A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Friday, March 22, 2013

Does multistakeholderism make decisions more legitimate?

The involvement of stakeholders in normative processes
has an impact on the legitimacy of their outcome.
There is an interesting iscussion going on on a list I am a member of on the true meaning of multistakeholderism and its relationship to legitimacy.

In a post, Mike Gurstein set out to defend multistakeholder processes as a framework of decision-making, but not a means to -necessarily - increase legitimacy.

He writes:
"Multistakeholder processes could and should enhance democracy by increasing opportunities for effective participation by those most directly impacted by decisions and particularly those at the grassroots who so often are voiceless in these processes"
"To do this means shifting away from multistakeholderism as a “means of legitimation” to being one among many strategies for making democracy more workable in this era of enhanced communications, enhanced interactivity and accelerated change."
While I agree with Mike on the importance of enhancing democratic participation in the development of norms, I feel that the legitimating dimension of multistakeholder processes may be underestimated.
I've written on the relationship of multistakeholderism and legitimacy at length in my recent book, but I'll restart my points here.
 
Building on Thomas M. Franck, The Power of Legitimacy Among Nations (Oxford: Oxford University Press, 1990), I argue that how legitimate a norm can be is to be measured according by referring to its determinacy (ascertainable normative content), symbolic validation through an authority figure, coherence, and adherence to a broader system of rules.

These legitimacy criteria can be refined and regrouped for application with regard to the law of Internet Governance. 

I've suggested in my thesis that an International Internet norm is legitimate if it meets a formal and a material legitimacy requirement:
- formally, it needs to be symbolically validated through its emergence in a multi-stakeholder process (the input and throughput dimension of legitimacy),
- materially, it needs to be determinate enough for its purpose (thus allowing for non-binding instruments), cohere with the Internet’s core principles and be consonant with the values of Internet Governance, and adhere systematically to the broader normative system of Internet Governance (the output dimension of legitimacy).
Multistakeholderism provides for a strong legitimation base for norms flowing out of representative and inclusive normation processes because of the triad of legitimating sources: the three key stakeholder groups (states, the private sector, and civil society).

Multistakeholderism as an approach is thus the best approximation of an ideal discourse we have. And an ideal discourse on norms is what we should strive for, because the norms developed in such a discourse, are legitimate in light of the criteria developed above. 

One example for that approach (and the consequences of ignoring it) is ACTA.

One of the main arguments brought forth by civil society against ACTA was that it was debated in secret without civil society involvement. The European Commission argues that this was untrue, but it was - also due to  reasons of EU competence -  mainly a Commission- and state-led exercise. 

I conclude in my book that any multistakeholder approach must ensure equilibrium between the actors and their normative inputs to the greatest extent possible. Therefore, the provision of clear procedural rules on how different stakeholders can contribute is necessary. Developing this on an international level is one of the more important challenges international law will face in the years to come.

By now, Internet Governance Law has developed to a point where individuals have a heightened expectation of legitimacy. There is an expectation of consultation with stakeholder groups; and there are – in certain areas of norm production – corresponding commitments to multistakeholderism by governments. These go back to the World Summit on the Information Society and have been reified in the declarations of rights and principles. 

Even though the European Commission was able to show that it had consulted other stakeholders (but barely so) and that the European Parliament was involved (to a limited degree) in the review of the results of ACTA negotiations, this was not perceived to be enough by certain civil society forces who organized, motivated by the emotionalizing power of an envisaged ‘assault’ on the Internet, a powerful movement against ACTA. This campaign ultimately let the norm entrepreneurs – states – to hold back from signing and ratifying ACTA. That ACTA included certain multistakeholder elements, though it was led by the Commission and thus could only demand technocratic-rational legitimation, did not sufficiently allow for an actualization of the expectation of legitimacy with regard to the normative output.

The implication for international treaty negotiations is this: There is a certain consonance between the post-interposition character of a regime and the level of multistakeholder participation expected by the community. The more individual-centric a regime traditionally is (or the greater individuals feel their involvement should be), the higher the level of multistakeholder participation must be provided for, for both forces to be in consonance. In civil society’s view, the result of the ACTA negotiations exhibited legitimatory dissonance. 

The integration of all stakeholders is essential for discovering, in the pre-normative phase, the challenges that regulatory attempts need to overcome and the regulatory demand they set out to answer. The multi-stakeholder approach, therefore, to which the international community is firmly committed with regard to Internet Governance law, has serious implications for the way in which international treaties should (and will) be negotiated in the future. 

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