defined Internet Governance as "shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet" on the basis of the multistakeholder model (Tunis Agenda para. 34). Para. 35 was also enriched in the Tunis Agenda by para. 55, which recognized "that the existing arrangements for Internet governance have worked effectively to make the Internet the highly robust, dynamic and geographically diverse medium that it is today, with the private sector taking the lead in day-to-day operations, and with innovation and value creation at the edges." Would a sole reference to para. 35 mean to go back to a pre-Tunis time? Why the authors of the resolution did not refer to para. 34 and para. 55?
A similar unbalanced approach can be found in the second part of the Resolution. It just invites ITU Member States and instructs the ITU Secretary General to develop public policies for the Internet within the ITU by ignoring the existing Internet Governance mechanisms outside ITU.
Was this omission intentionally? Was the "broader Tunis approach" just forgotten? The imbalances in the two parts of the resolution could have been easily repaired. One could have just added
If the proposed compromise would have been based on a clear and honest understanding of the limited role of the ITU in Internet Governance and that the ITU is just a part of the global Internet Governance Eco System making valuable contributions to the global governance of the Internet by promoting first of all infrastructure development and recognizing that for other issues, including naming and numbering of Internet resources, other organizations have a leading role to play, such additional language should not have created a problem.
But this was obviously not the case. When the chair started the discussion of the resolution in the plenary long after midnight on Wednesday, the doubt was growing that this constructive expectation did not meet the reality. Already the first proposal to include para. 55 into paragraph d) of the preamble faced strong opposition from Saudi Arabia. And Russia said if the resolution is changed they come back with Document No. 47 as something like a "nuclear option". Was there a "hidden agenda"?
Confusion after Midnight
At this moment the ITU Secretary General stepped in again and argued that member states should understand that this resolution is part of a bigger package. It was nearly two o`clock in the morning when the tension was further growing. Should the resolution be killed, should it be further discussed and amended or should it be adopted as it is?
To find a way out, the chair had the idea to "measure the room's temperature". Was this a call for a vote within a conference which was designed to accept everything in consensus? While some delegations were sleeping, about 50 to 60 delegations raised the hand to support the adoption of a non-binding Internet resolution and about 30 to 40 signaled that they would prefer to delete such a text.
This was obviously enough for the chair. He declared that the resolution goes unchanged into the package and closed the meeting. Delegations left confused the room looking for a taxi outside the conference center. Next morning the chair clarified that the "measurement of the temperature" was not a formal vote but the resolution would remain as it is. There was no further discussion and no opportunity to add something as para. 34 and 55 or enhanced invitations to member states and instructions to the Secretary General.
Is there a chance for enhanced cooperation?
Unavoidably this triggered the mistrust that there was more behind the "harmless language" of Resolution No. 3. One interpretation was that the text could be easily used to build WITHIN the ITU an alternative "multistakeholder model" under governmental leadership by rejecting cooperation with the non-governmental members of the existing Internet Governance Eco-System. Such a proposal could be further specified in the forthcoming WTPF and legalized by the next ITU-Plenipotentiary Conference in Korea in 2014.
Toure himself rejected such a scenario. He invited ICANNs new CEO Fadi Chehade to the Opening Ceremony in Dubai. Fadi Chehade speaks since ICANNs last meeting in Toronto about a "new season" in ICANN. After the two leaders had a joint breakfast in Baku during the 7th IGF Toure is now copying Chehade and speaks about a "new season" in the ITU. Any chance to move from a "cold war" via a "cold peace" to a "constructive collaboration"? The problem is that Chehade has the support of the constituencies of ICANN, but Toure misses such a support from key ITU member states.
Where to go from here? The ITU will remain an important intergovernmental organization with a lot of things to do: Infrastructure development, frequency coordination, telecommunication standardization. And there are fields where a collaboration with the Internet community makes a lot of sense as long as all sides understands their roles. But a "hidden agenda" will complicate further constructive engagement in an enhanced cooperation among all members — governmental and non-governmental — of the global Internet Governance Eco-system. Good stuff for discussion not only during ICANNs next meeting in Bejing in April and ITUs WTPF in Geneva in May but also within the new UNCSTD Working Group on Enhanced Cooperation and at the 8th Internet Governance Forum (IGF,) scheduled for November 2013 in Bali.
By Wolfgang Kleinwächter, Professor for Internet Policy and Regulation at the University of Aarhus. Since 2011 he has been a member of the GNSO Council.
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