Legitimation of the Permanent Forum

As outlined above, access through both open and inclusive modes is deep and broad for IPs at the PFII. In the following, I will explore whether perceptions of legitimacy are correspondingly strong. I will start by analyzing the behavior of constituencies at sessions of the PFII. In a second step, I will take a closer look at the discourse surrounding the Permanent Forum in statements made during recent sessions.

96 The PFII Recommendations Database can be accessed at

https://esa.un.org/unpfiidata/UNPFII_Recommendations_Database_list.asp (accessed 29.01.2019). The database serves to monitor the status of recommendations made by the Permanent Forum. As of January 2019, there were 1411 entries to the data base. A search for “member states” in the “addressee”- field retrieved 533 results; for “UN” (including recommendations to the UN system or specific agencies) 654 results; for “IP” (used as abbreviation of Indigenous peoples in the database), 104 results (however, this included recommendations made to WIPO); for “NGO”, 25 results; for “private sector” 14 results; and for

“Academic”, 6 results. For EMRIP, I read the existing Advice (which is contained in its studies) to compile a list of its addressees.

4.4.1.1 Legitimation through behavior

With regard to behavioral indicators, observations are both made with regard to the group as a whole, and with regard to the states, IOs, and IPOs that were part of the sample. As outlined in Chapter two, the analysis of behavior relies on indicators related to attendance to sessions, which captures how many stakeholders participate, and to engagement, which captures the activities connected to participation. With regard to attendance, I compared figures of observer delegations as recorded in participant lists of the sessions in 2004 and 2006 with figures from 2014 and 2016.⁹⁷ I both analyzed how many and which delegations participated. In turn, indicators for engagement varied a little with regard to each constituency, as possible means of engagement also varied.

No clear trend was observable concerning state attendance, with numbers varying between 85 (in 2014), 70 (in 2004) and 65 (in 2016).⁹⁸ Thus, during the last few years both relatively high and rather low state participation could be observed. However, in comparison to the WGIP which had around 40-45 states participating in the proceedings during the last decade of its existence, or the EMRIP with about 50-55 participating state delegations, this seems to indicate that a significant share of states consider the PFII to be comparatively important. In total, 52 states (31 from the sample) were regular participants, attending at least in three of the four years. In contrast, 11 states from the sample did not participate at all, or only once. Interestingly, these were overwhelmingly African states. Two more states, namely Switzerland and Great Britain, only attended the earlier sessions,⁹⁹ while a number of other states only attended the more recent sessions.

With regard to state engagement, I considered the following four indicators: making regular statements,¹⁰⁰ sending a high-level participant to the Permanent Forum,¹⁰¹

97 No list of participants for the 2015 session of the Permanent Forum was available online.

98 These numbers have to be seen in relation to the about 90 countries which are considered to have Indigenous peoples living within their borders (UN DESA 2009: 1); and 30 OECD-DAC members some of which have Indigenous populations on their own. Thus, there should at least be around 100 to 110 potential state participants for Permanent Forum sessions.

99 This is especially interesting as both Switzerland and Great Britain were regular attendants at the Working Group on Indigenous Populations.

100 I defined “regular” as providing at least four statements in the three sessions I took a closer look at.

101 I took into account attendance of heads of state, ministers, state secretaries, and permanent representatives to the United Nations. As there is no list of individual participants to the Permanent Forum, I relied on an analysis of statements at the Permanent Forum as registered at the docip online

organizing one or more side-events as (co-)facilitator in the years 2014 to 2016; and appointing a member to the Forum.¹⁰² Data as regards changes of national policies in response to recommendations of the Permanent Forum was not easily available.

Therefore, I relied on three indicators as a proxy: Hosting a pre-sessional meeting of the Permanent Forum, and donating money to the Voluntary Fund are actions that the PFII has asked from states in its recommendations.¹⁰³ Moreover, I took into account whether states responded to a questionnaire which the PFII sent out to governments to get information regarding the implementation of earlier recommendations.¹⁰⁴ Each indicator was weighed equally; I then clustered the states which participated at the Forum in recent years into three groups following the number of positive indicators.

In this regard, there were 25 states (8 from the sample) which regularly attended sessions, but without further engagement or alignment of policies except for an occasional statement. Most Asian states are in this group. Another 25 states (15 from the sample) showed some type of engagement or alignment of policies (1 to 3 positive indicators). This group was heterogeneous. For example, Bangladesh, Nepal and the Philippines were part of it as the only Asian states not in the low engagement-group, but also a number of African (Botswana, Namibia, South Africa) and some western states, namely Canada, Spain, Sweden, and the United States. Lastly, there was a group of 13 strongly engaged states (all from the sample) which showed a minimum of four indicators of engagement. This group included western and Latin American states and the Russian Federation; it was made up only by states with Indigenous populations, plus Estonia.¹⁰⁵ The variance within this group is quite big, however. For example, Mexico as

documentation (https://www.docip.org/en/) which generally also lists the speaker. I assume that if high-ranking persons are part of a state delegation, they will also deliver a statement at the Forum.

102 Here, I took into consideration members of the PFII from the periods 2008-10; 2011-13; 2014-16; and 2017-19. I assume that in regions with many states there is a certain rotation, so that states may not be able to nominate persons for each period; therefore I also took into consideration the two periods antecedent to the time frame under research (2014-16). As there are no lists of nominations available for governmental elected members, I took into account only those persons who eventually became members of the Permanent Forum.

103 See for example Report on the 16^th session, E/2017/43-E/C.19/2017/11, §58 (on donating to the Voluntary Fund) and §94 (on hosting pre- and intersessional meetings).

104 See for example questionnaire at

http://www.un.org/esa/socdev/unpfii/documents/2016/Questionnaire/15th_Session_Questionnaire_to_

Member_States.pdf, accessed 29.01.2019.

105 Many states from this group are also part of the so-called “Group of Friends”, which occasionally lobby in favor of Indigenous peoples. The Group of Friends of the Permanent Forum is an informal group of states. Members declare themselves supportive of Indigenous issues at the United Nations; through this group, they act together to support the Forum in its work. Members in 2017 were Argentina, Australia,

one of the most supportive states did not only score positively with regard to five indicators, but also showed high results with regard to some of the individual indicators (delivered 10 statements, (co-)facilitated 5 side-events, and reported each year to the Forum).

Two other observations are worth mentioning with regard to state engagement: First, for the period 2014-2016, one PFII seat remained vacant due to lack of nominations from the Asia-Pacific group. Moreover, since 2008 individuals from the Iran have permanently occupied one PFII seat for the Asia-Pacific group, further underlining a lack of interest from other states of the region to nominate members to the body. Moreover, PFII members are not satisfied with the response rates of states to the questionnaires on the implementation of recommendations. For preparation of the 2018 session, no such questionnaire was sent out as basically always the same few states responded to the request while many others never did.¹⁰⁶

In short, state behavior at the Forum varies considerably. Many African states still do not participate at sessions; in contrast, many Asian states assist but do not engage. There is a forerunner group of states which actively support the Forum and its work, mostly from Western states and Latin America.¹⁰⁷ Potential donor states without Indigenous populations mostly do not participate at sessions; if they assist, they show rather low

Bolivia, Brazil, Canada, Colombia, Denmark, Ecuador, El Salvador, Finland, Guatemala, Mexico, New Zealand, Nicaragua, Norway, Spain, Paraguay, and Peru.

106 Statement by PFII member Brian Keane, 16.4.2018, see http://webtv.un.org/search/2nd-plenary-

meeting-permanent-forum-on-indigenous-issues-17th-session/5771909409001/?term=&lan=english&cat=Meetings%2FEvents&page=92, at 0:08:00, accessed 29.01.2019.

107 Sheryl Lightfoot (2016: Chapter 5) has analyzed states’ commitment to the Indigenous rights’ regime, and their behavior in terms of domestic politics targeting Indigenous peoples. Comparing her results with mine, in general it can be said that active participants at the PFII also show a high commitment to

Indigenous rights (but not all states with a high commitment are active participants); exceptions: CANZUS (low commitment, but moderate behavior); and Russian Federation (low commitment, weak behavior).

Other states she categorizes as “low commitment, weak behavior” mostly do not participate at all (Rwanda, Burundi, Uganda, and Ethiopia) or participate passively, in some case infrequently (Nigeria, Morocco, Kenya, Israel, Bangladesh). In turn, states with moderate or strong behavior are all regular participants of the PFII; most also show at least some engagement (to a lesser degree Panama and the Philippines); exception: Japan and Malaysia do not actively participate, but show moderate politics. This seems to indicate that there generally is a strong link between states’ behavior regarding Indigenous peoples at the domestic and UN level. A very interesting exception is the Russian Federation that was among the most actively engaged states at the PFII in spite of weak domestic behavior regarding IPs. In this regard, the analysis of statements carried out below suggests that the Russian Federation’s engagement at the PFII often contains a critical tone.

engagement while the proceedings are generally dominated by those states in which Indigenous peoples live.¹⁰⁸

Attendance by IOs is about 1/3 lower now than it was a decade earlier; from about 30 to 35 participating entities it has lowered to now about 20-23. This number also seems low compared to the 42 IOs and UN agencies which are currently members of the Inter-Agency Support Group.¹⁰⁹ There was a high number of IOs (26) which participated only once in the years under consideration; this seems to indicate that while many IOs have shown some interest in the work of the Permanent Forum, not all of them could be convinced that attendance should be a priority for them. However, a majority of agencies and IOs from the sample are regular participants at sessions; only the UN Framework Convention on Climate Change (UNFCCC), UN-HABITAT, UNAIDS, the UN Office for Disaster Risk Reduction (UNISDR), the HRC and the Asian Development Bank (of the sample IOs) do not or only infrequently participate at sessions.¹¹⁰ Four entities which attended the earlier sessions stopped assisting, including the International Organization for Migration (IOM) and UN-HABITAT as members of the IASG. In turn, there were four more regular participants which were not part of the sample.¹¹¹

With regard to engagement, I took into account the following indicators: sending a high-level participant (director, or higher), number of statements delivered at sessions, and the organization of side-events. Regarding alignment of policies, I resorted to three indicators as a proxy: the provision of reports on agency policies as input to sessions, the adoption of a specific strategy on Indigenous peoples, and IASG chairmanship.¹¹² As with regard to states, all indicators were weighed equally. IOs were then grouped according

108 Donor states often primarily take advantage of sessions to meet project partners, network etc.

(personal communication by a government delegate during PFII session, May 2008). However, there are two exceptions to this rule: Estonia and Spain both take a more active role at the Permanent Forum. While the Spanish engagement might be explained by its history as colonizing power, Estonians have claimed Indigeneity (as part of the family of Finno-ugric peoples), and Estonian state officials have at least to some degree used their engagement at the PFII to confront the Russian Federation.

109 Although the IASG has over 40 members, less than 20 participated at the recent annual meetings, with attendance varying a bit depending on the venue of the meeting; Europe-based staff does not always attend meetings in the US, while staff of US-based organizations does not necessarily fly over to Europe.

110 The IASG also is part of the sample, but member agencies participate on their own behalf, so its absence

“as IASG” was not registered.

111 The Inter-American Development Bank, the Economic Commission for Latin America and the

Caribbean (CEPAL), the UN Environment Program (UNEP), and the United Nations Institute for Training and Research (UNITAR).

112 Some of these indicators were not relevant in the context of intergovernmental bodies which are composed of UN Member states such as the GA, ECOSOC, and the HRC. For example, these bodies do not report to the PFII. Therefore, their engagement was not taken into consideration here.

to the number of positive indicators. There were eight active IOs and UN bodies (4 or more positive indicators);¹¹³ of these, the two forerunners are IFAD and UNDP, which scored positively with regard to all six indicators. Ten agencies and IOs (eight from the sample) scored positively with regard to two or three indicators.¹¹⁴

Nearly all of the active IOs were also part of the sample. In other words, there is a core of roughly ten IOs and agencies which regularly engage with the PFII and are regularly addressed by recommendations.¹¹⁵ UNFCCC, UNAIDS, and UN-HABITAT (from the sample) however, showed no engagement at all. Contrary to a pattern of behavior observed with regard to some states, namely regular attendance without further engagement, most agencies which participated generally also showed some type of engagement.¹¹⁶ There are, however, some IOs and agencies which do not participate regularly at sessions, but nevertheless show some type of engagement, such as the Global Compact (which organized a side-event), the World Food Program (reported twice to the PFII), or the International Land Coalition (co-chaired the IASG in 2016). This also includes the Asian Development Bank from the sample. This suggests that some IOs are willing to engage with the PFII even though they do not attend sessions.¹¹⁷ In short, as with regard to states, agency behavior with regard to the Permanent Forum varies strongly between no response at all and strong engagement.

With regard to the numbers of participating IPOs, no clear trend is observable. While attendance was especially high in 2004 (233 attending IPOs), it was low in 2005 (155 attending IPOs). In recent years, about 170 to 200 Indigenous organizations have participated at sessions. The number of participating individuals, however, was considerable higher: In total 2.200 individuals from all constituencies had registered for

113 FAO, IFAD, the International Labour Organization (ILO), the UN Development Program (UNDP), UNEP, the Secretariat of the CBD, OHCHR, and WIPO.

114 The UN Children’s Fund (UNICEF), the UN Educational, Scientific and Cultural Organization (UNESCO), the UN Population Fund (UNFPA), World Bank, EU, the UN entity dedicated to the empowerment of women (UN Women), WHO, and the Asian Development Bank from the sample; and CEPAL and the Inter-American Development Bank. The WHO as a whole is not very active, but its regional branch in the Americas, the Pan-American Health Organization (PAHO), is a regular participant. UN Women seems to have begun to engage more actively on Indigenous issues very recently. While during the timeframe under consideration, engagement was restricted to the delivering of reports, the Executive Director of the agency addressed the 2017 session of the Forum, and the agency chaired the IASG in 2017 for the first time.

115 OHCHR, UN Women, UNDP, SCBD, PAHO, UNICEF, UNFPA, IFAD, UNEP, WIPO, UNESCO.

116 There was one exception to this rule, namely UNITAR.

117 This might be due to the high costs of attending sessions. In this regard, the high costs connected to attending sessions for agencies that do not have their headquarters in New York were mentioned by several interview partners from agencies.

the 2015 annual session (Sapignoli 2017: 89), out of which a majority probably represented IPOs. This makes the Permanent Forum the institution with the highest number of Indigenous participants.¹¹⁸ With regard to the 37 internationally active Indigenous organizations which were part of my sample, a broad majority of IPOs (23) were regular participants at sessions of the Forum, two more were regular participants during recent sessions, six only participated sporadically, and five organizations attended earlier sessions, but seem to have stopped participating.¹¹⁹ Four of the five IPOs (one transnational, two from Latin America, two from Africa) which have stopped to participate at the Permanent Forum participated at other UN processes or bodies (EMRIP, UPR, CERD, or WIPO’s IGC).¹²⁰ This suggests that there are, at a low level, in fact some Indigenous organizations which consider other institutions more relevant for participation at the global level than the Permanent Forum. Some Indigenous experts now prefer to pursue their causes at the local or national level due to their perception that the Forum’s work has limited impact on the grounds for Indigenous communities (Sapignoli 2017: 103). Cherokee scholar Jeff Corntassel (2007) who has himself participated at the PFII argues in an article to shift engagement from the UN to entirely Indigenous forums and initiatives. However, it is difficult to estimate the relevance and comparative importance of these voices.

Regarding engagement at the Permanent Forum, I took into account the following indicators: number of statements at the PFII 2014-16; nomination of an individual with organizational affiliation for membership of the PFII;¹²¹ and organization of side-events.

Alignment of policies was more difficult to measure with regard to IPOs, as the Permanent Forum does only infrequently address recommendations to IPOs. However, since 2016 IPOs have been asked to prepare reports on their activities as an input to sessions. Additionally, I also registered all types of creative unconventional behavior by Indigenous participants at the Forum which I personally observed during sessions or

118 In comparison, about 80 to 130 IPOs participated at of recent EMRIP sessions.

119 One IPO did not attend the PFII during the analyzed years. With regard to these observations, it has to be taken into account that in some cases activists who participate are affiliated with different

organizations simultaneously, so that some organizations might have been present at sessions without having their presence registered in the official documentation of the session. See also Chapter five, Section 5.1.1.

120 For one organization, no recent information concerning activities beyond the local level could be obtained.

121 I relied on lists of nominations to the Permanent Forum for the terms 2014-2016, and 2017-2019. I also took into account organizations which had a member of the organization appointed to the Permanent Forum in recent years.

about which there were reports in the literature; this type of activities, however, could not be traced back to specific IPOs (such as the sample IPOs). I then grouped Indigenous organizations with regard to the degree of their engagement. 15 organizations (out of the 31 sample IPOs which had participated at recent sessions) had been very active during recent sessions, delivering regular statements, nominating members to the Permanent Forum, and/or organizing side-events and/or responding to the call of the PFII to prepare a report. These were overwhelmingly big organizations spanning Indigenous groups from various countries such as the International Indigenous Treaty Council (IITC), the Federación Internacional de Mujeres Indígenas (FIMI), and the Asia Indigenous Peoples Pact (AIPP) or organizations from the Western hemisphere. 18 IPOs showed some engagement, while four IPOs had assisted at sessions of the PFII, but no engagement or alignment of policies could be observed.¹²²

Apart from these direct, positive responses to the Permanent Forum in the form of

Apart from these direct, positive responses to the Permanent Forum in the form of