Global Governance and Cyberspace: Fortresses or Oases? – by Paul Meyer

Among the speeches that marked the opening of the 12th World Conference on International Telecommunication (WCIT) on December 3, 2012 in Dubai was that of Fadi Chehadé, President and CEO of ICANN (International Corporation for Assigned Names and Numbers) the core institution of the Internet. Chehadé said that from the start he recognized that organizations could be built “either as fortresses or as oases” and he invited the participants “to make our organization an open oasis”. Oases he noted are “open and vital” and he called for the removal of walls and the opening of windows in order to build “organizations that are welcoming and transparent”.

With these contrasting images of the “fortress” and the “oasis” Chehadé was providing a metaphorical description of the contending visions of the future governance of the Internet that was the charged sub-text of the entire WCIT gathering. On the surface the WCIT should have been nothing exceptional. It was the twelfth in a series of meetings of the states parties to the International Telecommunications Regulations (ITR) a treaty setting out the principles of international telecommunications and the associated provisions to facilitate global interconnections and interoperability. The ITR with some 178 state parties had been last updated in 1988 and was probably overdue for review in light of technological and other developments in the intervening period. The international organization supporting this process is the International Telecommunications Union (ITU) a multilateral body that has been at the centre of international cooperation in the realm of radio, television and telephony since its original incarnation as the International Telegraph Union in 1865.

Under its current activist Secretary General, Hamadoon Touré, the ITU has been positioning itself to play a role with respect to the latest technologies for global communication, namely the Internet. It is not unusual for a specialized agency within the UN system to attempt to extend its scope of activity to include a new phenomenon that appears relevant to its mandate and expertise. The ITU’s activism in the new realm of cyberspace has however been met with resistance from some of its member states which believe the ITU is not the appropriate international body to manage or regulate the Internet and is overstepping its authority in attempting to bring the Internet into its sphere of influence. This difference of view is related to a more fundamental divergence of opinion within the international community as to how, if at all, the Internet should be governed at the global level and what organization or organizations should be entrusted with such a task.

This is a debate which is just getting started at the international level, although its main outlines were already apparent in a relatively early attempt by the international community to address the issues raised by the Internet. The World Summit on the Information Society (WSIS) constituted the first UN-wide effort to gather governmental and civil society representatives together to discuss the new Information and Communications Technologies (ICT). The Summit was held in two phases: an initial phase in 2003 in Geneva and a second phase in 2005 in Tunis. WSIS issued a series of concluding documents which were adopted by consensus and reflected the broad, political guidance states were prepared to provide at that time. It did not attempt to set out a governance framework for the Internet, but it did articulate a few key principles and provided for a process for considering the governance question.

Those principles combined an endorsement of the concept of multi-stakeholder involvement with the Internet along with a re-affirmation of the leading role of states in deciding issues of public policy. (see for example para 35a of the Tunis Agenda for the Information Society which declared “Policy authority for Internet-related public policy issues is the sovereign right of States”). The chief process innovation was the Internet Governance Forum, an expressly multi-stakeholder, but non-decision making body for the discussion of governance-relevant issues connected with the Internet. The forum has been meeting on an annual basis ever since with its latest meeting having been held in Baku in November 2012. These meetings have yielded much discussion, but have not been able to resolve differences of view over governance or produce an agreed recommendation as to what form such governance should take.

The ubiquitous and multi-faceted nature of the Internet, in addition to its civil society focus renders it an especially challenging subject for the international system to come to terms with. This state-centric system and the international organizations created by states to help manage the cooperation amongst them across a wide array of sectors are not well suited to manage a phenomenon like the Internet. Various organs of that system have in recent years tried to take account of this potent new tool of technology. The UN General Assembly has taken up the Internet from the perspective of several of its constituent committees. The First Committee has taken up the subject from the international security perspective that is its remit. The Second Committee has similarly addressed the matter through the prism of economic development that is its focus. The UN Human Rights Council has in turn tried to incorporate the new reality of the Internet into its existing framework of international human rights law and policy. Although in the wake of WSIS, the UN established a coordinating mechanism (the UN Group on the Information Society) for relevant UN bodies and organizations to follow up on WSIS outcomes, there is no single responsibility centre for the Internet within the UN system and no organization has been granted an exclusive mandate to manage it.

This lack of an acknowledged institutional home for the Internet within the current UN system complicates any effort to devise a global governance regime. This organizational limitation is exacerbated by the evident differences of view amongst UN member states as to the desirability, let alone the nature, of any global governance arrangements for the Internet. As the Internet has grown in terms of its scope and intensity of use, many states have responded by asserting their sovereign right to regulate it within their national jurisdiction. A further difficulty is the large civil society ownership and participation in the Internet that makes the development of any regulatory framework on the part of states complex and controversial.

Against this backdrop of a fragmented and contested context for global governance of the Internet, it is easier to appreciate why the political undercurrents in the lead-up to WCIT 12 were so strong and divisive. The forward-leaning, or for some, the expansionist posture of ITU in seeking to address the Internet via the vehicle of updating the existing ITR set off alarm bells in some capitals and raised suspicions as to the true intentions of the ITU leadership. Monsieur Touré was forced on the defensive as to his expectations for the WCIT. At the IGF meeting in Baku a month before the WCIT, Secretary General Touré tried to counter allegations that the ITU was bent on extending its authority. The IGF Chairman’s Summary in referring to Touré’s statement said that “He assured participants that ITU did not want to control the Internet, but rather wanted to re-affirm its commitment to ensuring Internet’s sustainability using the multi-stakeholder model”.

When the negotiations were finally engaged at the WCIT, it seemed that the concern of leading Western states to keep the Internet outside the scope of the ITR renewal was being taken on board. The treaty text makes no reference to the Internet nor is there any inclusion of language on the “content” of communications, two of the “red lines” identified by the US delegation. In the event however this proved insufficient to bring the US and several like-minded states on board. Although 89 states signed the new ITR at the conclusion of the conference, 55 states did not; representing a significant minority of ITR states parties. By way of comparison, at the last negotiation of the ITR in 1988, 112 states signed the new treaty at the conclusion of the conference.

In a press event on the eve of the conference’s closing, the American Head of Delegation, Ambassador Terry Kramer, cited several problem areas which he said had prevented the US from signing on to the new treaty. These included a reference in the text to spam as well as one to security, both of which he argued could be used to justify controls on content. He also suggested that the fact the Internet was mentioned in a non-binding resolution of the WCIT accompanying the ITR indicated that there was an intention to bring the Internet into the scope of the revised treaty despite its absence from the text.

Secretary General Touré was obliged in his speech to the closing session of the conference to repeat his benign intentions: “This conference was not about Internet control, or Internet governance. And indeed there are no treaty provisions on the Internet.” He stressed instead that the revised ITR represented a boon for “the great majority of the world’s unconnected people.” However one spun the result of the WCIT, it was evident that a fissure had opened up in the international community as to how to deal with the Internet within the existing multilateral structures.

This division is not only evident in the deliberations of the ITU, it is arising in other multilateral contexts as well, such as in the current UN Group of Governmental Experts that is considering information and telecommunications in the context of international security. Initiated in 2012 the Group, which is supposed to report to this year’s UN General Assembly, is specifically mandated to look at the potential of “norms, rules or principles of responsible behavior of States and confidence building measures “to maintain information security. Whether this 15 member expert group, which operates on the basis of consensus, is going to be able to agree on any recommendations remains to be seen. Its work will not be made any easier by the increasing levels of mistrust amongst key states as to their respective intentions for cyberspace. In particular, the conflict between “the multi-stakeholder model of Internet governance” and one which is premised more on control by sovereign states will continue to hamper efforts to arrive at common norms and promote further international cooperation.

It will be important for this debate to be engaged and not avoided, but it is also crucial that it be pursued via a respectful dialogue and a search for common ground, rather than by means of “megaphone diplomacy” and adversarial posturing. Civil society, the principal stakeholder in the Internet, should not remain on the sidelines of this emerging debate over governance, but rather find constructive ways to input its views into the discussion. Whether our future cyber landscape is characterized by fortresses or oases will likely be a function of how this debate is finally resolved.

About Paul Meyer

Paul Meyer is Adjunct Professor of International Studies and Fellow in International Security at Simon Fraser University, Vancouver and a Senior Fellow, The Simons Foundation. A former career diplomat, he served as Canada’s Ambassador and Permanent Representative to the UN and the Conference on Disarmament in Geneva (2003-2007) and as Director-General, Security & Intelligence Bureau, DFAIT (2007-2010).

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