In the last six weeks we could follow three world conferences on Internet issues. In November 2015 the 10th Internet Governance Forum (IGF) attracted nearly 5000 offline and online participants in the Brazilian Sea-Resort Joao Pessoa. In mid-December 2015, the governments of the 193 UN member states, together with a crowd of non-governmental stakeholders, finalized the review of the 2005 UN World Summit on the Information Society (WSIS) and adopted the WSIS 10+ outcome document. And nearly 2000 people from more than 100 countries did meet on December, 16 – 18, 2015 in the Chinese Water-Town of Wuzhen at the 2nd World Internet Conference (WIC).

All three conferences discussed a broad range of technical, economic, social and political issue related to the development and the use of the Internet: From cybersecurity to human rights, from digital trade to the next billion Internet users, from surveillance to net neutrality, from the protection of data and intellectual property to freedom of expression online, from cloud computing to the internet of things. But all three conferences were struggling also with the old question of how the Internet should be governed.

Since more than a decade—as soon as the issue of Internet Governance is touched—we see a battle between two groups: one argues that the Internet should be governed by governments. And the other one argues that multistakeholder mechanisms are the better option. This was not different in Joao Pessoa, in New York and in Wuzhen.

Multilateralism vs. Multistakeholderism

To a certain degree, this battle between “multilateralists” and “multistakeholderists” is a senseless controversy. It is a little bit like shadowboxing. This is not an “either-or-question”. For good Internet Governance you need both: There is a need for a good functioning multilateral mechanism among governments. And there is a need for good functioning multistakeholder mechanisms. The Internet Governance Ecosystem is too big to be managed by one single mechanism. The complexity of today’s Internet calls for an engagement of all stakeholders at all layers.

The controversy goes back to the early days of WSIS in 2002. In 1998 the US government delegated its previous function with regard to the Domain Name System to a new established private cooperation named Internet Corporation for Assigned Names and Numbers (ICANN). ICANN operated under a Memorandum of Understanding (MoU) with the US government and was incorporated under Californian law. Many governments did see this as a “unilateral Internet Governance” and called for a “multilateralisation”.

The US government made it clear in 1998 that their stewardship and oversight role over ICANN will be a limited one and will terminate as soon as the new corporation is mature enough to become independent. Nevertheless, the discussion during the Geneva WSIS phase (2002) circled around the question of whether the unilateral role of the US government should be substituted either by a multilateral intergovernmental council or whether the private sector should take the lead in the management of critical Internet resources.

There was no consensus. China wanted to have governmental leadership in form of intergovernmental arrangements. The US wanted to have private sector leadership and praised ICANN as a new working model. There was even no common understanding of what the terminology “Internet Governance” stands for.

To save WSIS I, the governments agreed to disagree, postponed a final decision on Internet Governance to WSIS II and asked Kofi Annan, UN Secretary General, to establish a Working Group on Internet Governance (WGIG) with a mandate to define Internet Governance and to make some proposals how to go beyond unilateralism.

When the first WGIG meeting took place in New York in 2004, Kofi Annan told the WGIG members—which came from all stakeholder groups—that they should not only leave their stakeholder silos, and work hand in hand. They should also be as creative as possible. The Internet, he said, is an innovation in technology. What we need now is innovation in policy.

The WGIG took Kofi Annan’s advice literally and introduced the multistakeholder model as a policy innovation for the governance of the Internet. The WGIG rejected the concept of single leadership—neither governmental nor private sector—and recommended that all stakeholders have to work together in Internet policy development. All stakeholders should share not only norms and principles but also decision making procedures.

Surprisingly the WGIG proposal was accepted by the heads of states of the 193 UN member states in the Tunis Agenda in November 2005. And it was recently reaffirmed in paragraph 63 of the WSIS 10+ Outcome Document in New York in December 2015.

From an academic perspective one could argue that Internet governance policy is based on a layered system with unilateralism (1998) on the lower level, multilateralism (2003) on the middle level and multistakeholderism (2005) at the higher level.

In a multistakeholder mechanism (governmental) unilateralism and (inter-governmental) multilateralism do not disappear. It is like a Russian Matrjoska: The big puppet is the multistakeholder mechanism. The smaller one is the multilateral treaty system. And within this “multilateral puppet” we find the 193 national jurisdictions with their national policies and regulations.

All layers together constitute the global Internet Governance Ecosystem. Governmental uni-, bi- or multilateral activities are embedded into a multistakeholder environment. Each layer has different procedures, but it is important that the various layers are linked together with what one could call “political protocols” in form of general principles and norms as described in Internet policy documents like the Tunis Agenda (2005) or the Sao Paulo Declaration of the NetMundial conference (2014).

If one looks through the lens of this “layered approach” at the three recent world internet conferences, we see that all three meetings have made important contributions to the ongoing, evolving and never ending Internet Governance debate, but they represented also three different models:

1. The IGF was a truly multistakeholder conference where all groups—governments, private sector, civil society, the technical and academic community—participated on equal footing in the discussions;
2. The WSIS 10+ was a multilateral conference (under the leadership of an intergovernmental committee) which included “consultations” with non-governmental stakeholders;
3. The WIC was a unilateral event (under leadership of the Chinese government) with participation of a huge number of governments and handpicked non-governmental stakeholders.

The Internet Governance Forum

Over the ten years since its inception in 2006 the IGF has grown and developed innovative forms of multistakeholder policy cooperation. The Multistakeholder Advisory Group (MAG) is composed by representatives from all stakeholder groups from all world regions. Each MAG member participates on equal footing. Innovations like “Best Practice Forum” (BPF) or “Dynamic Coalitions” (DC) produce now messages and recommendations. The processes are open, transparent and bottom up. All stakeholders participate on equal footing in drafting language.

The recent IGF plenary meetings were organized with four microphones in the room: one for governments, one for civil society, one for the private sector and one for the technical and academic community. Behind each microphone representatives of the stakeholder groups were queuing to give their two minutes statement which guaranteed a fairly balanced discussion. This approach was pioneered by the multistakeholder NetMundial conference in Sao Paulo, April 2014 and further enhanced by the NetMundial Initiative (NMI), where a Coordination Council of 23 people represents all four stakeholder groups from five regions on equal footing.

Such a cross fertilization between IGF and NetMundial has opened the door to more policy innovations in the spirit of Kofi Annan’s invitation from 2004. The good thing is that the IGF got an extended mandate for another ten years.

IGF and NMI are working now hand in hand. The extension of the IGF mandate is supported by all 193 UN member states and has the full support of all non-governmental stakeholder groups. The NMI is supported equally by the governments of the US, China and the EU. EU Vice-President Andrus Ansip, US Secretary of Commerce Penny Pritzker and China’s Internet Minister Lu Wei are members in the NMI Coordination Council which is co-chaired by a leader from the private sector (Alibaba’s CEO Jack Ma from China), a representative from the civil society (Eileen Donahue from Human Rights Watch from the US) and a high level governmental representative from a BRICS country, the Brazilian minister Virgilio Almeida. The two other co-chairs represent the technical and academic community: Fadi Chehade, CEO from ICANN and Marilia Maciel from the School of Law in Rio de Janeiro.

High Level WSIS 10+ Review

The WSIS 10+ Review conference was part of the UN General Assembly and followed the procedures of an intergovernmental organization. The president of the UN General Assembly, the former Danish Foreign Minister Mogens Lykketoft and the two co-facilitators from the governments of Latvia and the United Arab Emirates did their best to consult with non-governmental stakeholders, to open the doors of the three preparatory meetings in July, September and October 2015 and to offer space for the organization of parallel events for civil society, the private sector and the technical and academic community.

However, when the final version of the outcome document was negotiated, the doors were closed and non-governmental experts had neither a voice nor a vote in finding compromise language for the “Outcome Document”. Participants in the last night session reported that the senseless political battle between multilateralism and multistakeholderism absorbed a lot of energy and no time was left to discuss more future oriented issues which has been raised in the many sessions at the IGF in Joao Pessoa.

And like always in G2G-negotiations, the ambiguity of diplomatic language does not really solve problems but opens the door for different interpretations which leads to new controversies, the establishment of new working groups and the convening of more conferences.

Nevertheless, the good news from New York was that the extension of the mandate for the IGF was non-controversial. This feeds the hope that solutions for the complex Internet issues can be found on top of the intergovernmental controversies by the engagement of all stakeholders in bottom up policy development processes which can lead to rough consensus on a case by case basis.

The World Internet Conference (WIC)

The 2nd WIC was a remarkable conference. Ten years ago nobody would have expected that the Chinese government would host such a high level international meeting and discuss a broad range of Internet issues in a rather open atmosphere. China is a great Internet power. More than 600 million Chinese people use the Internet. Chinese Internet corporations are strong private sector players. To have a Chinese voice in the global Internet Governance debate enriches the discussion.

However, the WIC was more of a unilateral than a multistakeholder event. The drafting of the program, the invitation of speakers and the announcement of the summary of the conference was in the hands of the hosting government. Wuzhen did not see negotiations among governments to find common language on controversial issues. And Wuzhen was not the place where non-governmental stakeholders participated in an open, transparent and bottom up process in policy making or decision taking on equal footing.

At the end of the conference, the WIC Organizing Committee launched a “Wuzhen Initiative”. The document with a long preamble and five proposals include references to the WSIS Geneva Declaration, the Tunis Agenda, the Montevideo Statement and the report of the Group of Governmental Experts (GGE), but ignores the IGF and the NetMundial Principles. It points to WSIS 10+, but the highly sensitive “multistakeholder”-language, which appears more than 20 times in the WSIS 10+ Outcome Document, is not supported in the published text. It includes a list of values which needs to be protected as cybersecurity, intellectual property and privacy, an important human right. But it does not include the need to protect freedom of expression, another important human right.

Cybersovereignty: Absolute or Shared?

One can argue that “counting words” is “hairsplitting”. But this wrestling over language is very political. It is about the understanding of “state sovereignty” in cyberspace. In his opening speech, Chinas president Xi has identified “Cybersovereignty” as a key issue for all types of Internet Governance. The New York Times, in its coverage of the Wuzhen conference, called Xi’s speech as the start of a new campaign. But to be frank, this is not new.

Already more than ten years ago, when WSIS started, China pushed for the concept of sovereignty. Madame Hu, China’s delegation head, a former President of China’s Internet Society and a WGIG member, made very clear that China’s first priority in the WSIS negotiations was the protection of its national cyberspace.

The controversy between “national” and “global” was wisely reflected in the balanced language of the Tunis Agenda. Paragraph 55 recognized ICANN as a multistakeholder mechanism for the global Internet (“We recognize 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”). And paragraph 63 recognized national sovereignty (“Countries should not be involved in decisions regarding another country’s country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country… need to be respected, upheld and addressed.”).

What is new is that today, the Internet has penetrated our society much deeper than it had ten years ago. And this raises more detailed questions on how national cybersovereignty is executed in fields like security and economy. And this goes far beyond the management of the national domain name space.

In Wuzhen, speakers from the Shanghai Cooperation Organization (SCO), including Russian Prime Minister Dmitri Medwedjew, referred to the undefined concept of a “national Internet segment” and quoted the recent report of the UN Group of Governmental Experts (GGE).

The GGE, which operates under the 1st Committee of the UN General Assembly, had recognized in its 4th report (2015) that governments have the same rights and duties under international law offline and online. This mirrors language of the UN Human Rights Council (HRC) which has stated already in 2013 that individuals have the same human rights offline and online. With other words, we have one world and one Internet where all sides have equal rights and duties and have to share responsibilities. But we live also in a world with 193 national jurisdictions.

The United Nations are based on the national sovereignty of states. The veto right of the five permanent members of the UN Security Council, introduced in 1945, give great powers, even extra rights which can be seen as something like unilateral “absolute sovereignty”. But language used in the UN Charter, speaks about “sovereign equality”—that is each country should have equal rights. And the principle of sovereign equality is only one of seven jus cogens principles of the contemporary international law. The principles include, inter alia, the self-determination of people, the peaceful settlement of disputes, the prohibition of the threat and use of force and the non-interference into the internal affairs of other states. It includes also the duty to international cooperation. And this is very relevant for Internet policy making.

It took 25 years to define those principles in a declaration which was adopted by the UN General Assembly in 1970. The declaration makes clear that all seven principles have to be seen in its interdependence.

There is no “absolute sovereignty” in international law. Governments have to respect the do-no-harm principle, that is to refrain for actions that interfere into the affairs of other countries, also in their activities in cyberspace. The UN, its Charter, the Declaration on the Principles of international law and the Vienna Convention on the Law of Treaties constitute a concept which can be called “collaborative sovereignty”.

The UN World Summit in the Information Society went one step further. The Tunis Agenda from 2005 defined Internet Governance as “the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the Internet”.

As already mentioned above, the idea of “sharing decision making” goes beyond classical collaboration among governments and reflects in a more precise way the multistakeholder nature of the global Internet Governance Ecosystem which is based on a culture of collaboration, sharing, running code and rough consensus. Insofar WSIS has opened the door for an enhanced understanding of sovereignty in a borderless cyberspace which could be described as something like “shared sovereignty”.

It was interesting that Wuzhen did not only discuss “sovereignty” but also “sharing” and “differentiation”. The Chinese “Internet Plus” plan refers to the “shared Internet economy”. And Jack Ma, the CEO of Alibaba, spoke about a “differentiated Internet Governance” system.

On the other hand: One should not be naïve. To implement the philosophy of sharing in Internet policy development and decision making on the national and international level is a big challenge. Sharing sovereign rights needs a high level of mutual trust and understanding. There are deep conflicts among stakeholders. And there are also natural tensions between rules in bordered places in the real world and principles in unbordered spaces in the virtual world.

If the rules of the bordered places are extended into the unbordered spaces, the risk is high that this will kill opportunities, that the global and open Internet will become fragmented into 193 national segments. If the freedom of the unbordered spaces will be introduced into the bordered places, there is a risk that under certain circumstances, this can have negative implications for national interests. The new Internet Governance complexity needs a higher level of coordination among many players to bring conflicting legitimate interests into a right balance. The challenge is to respect universal values without ignoring national interests.

In an ideal world, the respect of universal values should not be in conflict with the protection of national interests. However, many governments see this today more as a zero-sum game in which national interests prevail. A fragmentation of the Internet into national segments risks to dwindle down innovation with negative impacts for economic growth, global trade, job creation and human rights. So the stakes are very high and the issue is very complex.

Can we learn something from History?

200 years ago, in 1815, Vienna hosted a very important high level summit meeting. The “Vienna Congress” saw political leaders like the Emperor of the Habsburg Monarchy, the Czar of Russia, the King of Prussia and the prime minister of his majesty’s government. It was 26 years after the French revolution. Napoleon was defeated in Waterloo, but the ideas of the French revolution—liberty, equality and fraternity—survived.

What to do with the rest of the 19th century? The diplomats in the Vienna Hofburg were not so impressed by the new ideas which did emerge at the end of the 18th century and were laid down in the French Declaration of Human Rights (1791) or in the first Amendment to the US constitution (1789) which stated: “Congress shall make no law ... abridging the freedom of speech, or of the press”.

The leaders in Vienna had a different approach. They were convinced that governments have to make rules and restrict freedom of the press. They established a committee which drafted a treaty. Four years later, in 1819, the 39 governments of the “German Confederation” signed in a Bohemian spa the “Carlsbad Decrees” which introduced a set of rules and regulations for the production and distribution of information content. Among others, they regulated how publications should be licensed and how printed material should be treated when it crosses national borders. Furthermore the “Carlsbad Decrees” obliged professors to present their lectures for approval before they went to the classroom.

Prof. Hegel, the famous philosopher from Berlin’s University, was not amused. In the 1830s his followers—the so called “Junghegelianer”—started to challenge the restrictive rules. In his famous poem “Germany: A Winter Tale” the author Heinrich Heine, a good friend of Karl Marx, scoffed at the Carlsbad Treaty when he wrote that the border police did search in the horse drawn carriages not only for “goods to declare” but also for “books to confiscate”. And the young Karl Marx, who was the editor in chief of the “Neue Rheinische Zeitung”, became a fighter for press freedom. In one of his articles he defined freedom of the press as “the confidence of a people in itself”. In the revolutions of 1848/49 the Carlsbad Decrees were abolished.

Still 85 years until the 22nd century

The invention of the Internet in the 20th century is often compared with the invention of the printing press in the 16th century. Many experts have argued that the Internet has marked the “end of the Gutenberg era”. And indeed, since the invention of the TCP/IP protocol and the World Wide Web, we have seen a nearly endless chain of innovation in communication technologies, services and applications.

Did we see a similar chain of innovation in policy making? Not yet. We see some pioneering activities, like the creation of the multistakeholder model. This is good but not enough. Although we are in the early years of the information age, we do not have time to loose. Kofi Annan’s plea for more creativity remains on the table. On the other hand, the 21st century has still 85 years to go.