My main hypothesis (as developed in Chapter three) presupposes that both the broader institutional setting and the perceived authenticity of APOs impact on the relationship between access modes and perceptions of legitimacy. While I will elaborate on de facto participants and authenticity in detail in the following Chapter, the remaining pages of this Chapter will dwell on the broader institutional setting of both the PFII and the
141 The perceived authenticity of APO participants will be treated separately in Chapter five due to the need to first explore in detail who these participants de facto are.
EMRIP as it affects perceptions of legitimacy, based on 37 interviews conducted with participants of both bodies.142
Regarding the Permanent Forum, the high institutional placement of the PFII as a body directly reporting to ECOSOC is greatly valued. At the same time, participants criticize that the PFII only makes recommendations, but has no decision-making competence.143 Thus, the ex-member Matías Alonso has described it as a “machinery which produces recommendations without obligating nobody to nothing” (Rößler 2008: 392, my translation). In fact, the equal role of Indigenous and state members at the PFII was only accepted by states at the price of its restriction to a consultative organ (Lindroth &
Sinevaara-Niskanen 2018: 45). Thus, the Permanent Forum is described as an information-gathering entity; similarly, government officials highlighted that the PFII mainly served to learn about Indigenous perspectives, which could then inform decision-making taking place in intergovernmental settings. Other participants criticized that the Permanent Forum has no means to implement recommendations. Since its creation, the PFII has produced thousands of recommendations of which only a minor number has seen follow-up. Members themselves have tried to address this problem. In the process of reform of working methods in 2015, they decided to reduce the number of recommendations made during each session, and assign responsibilities for follow-up to individual members.
In this context, interview partners emphasised that the ability of the PFII to achieve change mainly resides in its convening power, bringing together actors who in many cases have antagonistic relationships.144 Therefore, the creation of a space for enhanced communication is by itself an important achievement of the PFII.145 However, there are limitations to the PFII’s capacity to generate dialogue. Most importantly, states with less advanced policies towards IPs in the domestic context tend to eschew engagement at the PFII. Thus, most African states do not participate at the PFII, and many Asian states assist but without taking an active role (Morgan 2011: 55). Moreover, several interview partners were concerned that the structure of sessions with series of interventions is
142 An earlier and abridged version of this section has fed into Hasenclever & Narr (2019).
143 In 13 interviews, the restricted authority of the PFII was highlighted as problematic, including three interviews with government officials and two with staff from UN agencies.
144 20 interview partners mentioned distrust between the participant groups as an important factor impacting on IP participation at the UN.
145 This was mentioned by 35 of 37 interview partners.
not conducive to dialogue, and that Forum members too seldom ask questions to presenters. PFII members have recognized the necessity for improvement and are experimenting with different formats. For example, at the 2018 session, the PFII held informal and interactive dialogues with IPs and member states focusing on the seven socio-cultural regions.
With regard to results, the achievements of the PFII are mixed: On the one hand, the PFII has been instrumental for increasing the engagement of the UN System regarding Indigenous issues. During the first years of its existence, the Forum has been successful in that UN bodies and organs have been willing to cooperate (Rößler 2008: 77). UN agencies have even initiated a permanent exchange on issues related to Indigenous peoples in the IASG. On the other hand, precarious living conditions of Indigenous peoples domestically largely remain unchanged.146
Regarding EMRIP, the situation is very similar. Many Indigenous participants share the feeling that especially before the reform process, it had a very weak mandate without any decision-making competence.147 This is especially in comparison with its predecessor, the WGIP, which had a standard-setting mandate. Moreover, the output of EMRIP in the form of studies and advice is considered a relatively weak instrument as thematic studies do not provide guidance to states with regard to the implementation of Indigenous rights. Before the reform process, the Human Rights Council even had the power to determine the topics of studies which EMRIP was going to elaborate, and in some instances selected topics against the preference of EMRIP members. While the new mandate is generally considered as a significant improvement, IPs had originally wanted a monitoring function regarding the implementation of the Declaration for EMRIP, a suggestion which was met with opposition by states. Still, several interview partners also highlighted that while the text of the mandate is fixed, there still is some leeway for members to interpret it broadly according to the needs of IPs. However, implementation of EMRIP advice remains a challenge even with the new mandate.
As a body directly reporting to the HRC, EMRIP counts with a high institutional placement within the UN hierarchy.148 This again is often seen in comparison to the
146 This was highlighted by 23 interview partners.
147 Problems connected to the limited mandate of EMRIP were mentioned in eight interviews.
148 This was discussed by five interview partners.
WGIP which was at a very low position in the UN hierarchy. In this regard, next to the formal placement within the UN hierarchy, the behaviour of the HRC is considered as central in determining the relevance of EMRIP. On the one hand, the HRC decides how much room it leaves to EMRIP to determine its own work. On the other hand, by placing emphasis on EMRIP’s work within its own sessions and taking its advice seriously, it can enhance the attention which EMRIP is given. In this regard, the half-day discussion of the HRC dealing with EMRIP and its work is not considered much, but nevertheless better than the attention provided by ECOSOC to the PFII, which does not discuss the PFII’s work at all.
Another issue which strongly impacts on institutional leverage is the endowment of the respective institutions with resources, including both a budget to spend on activities and secretariat staff. With regard to both the PFII and EMRIP, a lack of resources was a concern to interview partners.149 Several interview partners explicitly highlighted that the amount of available resources clearly puts limits to what these institutions can do. In this vein, even one government representative pointed out with regard to the scarce resources of EMRIP: “Member states should remember that they get what they pay for.”150
When the PFII was created, in the very beginning it had no permanent funding or secretariat at all due to opposition by some states that insisted that it should function on the basis of voluntary contributions. Over the years, the resources that the PFII has to its availability have grown and the PFII now has a proper secretariat as well as resources to organize some inter-sessional activities. However, interview partners pointed to a variety of activities they considered important which cannot be realized due to a lack of funding. Two elements were highlighted repeatedly in this context: holding the PFII in other cities around the world, and the ability for members to travel around the regions from which they were nominated to improve their knowledge and build relationships with the respective IPOs and governments. It has also been suggested that secretariat staff and resources are still too limited, as scarce resources do not allow the PFII to carry out independent research, hire consultants or effectively follow up on the implementation of recommendations.
149 In total, 16 interview partners highlighted the scarcity of resources as problematic.
150 G-WEO4 (43).
The situation for EMRIP is even more difficult as it has fewer resources to its availability.
Before EMRIP reform, its secretariat consisted of one person within the OHCHR secretariat. The scarcity of financial resources and lack of secretariat support thus very much limited the ability of EMRIP to produce significant outcomes. During the first years of its existence, EMRIP members had to be very creative to find funding for example to meet intersessionally, and greatly valued support by universities or NGOs which organized and funded workshops. Therefore, one important success of the EMRIP reform process is the increment of its resources, including one additional staff for its secretariat. In this context, the increased number (and thus workforce) of members is also considered a gain. This short excursion into resources aptly demonstrates how through the availability of resources, institutional capacities and leverage can vary significantly.
Additionally, there is also a feeling that the PFII’s name (‚Permanent Forum on Indigenous Issues’ instead of ‚Permanent Forum for Indigenous Peoples’ which had been preferred by IPs) to some degree weakens the status of Indigenous peoples by avoiding recognition of their status as peoples. At a meeting of the ad hoc working group on the establishment of a permanent forum in 2000 when the controversy pertaining the future name of the body to be created rose up, Indigenous participants placed signs on their desks stating “WE ARE PEOPLES, NOT ISSUES” (Niezen 2003: 164). The respective conflict has not been resolved until now, as shown by the fact that the Permanent Forum in its report of the Thirteenth Session has suggested (without concrete results so far) to ECOSOC that it should decide “that further discussion is needed on the change of the name of the Permanent Forum on Indigenous Issues to the Permanent Forum on the Rights of Indigenous Peoples” (UN ECOSOC 2014: 5). The continuous opposition towards a name change of the PFII is all the more surprising as other institutions – such as EMRIP – already include a reference to Indigenous peoples in their name.
Indigenous participation takes place mainly through institutions such as the PFII and EMRIP, which have very open participation modalities for Indigenous peoples. On the one hand, this can be an advantage for less resourceful actors (which most IPOs are) as they can focus their scarce resources on participation within one arena (Brem-Wilson 2015: 80). On the other hand, a restriction of participation to these bodies furthers the marginalization of Indigenous voices vis-à-vis states (Simpson 2006: 118). Channeling Indigenous participation through specialized institutions has meant that states can and
do remain absent from the process. Other UN processes such as the HRC remain closed to Indigenous participation. As a result, states can move important discussions that affect Indigenous peoples to intergovernmental settings.151 At the same time, in the current discussions concerning the introduction of a specific participatory status for IPOs at the UN, some states make their willingness to extend participation rights for IPs to other bodies such as ECOSOC or the HRC dependent on a definition of Indigenous peoples as well as on state influence on IPO accreditation (UN General Assembly 2016:
§22, 32, 39, see also Burger 2019: 2).
In sum, these findings show that institutional leverage has to be taken into consideration when evaluating access rights for APOs. Institutional leverage strongly influences evaluations and perceptions regarding the value of participation. There are several elements to consider apart from access modes with regard to the broader institutional set-up, and which together determine institutional leverage (and consequentially, the leverage gained by APOs through access rights): the mandate of an institution and its ability to effectively change the course of events, as expressed in decision-making competence and/or the monitoring of implementation; the institutional placement of a body within the broader institutional setting and its relationship with a possible parent body; and last but not least its endowment with resources such as a proper secretariat and financial means. Not only do APOs evaluate their access rights with a view towards institutional leverage; also states, when they create institutions that count with access rights for APOs, are probably well aware about institutional leverage and use it as a means to steer and adjust the relevance that APO participation can gain. I thus argue that degrees of APO access should never be evaluated separately, but that other dimensions of the institutional set-up should always be taken into account as well. This also resonates with findings that have shown that NSAs evaluate the deliberative quality of transnational institutions more positively the more influence they think they have in the respective body (Agné et al. 2015: 482). In other words, institutional set-up is a package, and its elements never stand in isolation (see Figure 9). This is also expressed by the subsequent citation from an interview:
151 Thus, many Indigenous interview partners highlighted other bodies such as CERD, the HRC etc. which do not provide for specific Indigenous access as most important for their engagement at the UN.
“We had hoped you know when we first started creating [the Permanent Forum, H.N.] that we would be able to create a body that you know could interVENE in situations, go and see where people are in crisis, they're being relocated or you know facing resource exploitation and deforestation but that's NOT how it came out. You know, we got a couple of things that we really wanted from the Permanent Forum and one is the high level placement in the un system and another is that half of the members are nominated by Indigenous peoples and that was the FIRst in the un system. We were told that it would never work, we couldn't do it, the UN is states, countries you know they are the ones who nominate or take those seats. So a lot was
accomplished but the mandate probably was in some ways you know NOT what we had originally hoped for.”152
Figure 9: Degrees of access for APOs and institutional leverage. Source: author’s elaborations.
In the case of Indigenous-specific UN institutions, Indigenous participation takes place in institutions with limited institutional leverage. Institutions were created which endow IPs with specific rights; at the same time, states carefully confine participation rights allowing for IPO participation at the margins only. Participating actors are aware of these limitations, and they take them into account when evaluating the PFII and EMRIP, and Indigenous participation opportunities in them. Thus, Dahl argues that achievements of the Indigenous movement at the UN have only been possible because IPs accepted states as holding superior power (Dahl 2012: 36). Other authors share the perception that Indigenous participation remains constricted by state power (Corntassel 2007: 161; Tramontana 2012: 183; Bellier 2013: 196; Sapignoli 2017: 98; Lindroth &
Sinevaara-Niskanen 2018). Indigenous activists themselves have reacted to the structural limitations of UN engagement in different ways: While some have stopped attending international meetings in frustration or as a conscious signal of resistance (Simpson 2006: 121), others argue that the UN can be a useful arena for IPs, but that they need to know what can (and cannot) be achieved at the UN (Sapignoli 2017: 103).
152 I-NA3 (16).
4.6 Summary
In this chapter, I have argued that similar to other affected actors, IPs access the UN on the grounds of their specific marginalization and vulnerability. At the same time, however, they refer to specific Indigenous rights of self-determination and their status as peoples when they claim participation opportunities in the UN context. Subsequently, I have shown that degrees for Indigenous access of Indigenous-specific UN institutions are particularly high. Indigenous peoples can access the PFII and EMRIP as observers, and access for observers is both deep and broad. Moreover, in both institutions Indigenous individuals can become expert members, and these additional membership rights are medium or high in both quantitative and qualitative terms. However, as I showed in the subsequent section, these comprehensive access rights do not translate into correspondingly high perceptions of legitimacy. Instead, empirical legitimacy of both bodies is medium. This result should not be interpreted too negatively as medium legitimacy is the “normal” case, but it confirms earlier observations that increasing access does not automatically translate in strong perceptions of legitimacy (Agné et al.
2015). While the PFII has gained acceptance by a wide range of actors and counts with broad participation, EMRIP by tendency seems to attract actors which give additional importance to Indigenous issues. Thus, with regard to the PFII we observe more positive results regarding behaviour and more controversy in discourse, whereas EMRIP counts with less participation by particularly supporting actors.
Finally, in a last step I have shown that several variables determine institutional leverage, such as the competences of a specific institution, its placement within the broader field, and its resources. These factors all impact on the relevance which access rights have for APOs, and APOs (and other participants) are aware of the limiting role that these factors can place on their participation. Therefore, access rights always need to be evaluated within the broader context of the entire institutional set-up. This chapter thus confirms the assumption made in my initial hypothesis that institutional leverage is an important condition variable which impacts on the relationship between degrees of access and perceptions of legitimacy. The following chapter will explore the de facto participation by IPOs through access structures offered by the UN, as well as the role of the second potential condition variable, namely the authenticity of APO participants.
Chapter 5 5 Access Opportunities and
de facto IPO Participation at the UN
In Chapter three, I have argued that access for APOs translates into concrete participation which then impacts on perceptions of legitimacy. This Chapter puts the first element of this causal nexus into focus by analyzing the causal relationship between access for IPOs and concrete patterns of IPO participation. As outlined in Chapter three, I assume that this relationship is shaped by two condition variables, namely the broader institutional setting – which has been explored in Chapter four – and the authenticity of participating APOs. Therefore, this chapter will set out to explore in greater detail the participation patterns of Indigenous peoples at the United Nations. It also explores the identity of those Indigenous individuals and organizations that bring Indigenous issues to the UN and thereby act as mediators or brokers between local constituencies and their IO and state interlocutors at the UN level (Greene 2004: 211). The central questions to be answered in this chapter are thus: How do organizations of Indigenous peoples use institutional access opportunities to self-represent at the UN? In other words, how do access opportunities for Indigenous peoples at the UN translate into de facto participation? Additionally, I will also ask to what degree Indigenous participants at the PFII or EMRIP are perceived as authentic representatives of affected communities, and how this does affect perceptions of legitimacy.
To answer these questions, this chapter undertakes a three-fold exercise: In a first step, I will take a closer look at Indigenous participation as it de facto is in institutions such as the PFII and the EMRIP. Who are the IPOs speaking in the name of Indigenous peoples?