Analyzing public communication

To analyze public communication, in a first step relevant legitimacy related communication has to be identified. I will first determine from which actors legitimation will be taken into account and argue for a set of criteria which serves to select texts by these actors. I will then highlight how legitimation statements will be identified in the selected texts, and suggest how these instances of legitimation might serve as indicators for a specific degree of legitimacy.

I have argued above that one should specifically look at the actors directly involved – members of Indigenous organizations and nations, state delegates, and staff of IOs and NGOs – for an analysis of legitimation. In this regard, Schneider et al. (2010: 38–39) mention parliamentary debates, party manifestos and press conferences as possible interesting sources for texts containing legitimation.⁴⁷ Transferred to my object of study

47 The other two sources which the authors mention are newspaper articles and academic discourse (Schneider et al. 2010: 38–39). The authors themselves rely on quality press newspaper articles; they point to the relevance of the media in legitimation discourses by arguing that “the voices and claims that might be prominent in more limited spheres of communication must be successfully fed into – or taken up by – the media to reach and influence the wider public” (ibid.: 39). However, ordinary newspapers report on Indigenous issues at the United Nations only under very exceptional circumstances. For example, a query at the digital archives of the online version of the New York Times found only seven results for the search term “Permanent Forum on Indigenous Issues” (nytimes.com, query realized at 04.02.2017). Given that the Permanent Forum meets in New York each year, this was the quality press newspaper I supposed would probably have most results. Another option would have been to rely on specific Indigenous newspapers. While there are in fact a couple of Indigenous newspapers such as the Native American Times (USA), or Koori Mail (Australia) which address the entire Indigenous population of a country, even these newspapers do not report on UN institutions dealing with Indigenous issues on a regular basis. For example, a search on Native American Times found only 9 results to the search term “Permanent Forum on Indigenous Issues” (query realized at 04.02.2017). Other smaller newspapers often do not reach beyond specific communities. Some do not have digital archives or a search option on the Internet page, so data was not easily accessible even where newspapers existed. Moreover, it seems difficult to judge the impact some of these papers have as regards numbers of readers etc. Therefore, building my research on Indigenous newspapers did not seem to be a viable option for research. What is more, the scarce picking up by newspapers suggests that questions about the legitimacy of more specific UN bodies only reach a broader public under very exceptional circumstances.

this corresponds to analyzing statements made during sessions, strategy papers and other official documents by participants, or press statements. I suggest that in the context of this study it is most promising to look at statements made during sessions by states, IOs, Indigenous nations and organizations, as well as by members of the respective institutions.⁴⁸ One advantage of relying on these documents is their availability. The Swiss NGO docip (Center for Documentation, Research and Information) maintains an online archive⁴⁹ in which statements made during sessions are compiled. This contrasts with the availability of strategy papers and similar documents, because many IPOs do not publish official strategies or reports on their activities even if they have a website. In the same vein, for many development states no strategies regarding Indigenous peoples could be found. Even where such documents exist and contain references to Indigenous participation at the UN, they are often made for a longer period of years and therefore contain very little specific information;

moreover they are highly diverse in form and difficult to compare. Similarly, there are no regular press statements by participants, except for official UN press conferences and press releases. However, these contain little specific information regarding different positions of constituencies.

Schneider and colleagues (2010: 61) explain that legitimation discourses are often tied to specific events, policies, or actors. In the course of these debates, positive and negative evaluations become more frequent, and it becomes very probable that opinions related to the issue at stake contain legitimation statements (Schneider et al. 2010: 62).

In this context, they speak of legitimacy attention cycles which generally pass through five subsequent stages: (1) a prelegitimation stage before an issue attracts attention, (2) a discovery stage during which legitimacy evaluations become more frequent; (3) a

Another option the authors suggest would be to rely on the academic discourse on legitimacy (Schneider et al. 2010: 38). An introduction into the discussion surrounding the legitimacy of participation by affected actors can be found in Chapter one. However, as I have argued there, the academic discussion is

inconclusive as regards the impact of APO participation on legitimacy. Moreover, existing academic research on Indigenous participation in the ambit of the UN so far does tell us little about its legitimacy.

Nevertheless, academic literature on the PFII and EMRIP was taken into account to counter-check and complement results.

48 This however meant that texts were left out from organizations or states that do not participate in UN institutions on Indigenous peoples – including those who abstain from participation because they question the legitimacy of the respective institutions. In other words, this sampling strategy missed out opinions of those who more radically challenge the legitimacy of the PFII or EMRIP. Taking into account behavioural indicators will to some degree compensate for this limitation.

49 https://www.docip.org/en/our-services-solutions/documentation-center/, accessed 25.01.2019.

Statements from PFII sessions are also available at the UN PaperSmart website at https://papersmart.unmeetings.org/, accessed 25.01.2019.

reflection stage when legitimacy issues are debated in a more analytical way; (4) a stage of decline when the legitimacy issue at stake is either resolved (p. ex. via reform) or when the debate turns to other issues; and (5) a postlegitimation stage when the debate ends (Schneider et al. 2010: 66–67). While the discovery stage of a legitimacy problem is mostly associated with burgeoning delegitimation, (re)legitimation often gains ground (but needs not) during the reflection stage (ibid.: 64).

Following this approach, I suggest focusing the analysis on specific events for which intense legitimacy-related discourses can be expected. Both the Expert Mechanism and the Permanent Forum recently undertook a review of their mandate and their functioning, respectively. The debate surrounding these processes seemed to be a valuable source of data, as any review of an institution will contain references to its perceived strengths and weaknesses. While reform is being discussed, it can be assumed that the debate with regard to both institutions was at least in stage 3 (reflection) or 4 (decline). Institutional reform is a form of legitimation politics, which is often characterized by legitimacy conflicts (Nullmeier et al. 2012: 25). This means that many of the respective statements will probably contain legitimacy evaluations. In other words, focusing on a time-frame in which institutional reform was at stake provides an opportunity for selecting most relevant texts. For my analysis of legitimacy, I thus selected statements made by participants during sessions which focused on institutional reform.⁵⁰

In the selected texts, the researcher then has to identify those phrases which contain legitimation. Thus, all sentences have to be selected that fulfill several criteria: First, statements must contain a positive or negative evaluation. Second, they must be tied to some sort of explanation or justification of that evaluation. And third, they have to be generalized, i.e. not directed towards the day-to-day functioning of the respective institution (Schneider et al. 2010: 42–43). These more specific phrases, when stakeholders tie the perceived deficiencies of an institution to specific actors, occurrences or policies are not taken into account because legitimacy evaluations of an institution to some extend transcend specific occurrences or adverse acts (Suchman 1995: 574). In other words, citizens may maintain their general legitimacy evaluations

50 More specific information regarding the sampling strategy can be found in the Appendix to this dissertation.

of an institution for a while even if unsatisfied with specific decisions or individual mandate holders, as long as the policies generally remain consistent with the underlying values and objectives (Føllesdal 2007: 220).⁵¹ Thus, in a first step all legitimation statements will have to be identified and their gist captured in a formalized way (Schneider et al. 2010: 42). For an example of discursive legitimation described with the help of such legitimation grammar, see Table 3.

Original text:

I would like to express our full support to the Permanent Forum which plays a key role in promoting respect for indigenous peoples’ rights (Nordic States 22.05.2015).

Legitimation statement:

Legitimation object Evaluation Legitimation pattern

The Permanent Forum on

Indigenous Issues is legitimate because it is a key actor in the promotion of IP rights

Table 3: An example of discursive legitimation. Source: adapted from Schneider et al. (2010: 43).

Still, it remains an open question “how much rhetorical support would constitute enough” (Hurd 1999: 391, emphasis in the original) for an institution to be considered (scarcely, on average, or highly) legitimate. Thus, in the following I will identify indicators which will allow us to assign degrees of legitimacy to specific institutions.

The first indicator is the relative distribution of positive and negative statements.

Legitimacy-related communication is generally characterized by an exchange of legitimating and de-legitimating positions with relative balanced distributions of both (Schneider et al. 2010: 69). In other words, both the mere fact that legitimacy is an issue of debate and the incidence of some delegitimation acts have to be considered as normal rather than problematic (Schneider et al. 2010: 69). Thus, more or less equal shares of legitimation and delegitimation indicate a medium degree of legitimacy, as this is what we should typically observe. In the case of high legitimacy, one should observe high proportions, i.e. more than two thirds of legitimating statements; whereas less than one third of legitimating statements indicate a low legitimacy level. In other words, only a clear preponderance of legitimation or delegitimation may be interpreted as an indicator for noticeably high or low legitimacy levels (ibid.).

51 These types of evaluations only become relevant for institutional legitimacy when legitimating

audiences regularly consider that decisions or mandate holders are not justified and start to see the fault in the general structures of the institution which do not assure that the right decisions are made, or that the right actors occupy positions.

Second, I will take into account the precise objects to which legitimacy evaluations refer (Schneider et al. 2010: 84–85). The basic idea is that one can speak of a hierarchy of legitimation objects; the significance of (de-)legitimation acts grows when one moves from the lower to the higher object categories (ibid.: 81–83). The least consequential objects for institutional legitimacy are evaluations of groups of actors. While assessments of individual participants are not considered as relevant for legitimacy (see above), this differs when actors are assessed collectively because of the systemic element contained: If for example Indigenous caucuses are deemed illegitimate, this seriously undermines Indigenous participation in global fora. However, importance for legitimacy is limited because changes in this regard are possible without changing the basic features of the respective institution (Schneider et al. 2010: 83). I argue that the working methods of an institution are of similar consequence for institutional legitimacy, as they represent a regular element, but can be changed without requiring a change in the foundational document of the institution.

More important for legitimacy are the core institutional structures. This refers to legitimation directed in a general way towards the procedures of the institution.

Concerning Indigenous-specific UN institutions, such legitimation objects may include the general structures and procedures of decision-making such as membership and observer status; the way members are selected; the general form of reports or the form of output. Third, at an even more general level, (de-)legitimation may concern the political institution as a whole (Schneider et al. 2010: 82–83). This contains speech acts that refer to an institution in its totality; in other words, they do not refer to single features of an institution, but represent the final evaluation of the institution as a whole.

Even more strongly, (de)legitimation of the principles and norms on which an institution is founded affect the legitimacy of a particular institution ‘from above’ (ibid.:

82). This refers to the question of what characterizes governance beyond the state as proper, just and rightful. With regard to the empirical case of this study, this may include the question whether Indigenous actors are justified to participate in governance arrangements beyond the state, and to what extent they should enjoy participation rights. This type of legitimation is most significant, because it is closely linked to the justification of the very existence of an institution. In other words, those who critique the norms on which an institution has been created put into doubt its very foundations.

Objects of legitimation Examples from UN Indigenous-specific institutions (1) regime principles Self-determination/ Indigenous participation

Affectedness

Indigenous issues as a global challenge Indigenousness

(2) Institution as a whole PFII/ EMRIP (3) Institutional structures Mandate

Way in which the mandate is being carried out, such as speaking preference for caucuses

Table 4: Objects of legitimation: Aggregate categories and examples for UN institutions dealing with Indigenous issues. Source: author’s compilation.

Schneider et al. (2010: 84–85) point out that both legitimation and delegitimation might be focused on very few objects, or dispersed among many. They argue that it is “hardly possible to decide a priori whether the concentration of legitimacy evaluations on just a few objects is any ‘better’ or ‘worse’ for the stability of a regime’s legitimacy than a dispersal of references” (ibid.: 84). However, when taking into account the hierarchy of legitimation objects as outlined above, it is nevertheless possible to substantiate this indicator.⁵² The higher the level to which legitimation and delegitimation are addressed, the more they have to be taken into account. Thus, an institution which is often criticized with regard to specific occurrences nonetheless might be more legitimate than an institution that is evaluated negatively rather infrequently, but with regard to its foundational principles. Hence, if legitimacy is high, we should expect legitimation to be focused on higher levels or to be dispersed, whereas delegitimation should be shifting between different objects or be restricted to lower levels. If there is a regime principle to which legitimation frequently refers, one might even speak of a “legitimacy anchor”

(Schneider et al. 2010: 85). On the other hand, if legitimacy is low, legitimation should be focused on lower levels, whereas delegitimation would be spread across all levels, or be concentrated on the higher ones.

Third, as here I am interested in institutions whose core principle is participation by affected actors, I will take into account the concentration or dispersal of positive and negative evaluations with regard to the different participating constituencies. I argue that cooperation from all constituencies is needed for these institutions to function

52 This specification also works well with regard to the examples Schneider et al. (2010: 85) outline in their text.

properly. Thus, for an institution to be classified as highly legitimate, it must enjoy broad support by all central constituencies. In turn, we should typically observe positive evaluations by actors from each group with single more critical voices in cases of medium legitimacy. If however one or several groups clearly repudiate an institution, the overall legitimacy will be rated as low. Table 5 provides an overview over degrees of legitimacy and the respective indicators.

Table 5: Public Communication: Degree of legitimacy and indicators. Source: author’s elaboration.