Indigenous access through membership

As outlined in Chapter three, I talk about inclusive access when APO representatives may become members of an institution which deals with issues specifically affecting them. Indigenous membership is a constitutive feature of both the PFII and EMRIP;

however, while regulations for open access at both institutions are practically the same at both bodies, regulations for Indigenous membership differ to some extent. In the following, I will therefore elaborate on Indigenous membership at the PFII and EMRIP separately.

The PFII is the institution where IPs have gained most far-reaching rights. Its membership is made up by 16 individual experts. Whilst eight members are nominated by governments and elected by ECOSOC, the other eight are appointed by ECOSOC’s

84 At the tenth session of EMRIP, all registered speakers were called. The only persons who could not deliver their statements were those not in the room at the moment they were called. When the allotted time was not sufficient for a certain agenda item, that item was continued at a later time during the session. This is very different at the PFII, were time often is not sufficient for accommodating all speakers who wish to deliver a statement. There even have been complaints that states get more speaking time or are not interrupted by the session’s chair when exceeding speaking time (Lindroth 2011: 550). However, during recent sessions of the PFII and EMRIP, time limits for statements were equal for all observers, and no significant difference in the treatment of Indigenous and other observers could be observed in this regard.

president out of a list of Indigenous individuals nominated by IPOs.⁸⁵ Geographical representativeness is assured by a fix formula: government experts represent the five UN regions, while the remaining seats are occupied following the principle of rotation;

for the appointment of Indigenous experts, seven socio-cultural Indigenous regions⁸⁶ have been defined, and the last seat rotates between the three regions where Indigenous peoples live in particularly high numbers, namely Africa, Asia and Latin America.

As nominations for Indigenous experts are made by IPs, they have some influence on who will become an Indigenous member to the PFII. Some Indigenous regions have been very effective in establishing their own processes to come up with nominations. For example, in the Arctic region, the Inuit and Sami peoples alternate in nominating one single candidate for membership, which effectively gives them control of the process. IPs from the Asian region organize comprehensive regional consultation processes to nominate a candidate which gets broad support from the entire region. Within other regions, particularly in South America, no such processes exist, resulting in high numbers of nominated candidates.⁸⁷ However, many Indigenous interview partners were worried that the selection process of members is not sufficiently transparent or aired suspicions about state influence.⁸⁸ This included complaints about a lack of importance of the CVs of candidates in the selection process or a veto position of states with regard to the appointment of candidates. These suspicions are nurtured by examples such as the recent appointment of Asian members to both PFII and EMRIP, as those candidates who had been nominated through broad Indigenous consultation processes were disregarded. It is possibly due to this discontent that IPOs that nominate

85 During the process of discussion on the possible features of a future Permanent Forum in the 1990s, the main issue was about giving a voice to IPs. Thus, most suggestions regarding the composition of the body envisaged Indigenous membership on an equal footing with state membership (García Alix 1999).

86 Africa; Asia; Central and South America and the Caribbean; the Arctic; Central and Eastern Europe, Russian Federation, Central Asia and Transcaucasia; North America; and the Pacific.

87 It has been suggested by one interview partner that Asian IPs have been successful in organizing regional processes because language functions as a barrier which excludes many potential participants.

There are only a limited number of Indigenous individuals in Asia which speak English. Due to the reduced number of participants, there are also fewer conflicts. In comparison, many IPs in Latin America dominate Spanish.

88 Nine interview partners explicitly mentioned state influence on the member selection process; another five interview partners highlighted the need for more coordination within regions so that fewer

individuals get nominated, thus reducing the selection options for the ECOSOC president and increasing Indigenous control.

members to the PFII for the term 2020-2022 are now explicitly required to provide information on consultation which has taken place amongst IPs.⁸⁹

Membership in the PFII is given to individual experts, not to representatives of an Indigenous constituency.⁹⁰ With regard to the PFII, interview partners highlighted that the fact that IPs are recognized as experts constitutes an important acknowledgement of their role within the UN. However, the status of an individual expert implies that members do not formally represent Indigenous constituencies or are accountable to them. This is a concern for some Indigenous participants given that the report of the PFII is being promoted as the position of IPs within the UN, and many IPs put pressure on members to act as their representatives. At the same time, some of the government appointed members have been (and currently are) state officials, which suggests that their role also not in all cases can be reduced to that of an independent expert.⁹¹ Building on the framework developed in Chapter three, I argue that quantitative membership access is medium with a tendency to high as APO membership reflects differences within the Indigenous constituency; at the same time, the selection process of Indigenous members allows for some Indigenous influence, whereas the final decision about membership is made by others.

Moreover, all members of the PFII possess equal voting rights. Decisions are taken by consensus, which gives each member a veto position on decisions made by the Forum.

As numbers of Indigenous and government-nominated members are also equal, all members participate in the Forum on an equal footing. Thus, I argue that qualitative inclusive access is high.

89 See call for nominations for membership of the PFII, available online at

https://www.un.org/development/desa/indigenouspeoples/news/call-for-nominations-2020.html, accessed 29.01.2019.

90 García-Alix (2003: 75) points out that the decision to give members the status of independent experts rather than representatives in the PFII was made due to the fact that governments aimed at avoiding any sign which could be interpreted as an official recognition of Indigenous groups as peoples.

91 Of the current government-nominated members to the PFII, Brian Keane (USA) works as an adviser on Indigenous peoples’ issues for the US development agency USAID; Aisa Mukabenova (Russian Federation) works for the Ministry of Foreign Affairs of the Russian Federation; and Zhang Xiaoan (China) has worked in Chinese foreign service for nearly three decades but has now retired. Dahl (2012: 53) explains that a number of states have been appointing experts to the PFII only when those completely shared the respective governments’ perspectives.

Table 10: Degrees of membership access to the PFII. Source: author’s elaboration.

Concerning EMRIP, since the recent reform process it has seven expert members, one from each of the seven Indigenous socio-cultural regions. The selection process follows the general rules applied to the selection of special procedures mandate holders.⁹² Thus, contrary to the proceedings for nominations of members at the Permanent Forum, where half of the members are nominated by Indigenous peoples and the other half by member states, no such regulation exists in the case of EMRIP. Instead, members may put their names forward individually or may be proposed by NGOs, governments, National Human Rights Institutions, and others. The mandate, both in the old and in the new version, stipulates that persons of Indigenous origin shall be specifically taken into account in the selection process. Interestingly, while until 2014 practically only Indigenous persons were appointed to the Expert Mechanism, in the past years a number of non-Indigenous persons have been appointed.⁹³ As there are no clear nomination structures, links to eventual constituencies are considerably weaker, and the independence of experts becomes an even more prominent feature in comparison to the Permanent Forum.

As a result, some IPs feel that they lack control of the member selection process. Some Indigenous interview partners suspected that decisions about membership sometimes resembled political horse-trading rather than being based on the individual qualifications of candidates, while others complained about strong differences in the level of qualifications of selected members. One interview partner highlighted an element of coincidence in member selection processes, as decisions depend very much on who is President of the HRC at that time. As the nomination and selection procedures are the same as for other bodies reporting to the HRC, there is no formal role for internal

92 Cf.

https://www.ohchr.org/EN/HRBodies/HRC/SP/Pages/BasicInformationSelectionIndependentExperts.as px, accessed 29.01.2019.

93 In the first group of mandate-holders (2008-2011), only the African member Catherine Odimba Combe was not Indigenous. In the following years, only Indigenous persons were appointed, so that for a couple of years, there were only Indigenous mandate holders in the Expert Mechanism. Since then, a number of non-Indigenous persons have been appointed (in 2015 Albert Barume, in 2016 Erika Yamada, and in 2017 Kristen Carpenter). As a result, among the current members three out of seven are non-Indigenous.

quantitative qualitative

Indigenous coordination processes in the nomination procedures. Nonetheless, Indigenous peoples from Asia have realized nomination processes which included broad participation from throughout the continent to nominate a common candidate to EMRIP (similar to their nomination of a candidate to the PFII). Other IPs have aired frustration that their region is not able to come up with similar processes.

Expectations by Indigenous peoples regarding members of their regions have differed.

Some Indigenous interview partners expressed the expectation that EMRIP members should act as representatives of Indigenous constituencies. However, others value the independence of experts due to the understanding that within the EMRIP and in contrast to the PFII, members are also more independent from governments. Another major issue with regard to EMRIP is the Indigeneity of members, and several of the Indigenous interview partners highlighted their expectation that a majority or even all EMRIP members should be of Indigenous origin.⁹⁴ One interview partner mentioned that Indigenous membership was the main positive distinction between EMRIP and its predecessor, the WGIP. It is thus easy to imagine that EMRIP will enjoy broad support by IPs only as long as a significant share of its members is Indigenous. With regard to membership, I argue that quantitative access is medium, given that membership structures to some degree reflect the diversity within the Indigenous constituency, but Indigenous impact on the selection process is clearly limited.

With regard to qualitative membership access, all members are formally equal.

However, while the founding resolution “strongly recommends” that Indigenous candidates should be taken into consideration in the selection process, there is no requirement regarding a certain number of members to be of Indigenous origin. It is thus possible that only a minority of Indigenous experts could be appointed. Therefore, I argue that qualitative membership access is medium.

Table 11: Degrees of membership access to EMRIP. Source: author’s elaboration.

94 At the same time, others pointed out that expertise and dedication were even more important qualifications for membership.

quantitative qualitative

Membership

access medium

limited Indigenous influence on selection of members; membership reflects Indigenous socio-cultural regions

medium

no regulation regarding number of Indigenous members; all members formally equal

Several details are worth highlighting with regard to this analysis of Indigenous access to the PFII and EMRIP. First, the EMRIP mandate puts emphasis on the Indigeneity of members without formally requiring it. The body thus constitutes an interesting variant regarding the inclusion of affected actors in the context of this dissertation, because it shows that the variety of institutional arrangements for the inclusion of IPOs (and affected actors generally) is in fact very broad. Moreover, it is conspicuous that both the PFII and EMRIP offer parallel access structures through both observer and member status for Indigenous peoples. This is further evidence of the assumption that participation as observers and participation as members may have different functions with regard to the inclusion of affected actors. Additionally, in both institutions members are included as individual experts rather than as representatives of a certain constituency. Thus, taking into account the formal status of APO members might be an important additional element to take into consideration when determining the depth of access,⁹⁵ and it will have to be analyzed in Chapter six how this expert status affects perceptions of legitimacy. Lastly, the observations connected to the selection process of Indigenous members show that formal regulations sometimes leave IPs some room to maneuver provided that they achieve a high level of internal coordination. At the same time, it also shows the malleability of official regulations regarding the requirement to take into account Indigenous consultation processes. Therefore, it might not always be sufficient to simply look at official access rules to determine the depth and range of access; instead, there is a need to also take into account, when possible, how these regulations are implemented.