Yet still the Tunis Agenda asserts that only states have authority over these sorts of issues. There are four arguments on this slide why that assertion is mistaken. First, as scholars Johnson and Post were arguing a decade ago, there are problems of legitimacy in the extent and potential scale of the extra-territorial effects of the exercise of authority by states in respect of Internet-related issues.
There are problems even when states exercise their authority collectively, because being resident in a state does not exhaust a citizen's right to delegate their autonomy to other fora of collective action, such as transnational civil society networks. Because these are not tied to the geographical, or nowadays the democratic base of sovereignty of any one or more states, states cannot legitimately regulate the way citizens order their affairs in such networks.
They can only do so in collaboration with civil society, or in the case of the regulation of transnational commerce, with the private sector, and to the extent that issues are raised that inherently transcend borders and engage the planet as a whole, with international organisations. Only a network of all four stakeholder groups acting as full co-decision makers, can be and be perceived as being legitimate.
The second point is that this is old news. International commercial arbitration is one example of a regime of private ordering that has already achieved dominance over state ordering. States have not only accepted this but facilitated it by agreeing on the UNCITRAL Model Law on that topic. Another obvious example is ICANN. Although states participate in ICANN through its Governmental Advisory Committee they do not lead it.
States cannot therefore plausibly claim sole authority over the development of public policy for the Internet, when they are complicit in the diffusion of their own sovereignty over transnational issues to networks dominated by private sector or civil society stakeholders that are better placed to address them.
The third point was foreshadowed on the last slide, that participatory governance is more congruent than hierarchical governance with the architectural values of the Internet. So any governance process that is at variance with those values will be working against a deeply embedded grain.
The final point is that states do not lose out by sharing policy authority with other stakeholders, because at the end of the day they hold the trump card of being able to regulate most issue areas through domestic legislation. So to hold out that states are the only legitimate actors involved in the development of public policy for the Internet is not only wrong, it gains them nothing.