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IGF future: Why we need Consolidation and Acknowledged Legal Principles

By Prof. Dr. Rolf H. Weber.

2024 and 2025 will be exciting years for Internet Governance: The Global Digital Compact (GDC) should reach the final shape and the WSIS+20 celebration might be a milestone for the future of the Internet Governance Forum (IGF). At the time of the two WSIS Summits (2003/05), Internet Governance was often seen as a mainly technical issue with some political implications. In the meantime, the equation appears to have reversed: Internet Governance has become a mainly political issue with a technical component. For the future, different pillars are important, namely, based on the multistakeholder participation principle, a consolidation of the institutional framework, the better alignment with generally accepted international legal principles and the inclusion of new policy issues into the debates.

1. Multistakeholder Participation in Digital Governance as Anchor

Multistakeholder participation is a concept that is widely accepted for quite some time. The well-known definition of the WGIG refers to 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”. Therefore, the interests of the stakeholders involved should be designed by participatory mechanisms reflecting the whole society’s view.

In the meantime, it has become clear that the multistakeholder community should further develop regulatory principles and policy approaches (i) that are conducive to the continued evolution of a global and interoperable Internet being based on fundamental rights principles and (ii) that recognize a symbiotic relationship between stakeholders in the digital age.1 Indeed, a diverse participation promotes a comprehensive perception of the complex issues surrounding digital governance.

A broad understanding of the challenges caused by multistakeholder participation is equally reflected in the two NETmundial declarations of 2014 and 2024. Common ground must be explored and developed towards a shared comprehension of the issues allowing to identify and collaborate on appropriate responses across different contexts is needed. In this context. Thereby, it is important to strengthen the capacity of policymakers, regulators, civil society, private sector and other stakeholders enabling them meaningfully to participate in discussions about data management at global, regional, and national levels.2

2. Institutional Framework: IGF and GDC

2.1 IGF

Based on the WGIG-Report, calling for an involvement of all stakeholders regarding the governance of the Internet, the WSIS 2005 decided to create the Internet Governance Forum (IGF) having yearly meetings since 2006 in Athens. During the almost twenty years since its inception the range of the topics has been substantially broadened from the ICANN Domain Name System as key issue to new infrastructures (Blockchain), artificial intelligence and digital inclusion.

In addition, from a more formal perspective, the manifold available records as well as the deliberations during the annual IGFs exercising the role of a marketplace for information and ideas around Internet-related technical and political issues have shown some deficits of the pragmatic approach based on the assumption that decisions should not be made inside, but outside the IGF. Indeed, the existing policy perception must be complemented by new avenues allowing to implement multistakeholder knowledge and wisdom into binding international instruments.3

The year 2025 is decisive for the IGF; after a first prolongation for ten years, the UN General Assembly will have to make its assessment on the future life of the IGF. A more stable and forward-looking decision than just an extended temporary lifespan appears to be appropriate. In parallel, as mentioned, opportunities for influencing the decision-making in relevant global fora should be broadened.

2.2 GDC

The GDC offers an opportunity that enables different communities to engage in constructive dialogues overcoming the silo assessments of specific disciplines; in particular, the gaps between technical, legal and policy perspectives should be overcome. Furthermore, the interoperability being challenged by sovereignty considerations must attract higher attention in a multistakeholder framework.4

The first broad multistakeholder discussions about the GDC have taken place at the annual IGF of 2022 in Addis Abeba. Thereafter, the so-called “Multistakeholder Deep Dive Consultations”, facilitated by the governments of Sweden and Ruanda, have guided the stakeholder exchanges related to the contents of the GDC. An “issue paper” from September 2023 summarized the debate; a specific zero draft of 1 April 2024 is now further extending the discussions about specific key points for consultation.5

The GDC debates constitute a valuable forum for deepening the Internet Governance issues. However, it would be advisable to liaise this movement with the already existing IGF structures. The plan to establish a new “Digital Cooperation Forum” (DCF) does not seem to be convincing since more different fora do not necessarily lead to better results and a complete re-conceptualization of the multistakeholder approach is not needed.6 The “UN Summit on the Future”, foreseen for September 2024, should drive at including the discussions within the already available institutional framework (such as the WSIS framework and the IGF7) and not reach out to new bodies outside the existing IGF. The IGF could be invited to report bi-annually to the UN General Assembly about the Internet Governance situation; thereby, the GDC follow-up would strengthen the IGF, avoid duplication and bring more authority and legitimacy to the multistakeholder processes.8

In a nutshell, the institutional framework needs a consolidation and not a further fragmentation, in parallel to the technical and regulatory fragmentation being in the process of jeopardizing the free cross-border flow of information.

3. Importance of Generally Accepted and Harmonized Legal Principles

From a substantive perspective, more elements of enhanced cooperation should be implemented helping to overcome a “silo-approach” that addresses single solutions. A “holistic approach” is needed that makes the realities of a fast-changing environment in an interconnected world compatible with the implementation of the appropriate political strategies. Such an approach calls for more co-regulation in different forms that enables public as well as private actors to join the legislative forces.9

3.1 Improvement of Technical and Legal Interoperability

The Internet is a communication instrument that is based on free cross-border data flows. However, the conditions of interconnectedness are partly puzzled for some disarrays in global society, mainly due to three phenomena:10 (i) In view of globalization, States partly become de-constitutionalized by the transfer of governmental functions either to the transnational level or to non-state-actors. (ii) The extraterritorial effects of certain national legislations create a law without sufficient democratic legitimation. (iii) A democratic mandate for transnational governance is widely missing.

Active coordination across international borders is vital to ensuring that fragmented approaches do not threaten the interoperability of the Internet and the global reach of civil society members and businesses.11 However, some countries are in the process of (technically or legally) re-nationalizing the Internet leading to the so-called “Splinternet” that is based on independent country infrastructures. Such a development that causes a fragmentation due to the lack of harmonized technical and/or legal standards is undesirable.12 Looking from a general perspective, any kind of fragmentation would not be future-oriented and would have a negative impact on the global infrastructures. Moreover, national sovereignty over cross-border communication flows should be replaced by a transnational “popular” (civil society-based) sovereignty being strong enough to remove legitimacy and authority over critical aspects to the infrastructure from established governments to non-governmental actors.13

3.2 Common Values Character of Several Generally Accepted Principles

The Internet is, in contrast to early assumptions, for example by its pioneer John Perry Barlow, not a law-free area. Barlow declared that governments do have “no moral right to rule us nor… …possess any methods of enforcement we have true reasons to fear. Cyberspace does not lay within [their] borders”. However, the intensity of Internet regulations shows the contrary and the normative framework has become more important than ever.14

In addition to multilateral treaties, generally accepted legal principles also constitute a source of law; according to art. 38 para. 1 lit. c of the Statute of the International Court of Justice, courts shall apply “the general principles of law recognized by civilized nations.15 The application of such globally acknowledged principles in the Internet Governance context could substantially contribute to a stable normative environment:16

  • Duty of cooperation: This principle, foreseen in many international treaties, can be qualified as foundation for a harmonized framework of global politics; the common values and concerns related to Internet Governance call for a coordinated approach.
  • Global public goods: This principle requires to use public goods in a fair and non-discriminatory manner enabling the humanity (as a whole) to benefit from them; prominent legal rules are stated in the treaties that govern common resources such as the “Outer Space” and the “Sea”.
  • Shared spaces: This principle attempts at reaching a peaceful coexistence of nation States by making shared spaces available in a uniform, non-harmful way to all concerned stakeholders (for example in air and space law as well as in environmental law).
  • Common heritage of mankind: This principle has the objective to protect the given values and resources to the benefit of future generations as a legal standard with normative impact.
  • Due diligence: This principle requires that a duty of care is applied in the use and exploitation of common resources.

The mentioned generally accepted legal principles can be made fruitful in the Internet Governance context; consequently, the level of the so-called “rule of law” will be improved. The “rule of law” is a key anchor in the design of a stable normative Internet Governance framework. So far, also in the context of the GDC (for example in the zero draft), aspects of global public goods, shared spaces and cooperation duties have been underestimated and should be seriously taken up in the future discussions.

3.3 Digital Inclusion and Sustainability as New Normative Pillars

Legal principles and fundamental rights always played a role in the Internet Governance debates; but two new issues recently gained importance, namely the digital inclusion and – following the UN Sustainable Development Goals (UN-SDG) – far-reaching sustainability goals.

(i) Digital Inclusion: Since a few years, the importance of the topic of digital inclusion is gaining mementum; therefore, not surprisingly, digital inclusion is reflected in most recent documents related to Internet Governance. The IGF 2023 Annual Meeting Summary Report is addressing the topic by calling for meaningful connectivity and capacity building that could contribute to the avoidance of a digital divide.17 The GDC zero draft calls for an expansion of digital inclusion in the digital economy.18

Access must be available to all within the society; universal access should be promoted through collaboration and coordination. Particularly, public policies have the task to direct the intention of the relevant stakeholders to financial inclusion. New digitized financial services can contribute to the development of a digital financial ecosystem that should encompass four pillars, namely the creation of identification and digital identity measures, the implementation of digital payment infrastructures and open electronic payment systems, the digitization of governmental services’ provision and a forward-looking regulatory design of digital financial markets.19

(ii) Sustainability: With the climate change challenges, sustainability has become an additional important normative pillar in the Internet Governance debates. From a historical perspective, the discussions about environmental issues were the first occasion having realized a multistakeholder dialogue: already more than 30 years ago, stakeholders from very different origins being interested in issues of earth and climate preservation gathered in 1992 and contributed to the Rio Declaration.

In the meantime, sustainability is a daily discussion topic. As an obvious consequence, the IGF Annual Meeting Summary Report devotes a chapter to the environmental issues; specifically, the relationship between digitalization and environment, the digital environmental footprints and the circular digital economy are addressed.20 The GDC zero draft21 and the NETmundial+10 Multistakeholder Statement22 also address sustainability and particularly the UN-SDG.

Digital and environmental transitions have many common elements; both can be pursued in a consistent and mutually sustainable way. Digitization, if properly applied, is able to contribute to the sustainability goals; therefore, better linkages and interfaces between the two “disciplines” are desirable since the achievement of an inclusive and environmentally sustainable digital society is critical to the compliance with the UN-SDG.23

4. Outlook

Internet Governance will remain an important topic of global debates about the shape and design of the digital community. From an institutional perspective, a consolidation of the manifold discussion fora would be advisable; the experiences made with the IGF merit to be pursued and complemented by additional influence factors on multilateral decision-makers and contribute to an alignment with common values for all within society.

If these institutional and material goals are implemented, the IGF is indeed at the point of no return.24

In substance, the general principles of law as predominantly accepted around the globe need to attract a strengthened compliance. These principles can overcome the weaknesses of fragmented national regulations.

 

Footnotes

  1. See IGF 2023 Annual Meeting Summary Report (Kyoto 2023), p. 66, available at https://intgovforum.org/en/filedepot_download/300/26575. ↩︎
  2. NETmundial+10 Multistakeholder Statement, 30 April 2024, pp. 12-13, available at https://netmundial.br/pdf/NETmundial10-MultistakeholderStatement-2024.pdf. ↩︎
  3. Rolf H. Weber, Internet Governance at the Point of No Return, Zurich 2021, p. 10. ↩︎
  4. See below chapter 3.1 and IGF 2023 Annual Meeting (note 1), p. 58. ↩︎
  5. Global Digital Compact: zero draft, 1 April 2024, available at https://www.un.org/techenvoy/sites/www.un.org.techenvoy/files/Global_Digital_Compact_Zero_Draft.pdf. ↩︎
  6. Wolfgang Kleinwächter, A Digital Protocol From Kyoto and a Cyber Message From Hamburg: IGF and ICANN Are Well Prepared for the Future, CircleID 5 November 2023, p. 3, available at https://circleid.com/posts/20231105-a-digital-protocol-from-kyoto-and-cyber-message-from-hamburg-igf-icann-well-prepared. ↩︎
  7. See also Anriette Esterhuysen, The Global Digital Compact we want, Digital Governance Discussion Group, 9 February 2024, pp. 2-4, available at https://dgdg.blog/the-global-digital-compact-we-want/. ↩︎
  8. Kleinwächter (note 6), p. 3. ↩︎
  9. Weber (note 3), p. 103. ↩︎
  10. See also Rolf H. Weber, Realizing a New Global Cyberspace Framework, Zurich 2014, p. 8. ↩︎
  11. IGF 2023 Annual Meeting (note 1), p. 58. ↩︎
  12. See Weber (note 3), pp. 88-89. ↩︎
  13. See Milton Mueller, Will the Internet Fragment? Sovereignty, Globalization and Cyberspace, Oxford 2017, p. 131. ↩︎
  14. For more details see Weber (note 10), pp. 115-149. ↩︎
  15. For further comments to this provision see Rolf H. Weber, Integrity in the ‘Infinite Space’ – New Frontiers for International Law, ZaöRV/HJIL 81 (2021), p.601, pp. 610-619. ↩︎
  16. The following list of generally accepted legal principles is based on Rolf H. Weber, Common Heritage of Mankind in Internet Governance, Weblaw Jusletter, 14 November 2022. ↩︎
  17. IGF 2023 Annual Meeting (note 1), p. 64 ↩︎
  18. Global Digital Compact (note 5), pp. 4-5. ↩︎
  19. For further details see Rolf H. Weber, Financial Inclusion as a Public Policy Issue in the Global Digital Economy, AJWH 19 (2024), p. 231, pp. 245-246 with further references. ↩︎
  20. IGF 2023 Annual Report (note 1), p. 70. ↩︎
  21. Global Digital Compact (note 5), p. 12. ↩︎
  22. NETmundial+10 (note 2), p. 4. ↩︎
  23. IGF 2023 Annual Report (note 1), p. 12. ↩︎
  24. Weber (note 3), title of the book. ↩︎