Human Rights Come First: a Constitutional Moment for Internet Governance Council of Europe
27 September 2011 - A Workshop on in Nairobi,Kenya
September 27, 2011 - 9:00am
IG4D Workshop 144: Human Rights Come First: a Constitutional Moment for Internet Governance
The following is the output of the real-time captioning taken during the Sixth Meeting of the IGF, in Nairobi, Kenya. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.
>> BERTRAND de La CHAPELLE: Just brief information on what is on the screen. If you want read what is going on, use the hash TAG 144 and also the IGF 11.
The second thing, I want to make an experiment and see whether it's useful for the attendees. There is a platform called "joined." It's accessible at www.joined.IM. And it offers tap rooms that allow you to follow the stream corresponding to hash tag and to have the chat room on the side. So I set up the room. I sent this in the Twitter feed with hash TAG IGF 144. But if you just go to "join.IM," and enter IGF 144 in the top bar, you should be entering the room. This is not a remote participation. It's a possibility for you to make comments and exchange among yourself. And if anybody wants to gather some of the things being said there, don't hesitate to raise your hand when the questions will be open. Welcome, everybody.
In order to not lose time and make the best of the time we have, we will start with the introduction of the different participants in this panel. I'm Bertrand de La Chapelle from the International Diplomatic Academy and I'm happy to coordinate this panel. I'm very pleased and thank you very much to the Deputy Secretary General of the Council of Europe, Mrs. Maud de Boer-Buquicchio.
Tried it. I'm sorry. I asked you. Could you please say it the way it should be said?
>> MAUD de BOER-BUQUICCHIO: Maud de Boer-Buquicchio.
>> BERTRAND de La CHAPELLE: My is apologies.
>> MAUD de BOER-BUQUICCHIO: It's okay.
>> BERTRAND de La CHAPELLE: There are other participants in the room. Maybe the best thing is for those of you who are participating, is to just give your name and affiliation.
Christoph, do you want to start?
>> CHRISTOPH STECK: Christoph Steck. I'm from Telefonica. I'm working on Global Public Policy, especially on Internet governance.
>> JIMMY SCHULZ: I'm a member of the German Parliament and for the liberal Democrats, and doing everything concerning politics.
>> PARMINDER JEET SINGH: I come from an NGO in Bangalore, "IT for change." Thank you.
>> I'm with the Council of Europe.
>> MATTHIAS TRAIMER: I'm from the Austrian government and member of the committee on Media Affairs and Communication Services.
>> NICOLAS SEIDLER: I'm Nicolas Seidler from the Public Policy Department of The Internet Society.
>> MATTHIAS KETTEMAN: I'm Matthias Ketteman from the University of Graz, Department of International Law.
>> WOLFGANG KLEINWACHTER: I'm the comoderator. I'm from the University of Aarhaus. And we have framed this workshop here with a nice title --
>> BERTRAND de La CHAPELLE: There are a few other people who are going to participate, who have not arrived yet. Ana. I'm sorry.
>> ANA NEVES: Hello. I was invited to speak. And I'm Ana Neves, from the -- I worked through the Ministry of Education and Science in Portugal. And I'm the head of the International Affairs of the Knowledge Society Agency from this ministry. Thank you.
>> WOLFGANG KLEINWACHTER: And we are waiting for Dimitri Ypsilanti from the OECD. And the Director General from the European Commission. And somebody else.
>> BERTRAND de La CHAPELLE: And someone from the Brazilian government. So I think this panel is very qualified, high level and representative, in particular, you know, from the governmental side. And the title we gave to this session, Constitutional Moment for International Governance, with a question mark, is very justified.
As you know, in the last couple of months in 2011 we have seen numerous initiatives where governments recognize that the Internet field is so important. And while there is discussion whether there should be rights or treaties and other legal instruments. You know, the consensus, which is emerging, that before we go into details we have to clarify the general framework. It's like nationally in the constitution. And then based on the constitution, you can regulate individual things. And we now reached the constitutional moment where we is see a lot of different initiatives by different governments, and if you go into the details of this different initiative, you see the different priorities.
So that is not at all a harmonized approach. It means at the table we have now a number of declarations, and -- from the Council of Europe, the OECD, NATO is working on something. The Eight have expressed their views. India, South Africa and Brazil produced a very interesting document. Russia and China proposed a code of conduct in the United Nations. So it's going on. Dimitri, it's good to see you, take your seat.
And so this is the right place in the IGF to have -- you know, from -- from a view about all the initiatives and to say what will be needed in the future. And so I'm very happy that we have the Deputy Secretary General of the Council of Europe here, because the Council of Europe was really a pioneer in doing work in this direction.
And to save time, please, go ahead.
>> MAUD de BOER-BUQUICCHIO: Is it working?
>> BERTRAND de La CHAPELLE: Yes, it is.
>> MAUD de BOER-BUQUICCHIO: Thank you very much, WOlfgang, good morning. Ladies and gentlemen.
Yes, a constitutional moment I think is a very, very thought provoking title. And I will try to give some content to that from our perspective. Constitutions are probably the most important text for a country and its people. They contain the basic principles that govern the functions of the institutions. The best constitutions are those which achieve the delicate balance of powers, which will ensure a proper profession of fundamentar rights and freedom, democracy and the rule of law.
For the Council of Europe, these values are the key for any good governance and they should therefore apply to Internet Governance. And this is why last week, only, the 47 Council of Europe Member States adopted 10 principles of Internet Governance, which are actually on your table in the two official languages of the Council of Europe.
Ten principles of Internet Governance.
But the Council of Europe is not a prophet who found this carved in stone by a divinity. These principles emerge from a very long process of dialog with all those who form the Internet community.
They are inspired by vision and work of governments, the business community, and Civil Society. These principles also inspired all Council of Europe standards and governed all our moves. They have just made them more explicit, showing the essence of what we strive for as constitutions do.
Let me briefly take you through these ten principles. I'm sure that they are good food for thought for your discussion during this workshop.
Not surprisingly, the first principle is about protection of the top three Council of Europe values. Internet Governance arrangements must ensure the protection of fundamental rights and freedoms, affirming their universality, indivisibility, interdependences. They must ensure full respect of democracy and rule of law and should promote sustainable development.
The second principle refers to the needs to maintain the multistake holder approach in Internet Governance matters. I believe that the principles that we are discussing today stand as the proof of the benefits of a multi stakeholder dialog.
In the Council of Europe, we promote the public service value of the Internet. Citizens rely on the Internet for every day activity, and expect that it's accessible, affordable and secure, having to respond to citizens' legitimate expectations and to protect the public interest. This is the essence of our third principle.
It refers to States particular rules and responsibilities which they should discharge in full compliance with laws.
The fourth principle underlines the importance of empowering Internet users in the context of involvements and applications. This includes thinking about the Internet of the future, and what the place and role of the user might be in the future.
In the Council of Europe, we think that users should be empowered to exercise their rights and make informed decisions. And this is why we are considering drafting a charter of rights for Internet users.
One of the most remarkable features of the Internet is its global nature. It's integrity is a pre condition for the exercise of rights, and freedom in general and the Internet freedom.
Preserving the integrity of the Internet should be a key objective of the international cooperation. The universality and cooperation make the fifth and sixth principles.
The seventh principle refers to the decentralized management of the Internet and it's a successful model that should be preserved. This implies that transparency and accountability have to be ensured in all government arrangements.
The Internet owes much of the potential to the way it was designed, a network communicating on the basis of technical standards and protocol, in a collaborative manner, and a network where information packets are free to move from one end to the other without barriers. This is reflected in principles eight and nine.
And last, but not last, our tenth Internet principle refers to the need to preserve cultural linguistic diversity, and foster local content regardless of language and script.
Ladies and gentlement, these are the principles which we think should be the basis of Internet Governance. They spring from a people centered and a rights based approach. They emerge from the work of Internet communities around the world.
We are therefore confident that they are a valuable informed global and virtual Internet constitution.
I wish you a fruitful meeting and inspiring discussions.
>> BERTRAND de La CHAPELLE: Thank you very much for the introduction.
As a way to move into the next part of the meeting, it's important to make one first comment, which is the emergence of all of these efforts to improve principles. Wolfgang mentioned some, some countries, like Brazil, produced some. There are organisations that are producing dedicated principles for some aspects. Katitza joined us, and she is from the electronic frontier side. There is a coalition within the Internet Governance Forum that produced a set of principles. I think this has sold one key concept: Do we need principles? The answer is yes. Otherwise, everybody would not be trying to produce them. Given that, there an agreement that there is a need for background or high level principles.
The first question that is maybe to be thrown on the table is: Given all those initiatives, what should be the next? Is it wrap them up together in one single document? Is it to continue to have them in parallels? Is it to try to distinguish what are the common traits among those documents and principles and the branches?
So I'd like to open the floor very directly to different panelists that have been gathered, and get their feeling on that notion or their first comments on the intervention of the Deputy Secretary General, who wants to start
>> MATTHIAS TRAIMER: As a long steering member of the steering committee, I have to say of course that -- and also a representative of the Austrian government and the constitutional service, so my service is kind of constitutional service, therefore I like the title very much of this workshop. We fully of course endorse what the General Secretary has just said. What we try to do in the steering committee is really then to do all these standard settings. We have been very productive, I think, and so and recommendations and declarations that were just mentioned were also drafted in the steering committee. I think when we talk about the constitutional moment also is Bertrand's questions, what is it for? Why do we do these? Often what we hear about is Council of Europe's standard, although I'm a lawyer myself, but we hear from arrogant lawyers who say that is all soft law and it's nice wording, but it's not binding.
So what's it all about? Except, of course, the binding international treaties. I have really to contradict to that.
First of all, we have to say the big interesting thing about the Council of Europe's work is that there is the court. And the court what developed as we know a lot of various standards which have already a constitutional moment. So with regard to freedom of expression, all these famous sentences, like expression, also that is disturbing, shocking and so on, this is a constitution, a kind of constitution that all courts in the constitutional courts in Europe already use, and it was the European court of Human Rights that developed these.
But to come to the point, the real interesting thing is the court started within the last years to refer to Council of Europe's standard setting instruments, which are soft laws. And I was just having a look, for example, the very newest case regarding intergovernance comes from May 5, 2011.
It's the case of editorial board of Predwa of the Ukraine, whether the court refers to this public service on the Internet recommendation, and especially here, and quotes it, that "Member States are to elaborate a clear legal framework, showing the boundaries of the roles and responsibilities of all key stakeholders." We see there is a real value in that, and that's what we should continue. Thank you.
>> BERTRAND: I think before giving the floor -- the point that is important to keep in mind is the notion is of binding and the capacity of enforceability, as soon as we talk about the constitutional moment. And the question of enforcibility is an important element. Yes?
>> PARMINDER SINH: Bertrand, I would only answer the question you asked, whether we should be looking for pulling together the proliferation which is going on or should we get on with that. And what I liked about the name of the workshops is the constitutional moment. And that suggests a time, and certain compression and a certain topic, a special historical moment. And I do think that that kind of a moment has arrived and we should work towards it.
I must also say that I'm always very glad when I'm in a COE meeting, because this is one of the few places that I see in this gold rush, the rights, and that stuff is the bedrock of the kind of talk that we do. So this is the right kind of place to discuss it.
But I think the facts lead politics, but there are times when politics lead facts. And we have been in the Internet space for two decades. But there is the time that we come up with the political region and that lead to the unfolding of the kind of society that we want to see.
The next question is how to go towards that? I think I'll come on to it later. Thank you.
>> WOLFGANG KLEINWACHTER: This was the Council of Europe and Parminder was involved in the Council of Europe work as an expert, and I hope you will say also something later to the proposal from India, Brazil and South Africa. But we have a similar initiative in the OECD. And if you compare Council of Europe principles and the OECD principles, they have a lot in common but also different priorities.
Having Dimitri Ypsilanti on the podium, it's a great opportunity to ask how the OECD, which, you know, has partly the same Member States like the Council of Europe, you know, has approached this issue which reflect how would you reflect about the constitution and moment from the OECD perspective?
>> DIMITRI YPSILANTI: Thank you. We have 14 principles, not 10.
We are a different organisation from the Council of Europe. We have economic analysis, economic policy organisation. We look at the Internet as a platform which is productivity, creates economic growth, supports new jobs, is and new services.
And our concern for an open Internet is based on the economic perspective. But when we start analyzing all the issues, actually, we come out very closely to the type of principles that the Council of Europe has adopted.
And as Wolfgang noted, we had a high level meeting in June where we worked with our stakeholders. Our stakeholders are the governments that belong to the OECD, Civil Society, Internet Technical Community and the Business Community. And we worked through the communique and developed these principles. All of the stakeholders, with the exception of Civil Society, and I'm sure Katitza can, if necessary, explain why they were not in a position to adopt. But we did adopt these 14 principles.
And I should add that we are working on these principles to create what OECD calls a council recommendation. That means our version of soft law, if you want.
And we hope as we transform the communique, which is an unofficial document, into an official document that we can persuade Civil Society to finally join.
But we believe in the importance of a multi-stakeholder process of the Internet. We are concerned that the Internet -- let me put it the other way. We do not think that it would be a good thing for the Internet to be encompassed in a formal regulatory environment. We think the way the Internet has evolved in this multi-stakeholder process is the appropriate way.
At the same time, while we are very much in favor of an open Internet, we recognize the need for balance, balance of security protection of children, for example, et cetera. And I think the same sort of balance is reflected in the Council of Europe's principles.
One area, perhaps, of difference where we emphasize that on the Internet depends on a communication infrastructure. We have to have, we believe, a dynamic communication infrastructure is ensure that all citizens have adequate access to the Internet and at prices which they can afford. So I think that is where our economic back ground actually comes in and creates a difference.
One reason I should mention, which is we are concerned in developing the principles, is that in many cases governments have taken action -- sometimes they are legitimate action to correct something which they find has negative consequences on their economies and society.
But perhaps the actions are disproportionate. They do not take into account the more global picture, how this action can have negative impacts on the Internet in itself. And I think that's why it's important to have principles which governments can look at and use as they develop their policies.
>> BERTRAND de La CHAPELLE: Thank you. This is interesting is because it makes a segue into maybe asking Katitza, before Jimmy, who was involved in the discussions in the OECD. Not only to delve into what happened with the OECD principles, but more to see how the participation of the different actors can be fostered, knowing that we are in a very delicate situation. Because we have a trend toward the desire for constitutional effort. But if you have a constitutional effort, you need people to draft. And the question is what are the formats and what are the modalities to get to different actors today?
Maybe you can also bridge the experience within a structure, like Electronic Frontier Foundation, and the participation in other processes. And afterwards I'll ask a question.
>> KATITZA RODRIGUEZ: What we see as the value of the multi-stakeholder, and what are the challenges for Civil Society within those processes?
And the second point I want to make is which are the differences among the principles? How we could reach a better understanding and common understanding of the issues to better try to get consensus in the feature.
So related to the one point, we recognize the value of developing international principles for Internet Governance, particularly of establishing multi-stakeholder processes as the mechanisms for resolving policy disputes that could impact on the Internet. It's vital to ensure Civil Society participation in this new world of Internet Governance.
The Council of Europe and the OECD have demonstrated a commendation to inclusively society as others as stakeholders in a general multi-stakeholder policy development process. However, multi-stakeholder processes pose a special challenge for Civil Society by depriving them of tools that are integral to our domestic activity.
The strongest of these tools are the ability for public pressure on the democratic representive to avoid laws that would impact on citizens and record the constitutional documents in order to challenge any law or practice that violates our values and rights. In the multi-stakeholder process, both of these tools are seriously under rated. Civil Society recognizes the importance of multi-staker processes. Their versatility, the greater responsiveness to changing situations and the input they provide to all stakeholders.
But policymaking processes, whether at the international or the national level, need to develop in a manner that ensures Civil Society views are fully respected, in spite of the fact that this is operating in a venue where it cannot really apply the type of pressure it has historically relied upon most heavily.
Regarding the question about the different actors, the different initiatives to develop Internet Governance principles, many of them have been made relating to issues for the Internet Governance and these emerged from different forces and practices. Some of the processes led to statements of principles, of how the Internet must be gophered, and this included statements from the GA, OECD, Council of Europe and others.
In addition, there are specific recommendations. For instance, for the United Nations special rapporteaur, the OECD communique, for example, can be read as envisioning a new role for the Internet, one where there are tasks with responsibilities for activities of their uses, the Internet police. This is a dramatic departure from the historic intended for private entities. Discussions and some bilateral treaties seem to envision a similar role for intermediaries.
On the other hand, pronouncement from the UN special rapporteur warned about relying too heavily on such entities. The Council of Europe principles recognize that Internet governance must ensure for the protection of fundamental rights and freedom, as well as due process and rule of law. Many of these pronouncements seem to defer to the way they give the need for copyright enforcement and protection.
Just one more point. These can be resolved through general multi-stakeholder discussion. We believe that respecting international Human Rights standards might be the basis of this dialog and the resolution of these principles. If long-term confidence of such principles among all stakeholders is to be achieved, it's important to keep in mind that government must ensure the implementation of these principles of course through multi-stakeholder consultation and with the Human Rights in mind.
Various people when we have intermediaries need to achieve any Public Policy objectives. Thank you.
>> BERTRAND de La CHAPELLE: Thank you. The first thing you said is that when Civil Society engages in these multi-stakeholder processes, it has to give up an element of --
>> KATITZA RODRIGUEZ: No. Lose some of the activity at the international.
>> BERTRAND de La CHAPELLE: The second point that you mentioned was basically that companies are being given by their participation or by the principles in the case of the OECD, a new role, and I'll ask afterwards for comments. But the fact that the multi-stakeholder processes change the behavior of every single category of actor is one important factor. Because it's true for government.
And, Jimmy, what does that mean for parliamentarians? And how these new types of debates are impacting the activity of the parliamentarian.
>> JIMMY SCHULZ: First of all, well, we as a national Parliament have to accept that national laws won't affect the Internet at all. So we have to learn that we'll lose control in that part.
Well, meetings like that, the IGF, are the correct platform for interacting, working together. But I really appreciate the work that you've done with your principles. But talking about the constitutional moment, I think now it's the time to involve the citizens, the people of the Internet, and interact with them. And I really think we should get, them, because they have already another -- well, in former times, there used to be the FAQs, and now the Wikipedia, although space specific things, how rules and principles can get into action.
And I think we should -- well, we have a lot of institutions writing principles, governance. But in the end, the constitution for the Internet can only be written by the people itself. So we -- we might try to think of ways how we can do that. There are ways you can get people involved, a lot of people involved.
For example, maybe with tools of liquid democracy.
So maybe that is the point in history where we have to do that.
>> BERTRAND de La CHAPELLE: If I piggyback on your comment here, if constitutions have to be written by citizens, the reality is in the past they were not written by citizens, they were written by representatives of citizens. What you call for as the notion of liquid democracy is something that would have more citizens. So what this points toward is the fact that a constitution or charter for the Internet need to be developed in a completely different manner than constitutions were developed before.
>> JIMMY SCHULZ: Yes. That's exactly what I'm saying. Because the Internet has the chance to do so. We never had the chance in history to write a constitution by all the people. Now we have that chance. We should try that.
>> BERTRAND de La CHAPELLE: I have Nicolas and Chris are on the line. But maybe you want to make a statement? All right.
>> NICOLAS SEIDLER: Thank you. So as one of the members of the Internet technical community, what I'd like to do here is just to take a brief moment to remind ourselves of the Internet's foundational principles, which are commonly described as the Internet model of development.
The Internet model of development has been instrumental to the success of the Internet and is a term that is used to describe a common set of operating values, which are shared among many of the key communities and organisations that have been central to the development and ongoing evolution of the Internet.
This is a model that is strongly based on the notion of openness, which is the over arching principle that has ensured the growth of the Internet as a single, interoperable, endurable network.
Some of the values that stem out of this notion of openness include, for example, open technical standards, freely accessible processes for technology and policy development, or transparent collaborative and multi-stakeholder governance.
So, so in promoting the Internet and its access across the world, those considerations have become the core values of our organisation. And we think that openness is and the values that stem from this notion are critical to the success of the Internet and also to ensure that fundamental rights can be exercised in the world.
So as governments and international organisations embark on initiatives to develop new Internet governance principles, we think that such principles which emerged from developing the technology and the protocols that enabled the Internet to be used as a source of inspiration.
A concrete example of how these principles guide the development of policy approaches, for example, ISOC recently published a paper on one of the technological solutions used by governments to block access to Web sites which have been identified to distribute illegal content.
And in light of these principles, we argue that the use of technological shortcuts without taking into account the principles I mentioned can undermine the Internet as a single unified and a global network and as well as undermine the success of Human Rights.
As a final note, one important thing to note is that many of the core values of the Internet community embrace preexisting internationally agreed principles, for example, the right of freedom of expression, freedom of assembly, are present in Internet Human Rights law and fully applicable to the online world.
In light of these existing rights and principles, this challenge might not necessarily be to develop new principles, but rather to pursue the community's dialog to more effectively implement and reinforce existing rights, obligations and practices.
Because, for example, even though many of these rights and principles have been agreed on in Convention, constitution, agreements, or behavior in practice, different governments have different priorities, in situations, for example, when these rights are conflicting.
So, a possible way to arrange for these rights is through open and multi-stakeholder processes, which are at the core of this Internet model. Open and inclusive dialog can help build the responsibilities that are extending among stakeholders and governments. In this regard, the IGF in the current format is a natural platform to try to build this and to have a common idea on priorities.
So principles are useful and we welcome initiatives, but I think that processes are long-term and the dialog is very important to -- even if we agreed on rights to synchronize a bit what our priorities are. Christoph wants to -- is there... Is -- if she wants to make a statement later on, please tell us.
>> BERTRAND de La CHAPELLE: Christoph. And I'll ask the following speakers to make relatively short statements, so we can get into the next phase afterward, which is basically how to move forward. I accept a significant level of agreement that maybe I didn't expect at that time
>> CHRISTOPH STECK: I would like to take the chance to say congratulations to the Council of Europe for the document they created. In the end, it's not only the outcome, which is a good one, but it's the way in which it was created, which is important. And it was really a very open democratic process. So in a sense I think you can say that the Council of Europe lived up to its own values. This is really important. Set an example by doing that. However, it's not the only document that we have. This is the debate here. And I believe that, to be honest, this is not bad. I think it's not bad that we have different organisations, the OECD and others, working on different policy principles. We heard from Dimitri that they said, for example a bit of a different let's say focus and focus more on economic basis and economic development of the network, and of services and applications.
And I think the Council of Europe is kind of doing it based on its tradition more in the fundamental rights, and I think that is right. So in the end we creating a patch work of different principles. And I don't believe that a patch work is bad. It's good. The patch work, if it's nice, it might not be a nice design to everyone, but it keeps you warm at night. And this is important. So I believe that it's fitting well to the Internet.
The Internet is decentralized. It's made up of hundreds of thousands of networks together. It's hard to find a centralized way to do things. There needs to be debate and IGF is important to that. Due to the fast changing nature, the decentralized nature, various overlapping maybe principles, but also more specific maybe in some regards are a good way forward.
>> WOLFGANG KLEINWACHTER: By the way, this patch work approach is what we know from the national level. And because we have different interests and different ministries, and because in the OECD, and in the Council of Europe, the same governments are represented but by different ministries, that's why sometimes we have a different outcome. And to study things on the national level, that means at home and to try to combine it with the global level makes sense, because you know the international level is not so different. We have one world and one Internet.
As Jimmy said, there is no single Internet for Germany and so we have to have a global approach by taking into account our national dimensions. And so far, the IGF was able to stimulate regional and national IGFs, this process, and will lead to this patch work which all of us will feel better and warmer.
But OECD and Council of Europe are based mainly in Europe and the north. So it means the south and other big Internet nations, Brazil, India, South Africa, China, Russia, still have some distance to these processes. And the question is, if we have one world and one Internet, we have to go beyond the traditional borders of the developed countries. And so I'm very happy. And, unfortunately, she is not here, but she is online. As you heard probably, China and Russia proposed a code of conduct together with Uzbekistan and others in the General Assembly and the UN, and someone is not here from the Brazilian government, but Parminder was involved from this. And to say how you see these initiatives, you know, which have been triggered in the north and what you could do with this, how you could further enhance it, Hong, what is your comments on the constitutional moment of the Internet?
That's 10 thousand miles.
>> BERTRAND de La CHAPELLE: I ill take the opportunity to introduce Antti Peltomaki. But I told him as he arrived late he won't have the opportunity to present his principles.
Maybe we can keep with the flow. Go Parminder, and then maybe back to you, before we get to them. Sorry. Before we get to the next stage, which is how do we move forward?
>> PARMINDER JEET SINGH: It's a proposal which wolf --
>> BERTRAND de La CHAPELLE: We have the remote participation of Hong Xue. Again, Hong, hello.
>> HONG XUE: Hello. Can you hear me?
>> BERTRAND de La CHAPELLE: Welcome. We are listening to your statement now.
>> HONG XUE: Hello. You I cannot hear you. Hello. Can you hear me? Hello? Hello everyone.
Hello. Hello. Hello. Hello.
Hello? Oh. Okay. Oh, yes. Thank you.
Thank you very much. Let me turn off the view.
Well, thank you to have me to be part of your technical conference. I was not able to hear most of your discussion. I heard Wolfgang. I couldn't hear you. So I want to lead my discussion. The first one is how initiatives develop government principles.
The lead principle -- I hope that you can hear me.
This is one of the initiatives. We have seen the principles developed by OECD and the code of conduct that were developed and were recently sent to the United Nations.
The first question: Is there a need for a different initiative or is it the culture? Is there commonality among us?
What I can see, there really is commonality. All of knowledge, international human rights actions, and we have to see if there is a beginning part, work by Russia and China, and clearly we have to recognize the Human Rights principles.
So this is the commonality and this the situation.
The third common thing is the international (inaudible) there is cooperation among entities (inaudible)
What is interesting is I think they could be, especially from the new and undefined (inaudible) there are a lot of arguments about the definition, but here we have principles, but it's not backed by all the leaderships nor the governments fully addressing information security. It's not information openness. So this perspective could be mentioned.
And another area that could be confidential is on the responsibility of States (inaudible) these factors could be complementary.
I see the interesting discussions at conferences, the interest is dynamics. Now as a legal professional, I won't put my will. But it's an interesting issue and interesting type. I can only tell you my conclusions, that is if you want to make a treaty on the Internet, literally restricting the freedom, they should only be following (inaudible). So these principles have to be consistent with the document on the Council of Europe.
I'm really sorry. You cannot hear me well.
I'm doing my best.
>> BERTRAND de La CHAPELLE: Okay.
>> HONG XUE: But this is the highest volume I can provide.
Well, what I mean is that to draft an international treaty, we try again.
Does it mean I should stop now?
>> WOLFGANG KLEINWACHTER: Hong, I'm sorry to interrupt you, but the quality was bad and so far, you know, we hope that you can deliver us the written statement, because I see that you have drafted a text. And it would be very useful to take this to our record from the workshop. And on the other hand, you know, I just want to say, you know, five years ago it would have been impossible to have a live bridge from Beijing to Nairobi. And this is a fantastic step today to have a situation and a feel that this is possible. And we will see what will be possible in five years from now, when we reach the year 2015 and we have to summarize the results from the World Summit on Information Society. People in Geneva in 2003 could not imagine that this would be possible in the year 2011.
Thank you very much, Hong. I thought in particular from your statement that you see the different initiatives as complementary, and this would fit into the argument raised here by our friend from Telefonica about the patch work approach we have in this constitutional moment. And so far, thank you, Hong.
And, Parminder, probably now you can now comment from the other perspective, what you think about the patch work and the role of the IBSA perspective.
>> PARMINDER JEET SINGH: A couple things which characterize a constitutional moment. One is that there has been so much social change, that society thinks that you need a new social contract. That is basic to it. That's the meaning of what precedes a constitutional moment. And we think that the Internet impact is so strong, if the social structures changed, that provides the conditions for a new social contract.
Now, the first thing is that what is paradoxical is that when we say that, the same kind of people who say let's not touch the Human Rights paradigm as it exists, that is not talk of a new contract or moment. Constitutional moments go with the Human Rights. The Human Rights were created by human beings, political participation was under Human Rights only a couple decades back in many countries. So if we have a constitutional moment, we cannot be afraid to touch the realm of Human Rights. We can't say don't touch them.
In India over the last five years, nothing to do with the Internet, we are creating new rights as a right to food security, right to education. We are trying to formulate a right to health. And they are complicated things. There are documents and policy frameworks. But one thing is clear is that we need to go ahead and do more than just kind of reform the earlier rights. Because the new social contract is global. And therefore the new rights have to be global currency and they have to have global legitimacy for that.
And on this issue, I would -- the second part is about participation. What the parliamentarian was saying is this kind of moment calls for getting all the people involved in different ways, rather than just existing matters.
And on the matter of participation, that is what the proposal is. It's a proposal as it came out of the recent meeting, a short process proposal, and it can be seen in the form that it just says that the kind of Internet policymaking, whether hard or hard law which is happening in OECD or others, should be extended to all countries. All countries should sit together and go through the same processes. But the idea is that whatever has been done by certain countries should be done by all countries. And I don't see that proposal. And I'm ready to discuss that.
And about substantive issues, there are no substantive issues in this proposal, but there are a couple of them. A statement by IBSA in December, access to knowledge were mentioned, Human Rights, but I'm mentioning these to show how we have to have global currency and we have to think outside of certain paradigms. These words don't exist in the current documents of OECD, for instance. So these are important. For me, if we talk about a new technical architecture, a new set of rights are basic to the new social contract. We don't have a social contract if you don't have network neutrality rules apart from IBSA.
One of the things, there was a group that presented, they finally negotiated that the key line was that Internet Governance should be based on Human Rights and social justice. And we need to explore what that would mean. The roles and use, network equality, and that is key. Network equality, instead of network neutrality, it defines the equality of all human beings. So these have to be explored if you want to go further on for this constitutional moment that you are talking about here.
>> WOLFGANG KLEINWACHTER: Probably we can broaden the OECD approach. And some countries are being excluded. The question is, we have one world, one Internet, and the question is whether the principles accepted by the OECD go beyond this. And I want to ask you, because the commissioner introduced new terminology by proposing an Internet compact and broad principles in speech at the ICANN meeting in Singapore. So we are interested in getting more to that. It's very general language. And how this is related. Probably first you and then you.
>> ANTTI PELTOMAKI: I should start by congratulating the moderators for the great work that you've done in preparing an interesting and I think very valuable document, coming from the Council of Europe, Internet governance principles. I recognize your names in the footnote that you've been the driving force of this work. And I think that's fine. Thank you very much. And I think, of course, we are a certain kind of proliferation of all kinds of Internet principles in different settings for the Internet community, being that the government and nongovernment. And I think -- basically I think that we have been taking it more or less the same way. It's good to have all different kinds of approaches and to see them emerging closer together, and I think that there is very much fundamental issues. And I think what kind of governance that we are having over the Internet?
But I think that Wolfgang was referring that, yes, our commissioner, Ms. Kroes, was putting her own remarks on this discussion. It was June in Paris in the OECD event on the Internet economy. And I think that she was presenting her compact idea. And I think that this calls for the -- what she calls the Internet essentials. And I think we see that these are producing different things, Council of Europe or Council of Eight. And of course how do you start to frame these issues? And I think when you used -- tried to use unconventional language and the compact elements, and the compact stands for first civil responsibility. Secondly, one Internet that is multi-stakeholder, and proceed democracy. And counseled confidence and governed. Of course, the OECD will explain that. Of course, this will be explained more in the opening session. I won't do a prereading of what I think might be later to come later today. But, of course, we see that they are a version of the Human Rights and what is their place and the Internet principles. They have to be based on the same values. And the compact pact for us is reflecting the EU values, and I think they are very much the same as we can read from the Council of Europe Convention, or was it -- no. It was...
>> ANTTI: And I think that these universal values, and we are feeling that the European values as well, but the global universally applied, I think how they fit for this environment where we are online and I think what are the great challenges to be moved from the off line to the online world. And I think that there are a lot of elements now on the table and I think that as was mentioned, that the Chinese Russian initiatives, and the things coming from India and Brazil and South Africa, I think it's a very good situation that we are having all kind of ideas around. And I think they are not that different. Of course, the approaches are different, but we can see that there is a very good ground for further work to be done.
>> WOLFGANG KLEINWACHTER: Dimitri and then others, Evish is from the improvement working group. Maybe it could be an improvement of the IGF, that the IGF becomes the platform to synchronize all these voices.
>> DIMITRI YPSILANTI: I just want to note that when we organised our high level meeting, we did invite China, Brazil, India, South Africa, Russia, Egypt, to participate in the meeting. And the communique was adopted by Egypt. Some of the countries I just mentioned either didn't come or were not in a position to sign up. We are open to other countries to join our discussions and to take part in developing principles. So we are extremely open.
While I have the floor, patch work, I'm not sure I like that word. Patch work sounds like something is ad hoc, that I take a piece of material here and there, and there is no pattern to it, there is no thinking behind it. I think if I look at the Council of Europe's principles and I think our principles, there have been a lot of work been undertaken behind it. They are very similar. Just let me quickly read you one line from our communique which says that we allow the people to give voice to their Democratic aspirations and any policymaking associated with it, must promote openness and be grounded in respectful Human Rights and the rule of law. And that's very close to the governance principles of Council of Europe. So, we do see freedom of expression, democracy, as part of -- and fundamental rights as part of openness and necessary openness of the Internet.
>> JIMMY SCHULZ: I didn't mean to say that the principles are patch work. Different sets of principles of different organisations might create a patch work.
I didn't want to say that these are patch work. Maybe I didn't explain that well.
>> MATTHIAS TRAIMER: I've got a friend that spends a lot of time on the patch work quilts.
That brings me to the subject of patch work. The whole debate on the constitutional moment very much reminds me of the debates before the Philadelphia Convention. You have so many resolveds, resolutions by different organs, why don't we learn from that and take the spirit of Philadelphia and make Nairobi a Philadelphia 2.0.
The other point I want to make is that we need to have two paradigm changes if we want to have one great final document, and those two relate to the actors, international law, and to the instruments we accept in international law to be binding. We can't work only on treaties and we can't only work with states as actors. So if we have paradigm changes, we can have a constitution. Thank you.
>> BERTRAND de La CHAPELLE: Ana?
>> ANA: I want to say that I liked what Wolfgang said about the principles of Geneva 2003. I think people are not aware of how much -- how much the paradigm changed since then. So we are in 2011, almost into 2012. And things change a lot. And it will be very good if people could reflect on that.
Secondly, I would like to say that I enjoyed a, again, the questions put forward by our moderators. For instance, they asked or they mentioned that different actors embarked on initiatives to develop principles of Internet Governance. Are they complementary? Well, I would say I don't know.
Will they give rise to a common understanding? I'm not sure.
Will they be embraced by a critical mass of stakeholders? I do hope so.
How to implement them? Well, it depends on each principle.
What next steps in terms of further Internet policy development? Dialog, dialog. Dialog.
In which context? Always multi-stakeholder.
Which dialog arrangements? Why not IGF? What formalization or validation process? Well, it really depends a lot on which form of discussion that we are talking about. But the most important thing is that we continue to discuss the principles.
But now I would just like to say a couple of words on this, about the discussion and about the principles. So the agreement on principles of Internet Governance is useful as a first step to establish common ground among the different stakeholders. Actually, as the Internet, crossing States and culture borders, we have to ensure a common understanding. If you want to turn objectives into actions, action requires a common perception at the level of principles as we must be aware that principles are only useful if they pave the way for action. Otherwise, they are useless.
The real critical point is how these principles will be embedded in each stakeholder. It's not only up to the governments to change policy. To change policies, it's up to all different stakeholders in an open society to influence the decision maker and to be part of the decision-making in order to build that solutions. And this implies the sharing of concepts, a common understanding of concepts, through a dialog between the different stakeholders on the principles we are talking about today, which should be accepted by all the stakeholders if we want to move further.
Now we have to involve all the stakeholders in these principles. In an open society, we cannot impose such principles, but to debate, them and that's why we are here today.
These dialogs must involve the diversity of nations, cultures and sectors of activity. It's like the not to kill principles. Once this was accepted by the society as a principle, it was codified in law. So when we reach a level of understanding, the principles will be naturally accepted and debated, while others will have to be enforced through Democratic law.
>> BERTRAND de La CHAPELLE: Thank you, Ana.
Is there something with the remote --
>> LUCA BELLIS: Yes. Good morning. I'm the remote moderator for the workshop for room 144. We have a comment from Hong Xue from China. And she was saying that Wolfgang said that the intergovernmental treaties have to be embedded in an multi-stakeholder environment. And she believes that treaty making should be handled culturally. And we have to comply with international human rights law and the appropriate legal and due process safeguards. Thank you.
>> BERTRAND de La CHAPELLE: Thank you. I think it's an extremely appropriate moment, as we have 15 minutes left, to try to move into what can be the next steps. Because unless I'm mistaken, I sense a relatively strong convergence of not only interests in the emergence of these principles, but if the desire to see them converge into something that becomes tangible and becomes operational. And in the word of some of the commentators, that can be embedded and implementable in the different frameworks. The key question now is whether it is a patch work -- or I would rather qualify that, because I'm French -- as a menu. So you have a capacity to pick and choose whatever you want from the whole range of components.
What are the next steps? What should be done?
There are some elements -- or I can make an analogy with a tree. Where there are some principles that form the trunk, that are almost everywhere, and there are branches that go different places. We can go into metaphors endlessly. But now we are in the presence of a large number, already a large number of initiatives that cover different angles, and that probably for one of the first times are coming from very different institutions and actors. It is fascinating to see that you have some initiatives by governments. You have initiatives by international organisations. You have initiatives by international organisations driven by the multi-stakeholder process. You have pure Civil Society initiatives. And in this IGF, just like it is unbelievable that we could have a bridge with China on those topics today, we need to become conscious that the very fact that in the IGF we are discussing them very naturally as being on an equal importance because they are contributing to the debate is an amazing achievement.
So the key question now is what can be done by the IGF, between the IGFs, and at the next IGF, to continue this through the support of the different organisations that are -- have taken the initiative.
To frame the question, should they be working together? Should they be coordinating? What kind of way forward could there be? And I would like them now to open the floor and ask anyone who wants to make comments, but just to suggest one or two steps so we can go as much as possible.
Let's start from you. Go ahead.
>> I'm Bill Smith from Paypal. I think the IGF would be an excellent forum to discuss this patch work or menu of principles. And if we go back to the sort of the early days, of the, you know, the Internet, there were common principles that were affected globally for the entire, you know, the network of networks.
At the same time, there were distinct rules in the local network. Within each network, a certain set of rules could be applied. But each of the networks that connected into the Internet agreed to the principles. And I think that is what we should be doing today and moving forward. Recognize, I love the comment about social contract. I'm a fan of Russo's work. The comment I would make is that if we see this as a constitutional moment and we or someone attempts to impose a new social contract, that's not a social contract.
>> BERTRAND de La CHAPELLE: Thank you. But just one problem is that the IGF has annual meetings. The key question is what we can do in between.
>> JOHN TY: I'm John Ty. I work at the Department of State in the United States. And we -- we're discussing today a lot of different sets of principles. A lot of different processes. And as you said, there is discussion now of a constitutional moment. But I'd like to keep in mind that there is actually a framework for governing a lot of these things already embedded in the Universal Declaration Human Rights and the International Covenant for Civil and Political Rights. There are risks if that framework is reopened. Because it could actually result in a weakening of existing rights. And so I just want to keep in mind as these different processes go forward, as the different principles are debated, that the existing framework of international law is already very strong on these principles and should never be abandoned or rejected. And so I would question whether we want to think of this as a constitutional moment. A constitutional moment sort of suggests that we're defining the basic principles from the ground up.
We have very strong principles in place that should serve as the framework going forward for how freedom of expression, assembly and a association are aligned and implemented.
>> BERTRAND de La CHAPELLE: Thank you.
>> ALEJANDRO: Alejandro from Mexico. I see, Bertrand, a value of continuing work between sessions. I and the Dynamic Coalitions and other mechanisms are at work and I would have a serious word of warning, personally, and that would be that there seems a dilution behind much of the aspirations of getting a single declaration, which is the single global government. I don't think that we are ready for the IGF to build that up.
>> BERTRAND de La CHAPELLE: No. That point is a very important one. And particularly the one about the Dynamic Coalition, whether the Dynamic Coalition is one actor producing one element in the patch work or whether it can or should become the driving element. I don't think we will solve it right now --
>> Maybe neither.
>> BERTRAND de La CHAPELLE: Maybe neither. Okay.
>> EDWARDO ANTONIO: Good morning. I'm Edwardo Atonio. I'm from Buenes Aires, Argentina. Principles are always good and necessary, but somebody said in this room that sometimes implementation of the principles are the problems. I'm not seeing that any government is going to develop principles that are totally against Human Rights standards. The principles as they are drafted always says that they should follow Human Rights standards and so on and so forth. So my concrete idea is to work not only on an agreement of -- on principles, which is useful, but also in some sort of guidelines on how to implement those principles at the local level. Because what -- so I was a special Rapporteur for the Commission of Human Rights and we developed a lot of things for freedom of expression. And then the governments had problems in implementing those principles. So working on guidelines and the implementation of the principles is as important as the principles themselves.
>> BERTRAND de La CHAPELLE: Thank you.
>> JOHAN: I'm Johan from the Swedish Ministry of Foreign affairs and I work on the Human Rights on the Internet.
First, I'd like to extend our congratulations to the COE on the principles. Well done. I'm sure that we will have a lot of use for them. I'd like to just catch up with what John said earlier, sort of reminding us of the importance of the international Human Rights framework. Not to forget that such principles and such common grounds need to be exported to a global audience. And to do that, we need to be grounded in the Internet Human Rights framework. To do that, we need a bit of analysis on what the Internet Human Rights framework says.
And just to remind you or to inform you that a bit of work is already being done in the Human Rights Council of the UN. Now, the Human Rights council is -- may not be the easiest environment to work in. However, it is still the main council, the main institution for Human Rights in the UN. I'd like to point you to work being done by the special Rapporteur Frank Larue on the freedom of expression and to join statements that were carried out in the Human Rights Council in June, where more than 40 countries around is the world, including US and Brazil and India and others, stood up and confirmed the main principles in Frank LaRue's analysis. So there is still a lot of work to be done, but is another avenue, which has one role to play in this. Thanks.
>> BERTRAND de La CHAPELLE: Thank you.
>> BERTRAND DE LA CHAPELLE: Just a personal remark following what Parminder said earlier, and the last interventions regarding the existing framework.
I think it is an absolute basis for work that any change or opening up of the question of rights, as Parminder was mentioning, should be based on the prerequisite that it's an enhancement of rights and certainly not a dismantlement of any of those that are existing.
So what I understood, and correct me if I'm wrong, what I understood is that in the view that Parminder presented it was to expand in some other directions, but not to touch on the ones that are existing today and that should be reaffirmed. So it's a basic element. If you have a different approach, it's interesting to raise. You have a different approach.
>> We really have to stress that what the COE is doing is not inventing new regulation. It's the enforcement and freedom of expression and all these principles are prerequisites, as you said, and not an addition to these existing human rights. Thank you.
>> BERTRAND de La CHAPELLE: I wanted to make it clear.
>> PARMINDER JEET SINGH: That's one comment I agree and that is the basis. I have a great faith in our present world and I haven't seen -- we are silent on any Human Rights in the last decades. It hasn't happened, I don't see why it would happen now. The present Human Rights, none of them are going to be breeched. However, there is not clarity about whether it's just the old Human Rights that are expanded in the new space or they are changed. They are not clear categories.
But the question was simple: What do the Human Rights have to say about the Internet's architecture, about the new social architecture and my relationship with that. If you can interpret it in that manner, I'm happy to read it as an interpretation of the old principles or rights or new rights, and these categories are going to continue.
>> BERTRAND de La CHAPELLE: Thank you. Any other comments? Because we are basically coming to the end. I would like to, on a personal basis, make a suggestion here.
Whether it's again a menu or a patch work, we will have a lot of national and regional IGF. Would it be interesting to compile those documents in an electronic format, so that all the different national and regional IGFs, and all the different institutions that are actually dealing with that, could take them and compare them and tweak the ones they want, so they can discuss them among themselves in order for next year to be able to come and say we want that one? We agree on that one? To feed the discussion. Is that one of the concre