Legitimation of the Expert Mechanism

The following section will take a closer look at EMRIP and the legitimation processes surrounding it. In comparison to the PFII, access modes for APO members at the EMRIP are weaker. It will therefore be interesting to see whether legitimation by its constituencies through behavior and speech reflects this difference. Parallel to the proceedings in the previous section on the PFII, I will start by analyzing the behavior of constituencies at sessions of EMRIP, as well as their reactions to claims made by the Expert Mechanism. I will then take a closer look at the discourse surrounding EMRIP in statements made during recent sessions by members of the institution, states, IPOs, IOs and NHRIs.

4.4.2.1 Legitimation through behavior

In the following I will give an overview regarding the behavior of each constituency as regards attendance to sessions and engagement with EMRIP with a specific focus on the states, IOs, NHRIs, and IPOs that made up my sample (see Appendix). With regard to attendance, I compared figures of observer delegations as recorded in participant lists of the sessions in 2008 and 2009 with figures from 2016 and 2017.¹³¹ I both analyzed how many and which delegations participated. In turn, indicators for engagement varied a little according to constituencies, as not every mean of engagement was available to each group.

With regard to state attendance, no clear trend was observable. State participation oscillates at around 45-55 participating state delegations. While this is slightly more than the 40-45 states which participated at WGIP sessions prior to the creation of the EMRIP, state participation at the Permanent Forum is considerably higher with up to 85 delegations in recent years. There is quite a big share of regular participants within the states group. 35 states (28 from the sample¹³²) sent delegations to the Expert Mechanism at least at three of the four analyzed sessions. Four more states participated in both the recent sessions. These numbers show that there is a big share of regular participants, and rather few delegations which only participate occasionally. In contrast,

131 2008 and 2009 were chosen as the very first sessions of EMRIP, whereas 2016 and 2017 were chosen as the relevant years for EMRIP reform.

132 This implies that with regard to numbers, participation from the sample states is fairly similar in the Expert Mechanism and the Permanent Forum (where 31 sample states participate regularly).

19 states from the sample did not participate at all, or only once. This included most African states, three Asian states, and four potential donors. One more state, the Philippines, did attend earlier sessions, but stopped attending in recent years.

I also took a closer look at varying degrees of interaction of participating state delegations with EMRIP. With regard to engagement, I took into account numbers of statements made during recent sessions, sending a high-level representative and the organization of a side-event in the context of the session. No indicators were available which showed whether states had acted upon EMRIP advice. As a proxy for alignment of policies, I therefore analyzed whether states had provided input to EMRIP studies, or responded to the questionnaire on UNDRIP implementation, and which states had hosted an inter-sessional meeting of EMRIP. I also registered which states participated in the mandate review Expert Seminar with a delegation, or by a written contribution.

Each indicator was weighed equally; I then clustered the 39 states which had regularly participated at EMRIP in recent years into three groups following the number of positive indicators.

In general, state engagement is relatively low; few side-events are organized by states, practically no delegation sends high-level participants, and the number of states which provide input to EMRIP studies remains low. 12 states participated at EMRIP, but showed no engagement at all except for an occasional statement.¹³³ This group was very heterogeneous and contained African, Latin American, Asian and some European states.

The low to medium engagement group (one to three positive indicators) was the biggest with 19 states falling into this group. Most Latin American states were in this group, but also South Africa and Burundi from Africa, and Japan and Indonesia from Asia, a few potential donors (Germany, Switzerland, France), western states with Indigenous populations (USA, New Zealand, Sweden), and the Russian Federation. Of the regularly participating states, only eight showed high engagement. These were either western states with Indigenous peoples (Australia, Canada, Denmark, Finland, and Norway) or Latin American states (Mexico, Guatemala, and Chile). Most of these states also permanently have one or more persons assisting to the session, while other state delegations only assist during specific agenda items.¹³⁴ Interestingly, there are also a

133 I.e. a maximum of one statement in the timeframe 2015-2017.

134 Notes from my research diary from an EMRIP session, July 13^th, 2017.

number of states which do not or only occasionally participate at sessions, but nevertheless react to EMRIP’s demands such as by responding to its questionnaire or providing input to its studies.¹³⁵ In sum, most African and Asian states do not participate at all in the proceedings of the EMRIP, or do not participate actively. Latin American states mostly show medium engagement. Western states with Indigenous peoples show medium or high engagement. In turn, potential donors, if they participate at all, take a rather passive role in the proceedings; they seldom make statements, but in some cases provide input to studies or answer the questionnaire on UNDRIP implementation.

EMRIP itself opines that state engagement is not sufficient, and has asked the HRC to encourage states to engage more actively at sessions and beyond (UN HRC 2017).

The number of participating UN agencies and funds and IOs varies around ten. Fourteen IOs participated in 2009, eight in 2016, and thirteen in 2017. Thus, IO participation is quite low at the Expert Mechanism. Moreover, in these numbers the other Indigenous specific mechanisms are included which regularly participate at EMRIP sessions (Special Rapporteur, Permanent Forum, and Voluntary Fund). Seven agencies from the sample have until today never participated at EMRIP, including some which are very active with regard to Indigenous issues, namely IFAD and the Secretariat of the CBD. Six more agencies only participated very irregularly (one or two times since the creation of EMRIP). UNESCO, UNITAR, WHO and the World Bank were somewhat more regular participants and assisted at three or four sessions. Only UNDP, ILO and the EU participated more regularly (and, of course, the OHCHR as the servicing entity of the EMRIP). Interestingly, UNITAR, which was not part of the sample, was also between the more regular participants.

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 the provision of input to EMRIP studies as a proxy. As with regard to states, all indicators were weighed equally. Agencies were then grouped according to the numbers of positive indicators. Results show that IO engagement at EMRIP is generally low. For example, there was practically no high-level participation at all except for welcoming speeches by

135 Among these are some states which do not have Indigenous peoples living within their territory (Cuba, Bosnia-Herzegovina), but also some that have (Namibia, Burkina Faso, Guyana).

the President of the Human Rights Council and the High Commissioner for Human Rights at Opening Sessions. In one instance, the Assistant Secretary-General for Economic Development participated at one specific agenda item. Moreover, while a few agencies had provided input to earlier studies of EMRIP, no input was given to the more recent studies. Numbers of statements by IOs were low; only for three IOs and agencies (EU, UNDP, and ILO) more than one statement made at EMRIP sessions since its inception was found in the docip archives. However, most of the agencies which participated more regularly were also more engaged. Thus, UNDP, ILO, UNESCO, WHO and the World Bank scored positively with regard to two or three indicators. To some degree, this reflects the study topics dealt with by EMRIP; the ILO, UNESCO, WHO and the World Bank are all addressed in EMRIP advice. UNITAR and the EU (of the more regular participants) as well as UNICEF, WIPO, and the Secretariat of the CBD (of those agencies which rarely or never participated) scored positively with regard to one indicator. In short, there is a core group of about five agencies/ IOs which participate quite regularly and show some engagement with regard to the Expert Mechanism.

Interestingly, these are only in part the same IOs and UN agencies which are active in the PFII context. Still, in general IO participation is low and infrequent, and they seem to be secondary actors in the proceedings.

NHRI participation at EMRIP is scarce. In this regard, Commissioners from New Zealand and Australia are those who have very regularly participated at EMRIP sessions, while participation from other mechanisms took place only occasionally. Generally, two to five national or regional human rights mechanisms have been participating at EMRIP sessions. In total, seven NHRIs, two regional mechanisms, and the International Coordinating Committee (ICC) of NHRIs have participated at least once at EMRIP sessions. With regard to engagement, I took into account the following indicators:

sending a high-level participant (the chair of the mechanism), number of statements delivered at sessions, and the organization of side-events. Regarding alignment of policies, I resorted to the provision of input to EMRIP studies as a proxy. All indicators were then weighed equally. Engagement at sessions was rather low. As the only regular participants, the Commissioners from Australia and New Zealand quite frequently delivered statements at sessions. In one case, the Chair of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights delivered a statement at the opening session, and in one case, a side-event was hosted by

Regional Human Rights Mechanisms. However, compared to other participant groups, NHRIs were comparatively engaged with regard to providing written input to EMRIP studies. While the New Zealand Human Rights Commission was the single most active mechanism, there has been some NHRI input to all of the recent EMRIP studies. This includes occasional input by NHRIs which never participated in EMRIP sessions, indicating that the work of EMRIP is probably better known and valued by NHRIs than low participation rates suggest.

With regard to the numbers of participating IPOs, attendance seems to be somewhat lower now than it was in the first years after the creation of EMRIP. 97 IPOs participated in 2008, 113 IPOs in 2009; in contrast, in recent years (2016 and 2017) about 80 to 85 delegations from IPOs participated.¹³⁶ Of the 37 internationally active Indigenous organizations which made up my sample, only seven were regular participants at sessions, and two more attended the two last sessions. In turn, there were seven additional organizations which participated irregularly at EMRIP sessions. Seventeen IPOs participated at some instance, but not during recent sessions, while four never assisted to EMRIP sessions. There is thus a rather small group (from the sample) of regular participants to EMRIP, while most IPOs only have participated occasionally at sessions. More than half of all IPOs from the sample (21) did not participate in recent sessions (2016/17). Eighteen of these did participate in other international activities related to Indigenous peoples, while only for three of them no such evidence could be detected. By tendency, regular EMRIP participants are either from western states, transnational IPOs, or geographically close to the meeting venue in Europe - or show a combination of several of these factors: For example, the Saami Council is a transnational NGO from Northern Europe and as such based in a western state. This supports the assumption that participation in EMRIP sessions to some degree may be determined by the availability of resources. However, in the case of scarce resources, for many IPOs participation at the EMRIP does not seem to be the first choice, as many of the same IPOs do participate at the PFII.

Regarding engagement at the Expert Mechanism, the following indicators were taken into account: number of statements at EMRIP 2015-17 and the organization of

136 These numbers are estimates, as in the last reports of EMRIP participating IPOs were listed together with non-Indigenous support NGOs. Not in all cases was it obvious from the names which organization pertained to which category.

events. With regard to the alignment of policies, I took into account the provision of input to EMRIP studies, as well as responses to the questionnaire on UNDRIP implementation. I also registered which organizations took part in the mandate review by participating at the Expert Seminar or submitting a written contribution.

Additionally, I registered all types of creative unconventional behavior by Indigenous participants which I personally observed during sessions or of which accounts were found in 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.

In general, engagement was rather low. For example, usually about ten IPOs provided input to EMRIP studies.¹³⁷ Similarly, except for 2014, when the UNDRIP questionnaire was sent out for the first time and 18 IPOs answered it, in recent years roughly about ten IPOs provided answers to it. Compared to the 80 to 85 IPOs participating at EMRIP, these seem small numbers. Thus, of the fifteen IPOs from my sample which participated at recent sessions, only three were very active at the Expert Mechanism, notably AIPP, Congrès Mondial Amazigh (CMA), and the IITC. They all delivered high numbers of statements, organized side-events, participated in the mandate review, and provided input to studies or the questionnaire. Another thirteen organizations showed some engagement (among them three which did not participate in recent sessions, but nevertheless interacted with EMRIP, for example by providing input to one of its studies etc.). Two IPOs showed no further engagement. However, to some degree these lower numbers also reflect the fact that less IPOs assist at sessions of EMRIP than of the PFII.

With regard to strategies of unconventional behavior, these do not play a dominant role at the Expert Mechanism. On the contrary, it is very much a diplomatic space in which participants, including Indigenous peoples, adhere to the rules. For example, time limits are generally not exceeded; seating orders seem to be widely accepted, and nameplates (such as used by states or IOs) are only used by few participants. Moreover, a majority of Indigenous participants stick to agenda items, and “naming and shaming” specific states

137 However, there was strong variance with regard to topics, showing that particular themes probably were considered to have more relevance for IPOs or were considered as more pressing: Only very little input was received for the studies on disaster risk reduction and business and access to financial services, while roughly twenty IPOs provided input to the study on the right to health.

in statements seems to occur less frequently as compared to the PFII.¹³⁸ Some unconventional behavior may be observed with regard to the opening of sessions, which includes an Indigenous prayer (comparable to the proceedings at the PFII). I argue that this is an expression of allegiance by Indigenous participants to EMRIP.

Generally, we observe that there are lower numbers of participants from all groups, and important actors are missing. Thus, both active participation by states and IOs is limited to a clearly confined group of actors, and indigenous participation is also more constricted than at the PFII. A considerably lower number of side-events take place, so that in comparison to the PFII, EMRIP sessions are significantly smaller events. At the same time, some of the participating actors are very supportive of EMRIP. In total, I argue that these observations indicate a medium degree of legitimacy (see Table 14). In the following, we will have to analyze whether legitimation through statements by participants confirms this observation.

Degree of

legitimacy Attendance to sessions Engagement and

Alignment of policies Constituencies

To gain further insights into perceptions of legitimacy regarding EMRIP, statements by all constituencies have been selected. EMRIP reform has been a topic at three recent EMRIP sessions (2015 – 2017). Therefore, statements from these years have been selected. The selection process made the first problem with regard to state participation obvious: While there are some state delegations which participate regularly, there is very limited state participation from Asia and Africa at the Expert Mechanism. Even

138 Notes from my field diary, July 2017.

though I decided to take into account any statement from countries of these regions, only 13 texts could be identified at all. Selected texts then were screened for any (de)legitimation of EMRIP they contained. Subsequently, these legitimation statements were analyzed with regard to their general direction (positive or negative) and with regard to objects of legitimation.

Roughly 75% of all statements which contained legitimacy evaluations (166) were positive, compared to only 56 negative statements. This suggests that EMRIP disposes of strong institutional legitimacy, compared to the 2/3-threshold which is suggested by Schneider et al. (2010: 69) as indicating high legitimacy. There were 15 texts (out of 110) which did not contain any legitimation, out of which 11 were IPO statements.¹³⁹ Concerning objects of (de-)legitimation as the second indicator, with regard to higher objects of legitimation, namely regime principles and the institution as a whole, there were exclusively positive evaluations. To both levels, only 17 respectively 18 statements were directed. Given that a mandate review was under way during the timeframe from which the statements were taken, this suggests that the existence of the institution as such and the underlying regime principles were taken for granted by constituencies, and participants did not perceive EMRIP or its foundational principles to be in need of specific justification. This thus can be taken as further prove for strong institutional legitimacy.

Also with regard to lower objects of legitimation, i.e. referring to specific institutional elements or the way in which the mandate is carried out, positive evaluations clearly outweighed negative ones. Nearly half of all evaluations (103 of 222) referred to specific structures of the Expert Mechanism, which thus represented the biggest group of legitimation statements. Of these, 63 referred to the mandate review and the mandate, which was nearly exclusively evaluated positively (53 references).

“As regards the review of EMRIP's mandate, we consider the review to be an excellent

opportunity to provide specific, constructive proposals to enhance the work and functioning of this mechanism with a view to strengthening it. EMRIP has much potential to serve as a new kind of platform for dialogue between States and Indigenous Peoples on achieving the ends of the Declaration” (Nordic States 2015).

Of the 10 respective negative statements connected to the mandate or mandate review, many criticized the mandate before review, thus arguing for the need of an

139 These numbers are nearly identical with the respective numbers of the PFII.

improvement. In turn, about 2/3 of the remaining 40 evaluations related to other issues were positive. EMRIP’s work in general was highlighted positively 19 times, while critique was most numerous with regard to the relevancy of the institution and the impact and implementation of its advice.

Roughly 40% of negative evaluations (33 statements of 84) concerned methods of work

Roughly 40% of negative evaluations (33 statements of 84) concerned methods of work