In the eyes of many observers, India is one of a handful of countries that are in a position to swing the outcome of the internet governance debates. It is of importance, therefore, to understand in greater depth the stances that the Government of India is likely to take in the many important Internet governance meetings and events that will take place in the remainder of 2014 and in 2015, and how they can be engaged constructively. This short paper outlines and examines these positions, taking as its starting point India’s participation in NETmundial – Global Multistakeholder Meeting on the Future of Internet Governance, which took place in São Paulo, Brazil, on 23 and 24 April 2014. It was first published in Kaspar, Lea (ed.) (2014). NETmundial: Reflections from Brazil, India and Kenya. London: Global Partners.
Over the past two years, as the debate about who should govern the internet picked up speed, internet governance has received increasing attention across the world. For the next year and a half, three processes in particular are likely to attract considerable interest: the International Telecommunication Union (ITU) Plenipotentiary in November 2014; the UNCSTD Working Group on Enhanced Cooperation (WGEC) over the course of fall 2014 and spring 2015; and the ten-year overall review of the World Summit on the Information Society (WSIS) as soon as the modalities governments agreed to in July 2014 are operationalised and throughout 2015. In all three fora, the question of what role different stakeholders should play in internet governance will be at the heart of debates.
India’s stances in these debates will be closely watched. As the Government of India itself has argued, ‘With over 200 million internet users soon going to cross about half a billion in the coming couple of years, over 900 million mobile telephone subscribers and a thriving and robust internet ecosystem, India is well-poised and willing to play an important and constructive role in the global internet governance ecosystem’1. Even more, in the eyes of many observers, India is in fact one of a handful of countries that are in a position to swing the outcome of the internet governance debates, as it is a well-informed, respected and trusted developing country and emerging economy that has often played a leadership role among the nations of the Global South.
In this context, it is of importance, therefore, to understand in greater depth the stances that the Government of India is likely to take in these upcoming meetings and events, and how they can be engaged constructively. This short paper will outline and examine these positions, taking as its starting point India’s participation in NETmundial – Global Multistakeholder Meeting on the Future of Internet Governance, which took place in São Paulo, Brazil, on 23 and 24 April 2014.
The NETmundial process was not the first occasion on which the Government of India puts its positions on public record. In fact, as early as October 2011, and following a joint statement with the other IBSA governments (though without their support), India made a proposal for a United Nations Committee for Internet-Related Policies (UNCIRP) at the UN General Assembly. But NETmundial forms a particularly useful basis for this analysis, both because it is the most recent enunciation of India’s position, but also because it was at NETmundial that India for the first time got the opportunity to state its positions, and to defend them repeatedly and rigorously, in a large, public, open and outcome-oriented multistakeholder gathering.
Indeed, though the Government of India, represented at NETmundial by officials of the Ministry of External Affairs, explicitly stated on record at the end of the meeting that it could not join the consensus on the NETmundial outcome document for a variety of reasons2, it did participate actively both in the preparations of the event and in the proceedings themselves, as did representatives from civil society, business and the technical community from India3. It is the wealth of written and oral government contributions that this participation generated (the latter during the opening and closing sessions, as well as in four substantive sessions, two each on internet governance principles and on the roadmap respectively) that we draw on first and foremost in what follows below.
Outlining India’s stances on the future of internet governance at NETmundial #
What then were the defining features of India’s position on the future of internet governance at NETmundial? In both its written and oral submissions, the Government of India stressed two overarching points time and again.
The first is that for it to be globally acceptable and credible, the internet governance ecosystem, rather than being managed by a few, has to be ‘representative, democratic, transparent and accountable, involving governments and other stakeholders as per the Tunis Agenda’4. Such a reform would include broad-basing and internationalising the institutions that manage and regulate the internet.
The second is that ‘given its profound importance, there is also a need for the various facets of the [sic] internet governance, including the core internet infrastructure, to be anchored in [an] appropriate international legal framework’5. At other times during the meeting, this was phrased as the need to anchor internet governance in an appropriate international and legal authority. The Indian government explicitly clarified during the meeting that this means that all structures that regulate and manage the internet should be anchored in this framework6.
The first point is of course not a new one. But with the second suggestion, India seemed to have moved beyond its earlier proposal for a new UN body that would be responsible for the development of international internet-related public policy and related globally-applicable principles, to a demand that new international law be formulated to deal with the challenges that the internet poses. It is true that India had included the facilitation of ‘negotiation of treaties, conventions and agreements on internet-related public policies’ in the mandate of the UNCIRP it proposed, unsuccessfully, to the UN General Assembly in 20117. And in its submission to the WGEC in 2013, too, the Government of India explicitly reconfirmed, among other things, ‘Development and adoption of laws, regulations and standards’ and ‘Treaty-making’ as part of governments’ role, though without linking these explicitly to the functions of the new multilateral mechanism it proposed in the context of that submission8. However, NETmundial seems to have been the first occasion on which the Government of India made concrete what use governments’ treaty-making powers might be put to in internet governance.
It is also the first time that these powers, rather than the establishment of a multilateral body for the formulation of international internet-related public policy more broadly, take centre-stage. Although India did not expand on this, as the proposed legal framework is quite encompassing in nature, it is likely that its establishment would require the emergence of institutions of its own, including to review its implementation and provide for its further development where needed. Seeing existing conventions around treaty processes and their implementation, it is foreseeable that both would be multilateral in nature, with other stakeholders in an advisory role at most.
Through these twin, interconnected measures, the Indian government hopes to address a series of important ‘strategic and policy challenges’, and thus to make the global internet governance ecosystem more credible. It explicitly lists the following concerns:
‘lack of truly representative and democratic nature of the existing systems of internet governance including the management of critical internet resources leading to a trust deficit in the system;
need for the internet governance ecosystem to be sensitive to the cultures and national interests of all nations, not just of a select set of stakeholders;
apparent inability of the current structures of internet governance to respond to some of the core and strategic concerns of the member states;
need to broad base and internationalise the institutions that are invested with authority to management [sic] and regulate the internet;
need to ensure security of the cyberspace and institutionalise safeguards against misuse of the protection of internet users and at the same time also ensure the free flow and access to information essential to a democratic society. In this regard, perhaps need to frame a new cyber jurisprudence’9.
Most of these criticisms about the status quo are of course neither new nor specific to India. The uneven distribution of geopolitical power in the internet governance ecosystem has rightfully been a bone of contention for India and other developing countries since the Tunis phase of the WSIS. Questions regarding security in cyberspace, too, have a long history, though they have perhaps gained particular currency over the past five years or so.
The only aspect in the above list that has not yet gained widespread attention is the claim that the internet governance ecosystem is insufficiently sensitive to cultural diversity. In processes such as the WSIS+10 Multistakeholder Preparatory Platform (MPP), the need for cultural sensitivity, while an important goal in itself, was mostly referred to by nations who wanted to restrict content on this ground. It is not clear what the Government of India had in mind when it included this issue in its list of challenges for internet governance at NETmundial.
To better understand India’s stances on internet governance, it is worthwhile to further investigate the forces that shape them. Examining the entire web of internal and external motivations informing India’s position on internet governance is beyond the scope of this paper. However, two concrete sets of concerns in particular seemed to underpin India’s position at NETmundial and are also key to understanding the country’s stance on internet governance more broadly.
The first set, which was already touched on above, is related to the unequal distribution of geopolitical power. Since its earliest explicit enunciations on this topic in 2011, if not before, it has been clear that India seeks a more equal distribution of power among the community of nations in the internet governance ecosystem, generally with great and widespread domestic support for this principle (though not necessarily for its concrete proposals). This set of concerns was again central to the Government of India’s contributions at NETmundial, and will likely continue to take pride of place going forward.
Increasingly, however, it is evident that there is a second important driving force behind India’s global internet governance policy – concerns around cybersecurity. While various comments by the Government of India made during the NETmundial meeting made explicit that the international legal framework it proposed would not be limited to addressing cybersecurity alone, the references it made to the possible need for a new cyber jurisprudence indicate that this is indeed a significant concern for the country. In addition, security-related issues and concerns take up a large part of India’s written submission to NETmundial, including in the sub-section on capacity building. Moreover, when India introduced its positions in the meeting’s opening session, it explicitly contextualised its arguments in part within a security-based framing: ‘The internet is used for transactions of both economic, civil and defense assets at the national level and in the process, countries are placing their core national security interests in this medium’10.
We have argued elsewhere11 that a shift in power to governments and the replacement of a dispersed, multistakeholder approach to internet governance with a centralised, government-led model is ultimately not beneficial for users, including users in developing countries. At the same time, however, it cannot be denied that the above twin driving forces of India’s global internet governance policy are indeed legitimate. If India is to adapt its position on these important issues, it is thus likely that the global community will need to invest greater effort into addressing these concerns adequately and appropriately in alternative ways – ways which can avoid the negative impact on the internet and its empowering potential that a centralised government-led approach would entail.
The relation between multistakeholderism and multilateralism in India’s contributions #
One way to take that conversation forward might be by investing greater attention in the potential of the relation between multistakeholderism and multilateralism. As was evident during NETmundial, though ideas on details of such possible arrangements remain scanty, a growing number of stakeholders is recognising explicitly that there is, and should be, a place for both. The Brazilian government, for example, is one proponent of this dual-track approach – its credibility on this issue augmented by the fact that the country already has in place a well-developed multistakeholder arrangement for internet governance at the domestic level.
To be true, India has also been referring to both multistakeholderism and multilateralism in many of its recent interventions on internet governance, including at NETmundial. But the opening for further debate that this creates remains minimal for now, as the Government continues to draw on a very narrow reading of the Tunis Agenda and does not take into account the many evolutions and experiences that have taken place in the internet governance ecosystem over the past ten years or so. These include the further fine-tuning of multistakeholder organisations such as ICANN, for example through improvements in accountability, but also the introduction of multistakeholderism in the UN, for example through the Multistakeholder Preparatory Platform for the WSIS+10 High Level Event in June 2014. In each of these instances, there is not merely a recognition that non-government stakeholder groups have a wide range of contributions to make, and that these go well beyond the roles that the Tunis Agenda had in mind for them, but also a growing institutionalisation of this understanding.
Yet such changes seem not to have impacted India’s stance in a substantial way. Thus, for example, India noted during its interventions at NETmundial, while commenting on the draft outcome document:
There are no references to Geneva principles as well as the Tunis Agenda which form the bedrock for the ongoing global discourse on internet governance. Despite a clear recognition in the Tunis Agenda to a multilateral process apart from the multistakeholder approach in the evolution of the future roadmap on internet governance, we find no reference to it in this initial draft outcome document which you are considering now.
In our view, it is, therefore, a very unbalanced one. We believe that the future of internet governance framework should also be multilateral, democratic, and representative as these aspects have been provided for in the Tunis Agenda. Hence, we seek inclusion and suitable reflection of this sentiment in paragraph 1 of the text that we have – which we are considering now12 (emphasis mine).
The inclusion of the word ‘also’ here can be read as significant, and India had indeed noted elsewhere during the proceedings that it believed that the simultaneous existence of multistakeholder and multilateral platforms ‘is not a zero-sum game’13.
But whatever promise such a framing holds, its potential is limited by the fact that whenever the Government of India made the case for the internet governance ecosystem to have the ‘full involvement of governments and all other stakeholders’ – or, in other words, for some form of multistakeholderism – it also did so merely with reference to the Tunis Agenda. As a document over which governments had the final say, the Tunis Agenda unfortunately defines the role of civil society in particular in an extremely limited way, highlighting only its contributions ‘at community level’14 while remaining silent on the role it can and has played in policy making. Moreover, the Government of India also requested, unsuccessfully, inclusion in the NETmundial outcome document of a reference that, again drawing on the Tunis Agenda, would recognise international policy authority for internet-related public policy issues as a sovereign right of governments. This language, too, is widely feared to reduce other stakeholders to an advisory role at best by default.
While India may seem to be leaving an opening for multistakeholderism at times, it thus does so without taking into account the substantial evolutions this approach has gone through in multiple fora over the past ten years. In fact, in combination, restricting definitions of civil society’s role and asserting state sovereignty over international internet-related public policy issues could arguably spell the death of multistakeholder approaches to international internet-related public policy making, such as those we are familiar with, for example, in the ongoing experiment that is ICANN or in the context of the Multistakeholder Preparatory Platform for the WSIS+10 High Level Event.
It is important to point out here that this position is problematic not merely because it would likely change the way the internet is governed: indeed, as mentioned before, a range of criticisms of the existing internet governance ecosystem are legitimate and where improvements to the existing internet governance ecosystem are proposed, these should therefore be welcomed, whether they are of a multistakeholder or a multilateral nature.
Instead, it is problematic because existing multilateral policy processes are among the most opaque ones in the democratic world. An effective interplay between multistakeholderism and multilateralism could significantly increase the extent to which the latter is in practice, rather than merely in theory, representative, democratic, transparent and accountable – thus in turn ensuring that the contributions made by multilateral efforts would benefit the internet ecosystem as a whole. The rigid and narrow reading of the Tunis Agenda that the Indian government continues to stand by unfortunately leaves very little space for such an improvement of both approaches and their interplay. If the aim of its contributions is not merely to assert the primacy of multilateralism, it is important that the Government of India goes beyond the text of the Tunis Agenda, which was agreed almost ten years ago, and builds a vision of the future of internet governance which genuinely allows all stakeholders to effectively contribute to the best of their abilities, rather than merely in name.
If India’s engagement with multistakeholderism in its contributions at NETmundial seems to have been mostly nominal, one aspect of multistakeholder participation did, however, get its substantive attention repeatedly: that non-government stakeholders participating in deliberative and decision-making processes should have legitimacy. In fact, this is the one respect in which the Indian government’s comments on multistakeholder participation repeatedly went beyond the Tunis Agenda in its interventions. Seeing India’s broader position at NETmundial, what to, finally, make of such comments?
For example, the Government of India noted that:
given the important role that non-government stakeholders play, there should also be a clear delineation of principles governing their participation, including their accountability, representativeness, transparency, and inclusiveness15.
Elsewhere, it further argued:
We seek involvement of all legitimate stakeholders in the deliberations as part of the decision-making process. The principles of democratic representation can alone offer representative credentials to participants who seek to represent various sections and interests.
Just as we in governments are responsible and accountable to our people, stakeholders also need to be accountable to an oversight mechanism that is rooted in appropriate international legal authority16.
The question of legitimacy is of course a valid one, and civil society organisations active at various levels and in a wide variety of fields of governance in particular have had to face it for long. This is true for civil society active in internet governance as well17. Yet where a government formulates stances such as these in international fora without prior consultation with the people and groups concerned, it is difficult to see this intervention as a constructive one, no matter how valid the issue raised might be. All too often, the question of legitimacy is used to control people’s participation in democracy. As long as the Indian government doesn’t adopt a more inclusive domestic approach to its formulation of policy stances on global internet governance issues, it is difficult to take its gesture at face value. Open and inclusive consultation by the Government of India on internet governance issues has unfortunately been lacking to date.
There is further cause for concern as the Indian government has also implied in its interventions at NETmundial that any possible redefinition of stakeholders’ roles and responsibilities should be the prerogative of governments only:
With regard to the issues of roles and responsibilities of the stakeholders, I think it is best that we do not touch upon these particular responsibilities and roles in this format. It ought to be done – these responsibilities were defined at a certain level in the WSIS process and we would like the same platforms to redefine if there is any change in the responsibilities and roles of various stakeholders18.
Seeing that India has been arguing for a government-led WSIS+10 Overall Review, this would mean that once again, governments would have the final say in deciding what roles and responsibilities other stakeholders can take up. Again, the absence of open and inclusive domestic consultations on these issues is cause for concern.
If India’s comments on the possibility for multistakeholderism and multilateralism to co-exist in a mutually productive way are to be taken seriously, it is important that it takes urgent steps to develop a more open, inclusive and collaborative engagement with other stakeholders on issues that concern them, including at the domestic level. In the absence of such an engagement, while its comments on manners in which to strengthen multistakeholderism may be well-intended, it is difficult not to see in them strategies that are ultimately intended to merely strengthen government-control over internet governance, rather than improving the internet governance ecosystem as a whole.
Going forward into 2015: What does the future hold? #
In order to take its agenda forward, it is clear that the Indian government will attempt to make full use of the WSIS+10 overall review scheduled to take place in 2015 (and so it is not surprising that in the negotiations around the modalities for that process, India has been reported to have argued strongly in favour of a full-fledged summit to conduct the review). Indeed, during NETmundial, India stated explicitly that it believes that
the Tunis Agenda has not been fully implemented. This highlights the urgent need for identification of gaps in its implementation at the upcoming WSIS+10 Review in 2015 and by establishing new mechanisms, as well as strengthening the existing ones, if any19.
India’s own analysis of the gaps was amply evident from its NETmundial interventions, as discussed above.
Neither in its stances nor in its strategies does India stand alone. It has important allies among the Group of 77 (G‑77), with which it is reported to be working closely. Thus, for example, in the WSIS+10 High Level Event that took place in Geneva from 10 to 13 June 2014, a representative from Iran made a statement on behalf of the Non-Aligned Movement (NAM) which noted that ‘The NAM reaffirms the centrality of the role of the General Assembly in the overall review of the implementation of the outcomes of the World Summit on the Information Society, to be held in 2015’20. India explicitly endorsed this statement in its own intervention.
However, with several of its core allies, India has important differences as well. Apart from India, the states that perhaps have been most active in internet governance while propagating a government-led model are Iran, Saudi Arabia, Cuba and the Russian Federation. Several among these countries have repeatedly tried to scuttle, during various UN negotiation processes, strong language supporting human rights in the internet age – with varying levels of success. Several also continue to face questions regarding their commitment to democracy at home. These differences should give the Government of India food for thought as to the potential wider ramifications of its current stances on the future of global internet governance.
If going forward, India is to propagate a more nuanced position than its current allies, one that is more closely aligned to its values, the keys to developing such a position lie, however, as always, at home. Although there may be agreement among key ministries in the Indian government about the broad outlines of India’s current position on global internet governance, disagreement about the finer details seems to persist. This possibly opens the door to more nuanced positions at fora where multiple ministries are involved, such as the ITU’s Plenipotentiary in November 2014, and maybe even beyond. For example, a close reading of India’s February 2014 submission on internet-related public policy to the ITU’s Council Working Group on that topic was prepared by the Department of Telecommunications, Ministry of Communications and Information Technology (rather than the Ministry of External Affairs), and reveals considerably greater emphasis on the need for broad stakeholder consultation, in particular at the national level, than we have witnessed in India’s contributions to NETmundial21. With this, the Department of Telecommunications remains more closely aligned to the vision first outlined by former Minister for Communications and Information Technology, Mr. Kapil Sibal, at the Baku IGF in 2012. Sibal had advocated an internet governance system that would be collaborative, consultative, inclusive and consensual. Interestingly, according to media reports, there was no consultation between the Ministries of External Affairs and Communications and Information Technology respectively in the run-up to NETmundial22.
The greatest potential for success of any approach India seeks to adopt may well lie, however, in broad and open consultations, not just with stakeholders within the government, but with all stakeholders within the country who are interested in commenting. It is through such gestures that the Government of India can not only tap into the wealth of knowledge and experience that already exists on internet governance within India, but also make credible its stated support for multistakeholderism, transparency and accountability. Ultimately, it is also through such gestures, then, that it can create the openness and goodwill that will be crucial to the success of any proposals it will make, as it gains a multitude of ambassadors for its approach in the process.