Part I - IOM’s Mandate, Structure, and Relationship with the UN

2 Who and What Is IOM For? The Evolution of IOM’s Mandate, Policies, and Obligations

Megan Bradley

2.1 Introduction

As with many other international organizations (IOs), the mandate and obligations of the International Organization for Migration (IOM) have changed considerably over time. Under its Constitution, IOM’s explicit obligations are to its member states, rather than to migrants themselves; the organization has no formal mandate to protect migrants’ rights. Its institutional features, in particular its dependence on project-based funding, marked deference to governments and involvement in some ‘migration management’ initiatives that sit in tension with human rights standards, raise concerns about IOM’s obligations and accountability. These concerns are heightened as its profile and power in the international system have grown in recent decades.¹

Integrating legal analysis and insights from international relations (IR) scholarship on the study of IOs, this chapter provides an introduction to the evolution of IOM’s mandate and institutional obligations since its creation in 1951, as a foundation for examining the agency’s accountability – a task taken up in more detail by other contributors to this volume. Much of the scholarly literature on IOM portrays the organization as devoid of normative obligations and available to unquestioningly advance states’ interests in controlling migration, however nefariously.² Many critics charge that ‘IOM is indeed not bound by the human rights frameworks that form the basis of the UN’s work,’ and suggest that the ‘underlying issue’ that drives IOM’s engagement in risky and normatively vexed work such as returning migrants to insecure states is that ‘IOM has no “protection mandate.” Being situated outside the UN system, it is not committed to international human rights law.’³ This chapter paints a more complex picture, considering IO mandates and obligations as both a legal and political matter. It charts how IOM’s mandate and conceptions of its obligations – legal and political – have shifted inside and outside the organization.⁴ In particular, it examines these changes in relation to IOM’s identity as a ‘multi-mandated’ organization involved in humanitarian aid, development interventions and migration governance efforts, and its creation over the past two decades of a significant set of internal policies, frameworks and guidelines informing its work. Without minimizing the significant gaps and opacity that remain, the chapter explores changes in the organization’s perceived purpose and obligations over time, expanding ideas about who and what IOM is for. IOM has gradually transformed from a logistics agency strapped to US interests to a global organization serving more diverse member states, with a still nascent but growing sense of its obligations, not only to states but also to people on the move – changes that have ultimately advanced IOM’s efforts to secure its own position and accrue more influence in the international system.⁵ Analyses of IOM and its roles in global governance must grapple with these developments, and critically assess their implications.

The chapter begins by situating this discussion in relation to analyses of IO mandates and obligations more generally. It then examines historical developments in IOM’s formally articulated mandate and obligations, focusing on the Brussels Resolution through which the agency was originally established, and the revamping of its Constitution in 1987.⁶ The chapter then maps out key shifts in conceptions of IOM’s roles and responsibilities, as manifested in its own policies, examining how, as internal rules, these standards strengthen IOM’s formal institutional obligations, particularly vis-à-vis protection.⁷ Last, it draws on the IR literature on IO legitimacy and legitimation to help explain these shifts, and reflects on the implications of this analysis. In developing this account, the chapter draws on archival research and findings from a set of 70 in-depth interviews undertaken between 2015 and 2021 with IOM officials, member state representatives, UN agency staff, human rights advocates, NGO aid workers and independent experts.⁸

2.2 Interpreting IO Mandates and Obligations: Political and Legal Perspectives

Some scholarship on IOM proceeds from the legally incorrect premise that the organization’s mandate and obligations are fully encapsulated in the IOM Constitution, and that to understand its responsibilities and the challenges posed by its role in the global governance of migration, one need look no farther than this rather peculiar document. Legally, however, neither IOs’ mandates nor their obligations are reducible to the parameters of their constituent instruments. As the International Court of Justice (ICJ) recognized in its 1949 Reparations case, an IO’s ‘rights and duties … must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.’⁹ Building on this view, the International Law Commission (ILC) defines IO constitutions broadly, as ‘the constituent treaty together with the rules in force in the organization.’¹⁰ Constitutional developments often do not involve formal revisions to IOs’ founding treaties or other constituent instruments, but instead unfold through IOs’ policies and practices and the ongoing interpretation of their constitutive instruments, particularly through the work of their governing bodies.¹¹ As Schermers and Blokker put it, most IOs have ‘a “constitution,” the interpretation of which changes with the development of society.’¹² As bureaucracies, IOs themselves shape this ongoing process of interpretation, helping to underpin their governance ambitions.¹³

Every IO has a ‘legal order’¹⁴ – even IOM, notwithstanding its vague Constitution and traditional ‘cowboy’ reputation. An IO’s rules include its ‘constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization.’¹⁵ If the constitution is ‘the skeleton of the legal order of an international organization, its decisions are its flesh and blood.’¹⁶ IOs’ constituent treaties typically empower the organization to develop more detailed rules needed for it to work. IOs’ internal rules may address a wide range of issues including governance procedures, the creation of subsidiary organs and delegation of tasks to them, budget, finance and administration, as well as an IO’s operational activities and field of responsibility – issues of particular importance to this discussion.¹⁷ Understanding IOM’s internal legal order thus requires looking not only at the IOM Constitution, but also at the resolutions of the IOM Council (IOM’s governing body) and decisions of organs such as the Standing Committee on Programmes and Finance, particularly those pertaining to the interpretation of the Constitution and the development and adoption of new policies and frameworks intended to guide its work. It additionally requires examination of important agreements IOM has entered into, such as the 2016 Agreement concerning the Relationship between the United Nations and the International Organization for Migration.¹⁸ Beyond their constitutions and internal rules, IOs also have obligations under general rules of public international law, which arguably include customary international law.¹⁹ Although there is considerable debate over the implications of customary international law for IOs, jus cogens norms such as the prohibition of torture and non-refoulement of individuals at risk of torture are ‘utterly binding for all subjects of international law,’ including IOs, a position that is well-established in international jurisprudence.²⁰

In interpreting IOM’s mandate and obligations, particularly from a political or operational perspective, its identity as a ‘multi-mandate’ organization is especially significant. ‘Multi-mandate’ is not a legal term of art, yet it is a vital concept in terms of understanding the different roles assigned to IOs, and the tensions that can arise between them.²¹ Different global governance fields are underpinned and legitimized by particular principles and practices, some of which can conflict with one another; this is most obvious when an IO’s work straddles humanitarianism and other sectors such as development. Single-mandate humanitarian organizations such as the World Food Programme focus on providing life-saving aid, whereas multi-mandated agencies such as UNICEF are involved in humanitarian assistance as well as development efforts. Single-mandate humanitarian agencies are often sceptical of close cooperation with national authorities, whereas this is integral to the modus operandi of most development actors.²² While humanitarian narratives often present multi-mandated organizations as deviant, such actors are hardly exceptional, with UNICEF again serving as a case in point.²³ Juggling different elements of organizational mandates is a common concern and a defining challenge for IOM, as its work on migration straddles the humanitarian and development sectors, as well as related fields such as security. It is, however, rarely concertedly analysed as a multi-mandate actor.

2.3 IOM’s Establishment and Constitutional Developments

According to the 1996 ICJ Nuclear Weapons Advisory Opinion, IOs’ constituent instruments are, generally speaking, ‘treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals.’²⁴ IOM is often assumed to have little by way of autonomy or obligations, given its vague constitutional mandate, lack of a formal protection role, dependence on project-based funding, and tradition of pronounced deference to its member states. Yet, as an IO with legal personality under its Constitution, IOM, like other IOs, has the ‘capacity to have rights and obligations of its own.’²⁵ And, again like other IOs, the formal parameters of its mandate have evolved since the organization was established in 1951 as the Provisional Intergovernmental Committee for the Movement of Migrants from Europe (PICMME). This evolution reflects, in part, the agency of the organization and its staff, who have, over the decades, pushed to make the institution permanent and expand its geographic remit and the range of activities it undertakes. Similar processes have unfolded at other IOs, including those working in the field of human mobility.²⁶ Recognizing this agency is essential to any serious, politically engaged and empirically grounded conversation about IOM’s obligations and accountability as an IO. If the organization were nothing more than an automaton robotically serving states, then it would be fruitless to critique IOM’s own interpretation of its mandate and obligations, including to migrants themselves. Instead, this conversation could only usefully be had with its member states.

After World War II, millions of people were uprooted across Europe, while scores more were impoverished and unemployed, with little prospect of making a living in their communities. Western governments – particularly the United States – were concerned that these populations would be hotbeds for Communist infiltration, and believed international cooperation was needed to support the resolution of Europe’s displacement and perceived ‘surplus population’ problem, including through migration to states in need of labour. Created in 1946, the International Refugee Organization (IRO) facilitated the resettlement of more than a million refugees from post-war Europe, but by the early 1950s it had come to be seen by its main benefactor, the United States, as costly, inefficient and insufficiently attuned to US foreign policy priorities, and was slated to close.²⁷ Although the International Labour Organization (ILO) attempted to take over from the IRO as the main IO working on migration and displacement, their efforts were torpedoed by the United States at the ILO’s 1951 Naples Migration Conference.²⁸ (UNHCR had been created in 1950, but as a protection-focused agency without operational capacities.) Washington hastily convened the Brussels Conference of 1951, where PICMME was created with the express purpose of taking over the IRO’s operational activities and assets, including its fleet of ships.

Drafted by the United States, the Brussels Resolution formally established PICMME, setting it outside the framework of the United Nations, and specifying that membership was limited to ‘democratic governments’ with ‘a demonstrated interest in the principle of the free movement of persons.’²⁹ These provisions effectively excluded Communist states, and were essential to meeting the demand of the US Congress at the time that any IO working on migration and displacement issues and receiving American financing could not have Communist members – a position that initially impeded UNHCR taking on significant operational roles.³⁰ Signed by 16 states, the Brussels Resolution articulated PICMME’s functions, indicating in Article 2 that the organization was

[T]o make arrangements for the transport of migrants, for whom existing facilities are inadequate and who could not otherwise be moved, from certain European countries having surplus population to countries overseas which offer opportunities for orderly immigration, consistent with the policies of the countries concerned.³¹

Article 4 of the Resolution stresses, ‘among the migrants with whom the Committee will be concerned are included … refugees for whom migration arrangements may be made between the Committee and the governments of the countries affording asylum.’³² The Committee’s mandate was geographically focused on the movement of people from Europe, and was set to expire within one year. While the fundamental aim was to enable migration that otherwise would not happen by setting up transportation, the signatories did not rule out PICMME’s provision of other, related services, such as language training and settlement support.³³ Strikingly, although the Brussels Resolution does not explicitly mention protection, its preamble stresses that the aim of intergovernmental cooperation through PICMME is to move migrants ‘to overseas countries where their services can be utilized in conformity with generally accepted international standards of employment and living conditions, with full respect for human rights.’³⁴ This acknowledgement of employment and human rights standards did not appear in the Constitution adopted by the organization’s members only a few years later.

The first meeting of the PICMME governing Council occurred immediately on the heels of the Brussels Conference. Efforts immediately began to alter the new organization’s mandate, in particular by extending its operations beyond one year; however, the majority of member states concurred that PICMME needed to demonstrate its utility, efficiency and logistical capacity before any extension could be approved.³⁵ PICMME proved its ability to move large numbers of migrants in short order on a limited budget, and its timeline was extended. Meanwhile, the United States led the drafting of a Constitution for the new agency, which changed its name in 1952 to the Intergovernmental Committee for European Migration (ICEM).³⁶

ICEM’s first director, Hugh Gibson, consulted with UN Secretary General Dag Hammarskjöld on the draft Constitution, which posed concerns for the UN, given, in Hammarskjöld’s words, ‘the danger of duplication and overlapping arising out of the growth of activities of non-United Nations organizations,’ particularly in relation to ‘the refugee problem.’³⁷ Before the Constitution was adopted, and despite clear resistance from ICEM’s own member states, senior ICEM officials met with UN leaders to explore ‘the possibility of more formal relationships between ICEM and the UN,’ and ‘promot[ing] a movement within ICEM to request Specialized Agency status with the United Nations or some special form of relationship, giving ICEM United Nations recognition and standing.’³⁸ However, in the assessment of senior UN staff, this would be unlikely and undesirable in light of the ‘difficulty of reconciling the [draft] ICEM constitution with the UN Charter, [and] the political objections that would no doubt arise from certain quarters.’³⁹ These ‘political objections’ were a veiled reference to the exclusive character of ICEM membership. Adopted on US insistence, ICEM’s policy of excluding Communist countries reflected the deployment of US refugee and migration policy as a plank in its broader, anti-Communist foreign policy agenda. Whereas the USSR insisted that those who remained displaced in Europe should be repatriated (even involuntarily) and attempted to block emigration from Eastern Europe, western powers favoured resettlement and sidestepped Soviet interference in this process by establishing ICEM outside the UN.

ICEM’s Constitution was adopted on 19 October 1953 and came into force on 30 November 1954, preserving the exclusion of Communist countries and entrenching the committee’s position outside the UN. As articulated in the 1953 ICEM Constitution, the organization’s central objective was

[T]o promote the increase of the volume of migration from Europe by providing, at the request of and in agreement with the Governments concerned, services in the processing, reception and first placement of migrants which other international organizations are not in a position to supply, and such other assistance to this purpose as is in accord with the aims of the Committee.⁴⁰

ICEM and its member states understood the Brussels Resolution to establish and underpin a multi-mandate organization straddling humanitarian and development aspects of migration. Reflecting on the organization’s first twenty years, Director General John Thomas wrote in 1971 that ICEM’s ‘founding fathers had two motivations, the one humanitarian on behalf of refugees, the other economic on behalf of nations, but there was no strict dividing line between the two.’⁴¹ This framing suggests that even at its founding, IOM was invested in the notion that the rights and interests of states and individuals can be advanced in tandem, glossing over the ways in which these often conflict. Like the Brussels Resolution, the Constitution indicated that the Committee was to work with migrants and refugees, but did not define either group. Over its first decades of work, the ICEM Council extended the organization’s lifespan, the regions in which it worked and the range of activities undertaken, all without formal constitutional modifications.⁴²

In the late 1970s, ICEM faced diminished budgets and institutional decline. Its traditional lines of work dried up as emigration from Europe dwindled, and those migrating did not require the assistance of an international organization. Stretching beyond its mandated focus on Europe, ICEM sustained itself through involvement in various humanitarian operations, but its role in these situations was sometimes questioned owing to its rather esoteric formal mandate and its position outside the UN. ICEM’s leadership began to agitate for constitutional changes that could place the organization on stronger footing as it competed for resources and influence. ICEM brought together a group of legal experts to prepare a report entitled ‘Suggestions for amendments to the Constitution of the Intergovernmental Committee for European Migration,’ which was circulated to member states in advance of the 39th session of the ICEM Council in 1976.⁴³ This report argued that new needs had emerged which differed from those facing the international community when ICEM was created; these ‘new needs were essentially humanitarian and called for services that no other organization could provide, but meeting them often meant relying on the good will of Governments to accept a liberal interpretation of the ICEM Constitution, respecting the spirit rather than the letter of its provisions.’⁴⁴ In line with this report, the ICEM leadership brought to the Council ‘suggestions relating to possible changes in the Constitution,’ which would facilitate bringing new members into the organization; they urged constitutional revisions to describe ‘in detail ICEM’s purposes and functions so that there would no longer be any question about the legal aspects of its intervention when ICEM was called upon to help in emergencies; dropping the word “European” from its name, and generally strengthening the organization.’⁴⁵ Yet ICEM’s member states kyboshed the prospect of renegotiating the Constitution, suggesting that it would be a cumbersome process detracting from more urgent practical matters and the organization’s traditional logistical strengths. In public comments at ICEM Council sessions, they also slapped the Director General’s wrists for initiating the experts’ review without first consulting the member states.⁴⁶

2.3.1 Constitutional Amendments

Having been forcefully rebuffed by the member states, the organization’s leadership let the question of revamping the Constitution rest for several years before relaunching the conversation in the 1980s, in a process that led to the entry into force in 1989 of a new Constitution and a new name: the International Organization for Migration.⁴⁷ Within the organization, this process was seen as a matter of bringing the Constitution into alignment with the roles it had already assumed in practice⁴⁸ – a view that reflects IOM’s longstanding entrepreneurial, expansionist ethos and a perception of legal standards as malleable rather than fixed.⁴⁹

Perruchoud argues that the ‘ultimate goal’ of the constitutional revisions was ‘undoubtedly to put the Organization in a position to meet the challenges in the field of international migration, and to provide an adequate legal framework within which to respond to contemporary and future trends and needs.’⁵⁰ The adequacy of this framework has, however, been pointedly questioned as it omits direct reference to migrants’ rights, protection, or humanitarian principles.⁵¹ The revised Constitution retains the notion that members should have ‘demonstrated interest in the principle’ if not the practice ‘of free movement of persons’ and keeps states firmly at the centre of migration decision-making, indicating that the ‘Organization shall recognize the fact that control of standards of admission and the number of immigrants to be admitted are matters within the domestic jurisdiction of States, and, in carrying out its functions, shall conform to the laws, regulations and policies of the States concerned.’⁵²

Indeed, IOM’s fundamental obligations under its Constitution are to its member states, with Article 1.1 laying out the organization’s mandate. It provides that:

The purposes and functions of the Organization shall be:

1. (a) to make arrangements for the organized transfer of migrants, for whom existing facilities are inadequate or who would not otherwise be able to move without special assistance, to countries offering opportunities for orderly migration;

2. (b) to concern itself with the organized transfer of refugees, displaced persons and other individuals in need of international migration services for whom arrangements may be made between the Organization and the States concerned, including those States undertaking to receive them;

3. (c) to provide, at the request of and in agreement with the States concerned, migration services such as recruitment, selection, processing, language training, orientation activities, medical examination, placement, activities facilitating reception and integration, advisory services on migration questions, and other assistance as is in accord with the aims of the Organization;

4. (d) to provide similar services as requested by States, or in cooperation with other interested international organizations, for voluntary return migration, including voluntary repatriation;

5. (e) to provide a forum to States as well as international and other organizations for the exchange of views and experiences, and the promotion of cooperation and coordination of efforts on international migration issues, including studies on such issues in order to develop practical solutions.⁵³

Thus articulated, IOM’s mandate is in some ways highly specific yet also remarkably vague. IOM sees its Constitution as ‘permissive’: that is, it identifies some of the activities it may undertake and points to or implies some of the sectors in which the organization may work, but the list is not exhaustive. Similarly, the Constitution identifies (but does not define) some of the groups with whom IOM may work, such as refugees and displaced persons, but IOM is not limited to interacting only with these groups.⁵⁴ While the ICEM Constitution mandated the organization to actively promote migration, the 1989 Constitution removes migration promotion from IOM’s formal remit.⁵⁵ IOM has taken significant latitude in interpreting its Constitution, suggesting, for example, that the provisions of Article 1 bestow on IOM a humanitarian mandate – an interpretation accepted by its member states in several IOM Council resolutions.⁵⁶ It has also suggested that the Constitution sows the seeds for IOM involvement in the protection of migrants. This is a more controversial interpretation but one that, Chetail argues, is in line with the doctrine of implied powers, which suggests that every IO ‘possesses implied powers that are additional to those explicitly granted by its constituent instrument and essential to fulfilling the purposes and functions of the organization.’⁵⁷ On this view, IOM is mandated to assist migrants, and assistance worthy of the name must involve protection.⁵⁸ Yet even if this interpretation is accepted, in fundamental ways the IOM Constitution remains a throwback:

The loosely defined terms of its mandate has created a hiatus, if not a gulf, between what IOM can do and what it must do … The deafening silence of the IOM Constitution about the protection of migrants and their human rights is, indeed, astonishing. It is a historical anomaly that is no longer compatible with the profound transformation of IOM, its new responsibilities as a UN-related organization and, more broadly, the renewed commitment towards the human rights of migrants as acknowledged in the Global Compact for Migration.⁵⁹

The doctrine of implied powers establishes that IOM can appropriately involve itself in migrant-protection efforts. However, the doctrine of implied powers arguably cannot, on its own, undergird a binding obligation for IOM to undertake positive actions to protect migrants’ rights, although it is obligated not to actively violate migrants’ rights.⁶⁰ Furthermore, it does not speak to the challenge of managing the different elements of IOM’s mandate.

As interpreted by the IOM bureaucracy and the organization’s member states, the Constitution establishes an overarching ‘migration mandate’ straddling multiple normative and operational spheres. Reflecting on the revamping of the IOM Constitution in the 1980s, Perruchoud suggests that

In the past, there was sometimes a tendency to label ICM as a humanitarian body, because of its involvement in the migration of refugees and displaced persons; or as a development agency, because of its programmes for the transfer of qualified human resources. This apparent contradiction was potentially detrimental, as it veiled the common denominator of all its activities, namely, the migration of people.⁶¹

Perruchoud argues that ‘[u]pdating the Constitution has helped to eliminate this dichotomy.’⁶² However, many inside and outside IOM continue to perceive it as two agencies in one, a divided house that struggles to reconcile the implications of its multiple mandates. Although the 1989 Constitution provides little explicit direction to navigate this challenge, IOM has in recent years significantly expanded its set of internal rules, many of which attempt, with varying degrees of success, to speak to this issue.

2.4 IOM’s Internal Policies: Shifting Conceptions of the Organization’s Purpose and Obligations

Recognizing that constitutive instruments do not tell the full story of how IOs’ responsibilities evolve and are understood in practice, this section maps out some key shifts in conceptions of IOM’s mandate and obligations that go beyond the formal ascriptions of its Constitution, focusing on the flurry of internal policies, frameworks, and guidelines that it has developed over the past 20 years (see Table 2.1). IOM’s internal policymaking moves are somewhat surprising as the organization has a reputation for shirking normative standards.⁶³ IOM officials have historically been reluctant to, in their view, bog the agency down with standards and protocols that could compromise operational efficiency and responsiveness.⁶⁴ These developments are also surprising because some IOM officials have, in recent memory, publicly rejected the notion that the organization has obligations under international human rights law – standards that are recognized and incorporated into many of IOM’s recent internal policies. For example, as Goodwin-Gill points out, IOM representatives argued this point before the UK House of Lords EU Committee in 2004.⁶⁵ After introducing IOM’s internal policymaking efforts, this section considers their significance from the perspective of international law and IR theories on the legitimation of IOs.

Table 2.1 IOM Internal Policies, Frameworks and Guidelines (selected), 1998–2021

Document name	Year
Evaluation Guidelines	1998
Human Resources Policy in IOM (MC/INF/242)	2000
IOM Migration Policy Framework for Sub-Saharan Africa (MC/INF/244)	2000
Internally Displaced Persons: IOM Policy and Activities (MC/INF/258)	2002
IOM Policy on the Human Rights of Migrants (MC/INF/259)	2002
IOM Evaluation Guidelines	2006
IOM Data Protection Principles	2009
The Human Rights of Migrants – IOM Policy and Activities (MC/INF/298)	2009
IOM Data Protection Guidelines	2010
Migration Crisis Operational Framework (MC/2355)	2012
Internal Guidance Note on Assisted Voluntary Return and Reintegration for Trafficked Migrants (IN/198)	2012
Internal Guidance Note on Assisted Voluntary Return and Reintegration for Migrants in Detention (IN/199)	2012
Internal Guidance Note on IOM-Assisted Voluntary Returns and Reintegration of Unaccompanied Migrant Children (IN/208)	2013
IOM Standards of Conduct (IN/15 Rev. 1)	2014
Assessing Risks when Assisting Victims of Trafficking (IN/219)	2014
IOM Policy on Protection (IOM Policy on Protection)	2015
IOM’s Humanitarian Policy: Principles for Humanitarian Action (C/106/CRP/20)	2015
Gender Equality Policy 2015–2019 (C/106/INF/8/Rev.1)	2015
Migration Governance Framework (C/106/40)	2015
IOM Internal Guidance Note on Immigration Detention and Alternatives to Detention (IN/228)	2015
Internal Guidance Note on Mixed Migration Flows (IN/227)	2015
Framework on the Progressive Resolution of Displacement Situations	2016
IOM General Procurement Principles and Processes	2016
Guidance Note on How to Mainstream Protection Across IOM Crisis Response (IN/232)	2016
Policy and Procedures for Preventing and Responding to Sexual Exploitation and Abuse (IN/234)	2016
Guidance Note on the Inclusion of Protection Considerations when Planning and Implementing International Humanitarian Evacuations for Migrants Caught in Armed Conflict Settings (IN/238)	2016
IOM Framework for Addressing Internal Displacement	2017
IOM Key Principles for Internal Humanitarian Evacuations/Relocations of Civilian Populations in Armed Conflict	2018
IOM Staff Regulations (C/108/INF/2) (updated)	2018
Institutional Framework for Addressing Gender-Based Violence in Crises	2018
Guidance for Addressing Gender in Evaluations	2018
IOM Evaluation Policy (IN/266)	2018
IOM Monitoring Policy (IN/31 Rev. 1)	2018
IOM Competency Framework	2018
IOM Internal Governance Framework	2018
Risk Management Framework (updated)	2019
Reporting and Investigation of Misconduct Framework (IN/275)	2019
Accountability to Affected Populations Framework	2020
IOM Policy on the Full Spectrum of Return, Readmission and Reintegration	2021
IOM Monitoring and Evaluation Guidelines	2021

^*Note: This table focuses on policies, frameworks and guidelines produced at the headquarters level. It includes internal guidance notes produced for IOM staff (often containing mandatory compliance instructions), as well as policies, frameworks and guidelines produced internally and presented to the IOM Council and/or the IOM Standing Committee on Programmes and Finance. It does not include time-limited strategic planning frameworks.

IOM’s body of internal policies (including guidelines and frameworks) has ballooned in recent decades, and particularly over the last ten years. Since 1998, at the headquarters level, IOM has developed at least 40 significant, publicly available institutional policies, with 31 of these adopted since 2012 (see Table 2.1). Recent IOM policies, frameworks and guidelines address a wide range of issues including migration governance, humanitarian action, migration crises, AVR, data, monitoring and evaluations, protection, accountability, prevention of sexual exploitation and abuse, and particular populations such as trafficked migrants, evacuees, IDPs and migrant workers.⁶⁶ In addition, IOM has adopted policies focused on management and human resources issues such as staff conduct and competencies, gender equity, risk management, and reporting and investigation of misconduct. Beyond these internal policies, which are to be implemented on an ongoing basis, IOM has additionally developed time-bound strategic planning frameworks, such as the IOM Strategic Vision: 2019–2023: Setting a Course for IOM, building on the 2007 IOM Strategy.⁶⁷ Discussed and in some cases formally approved by the IOM Council, these strategic frameworks are also important elements of IOM’s increasingly extensive internal policy apparatus.

Many of IOM’s early internal policies acknowledge international human rights law and humanitarian principles, but do not necessarily clearly commit the organization to abide by them. For example, the 2002 IOM Policy on the Human Rights of Migrants indicates that ‘In all aspects of its work, IOM is committed to working towards effective respect for the human dignity and well-being of migrants.’⁶⁸ While the scope of the notion of ‘working towards effective respect’ is unclear, later in the policy IOM more forthrightly ‘recognizes its responsibility to ensure that when providing assistance to migrants, its activities must obtain full respect for the rights of the individual, its activities must be non-discriminatory and must not diminish the human rights of others.’⁶⁹ While the language used in some of IOM’s more recent internal policies is still ambiguous, it is more direct in others. The most important of IOM’s recent, member state-approved internal policies include the 2012 Migration Crisis Operational Framework (MCOF) and the 2015 Migration Government Framework (MiGOF). The MiGOF lays out ‘the essential elements for facilitating orderly, safe, regular and responsible migration.’⁷⁰ ‘Adherence to international standards and fulfilment of migrants’ rights’ is the first of the MiGOF’s three foundational principles.⁷¹ The MCOF’s goal is to identify the links between IOM’s different interventions in emergency settings, such as camp coordination and camp management, the provision of emergency aid and shelter, evacuations and border management.⁷² Considerably more explicit than the MiGOF, the MCOF states that IOM is ‘bound and committed to the existing legal and institutional frameworks contributing to the effective delivery of assistance and protection and ultimately to the respect and promotion of human rights and humanitarian principles.’⁷³ Through IOM Council resolutions, IOM’s member states unanimously welcomed both the MCOF and the MiGOF, and requested the Director General to apply these frameworks and report regularly to the Council on this process.⁷⁴ These documents have become cornerstones of IOM’s subsequent internal policymaking activities, informing the creation of additional standards focused on more specific operational challenges and populations.

Alongside these policies, IOM has produced an extensive series of handbooks, guides, manuals and toolkits, many of which incorporate and address the implementation of these internal policies as well as relevant external standards.⁷⁵ In addition to these handbooks and manuals, briefs such as the IOM Protection Portfolio – Crisis Response map out IOM’s internal policies as well as relevant standards developed by the UN, the International Committee of the Red Cross, and the Inter-Agency Standing Committee on topics such as protection mainstreaming; ‘meeting institutional commitments on human rights’; prevention of sexual exploitation and abuse; counter-trafficking efforts in emergencies; humanitarian evacuations; relocations; resettlement; land, property and reparations; and mental health and psychosocial support.⁷⁶

The breadth of IOM’s internal policymaking efforts reflects IOM’s identity as a multi-mandate agency. The fact that many of the policies address populations and operational challenges associated with IOM’s work in emergency settings reflects the significance of involvement in the humanitarian sector to IOM’s budget and field presence, and the general expectation that professionalized organizations active in humanitarian response should be guided by clear, shared principles and standards.⁷⁷ That said, these policies are certainly not all equally clear or robust, and they do not enjoy equal weight (or even awareness) across the organization. While some of IOM’s internal policies, such as the 2015 Humanitarian Policy, were developed through multi-year processes involving internal and external consultations, others were drafted by consultants with seemingly little institutional engagement or investment in dissemination, implementation and review of the policy.⁷⁸

In addition to these policies related to particular populations and fields of responsibility, it is important to note that significant changes were also recently made to IOM’s internal financing rules. Under Director General Swing, the member states agreed to an increase in the rate of overhead charged on IOM projects. This is significant because, in the absence of robust core funding, IOM relies on funds raised through overheads to undertake otherwise unfunded activities such as internal policy development efforts and related training initiatives, as well as the hiring of protection officers involved in efforts to implement some of these internal standards.⁷⁹

2.4.1 Assessing the Significance of IOM’s Internal Policies: Legal Perspectives

What, legally, is the significance of these policies? Arguably, at least some of these policies represent internal rules, which may have binding effects on IOM alongside its Constitution and other key standards such as the 2016 Agreement concerning the Relationship between the United Nations and the International Organization for Migration. An IO’s internal law is ‘the body of rules governing the functioning of the organization, in the widest sense of the term.’⁸⁰ As discussed above, internal rules stem from an IO’s constituent treaty, as well as from resolutions passed by an IO’s organs and institutional practices, provided these are ‘sufficiently clear and well-established.’⁸¹ Internal rules can in theory bind an IO, although there is little agreement on the form that internal rules must take, with some suggesting that ‘Any decision by a competent organ creates binding internal rules, provided that the intention to do so is sufficiently clear.’⁸²

Per its Constitution, IOM has two organs, the Council and the Administration;⁸³ both have constitutionally established roles in the creation of internal rules for IOM. Under the Constitution, the Council’s role is inter alia ‘to determine, examine and review the policies, programmes and activities of the Organization.’⁸⁴ As the head of the IOM Administration, the Director General is to ‘discharge the administrative and executive functions of the Organization in accordance with this Constitution and the policies and decisions of the Council and the rules and regulations established by it. The Director General shall formulate proposals for appropriate action by the Council.’⁸⁵ While the Director General can therefore bring proposals for internal rules forward to the Council for formal approval, he or she may arguably also create internal rules by clearly and explicitly shaping the practice of the organization. Many of the policies listed in Table 2.1 have been presented to and approved by the IOM Council itself or the Council’s Standing Committee on Programmes and Finance; others have not gone through a formal process of member state approval but have been disseminated within the organization, with some requiring mandatory staff compliance.

While the debate in international law on what constitutes an ‘internal rule’ is unsettled, at least some of IOM’s recently adopted policies, particularly those approved by the IOM Council, plausibly rise to the level of internal rules. As a formal legal agreement with another IO, the 2016 Agreement is not an internal rule for IOM, but it is a critical part of the organization’s evolving legal order, and its internal policies should be considered and interpreted in light of this important agreement. The text identifies IOM as ‘an essential contributor […] in the protection of migrants,’ and states that IOM ‘undertakes to conduct its activities in accordance with the Purposes and Principles of the Charter of the United Nations and with due regard to the policies of the United Nations furthering those Purposes and Principles and to other relevant instruments in the international migration, refugee and human rights fields.’⁸⁶ On the face of it, these provisions complement the recognition in many of IOM’s recent internal policies that the organization has obligations to respect migrants’ rights and support their protection. However, the Agreement also identifies IOM as a ‘non-normative’ organization – a term that is not part of the standard lexicon of international law, but which has understandably generated concern that this may be a way for IOM to evade its obligations and prioritize states’ interests over migrants’ rights. Senior IOM staff and other officials involved in the negotiation of the 2016 Agreement suggest that in this context, ‘non-normative’ carries a particular meaning: that IOM would not serve as an arena to set, monitor and hold states legally accountable to binding international standards related to migration.⁸⁷ The term was deployed on the insistence of IOM member states, and assuaged states’ concern that upon entering the UN system IOM might retreat from its longstanding, deferential posture, particularly in relation to respect for sovereign control over admissions and membership. However, IOM leaders also mused that the non-normative term reflected the idea that states ‘don’t want us to be shackled, I think, by norms or standards.’⁸⁸ The perception that adherence to international norms might hinder or even shackle the organization, rather than guide it towards appropriate action, is telling, and points to the need for caution in assuming that the obligations confirmed in the 2016 Agreement and in various internal policies are internalized and warmly welcomed across the organization.

Looking beyond debates on the precise contours of IOM’s evolving legal order and which policies might represent internal rules, Klabbers stresses that the structure of international law on the responsibility of IOs is such that it is difficult, if not impossible, to use these standards to leverage formal legal accountability, such as through courts or tribunals.⁸⁹ Others are more optimistic, suggesting that notwithstanding the hurdles to using these standards to uphold accountability, they have significant implications for the interpretation of IOM’s mandate and obligations, particularly vis-à-vis protection. In an expansive reading of the IOM Constitution and the duties stemming from IOM Council resolutions, institutional policies and practices, Chetail draws on the International Law Commission (ILC) Articles on the Responsibility of International Organizations (ARIO) to argue that ‘protecting migrants is both implicit and explicit to the mandate of IOM. It is inherent to the purposes and functions of this organization under its Constitution and, more importantly, it is an explicit duty deriving from the subsequent practice and interpretation of the IOM governing body.’⁹⁰ Chetail further contends:

The common complaint among scholars about the limits of its Constitution is not only ineffective but also misleading, as it fails to capture the potential of international law in addressing the responsibility of IOM towards migrants … IOM is legally bound to protect migrants’ rights under the current state of international law and, therefore, even without any change in its constituent instrument. The obligation of IOM stems from a threefold legal basis: the internal law of the organization, as informed by the practice of its governing body; the international agreement concluded in 2016 with the UN; and the general rules of international law, including jus cogens norms. This insight from the law of international organization may provide, in turn, a new critical step for both scholars and activists to move from a posture of IOM-bashing to a more incisive and efficient engagement with a view to ensuring its accountability on the basis of existing legal commitments.⁹¹

As I have discussed, many of IOM’s internal policies, including some approved by the IOM Council, recognize and commit the organization to respect and advance human rights and humanitarian standards. However, they also often hedge these commitments, reflecting continued deference to states and ‘pliability’ in assisting them.⁹² Chetail’s approach is striking because rather than focusing on how this tendency limits the effectiveness of IOM’s policies and their implications for its mandate, he takes seriously the commitments IOM and its member states have made. Instead of taking the protection-related shortcomings of IOM’s legal order as evidence of a hopelessly compromised mandate, he uses IOM’s commitments as the foundation for a capacious reading of its obligations. This reading reflects the aspirations of the architects of some of IOM’s internal policies, who have sought to gradually shift how IOM’s mandate and obligations are interpreted, and to strengthen the organization’s position, performance and perceived legitimacy by tying it to international human rights and humanitarian standards – a strategy that underscores the ways in which ‘mandates’ are both legal and political concepts.

2.4.2 Legitimation through Internal Policymaking: Perspectives from IR Theory

IOM’s internal policy development activities represent something of a puzzle: IOM has been presumed to thrive precisely because it lacks explicitly articulated obligations to human rights and humanitarian norms. Why then would it commit to these standards through numerous internal policies – at least some of which represent binding internal rules? These commitments are difficult if not impossible to enforce, and are expressed in weaker terms than some protection advocates would like. Taken alongside IOM’s entry into the UN system, these policies may ‘blue wash’ some activities that are incongruous with respect for human rights.⁹³ Yet these limitations do not solve the puzzle. It is implausible to suggest that these developments are nothing more than an elaborate smokescreen for states’ migration-control agendas – not least because many governments score political points by flaunting their anti-migrant positions, and need no help from IOM in this. Taken as a whole, these policies shift expectations inside and outside IOM regarding the organization’s commitments, and increase prospects that IOM may be held to account – politically, if not in a formal legal sense – in relation to these commitments.⁹⁴ A more nuanced explanation is therefore needed, one that does not assume that these policymaking efforts are simply altruistic but that considers the incentives and pressures facing IOM as an IO. In this section, I sketch the contours of such an explanation, drawing on insights from IR scholarship on IOs’ legitimation efforts.⁹⁵

Although rarely applied to IOM,⁹⁶ an extensive body of IR research theorizes the sociological legitimacy of IOs – that is, their ‘perceived compliance with norms and values’ that underpin their claimed authority and exercise of power.⁹⁷ Otherwise put, legitimacy entails a ‘generalized perception or assumption that the actions of an entity are desirable, proper or appropriate within some socially constructed system of norms, values, beliefs, and definitions.’⁹⁸ This literature conceives of legitimacy as a dynamic and contested but essential ‘operational resource’ for all IOs as they attempt to achieve their governance aims.⁹⁹ If ‘legitimacy is the goal’ for an IO, ‘legitimation is the way to get there.’¹⁰⁰ IOs deploy legitimation strategies to demonstrate their compliance with legitimizing norms to important target audiences such as states and other IOs. In addition to trying to foster a sense of legitimacy in the eyes of external actors, an IO may also engage in self-legitimation efforts ‘as a way of developing, defining and (re)confirming its identity,’ recognizing that internal legitimacy is often vital to effective external claims to legitimacy.¹⁰¹ Legitimation strategies may be multi-pronged, responding to the priorities and interests of different stakeholders inside and outside the organization. They often involve the strategic use of discourses and narratives that support an IO’s claimed role, and institutional reforms including internal policymaking efforts – in other words, a playbook closely followed by IOM in recent years.¹⁰² Legitimation strategies are especially important for multi-mandate IOs such as IOM whose work may result in contradictions, with one ‘side’ of the organization behaving in ways that corrode the perceived legitimacy of its other sides. In the case of IOM, these contradictions play out in, for example, conflicts between the Department of Operations and Emergencies (DOE), responsible for IOM’s humanitarian response work, and the Department of Migration Management (DMM), which runs IOM’s more normatively fraught AVR and border management projects.¹⁰³ In such cases, legitimation strategies attempt to rationalize an organization’s behaviour, enabling IO staff to feel that their work is appropriate and withstands scrutiny.¹⁰⁴ Through their ongoing legitimation efforts, IOs strive to advance their governance objectives, build up their own power, defend against competition, secure increased material resources, and adapt to changing normative expectations.¹⁰⁵

Viewed as institutional legitimation efforts, the institutional logic motivating IOM’s internal policy development efforts (and its attempts to reinterpret its mandate to include humanitarian work and human rights protection) becomes clearer. The IOM Constitution does not explicitly reference legitimizing values such as humanitarian principles or human rights, but it girds the organization’s work in a norm that is, according to states and orthodox (although increasingly challenged) readings of international law, integral to legitimate migration governance efforts: sovereign control of entry and membership. While adherence to this principle remains essential to IOM’s legitimacy in the eyes of its members, the organization has had to adjust to the rise of human rights as the predominant legitimizing framework in global governance, especially in relation to fields such as humanitarian response, where IOM is highly active.¹⁰⁶ This has fuelled the need for new legitimation strategies – including internal policy development efforts – that try to fuse protection commitments, human rights and humanitarian principles with deference to member states. This attempt to meld deferential service to states with commitments to human rights and humanitarian principles prompts some sceptics to question IOM’s ‘protection DNA’ – yet this deferential position, and IOM’s continued, full-throated recognition of states’ rights to control entry and membership, is a source of perceived legitimacy from the perspective of many of its member states. That IOM is perceived as legitimate by some actors and illegitimate by others does not undermine the suggestion that these policies are part of IOM’s efforts to legitimate itself, and that IOM may in fact be gaining legitimacy through such efforts. As Zaum emphasizes, ‘legitimacy judgements are not universal.’¹⁰⁷ Particularly for multi-mandate organizations, there may be divergent views on how particular norms should be interpreted, what is required for an IO to be legitimate in relation to these norms, and how tensions between different normative frameworks should be managed. IR scholarship on IOs’ legitimation efforts stresses that these initiatives are most likely to be effective when they balance different constituencies’ concerns¹⁰⁸ – an approach that has been the hallmark of IOM’s attempts to shore up its legitimacy.

Beyond needing to respond to the emergence of human rights as the overarching, legitimizing framework for global governance, IOM’s deployment of legitimation strategies, such as its internal policymaking efforts, has been motivated by changes in the composition of the IOM membership, and the need to achieve a greater degree of organizational coherence. As one senior IOM official expressed it, ‘If you’re a collection of 3,000 projects, of course it’s difficult to bring a sense of coherence to what the organization does and represents, particularly as perceptions are … widely differing, let’s say, amongst our partners.’¹⁰⁹ The expansion of IOM’s membership base to include more large, Southern migrant-sending states has fuelled the agency’s need to recalibrate to portray its commitments as encompassing the protection of migrants’ rights, as this is a clear expectation of many of these newer members.¹¹⁰ Notably, senior staff involved in the agency’s internal policymaking processes distinguish between IOM recognizing that it is a protection actor with protection obligations, and any attempt to recast itself as having a formal, legal protection mandate. Some suggest that ‘We’re very clear about the fact that we’re talking about operational, effective protection’ rather than legal protection efforts; ‘The fact that IOM is not legally mandated does not mean that IOM does not consider itself bound by international norms and international law.’¹¹¹ Possessing such policies is also, increasingly, an expectation of the donor agencies of IOM’s wealthier Western member states; for the agency to secure larger amounts of funding from these donors, a less ad hoc, more systematized approach was seen to be necessary.¹¹² While the desire to bring in more money is thus part of the explanation for the creation of these policies, this is part and parcel of IOM’s broader legitimation strategies. Donors are one of the key audiences for IOM’s legitimation efforts. IOM’s major humanitarian funders, in particular, expect recipients to have relatively clear institutional commitments to the legitimizing principles of the sector – an expectation that is addressed at least in part through IOM’s internal policymaking.

While the instigation of these policy development efforts preceded the focused negotiations around IOM’s entry into the UN system as a related organization (which began in earnest in 2015), other IOs, particularly in the UN system, were also an important audience for IOM’s legitimation efforts. Although IOM’s internal policymaking processes were not primarily attempts to pave IOM’s way into the UN system, they did enable IOM to cast itself as a more reliable counterpart to its UN partners. Protection advocates within IOM suggest that the agency’s entry into the UN system may, in turn, help create pressure for accountability vis-à-vis IOM’s protection obligations: ‘Not externally, but maybe internally … there’s this sense that it’s an argument we can use, right? So for the people within the organization that think that we should be doing better, we have an ability now to say, look, we’re part of the system now, you know, and we have these obligations.’¹¹³ In this sense, IOM’s entry into the UN system may strengthen the hand of protection proponents within IOM – a constituency that has not traditionally had a strong base of power with the organization.

Internal proponents of IOM’s policy development efforts, particularly those related to protection and humanitarianism, argue that these steps were necessary to better serve migrants, and also to achieve greater coherence across the organization, which is in turn essential to bolstering its perceived credibility and continued expansion. These considerations are especially important for IOM as it has become increasingly visible since becoming a related organization in the UN system. Reflecting on IOM’s efforts to manage different elements of its mandate, one senior IOM staff member suggested,

the multiplicity of counterparts and accountability lines that we have naturally leads to tensions, well at least challenges, in how you reconcile those different programming areas to ensure that they remain consistent and coherent. But I think over the past decade, the organization has also equipped itself with fairly robust sets of principles and policy frameworks that, even though they may refer to one particular area of work, they’re applied to the entire organization.¹¹⁴

As another senior IOM official put it, ‘Learning how to play those hats’ – that is, how to manage the different elements of IOM’s mandate – is a reflection of ‘the political maturity of an organization. We are growing up but we are not there yet.’¹¹⁵ IOM’s internal policies help to manage and navigate tensions between the ‘different sides’ of IOM, which some staff still describe as a ‘schizophrenic’ organization in light of conflicts between departments concerned with humanitarian response and those focused on other aspects of migration management, such as AVR.¹¹⁶ A growing number of the agency’s staff have worked with protection-oriented NGOs or UN agencies before joining IOM, and question IOM’s traditional, ‘cowboy’ approach.¹¹⁷ For these staff, commitments to human rights and humanitarian principles in IOM’s internal policies assure them that they share common values with their organization, allowing them to ‘look in the mirror and like what they see’ – a key consequence of self-legitimation efforts.¹¹⁸

Legitimation is an ongoing process of contestation, not a ‘one and done’ box-ticking effort. It is thus unsurprising that IOM continues to refine and roll out new policies, and revise its practices in light of evolving demands. IOM still has vocal critics, including partners within the UN system who charge that IOM is still fundamentally motivated by a ‘sell, sell, sell’ mentality.¹¹⁹ However, many UN officials, human rights advocates, and member state officials concerned with IOM’s adherence to human rights standards applaud the changes underway within the organization, emphasizing that IOM has come a long way since the ‘bad old days’¹²⁰ of the agency presenting itself as a maximally flexible, unscrupulous contractor willing to ‘do anything for money.’¹²¹ Concerningly, however, IOM’s legitimation efforts, particularly its adoption of human rights discourses and commitments, may have the effect of making some normatively contentious ‘migration management’ activities seem more acceptable and in line with human rights standards. This possibility requires careful monitoring, to ensure that IOM is held to account in practice for the commitments it has made.¹²² The preceding discussion and the broader IR literature on IO legitimation focus on sociological legitimacy as an empirical issue – that is, on whether and how IOs come to be accepted as legitimate by key actors. However, this concern points to the need for future analyses of IOs’ sociological legitimacy to link to investigations of their legal and moral legitimacy.

2.5 Conclusion: Who and What Is IOM For? Updating Assumptions and Expectations

Conceptions of IOM’s mandate and obligations have evolved considerably inside and outside the organization since its creation in 1951. Motivated significantly by a thirst for increased legitimacy, and in turn, influence in global governance, IOM’s internal policymaking efforts – alongside broader debates on its mandate – have played an important but to-date under-examined role in shifting ideas of what IOM is for, and whom it should serve. IOM remains a service provider shaped by its projectized funding structure, a set-up that was reinforced in the terms of the 2016 Agreement. However, the internal policies described above provide more direction on what kinds of services the organization should and should not provide, and the principles that are to inform this work. Viewed from a migrants’ rights protection standpoint, these policies are far from perfect. Yet they are a critical part of IOM’s effort to recast and legitimate itself as having a clear humanitarian mandate as well as broader institutional protection obligations. This reinterpretation brings to the fore tensions between the traditional idea that IOM is first and foremost ‘for’ its member states, and the notion that it should also be ‘for’ migrants themselves. The organization has long claimed to serve states and individuals alike, with the introduction to the 1971 volume commemorating the organization’s 20th anniversary asserting that its ‘sole aim’ is to ‘serve men and nations.’¹²³ Yet such claims are now a much more routine part of IOM’s self-presentation, an interpretation increasingly accepted by its member states despite the conflicts and tensions it entails. In light of these developments, some IOM staff suggest that the organization now uses these internal policies to say ‘no,’ more often than it has in the past, to requests from states to take on normatively troubling work, while recognizing that it still has a way to go in this respect.¹²⁴

There are ample opportunities to build on these developments to strengthen the extent to which IOM lives up to its claims to serve not only states but also migrants. First, the IOM leadership and the organization’s member states should further clarify the content and scope of the agency’s protection obligations, including through reforms to the IOM Constitution. Member states concerned with respect for human rights and humanitarian values should spearhead a move through the IOM Council to more formally recognize IOM’s humanitarian mandate and specify its human rights protection obligations. This should include amendments to the IOM Constitution to clearly bind the organization to respect and promote the rights of people on the move internally and across borders. These developments should strengthen IOM’s capacity to say ‘no’ to projects inconsistent with human rights and humanitarian standards. IOM works in many morally, legally and politically vexing contexts characterized by serious, sometimes intractable dilemmas. Such reforms would not do away with these dilemmas, but should provide IOM with stronger scaffolding to reflect on and determine when it should decline involvement in or withdraw from particular, normatively compromised operations. Such high-level, constitutional reforms are admittedly unlikely. Even if they were undertaken, and existing organizational policies committing IOM to respect human rights and humanitarian principles were confirmed to be binding internal rules, in the absence of effective legal mechanisms to ensure compliance, respect for these obligations remains largely a matter of organizational culture, institutional incentives and political will. Legal strategies alone are insufficient to secure institutional change. This points to the need for a second, related set of reforms, focused on institutional, cultural, and the internal operationalization of commitments related to protection, human rights norms, and humanitarian principles. To ensure that these internal policies are used to maximum effect to strengthen IOM’s support for migrants and not only member states, they should be widely disseminated inside and outside the organization, with staff training and regular review processes in place to support their effective implementation and revision as necessary. Staff evaluation and promotion exercises should also be tied to systematic and successful implementation of IOM’s commitments in terms of human rights protection and respect for humanitarian principles.

Progress also depends on updating assumptions about IOM’s obligations and raising expectations of the organization, including among scholars and advocates. Repeating the trope that IOM has no obligations to people on the move simply because it does not have a formal protection mandate in its Constitution is incorrect as a matter of law and policy. But even more concerningly, it impedes efforts to hold this increasingly influential organization to account for its commitments towards those it claims to serve. For IOM’s critics, such calls for accountability may seem quixotic, given its history and structural constraints. However, like other IOs, IOM has changed over time, including in terms of how its mandate and obligations are understood. If these changes are to benefit migrants and not only state interests, they must be taken seriously. That is, they must be carefully analysed, shored up where appropriate, and used to challenge instances in which IOM may undermine the rights of those individuals it now claims to serve.

3 The (Possible) Responsibility of IOM under International Law

Jan Klabbers

3.1 Introduction

On board of a Finnair flight, in October 2021, the seat pocket contained Finnair’s flight menu, advertising products available for on-board purchase. The products on offer were standard enough: coffee and tea, sodas, snacks, and beer and wine. The (exorbitant) price level too was not very surprising. But what was surprising was a small-print disclaimer: having first stated that prices and selection may be subject to change, it continued: ‘Finnair is not responsible for misprints.’¹ On some level, this is understandable: the printing has probably been outsourced to a sub-contractor, or perhaps even to a sub-contractor of the sub-contractor, or a further sub-contractor thereof. At some point it becomes difficult to keep track, even for the original assignor. On the other hand: the flight is a Finnair flight; the menu is offered by Finnair, and the goods are purchased from Finnair flight attendants – why shouldn’t the proverbial buck stop with Finnair? And if not with Finnair, then with whom? If there were a misprint, to whom should the passenger complain?

What applies to many business settings these days, characterized by the involvement of multiple actors in global supply and value chains and joint ventures, also applies to politics generally, and therewith to international organizations and their activities – including an organization such as the International Organization for Migration (IOM). Often enough, international organizations are involved in projects together with a multitude of other actors, some closely related to them (their member states, for instance), others more distant, from other international organizations² and funders to co-financiers to service-providers.³ And this cannot but affect the topic of the accountability of international organizations, all the more so as shifting responsibility onto others is a useful strategic device. In what follows, I will first set out why international organizations law has difficulties handling accountability, delving a little into the history (Section 3.2) and epistemology of international organizations law (Section 3.3). Sections 3.4 and 3.5 take a more in-depth look at the most authoritative accountability regime, the ARIO, developed by the International Law Commission; succeeded by a closer look at the mechanisms available at IOM (Section 3.6). Section 3.7 concludes.

The argument I will make is a general argument, equally applicable (mutatis mutandis) to IOM as to the World Bank, or the World Health Organization or even the European University Institute. While it is arguable that IOM has no strong human rights protection or humanitarian mandate, this circumstance alone is unlikely to affect its legal accountability – the problems with accountability of international organizations under international law go much, much deeper. And by legal accountability (not quite a term of art perhaps), I mean something like utilizing a (more or less) legal mechanism to test the acts of an international organization against (more or less) legal standards. This may be done before a court, but may also involve internal accountability mechanisms. Those standards, in turn, do not simply comprise the entire corpus of international law, but are limited, it is generally agreed, to the treaties that international organizations are parties to, to international legal rules that have become internalized, and to the ‘general rules of international law’.⁴ There is consensus that this is an authoritative enumeration, but precious little agreement on what this entails (it will be further discussed below).

3.2 The Vacuum Assumption

The accountability of international organizations under international law has proved a difficult topic, albeit of relatively recent provenance. For more than a century, from the 1860s to the 1980s, the topic did not exist. International organizations were supposed merely to interact with their member states: legally as well as theoretically, a vacuum was drawn around the relationship between international organizations and their member states, and the idea of holding international organizations to account simply never came up, at least not with respect to third parties. After all, since international organizations were not supposed to deal with third parties, issues of accountability towards third parties could not logically arise – quod erat demonstrandum. While some organizations were created to take care of individuals, those individuals were conceptualized as merely the objects of organizational activity – not as interlocutors or partners in any meaningful way.

There was only one exception, and it was not immediately related to third parties: member states could control their organization, if only they could muster the unity to suggest that the organization had overstepped its powers, acted ultra vires, or maybe violated some internal rule or other. This way of thinking was behind the 1962 Certain Expenses opinion of the International Court of Justice, with France and the USSR contesting the legality of peacekeeping ‘recommended’ by the General Assembly (GA) of the UN. This, they claimed, effectively meant the GA had been acting ultra vires, and how could states be expected to help finance ultra vires activities? The ICJ disagreed, but without taking a firm principled stand: activities ultra vires the GA could still be intra vires the UN at large, and thus could be viewed as legitimate expenses, to be provided for under the regular UN budget. Whether peacekeeping was ultra vires the UN itself was a question not further addressed,⁵ and the idea that the GA could sponsor peacekeeping was in line, the Court suggested, with the idea that the UN Charter merely assigned ‘primary responsibility’ for peace and security to the Security Council. And this made it possible to suggest that the GA exercised a secondary responsibility.⁶

So, the member states can hypothetically control the acts of their international organizations: if the members together disapprove of an action or a policy, then the organization can be compelled to mend its ways. There are two obvious drawbacks though. The first is that for this to work, the members must all sing from the same hymn sheet: if only one or two think the organization does wrong, then control will be out of reach. What then typically happens is that individual member states take the law in their own hands and try to exercise political pressure. This may take place by withholding their contributions (a weapon all the more potent when the organization is hugely dependent on a single member state, as with IOM vis-à-vis the United States⁷); by threatening to withdraw from the organization⁸ or even by ousting the director-general.⁹ And then there are other pesky ways to make life difficult: delaying visa applications for organization staff, not allowing aircraft to land or not allowing staff or management into the country, that sort of thing.

The second drawback is that this form of control still assumes the vacuum drawn around the organization and its member states: it is of little use to third parties in terms of their ability to demonstrate or advance their own accountability claims. An international organization breaching a treaty commitment towards a third party, or a commercial agreement with a service provider, will not, given the assumed vacuum, incur accountability. And even more seriously, when the organization commits a wrong to an individual, it has historically proven difficult to address the matter, let alone to find redress. This is partly a matter of immunities law (international organizations can typically invoke immunity for their official acts, and are not afraid to do so), but it goes deeper: in a setting where there exist no third parties, with a legal system which cannot think about third parties, accountability towards third parties will remain elusive.¹⁰

Against this background, it is no coincidence that the first academic attempts to come to terms with the accountability of international organizations remained unsuccessful. Attempts in the 1950s by Eagleton¹¹ and by Ginther¹² in the 1960s came to naught (although Ginther coined the glorious term Durchgriffshaftung – literally, something like ‘see through responsibility’ – to discuss the responsibility of member states for acts of the organization¹³), and quickly moved to the possible responsibility of member states for acts of their organizations. For while practically speaking, international organizations can and do affect third parties, the law had no way of handling this, so the idea that international organizations could be accountable in their own right, in their own name, as independent actors with their own international legal personality, just did not arise. And it could not even arise: in a rather literal sense, the thought had not yet been thought.¹⁴

That this situation was problematic became clear with the International Tin Council (ITC) litigation in the mid-1980s. The ITC, an international organization based in London, became insolvent; banks and others claimed their money back; the ITC was unable to make good on its loans, and as a result several creditors started proceedings against the ITC’s member states. This however, was unsuccessful before the UK courts (where the litigation played out): if international organizations are separate persons, it follows that their accountability is separate from that of their member states. Accordingly, member states cannot be held liable for the acts of their international organizations. The ITC litigation made waves: the legal discipline started to realize that international organizations could actually do wrong in their own name – in this case, defaulting on debts – and perhaps it is no coincidence that the wake-up call related to large sums of money rather than the suffering of ordinary people. And there was nothing the law could do about it – or was there?

Various pens were moved, first of all to confirm the position that member states are and should be shielded.¹⁵ Others went a bit further and started to explore arguments of principle¹⁶ and, more inductively, the relevant case law of international and domestic tribunals.¹⁷

Others started to search for administrative precepts which could possibly be applied to instances of global governance, including the acts of international organizations. Most prominent among these is the Global Administrative Law approach (GAL), tapping into administrative law thinking in the hope of finding ideas that could be used in the ‘global administrative space’: this would include such ideas as participation in decision-making, providing reasons in judicial judgments, and using proportionality.¹⁸ Still, this did not solve all issues, partly because in order to hold international organizations to account, there must be standards according to which they can be held to account. Borrowing administrative principles from European and US traditions was considered a bit too Western-centric, and even within Europe there are fundamental differences about the role and function of public law: some view public law largely as a check on overzealous governance while others view it rather as enabling governance.¹⁹ Moreover, the GAL approach remained unable to resolve one of the fundamental issues: why, unlike states, are international organizations bound to respect rules they have not consented to?

Even the ILC, never the most agile body, stepped in, and between 2001 and 2010 developed a regime on the international legal responsibility of international organizations, the Articles on the Responsibility of International Organizations (ARIO). And the ILC put its finger on the sore spot. It suggested, sensibly enough, that organizations should be held responsible for their internationally wrongful acts, and these are thought to consist of two elements: a violation of an international legal obligation incumbent on the organization that is attributable to the organization. Both elements prove to be extremely difficult. This raises a further question, to be discussed in Section 3.3: why is international organizations’ accountability so difficult?

The very term ‘accountability’ (and related terms like ‘responsibility’ or ‘liability’) already carries a strong suggestion that the entity concerned has done something questionable. At issue is the control of the acts of the organization, but whereas ‘control’ is a relatively neutral, unloaded term that at most suggests that the organization needs someone in charge, accountability and related terms are considerably more politicized. Put differently, the very term ‘accountability’ presupposes what often needs to be proven: that international organizations do wrong – ‘control’, by contrast, raises the possibility of wrongdoing, but without having reached that conclusion just yet.

Furthermore, accountability (and related terms) is usually backwards-looking: it makes sense to speak of controlling what an international organization plans to do tomorrow, but it makes less sense to speak of holding it accountable for what it plans to do tomorrow. Linguistically, it would seem odd to incur accountability for something that has not yet taken place, although in pledging to respect particular principles, such as human rights and humanitarian standards, international organizations create expectations regarding their future behaviour, and may be called to account for deviations from these commitments. The point for present purposes is not that the term accountability is out of place – it is merely to suggest that the term itself is based on certain assumptions which may or may not withstand further scrutiny.

Relatedly, the question arises of what and whose standards are considered of relevance. The ILC focuses on international legal obligation, and that is fine as far as things go. But different constituencies might rely on different and possibly contradictory standards of accountability, reflecting their own policy preferences. Put concretely, donors to specific IOM projects may rely on different standards than migrants do, whose priorities may also differ from those of the member states collectively and from those of (often foreign-based) civil society organizations.²⁰ This is likely to result in confusion and a leaking away of accountability – how to decide whose preferences weigh heavier?

Relatedly, it makes sense to think that organizations should be held responsible for misconduct, but often the problem lies elsewhere: it is often claimed that the organization should be held accountable for acts done in the course of doing its job. This comes in broadly two variations. First, in the exercise of a task, the organization can stumble on other, external, standards, to which it may or may not be bound as a matter of law. The classic example is the lengthy discussion about the World Bank and human rights, with the Bank caught between its own constituent instrument and a number of other possible standards supported by different stakeholders. This applies also to international organizations which have publicly stated to respect human rights, as IOM has done, unless one could claim that the human rights at issue are peremptory norms of international law (jus cogens). This may apply to some human rights norms (the torture prohibition, e.g. or the non-refoulement rule), but is unlikely to apply to most human rights norms. The net result then is a conflict of norms, and those often defy easy solutions, even if formerly external standards are transformed into ‘internal rules’. They will, often enough, need to be balanced against other international rules.

The second scenario is where the organization causes damage (or contributes to it), without violating any particular international legal obligation. Here a standard scenario is that of the UN inadvertently bringing cholera to Haiti. The UN may have made some debatable decisions, such as contracting a local waste management company, likely for cost reasons. And most assuredly the UN should have issued an apology for a catastrophe happening on its watch. Still, it seems to have followed its own procedures for preventing the spread of communicable disease which had been working quite well for half a century, with a three-month window between testing and deployment. At worst (and not very plausibly, given the existence of these procedures), the UN can be accused of negligence, but how to give this hands and feet in international law? To some extent, this gets done by invoking an obligation to exercise due diligence, but due diligence itself remains rather elusive contents-wise, and it often remains unspecified why, as a matter of positive law, international organizations would be under an obligation to exercise due diligence.²¹

3.3 Tropes Underlying the Law

As noted, international organizations were imagined as entities without external relations, let alone legal interactions with third parties. Whether this was ever tenable is beside the point (and really, it never was tenable), but what is relevant is that this became a very strong assumption – where actors were not expected to interact with the outside world, the legal system need not make arrangements for this; and by the time external engagement became topical, the vacuum assumption was firmly in place.

Behind the accountability discussion lie deeper tropes. If there is a tension between external standards and the mandate of an international organization, why not simply settle this in favour of external standards? After all, that is what happens with states: states cannot use their internal set-up as an excuse for violating international law. So why are things different with respect to international organizations?

Here the topoi underlying international organizations law make an appearance.²² When international organizations are discussed, the adjective gets emphasized: international organizations are viewed as manifestations of the ‘international’, rather than as a particular kind of ‘organization’. Doing so taps into a number of related tropes. First, for many (and especially international lawyers), the ‘international’ has a specific attraction. The ‘international’ is somehow regarded as superior to ‘parochial’, internationalism is considered better than nationalism. International lawyers are not alone in this: the thought can be traced back centuries, to Kant²³ and many writing before him. Few might opt for world government, but somehow internationalism is synonymous to peace, to harmony, to universal understanding.

This in turn borrows from a deeper idea: cooperation is considered superior to the absence of cooperation. Whether the proposition is generally tenable, is debatable (torture too depends on many people working together²⁴), but for that no less forceful. Without cooperation, life would be ‘nasty, brutish and short’. The topos is a strong one, deeply engrained and embedded in political thought. And that entails that for international lawyers, a soft agreement is always preferable to no agreement at all: voilà the most obvious explanation for the popularity of ‘soft law’.²⁵ And international organizations, as manifestations of international cooperation, can accordingly do little wrong – almost literally.

With respect to international organizations, there is a further topos to consider: the idea that ‘the end justifies the means’. This applies with particular force to international organizations; these, after all, are almost by definition set up to reach a certain end. The very core of international organizations law is that they exercise a function, a task, set to them by their member states. This even applies to organizations whose goal is very abstract and somewhat contested: think of the European Union’s goal of becoming ‘an ever closer union’. This is impossible to demarcate with any precision, but important it is nonetheless considered to be.

It is no coincidence that Jellinek, writing in 1882, used the term Verwaltungszweck to discuss international organizations, with the word Zweck translating as goal, or end. International organizations have an end (as organizations generally cannot work without a goal or telos²⁶), and whatever contributes to that end should be given pride of place, while whatever might obstruct the achievement of the end should be brushed aside. Previous generations have intuitively recognized this, and have used biblical imagery to underscore the point. Claude gave his highly popular post-war textbook on international organizations the title Swords into Plowshares, in one linguistic stroke summing up the idea that peaceful order can be born out of the anarchical international society if only we let international organizations do their job.²⁷ And Singh, a future President of the International Court of Justice, even went one better, attributing to international organizations generally a crucial role in the ‘salvation of mankind’.²⁸ The message is clear: let international organizations do what they were set up to do, and the world will be a better place.²⁹ The idea holds a strong place in the collective minds of specialist lawyers: international organizations should act without impediments because they will bring us the salvation of mankind – and who would possibly want to stand in the way? This is irrespective of the precise international organization concerned: the oil cartel that is OPEC or the military alliance of NATO benefit from the positive image of international organizations founded on the above-mentioned tropes, as does IOM. The law has been unable to differentiate between organizations under reference to their perceived public ethos, and the precise constitutional mandates do not alter the picture. The topoi operate at a far deeper level, and even a hypothetical nasty international organization would be considered to manifest cooperation and represent ‘the international’, although in the case of an obviously nasty organization one might pause at thinking that the end would justify the means.

If the above is accurate, then it is no wonder that the law has problems thinking of international organizations as being accountable to third parties: the end, after all, justifies the means, and the end is considered so important that a little collateral damage is considered perfectly acceptable. On this line of thought, if UNHCR runs a refugee camp and decides to withhold food from those who seem a bit obstinate, that is considered quite acceptable: the obstinate interfere with the functioning of UNHCR.³⁰ And if the World Bank ends up displacing thousands of people in the name of a development project, again, the end justifies the means. Most of these topoi have a natural counterpart (local over global; sometimes cooperation is bad; some means are intrinsically bad), but the point for present purposes is precisely that these topoi strongly influenced – and still influence – the way international lawyers think about international organizations.

3.4 Internationally Wrongful Acts: Some Problems

But even without considering the above topoi, it will be difficult to hold international organizations to account. There are few institutional external arrangements available to enforce such obligations as international organizations may have. Typically, international organizations enjoy a large measure of immunity from legal proceedings before domestic courts. This applies also to IOM, which under Article 23 of its Constitution can claim a functional level of privileges and immunities. The text is somewhat ambivalent, with paragraph 3 of the same Article suggesting that the privileges and immunities ‘shall be defined’ in agreements between IOM and states. This can be seen as meaning that there are no privileges and immunities in the absence of further agreements, but this is difficult to reconcile with the wording of paragraph 1, stating that IOM ‘shall enjoy’ privileges and immunities to the extent necessary for its functioning – and this would seem not to require further action. That said, calling for further action is functionally expedient, in that positing the absence of privileges and immunities suggests IOM may sometimes be impeded in its work, and detailed agreements will contribute to legal certainty.³¹

Moreover, international organizations cannot be made to appear before the International Court of Justice (ICJ), as only states can be parties to proceedings before the Court. And much the same applies to other international tribunals. There have been some arbitrations before the Permanent Court of Arbitration (PCA) involving international organizations, but the awards have invariably been kept confidential. Hence, it is difficult to get a sense of which rules were applied, how responsibility (if any) was conceptualized, et cetera.³² This does little to boost confidence in closing the widely perceived remedies deficit.³³ And sometimes, quasi-judicial panels are set up to address specific instances or episodes of governance, or limited aspects thereof: think of the Kosovo Human Rights Advisory Panel, set up in the aftermath of the UN exercising governmental tasks in Kosovo, or the EU’s Human Rights Review Panel, accompanying the EU’s exercise of governmental tasks in Kosovo.³⁴ Still, these remain exceptions.

For the better part, the options available tend to be internal to international organizations: compliance mechanisms, ethics offices, departments of institutional integrity. Useful as these may be,³⁵ they remain internal mechanisms, typically testing the activities of the organization concerned against internal standards. These standards may, but often do not, reflect international legal standards.³⁶ But even if it were possible to identify available remedies, two problems of a more principled nature remain. The first of these pertains to the basis of obligation in international law when it comes to international organizations; the second concerns attribution.

The various attempts to formulate accountability standards for international organizations invariably have problems in coming to terms with the basis of obligation. The ILC’s ARIO specify that international organizations can only be held responsible in international law for their internationally wrongful acts, consisting of two elements: a violation of an international legal obligation incumbent on the organization, and attributable to the organization. And this raises two obvious questions: how do organizations incur international legal obligations, and when exactly are acts attributable to them? ARIO deal extensively with the latter question (more on this below), but not so much with the former; hence, guidance must be found elsewhere. In the WHO-Egypt advisory opinion, the ICJ held in 1980, somewhat in passing, that international organizations incur international legal obligations in three distinct ways:³⁷ they are bound by the treaties they are parties to; by their internal rules (and these may reflect international law) and by what the Court termed, purposefully one may assume, the ‘general rules of international law’.³⁸

International organizations conclude a variety of treaties. Nigh-on all international organizations will have concluded a headquarters agreement with their host state, and many will conclude operational agreements in their spheres of activity: troop-contributing agreements, mission agreements and status-of-forces agreements in the case of the UN; loan agreements in the case of the World Bank, et cetera. But participation of international organizations in multilateral treaties of a quasi-legislative nature is almost non-existent, and even more so if the EU (the only organization with a proper foreign policy, if it can still be considered an international organization to begin with) is excluded. International organizations are neither parties to human rights treaties, nor to humanitarian treaties or to environmental protection treaties.³⁹ And what applies to international organizations generally, applies to IOM as well – it is not a party to any multilateral convention of the sort mentioned above.

It is not uncommon for international organizations to have internal instruments reflect international law. The World Bank will generally be mindful of human rights (as will other international organizations: very few of them commit torture, practice slave labour, or stifle freedom of religion), while the UN Secretary General in the 1990s issued a Bulletin declaring that the UN will apply the ‘fundamental principles and rules’ of international humanitarian law.⁴⁰ Laudable as the latter may be, it nonetheless provides the UN with considerable wriggle room in concrete cases: it is not bound by the letter of the Geneva Conventions. Potentially important for present purposes, moreover, is that in 2013 the UN adopted a Human Rights Due Diligence Policy (amended in 2015) which, so it is argued, ought to be respected by entities related to the UN, including IOM.⁴¹

The most controversial source listed in the WHO-Egypt opinion, however, is the reference to the ‘general rules of international law’. Many observers have taken this as a reference to ‘customary international law’,⁴² but doing so is unpersuasive: had the Court wanted to refer to the entire corpus of custom, it could have done so explicitly. The better view is that the Court’s words refer to the ‘secondary rules’ of the legal system: those addressing the creation and application of primary rules.⁴³ It would be difficult to imagine that international organizations could escape from general notions of treaty-making, or the general rules on jurisdiction; but it is also unlikely that, e.g. the International Civil Aviation Organization would be bound by the entire corpus of customary international law, regardless of whether it has in some way consented.⁴⁴ The one possible exception is jus cogens (peremptory norms from which no derogation is permitted, such as the prohibition of genocide), but this follows from the very nature of jus cogens: it has to be binding on all actors, including international organizations; otherwise it cannot be considered jus cogens.

If the basis of obligation is difficult to capture, no less problematic is the idea of attribution. To put it bluntly: international organizations rarely have their own police officers, customs officers, and the like: they often depend for implementation of action on cooperation by their member states. Plus, in turn, their decisions are often traceable to some or all member states, and could (generally) not be taken without some member state involvement. At the very minimum then, international organizations can rarely act in full independence from member states. But there is more to it still: often enough, international organizations participate in projects in which others also participate. Well-known is the collaboration in the field between IOM and UNHCR, often also involving governments and other actors. In a development project, participants may include private banks, construction companies, local governments, and multilateral development banks. In other cases, such as peacekeeping, it may involve not just national troop contingents but also transportation companies, waste management providers, and yet other participants, including regional organizations. Hence, it is often difficult, perhaps impossible, meaningfully to distinguish between the various participants in attributing behaviour.

3.5 A Bird’s Eye View on ARIO: Answering a Different Issue

The ARIO are based on several assumptions about their practical effect. Above, it was already noted that they require a violation of an international legal obligation incumbent on the organization (rather than its member states), and this violation must be attributable to the organization concerned. Both elements, it was argued above, will rarely materialize, and they will even more rarely materialize at the same time.

Some scenarios seem obviously to engage the responsibility of the organization concerned. One can easily imagine, for instance, that pushbacks operations engaged in by Frontex, the EU’s border agency, will possibly engage the EU’s responsibility under international law. Pushbacks may in certain circumstances violate the prohibition of non-refoulement (often seen as an example of jus cogens,⁴⁵ and therefore binding on the EU⁴⁶), and Frontex is an agency of the EU – hence, responsibility is prima facie likely.⁴⁷ Likewise, mistreatment of refugees by UNHCR staff or IOM staff running a refugee camp or similar settlements will prima facie engage the organization’s responsibility, as will sexual abuse by UN peacekeepers.

And yet, things are not entirely clear. One of the curiosities behind ARIO is that their application is premised on classical international legal thinking: Articles 43 to 49, regulating the possibilities for invoking ARIO, are limited to sketching the circumstances under which responsibility can be invoked by a state or an international organization. Systemically, this makes eminent sense: international organizations, by and large, only hold international legal obligations towards either states or other international organizations, so it stands to reason that these two categories of entities are the ones upon which the ARIO are premised. Put differently, under classic international law as it applies to international organizations, IOM has the capacity to conclude an agreement with, say, Uzbekistan and subsequently breach it; and IOM has the capacity to conclude an agreement with, for example UNHCR. And should customary international law apply to international organizations to begin with, it will be in the form of obligations owed towards other states and other international organizations.⁴⁸ As a result, it is no surprise that ARIO discuss the circumstances in which responsibility can be invoked by directly injured states and international organizations; that it prescribes that states and organizations give notice when they invoke responsibility; that ARIO refer to the general admissibility criteria known to inter-state international law (nationality of claims, and exhaustion of local remedies); that states and organizations can lose their right to invoke responsibility; that it provides for invoked responsibility by a plurality of states or organizations; and that it eventually provides for responsibility to be invoked by states and organizations that are not directly injured. The underlying model is that of classical international, inter-state, law, which is limited to addressing claims between states, and to those cases where private complaints come to be owned by the state of nationality of the complainant. The only concession concerns the circumstance that under ARIO, international organizations too can be part of the system, and the only (minor) departure from the classic model consists of the possibility to invoke responsibility on behalf of the community interest.

But what has gone missing here is the circumstance that in the twenty-first century, the most problematic situations are not those where IOM violates a treaty obligation towards Uzbekistan or UNHCR, but where organizations exercise public power: where Frontex engages in pushbacks; where IOM runs a migration processing centre; where UNHCR staff decides on refugee status applications, where the UN exercises governance and policing powers.⁴⁹ It is here that ARIO are found wanting, resting content with the savings clause of Article 50, suggesting that ARIO is ‘without prejudice’ to entitlements private or legal persons may have to invoke ARIO. Again, in systemic terms this makes sense, and yet, it also suggests that when most needed, ARIO retreat. Private persons with a grievance against an organization need to find another legal basis for invoking responsibility – the individual having been badly served by IOM needs to identify a different legal basis. This, in turn, is harmonious with Article 33 of ARIO, suggesting that rights ‘may accrue directly’ to individuals or legal persons. By way of example, the official ARIO Commentary mentions obligations of organizations arising out of employment, and the effects of peacekeepers’ breaches on individuals.⁵⁰ But this ignores that while for the former there might be judicial mechanisms available in the form of administrative tribunals, this does not apply to the latter: confronted with allegations concerning the activities of peacekeepers, international organizations will be quick to invoke their immunity from suit.

If the first relevant assumption underlying ARIO is the classical inter-state model of international law, oblivious to the exercise of public authority by international organizations, the second is equally problematic, and harks back to the problem of attribution. The basic idea, understandable enough in a liberal society where actors are supposed to be autonomous and thus to be held responsible for their own actions, is that responsibility can always be carved up between those participating in a wrongful act. And in theory, or ex hypothesi perhaps, it can: one can make fine distinctions and yet finer distinctions about how actors collaborate and how this affects ‘their’ contribution to a wrongful act, and this is precisely what ARIO aim to do. It contains over a dozen Articles on attribution in one way or another or, put differently, around 20% of the ARIO is devoted to attribution. The least problematic of those are Articles 6 through 9, largely addressing the acts of international organizations themselves and suggesting that acts of an organization’s organs and agents are attributable to the organization.

Articles 14–19 see to divided responsibility: an international organization can incur responsibility for aiding and assisting another entity in committing a wrongful act – hence, it is not excluded that IOM would incur responsibility for training the Libyan Coast Guard and providing it with equipment and infrastructure.⁵¹ Organizations may also incur responsibility for directing and controlling such an act; for coercing another entity in such an act; for using member states to circumvent obligations; and as members of another international organization. And Article 19 underlines that this is ‘without prejudice’ to the separate responsibility of other international organizations or states. The model, therewith, is one of ‘carved-up responsibility’: each and every act can presumably be broken down into smaller pieces; for some of these the organization will incur responsibility, for some others a collaborator will incur responsibility. The same presumption underpins a final set of articles, Articles 58–63, addressing the partial responsibility of states for the acts of international organizations and largely mirroring Articles 14–19: aiding and assisting by states; direction and control by states; coercion by states; circumvention of obligations resting upon states, and express or implied acceptance of responsibility by states, and again ‘without prejudice’ to the possible responsibility of the organization concerned or any other state or organization. The message then is clear: each and every single wrongful act can be broken down, divided, parcelled out. In a literal sense, there is no ‘sharing’ of responsibility envisaged, as each participant can potentially be held responsible for its own contribution. In other words: a scenario in which IOM helps to run a detention centre in Libya and is financed, in part, by the EU, would cause serious intellectual difficulties, for how to break this down into manageable bits of activities that might incur the responsibility of the various participants?⁵²

Hence, the question arises: how realistic is it to think of parcelled responsibility? Its provenance is understandable: the philosophical basis of acceptable politics (and therewith law) is individualist and liberal, and has been for centuries.⁵³ It is considered unfair (with minor exceptions) to punish A for acts of B or C, and thus there is a strong philosophical imperative to divide wrongful acts into a multitude of component parts for which a multitude of different actors can be held responsible. But in the real world, such clear-cut divisions are not always possible or plausible and, what is more, many have discovered that this liberalism invites them to artificially assign tasks to different entities, each with their own sphere of responsibility – this is how Finnair can claim, selling products on a Finnair flight and with prices listed on a Finnair menu, that responsibility rests elsewhere, for responsibility can always be made to rest elsewhere, either upwards (with the assignor) or downwards (with the sub-contractor).

3.6 An Excursion into IOM Mechanisms

Even though IOM is not legally bound to any human rights convention, the understanding is that at the very least, by concluding the 2016 IOM-UN Agreement, it bound itself to respect human rights, broadly speaking.⁵⁴ The Agreement provides, after all, in Article 2, paragraph 5 that IOM ‘undertakes to conduct its activities’ in accordance with the purposes and principles of the UN and with ‘due regard to the policies of the UN furthering’ these purposes and principles, as well as ‘other relevant instruments in the international migration, refugee and human rights fields.’ What exactly this means in ordinary language is not entirely clear (and that is probably no coincidence), but at least it would seem to suggest that IOM has committed itself to act with a human rights sensibility.

In the virtual absence of external accountability mechanisms such as courts, IOM has developed some internal mechanisms to hold it to account, but it should be noted here that the term accountability in itself is versatile, and covers many forms of control.⁵⁵ Thus, IOM has an Office of the Inspector-General, which can evaluate the acts of individual IOM officials⁵⁶ and is otherwise engaged in auditing IOM’s country offices or particular policies, but mostly in terms of effectiveness, understood in terms of whether the policies are effective in achieving their stated aims, or whether the country offices are run effectively from a bureaucratic perspective. And this has fairly little to do with how accountability is usually conceptualized in discourses surrounding international organizations. Similarly, like so many other international organizations, IOM as an employer has accepted the jurisdiction of the International Labour Organization Administrative Tribunal (ILOAT), which serves as the tribunal deciding staff disputes for some sixty international organizations. It has done so since 1999, and has thus far (late 2021) been involved in around fifty ILOAT cases which, given the circumstance that IOM employs some 15,000 people, is very decent.⁵⁷ That said, a report ranking the internal justice systems of a number of international organizations is not very impressed: it ranks IOM 29th out of the 35 organizations scrutinized, which is all the more problematic, perhaps, as IOM is the fourth largest employer of the organizations covered.⁵⁸ Either way, its activities as employer are not directly related to the more usual conception of accountability (focusing on the substantive activities of the organization rather than its role as employer), and neither is the work of IOM’s Office of the Ombudsperson.

The closest to accommodating regular accountability concerns at IOM is the Ethics and Conduct Office, providing counsel, promoting ethical awareness, reviewing allegations of retaliation and recommending protective measures. This too is not exactly a promise to act in conformity with generally accepted human rights standards, but comes somewhat closer. In order to give effect to this, the IOM website even offers a Confidential Reporting Form, offering individuals the chance to complain about fraud and corruption and misuse of resources (again, perhaps more useful to the organization than to the complainant) but also about harassment, retaliation and sexual exploitation and abuse.⁵⁹

In 2020, IOM summarized and streamlined its accountability policies by means of a newly established Accountability to Affected Populations framework,⁶⁰ realizing that its activities may have broader effects than merely on those who benefit from IOM’s work. While the document stipulates to be based on principles such as ‘do no harm’, non-discrimination, and zero tolerance for sexual abuse and exploitation, at no point does it claim that IOM will respect particular international legal instruments. The document comes closest in pledging that IOM’s crisis-related operations will adhere to ‘the humanitarian principles of humanity, impartiality, neutrality and independence in the delivery of its humanitarian response’.⁶¹ When it comes to data protection, moreover, it adheres to its own data protection principles and those of the UN, rather than those promulgated for more general use, such as the EU’s General Data Protection Regulation.⁶²

3.7 Conclusion

If and when IOM does wrong, it will be difficult to hold it to account under international law. This is partly because few external accountability mechanisms are available, but the problem (if that is what it is) runs much, much deeper than merely the absence of suitable mechanisms. It is written into the DNA of international organizations law that accountability will be difficult to achieve, regardless of the availability of mechanisms, the existence of privileges and immunities, and related matters. The heart of the matter is that the underlying framework does not allow for accountability, from a legal perspective at least: the ‘software’ of putative accountability schemes is structurally incompatible with the ‘hardware’ of functionalist legal theory and functionalist international organizations law. Whether other, perhaps less ‘legal’, mechanisms would fare better remains unclear. Recognized approaches propagated in the public administration literature (thinking of IOM as having ‘clients’ that it would be accountable to in accordance with a market model, for example, or enhancing possibilities for participation by stakeholders in decision-making and implementation⁶³) do not appear to be very practical when it comes to international organizations generally, and much less so in times of urgency and crisis.

The only possible way out is not to have more rules; is not to have more tribunals; is not the lifting of immunity; the only way out, instead, is to re-think international organizations law from the ground up. Neither changing the IOM Constitution nor creating more internal mechanisms will do the trick as long as the ‘operating system’ is not capable of accommodating accountability towards third parties. As long as the law is dominated by the vacuum assumption, established over a century ago, discussing accountability will come to naught. It is only once international organizations are treated, in law, as the autonomous political actors they are, that discussing their accountability towards third parties has a chance of success.

In addition, at the risk of sounding Weltfremd, much also depends on organizational culture: an organization that internalizes a virtuous mind-set among leadership and staff might be more inclined to behave responsibly than an organization where a ‘Just Do It’ mentality prevails or, worse perhaps, an organizational culture steeped in harshness and rough competition. The point is familiar from studies on business leadership⁶⁴, and may be extended to global governance, including international organizations such as IOM.⁶⁵

4 An Assessment of IOM’s Human Rights Obligations and Accountability Mechanisms

Stian Øby Johansen

4.1 Introduction¹

Despite its rapid growth since the 1990s, the International Organization for Migration (IOM) remains an understudied actor in the migration field.² Today, IOM’s size and the scale of its operations are closing in on those of the UN High Commissioner for Refugees (UNHCR).³ The particular nature of IOM’s work also carries with it obvious risks of human rights violations – particularly when it operates ‘migrant processing centers’, assisting with returns, and working in immigrant detention centers.⁴ Nevertheless, the attention paid to, for example, the UNHCR, is several orders of magnitude greater than to IOM. Legal scholars in particular have paid very little attention to IOM.⁵

The extent of IOM’s human rights obligations remains unclear. Like the vast majority of international organizations, IOM is not party to any human rights treaties, nor does its Constitution or internal law contain a human rights catalog. There is also widespread disagreement regarding the basis and scope of human rights obligations for international organizations under general international law.

Perhaps as a consequence of this uncertain state of the substantive law, IOM’s human rights accountability mechanisms are completely unexplored legal territory. Their very existence was indeed (wrongly) denied in a 2003 report by Human Rights Watch, which unequivocally stated that ‘there is no mechanism in place to hold the agency accountable for returning individuals to places where their lives or freedom could be under threat due to persecution’.⁶

In this chapter, I will argue that IOM does have some human rights obligations under general international law, and that there are some mechanisms that may – albeit indirectly, and only in certain circumstances – hold IOM to account.⁷ The reality today is thus not quite as bleak as Human Rights Watch asserted back in 2003. Still, IOM’s existing accountability mechanisms are clearly insufficient. They do not respect the right to an effective remedy for the potential victims of IOM human rights violations, nor do the mechanisms fulfill key procedural justice criteria.

To provide some background for the analysis and assessment, I will outline IOM’s competences and activities in Section 4.2. Then, in Section 4.3, I will focus on the need for accountability, which arises due to the combination of the facts that IOM has human rights obligations (Section 4.3.1) and that it may plausibly violate those obligations (Section 4.3.2). Having established the need for accountability, I turn to the analysis and assessment of IOM’s human rights accountability mechanisms in Section 4.4. Finally, I conclude in Section 4.5 with an overall assessment of IOM’s human rights accountability, and some thoughts on potential avenues for reform.

4.2 IOM’s Competences and Activities

The key function of IOM and its predecessors is to facilitate orderly migration flows by providing migration services.⁸ Given the seemingly technical nature of this function, the amount of power wielded by IOM in providing such services was long overlooked. IOM’s immediate predecessor was, for example, ‘dismissed by scholars as a significant international actor in its own right’ and ‘frequently […] derided as a “travel agency,” booking passages for all kinds of migrants’.⁹ In recent years, however, scholars have engaged more critically with IOM’s work and technocratic ethos, thus revealing that it has evolved to become a powerful international organization.¹⁰

As is the case for many international organizations, the seemingly technocratic nature of IOM masks its true powers.¹¹ Pécoud explains this well:

Formally, IOM is a mere go-between […] yet, in practice, it does play an important role: its bureaucratic skills, along with its experience of the field and expertise, make it a key partner for all parties, to the extent that it can propose new projects and elaborate the narratives to justify them. […] By occupying the intermediate space between states, IOM sits on both chairs and claims to be useful to both sides. […] This apparent neutrality reinforces IOM’s political role by making it look like an ‘impersonal, value-neutral, not self-interested and hence technocratic actor whose purpose is not the exercise of power but equitable problem-solving’ […]. This enables the diffusion of norms and practices that would otherwise risk being rejected by states.¹²

Building on these insights, Klabbers has explained how IOM stands out from the ideal type of international organizations.¹³ This ideal type is an entity with a will of its own, composed of several organs, performing technocratic tasks delegated to it by its member states in pursuit of global public goods.¹⁴ It is inherent in this ideal type that there is a unidirectional line of influence: the member states should be in control of the organization.¹⁵ To enable such ideal-type international organizations to effectively deliver global public goods on behalf of their collective memberships, without undue (political) interference, they are endowed with extraordinary privileges and immunities.¹⁶

IOM does not fully live up to this ideal type. Its service-oriented nature entails that IOM does ‘some of the “dirty work” of states, at a larger scale than applies to most other international organizations and in ways that do not apply to most other international organizations, often commissioned by individual member states’.¹⁷ It therefore acts less in the collective interest of its member states than what is typical for international organizations. The way IOM is financed contributes strongly to this service-oriented modus operandi, as it is dependent on earmarked funds to finance its activities, provided by states under contracts for services rendered (often in third states). IOM is thus forced to enter the ‘market for migration’, where it operates with considerable success.¹⁸

Another factor distinguishing IOM from this ideal type is its weak association with global public goods.¹⁹ Notable in this regard is IOM’s lack of a protection mandate. The service-oriented nature of the IOM Constitution contrasts sharply with, for example, the Statute of the UNHCR, which establishes the provision of ‘international protection’ to refugees as the UNHCR’s core function.²⁰ Despite the lack of such a protection mandate, IOM ‘has thrived by acting as an entrepreneur, capitalizing on its malleability and reputation for efficiency’.²¹

The flexibility of IOM’s mandate has made it attractive to states. It may assist a broad range of persons – not only those who migrate voluntarily, for economic or social reasons, but also refugees and displaced persons.²²

Moreover, IOM does not shy away from exercising what Bradley characterizes as ‘compulsory power’ over migrants.²³ It has operated detention facilities, carried out returns that are ‘voluntary under compulsion’, assisted member states in managing their borders, and provided ‘tailored operational assistance’ to the migration and consular departments of states.²⁴ The nature of its work brings IOM into close contact with some of the most human rights-sensitive issues in the migration field.

4.3 The Need for Accountability

Over the last couple of decades, there have been repeated calls for increasing the human rights accountability of IOM. In 2003, Human Rights Watch ‘urge[d] member states to request that IOM develop effective accountability mechanisms to answer criticism and allegations with respect to IOM practice in the field and its impact on human rights’.²⁵

From a legal perspective, a need for human rights accountability mechanisms arises when two conditions are present. First, the organization in question must have human rights obligations. Second, the organization must plausibly be able to violate those obligations in the course of its conduct. In the following, I will first identify the human rights obligations of IOM (Section 4.3.1), and then demonstrate that IOM may plausibly violate those obligations (Section 4.3.2).

4.3.1 The Human Rights Obligations of IOM

There are several possible sources of human rights obligations for international organizations.²⁶ The constituent treaties or the internal law of the organization may contain human rights obligations.²⁷ Moreover, a select few human rights treaties allow for the accession of (certain) international organizations. Finally, international organizations are bound by any human rights obligations incumbent upon them under general rules of international law.

The IOM Constitution does not contain any clear-cut human rights obligations. Yet, there are some human rights aspects of the IOM Constitution that should not be overlooked, and which I will briefly discuss in Section 4.3.1.1. Thereafter, in Section 4.3.1.2, I will demonstrate the (lack of) treaty-based human rights obligations for IOM. Finally, I turn to outlining IOM’s human rights obligations under general international law in Section 4.3.1.3.

4.3.1.1 Human Rights and the IOM Constitution

The IOM Constitution contains no explicit references to human rights. Instead, it ‘quickly gets down to business’,²⁸ which for IOM is the provision of ‘migration services’ – in particular to make arrangements for the ‘organized transfer’ of migrants.²⁹ However, the IOM Constitution is not completely devoid of human rights-related language. As noted by Perruchoud, some fragments of the preamble to the IOM Constitution have ‘a clear link with human rights’.³⁰ For example, the seventh preambular paragraph highlights the need for cooperation for research and consultation on migration issues, inter alia with regard to the ‘needs of the migrant as an individual human being’. Fragments such as these are, however, counter-balanced by the references to the need for migration services to ensure the orderly flow of migrants across the globe which permeate both the preamble and the Articles of the IOM Constitution. The closest one gets to a human rights-related provision in the actual Articles of the IOM Constitution is Article 1(d), which provides that IOM may offer states services relating to ‘voluntary return migration, including voluntary repatriation’ (emphasis added). This provision may limit IOM’s competences when it comes to providing return services and assisting with voluntary returns,³¹ but it cannot reasonably be interpreted as a substantive human rights obligation for the organization.

4.3.1.2 Treaty-based Human Rights Obligations for IOM?

Unsurprisingly, IOM is not party to any human rights treaties. With the sole exception of the European Union, which is party to the UN Convention on the Rights of Persons with Disabilities,³² there are so far no international organizations that are party to human rights treaties.³³

Human rights obligations may in principle also arise from other treaties. One potential candidate is the Agreement Concerning the Relationship between IOM and the UN.³⁴ It contains one provision alluding to human rights, in Article 2(5), according to which IOM ‘undertakes to conduct its activities in accordance with the Purposes and Principles of the [UN Charter] and with due regard to [UN policies] furthering those Principles and to other relevant instruments in the international migration, refugee and human rights fields’ (emphasis added).

As pointed out by Aust and Riemer, while this provision is ‘anything but clear-cut’, it can at least be divided into two parts, separated by the word ‘and’.³⁵ Both of these must be read in their context, and informed by the purpose of the Agreement. Given the context – notably that Article 2 has the heading ‘Principles’ – one should be wary of reading too much into them. The purpose of the Agreement, which according to its Article 1, is to strengthen the cooperation between the two organizations and enhance their ability to fulfill their respective mandates, is arguably a further argument against reading substantive human rights obligations into Article 2(5).

The second part of Article 2(5), according to which IOM shall take ‘due regard’ to certain policies and instruments, is phrased in non-obligatory, aspirational language. Given the context and purpose of the Agreement, this part cannot be read as establishing human rights obligations for IOM.

The first part, on the other hand, is phrased on more obligatory terms. Aust and Riemer therefore argue that it gives rise to legal obligations.³⁶ Still, they underline that this first part is not much of a commitment to human rights.³⁷ The articles on purposes and principles in the UN Charter, which this first part refers to, only contain a single provision mentioning human rights, which makes ‘promoting and encouraging respect for human rights’ one of the purposes of the UN.³⁸ Since this vague language does not establish substantive human rights obligations for the UN,³⁹ it cannot do so for IOM either. At most it obliges IOM to ‘promote and encourage respect’ for human rights by others.⁴⁰

4.3.1.3 IOM Human Rights Obligations under General International Law

As subjects of international law, international organizations are bound by ‘any obligations incumbent upon them under general rules of international law’.⁴¹ General international law is an umbrella term for two legal sources: customary international law and general principles of law. Human rights obligations flowing from any of these two sources are in principle binding upon all subjects of international law – international organizations included.⁴² That said, international organizations are not sovereign, but have limited, conferred powers. It follows that not all obligations flowing from general international law are suitable for application to international organizations. Only those obligations that concern the sphere of competences of the organization may be applicable, and adaptations may have to be made to take into account the specific characteristics of the international organization in question or international organizations generally – notably their limited powers.⁴³

Human rights obligations are generally well-suited for application to international organizations. Their cross-sectoral nature makes them relevant to powers, activities, and functions falling within the spheres of competences of most international organizations. Moreover, negative human rights obligations – i.e. obligations of abstention – can be applied to international organizations without any adaptations. No matter how limited the powers of an organization are, it will always be capable of abstaining from acting.⁴⁴ Positive human rights obligations are in principle also suitable for application to international organizations, provided that they have the necessary competences to fulfill them.⁴⁵

Thus, only the elephant-in-the-room-question remains: which human rights obligations form part of general international law? This is a highly contested issue, with no clear answer, and which I can only scrape the surface of here.⁴⁶

Indeed, even the fundamental question of how to identify customary human rights law is debated. Due to the lack of sufficiently uniform state practice, very few human rights obligations can be identified using the traditional two-element test, according to which both widespread practice and opinio juris are required.⁴⁷ Much of what is often put forward as evidence of state practice – e.g. incorporation of human rights into domestic law, practice of international organizations, decisions of international courts – does not constitute state practice according to traditional conceptions of custom.⁴⁸ Thus, the idea that the just-mentioned forms of ‘paper practice’ count as state practice, or that the state practice element of customary international law should be downplayed, is particularly prevalent in the human rights field.⁴⁹ But this may be more wishful thinking than lex lata.⁵⁰ Nevertheless, even if one takes a broad view on what constitutes state practice and/or opinio juris, only a limited catalog of human rights obligations can plausibly be identified.⁵¹

For those, like me, who are skeptical of modifying the two-element approach to identifying customary international law, general principles of law are a more fitting source.⁵² According to the ICJ Statute Article 38(1), general principles of law are a source of international law hierarchically equivalent to custom. General principles of law perform many functions in international law, including an important role as gap-filler.⁵³ They constitute a ‘dynamic source which adds new rules in spheres in which there is as yet no practice of states sufficient to give a particular rule the status of customary law’.⁵⁴

General principles of law may be derived either from (a) principles of law common to all systems of domestic law, which are transposable to the international sphere, or (b) the clear acknowledgment by states, through treaties and other international instruments, that such norms exist.⁵⁵ The latter category of general principles appear to provide what the proponents of a wide understanding of the practice element of customary law are advocating: general international law derived primarily from opinio juris.⁵⁶ Indeed, more or less the same evidence is relevant regardless of whether one argues for the existence of human rights obligations under general international law by using (a flexible approach to) customary international law or by relying on general principles of law.

This evidence suggests that at least a limited set of fundamental human rights form part of general international law. First, human rights provisions comparable to those laid down in the Universal Declaration of Human Rights (UDHR) have been implemented – ‘even sometimes almost literally reproduced’ – in a vast number of domestic constitutions and bills of rights.⁵⁷ Second, domestic courts tend to refer to the UDHR rights as part of general international law.⁵⁸ Third, UN General Assembly resolutions frequently make reference to the duty of all states to faithfully observe the UDHR, and also condemn specific human rights violations as violations of international law.⁵⁹ Fourth, states criticize each other for serious human rights violations.⁶⁰ Fifth, the ICJ has ‘unambiguously accepted that the obligation to respect fundamental human rights is an obligation under general international law’ (though avoiding express references to customary international law).⁶¹

Regardless of which methodological view one subscribes to, there is, for these reasons, a fairly broad consensus that a core set of human rights obligations form part of general international law. These at the very least include some of the rights that are particularly relevant in the context of IOM’s work: the right to life, the prohibition against torture and inhuman treatment (including the prohibition against refoulement),⁶² and the prohibition against arbitrary detention. For the present purposes, the exact source of those obligations – custom or general principles – is immaterial. What matters is that, regardless of approach, these human rights obligations form part of general international law and are binding on all international organizations.⁶³

4.3.2 The Potential for Human Rights Violations by IOM

Today, IOM has co-opted the language of human rights.⁶⁴ Perruchoud moreover suggests that IOM’s role in providing services to ensure orderly migration flows indirectly contributes to ensuring the human rights of migrants.⁶⁵ The opposite, ‘irregular, unorganized, disorderly migration is likely to generate human rights problems: mass expulsion, exploitation of undocumented migrants’.⁶⁶ In the same vein, IOM’s current strategy document includes among the organization’s ‘strategic goals’ that it ‘is guided by the principles enshrined in the Charter of the United Nations, including upholding human rights for all’.⁶⁷ Other official IOM texts that emphasize the rights of those affected by IOM’s conduct, and the organization’s accountability, include the ‘Accountability to Affected Populations Framework’, published in late 2020.⁶⁸

While promising, this human rights-positive tone does not necessarily mirror the views of the entire organization.⁶⁹ As Bradley observes, ‘views on IOM’s roles and responsibilities vary significantly within the organization, particularly between its two main operational divisions, the Department of Migration Management and the larger Department of Operations and Emergencies’.⁷⁰

More fundamentally, IOM’s words and deeds do not appear to fully align. IOM often agrees to provide services that limit rather than advance the human rights of migrants.⁷¹ As Pécoud argues, ‘given its project-based and donor-driven nature, and its proximity to Western receiving states, IOM is bound to be involved in some of the toughest measures designed to fight undocumented migration’.⁷² When providing migration services in such contexts, the risk of causing or contributing to human rights violations is high. There is also ample evidence that this risk has been realized in practice.

Warnings about the human rights impact of IOM’s operations have indeed been sounded repeatedly since the turn of the millennium. In 2003, both Amnesty International and Human Rights Watch expressed concerns that some of IOM’s activities were detrimental to migrants’ human rights.⁷³ In 2013, the UN Special Rapporteur on the human rights of migrants decried the ‘structural problems’ IOM’s mandate and funding pose for the adoption of a human rights framework for the organization.⁷⁴ The Special Rapporteur also called for IOM’s mandate to be ‘considerably revised, with a solid basis in the international human rights framework’, and for all IOM staff to be ‘properly trained’ in this regard before the organization could join the UN system as a related organization.⁷⁵ The key concern across these reports is IOM’s willingness to engage in projects seeking to manage migration through ‘control and containment’, and to ‘combat’ irregular migration.⁷⁶

Reports from some specific IOM projects further reveal that the risk of human rights violations is not a theoretical and illusory prospect, but a practical and serious concern.

IOM’s role in operating so-called ‘migrant processing centers’ on Nauru from 2001–2008 provides a particularly egregious example.⁷⁷ These centers, which IOM operated on behalf of Australia, were in reality detention centers.⁷⁸ The detained migrants were ‘largely beyond the reach of independent scrutiny or oversight, […] and none of them had access to appropriate procedural safeguards or legal mechanisms to challenge their detention’.⁷⁹ Australia and IOM were widely denounced for arbitrarily detaining migrants in conditions that did not meet international human rights standards.⁸⁰

IOM directly managed these centers using its own staff and agents,⁸¹ whose conduct is quite obviously attributable to the organization.⁸² Although IOM operated under a ‘service agreement’ with the Australian government,⁸³ it is implausible that the terms of that contract were so specific that all relevant conduct was attributed exclusively to Australia. Indeed, Australia even argued publicly that those detained there were not in ‘Australian immigration detention’ because the camps were managed by IOM.⁸⁴ The conduct of IOM staff and agents operating these centers, including human rights-violating conduct, thus appears attributable to IOM.⁸⁵

The more recent case of Australian extraterritorial ‘migration management’ in Indonesia shows IOM playing a more typical role – as facilitator, rather than operator. IOM Indonesia, which is one of the organization’s largest missions, is almost fully funded by Australia.⁸⁶ While it does not operate detention facilities itself, IOM Indonesia supports the migrant detention operations of Indonesian authorities, in an effort to dissuade migrants from seeking asylum in Australia.⁸⁷ IOM support is instrumental to these detention operations; ‘Without the very generous Australian funding channelled through IOM, it is unlikely that Indonesia would detain thousands of transit migrants’.⁸⁸ However, while IOM has access to the Indonesian detention centers and provides them with technical assistance ‘with the stated aim (yet questionable achievement) of bringing detention centres into line with international human rights standards’, it has limited powers to demand changes.⁸⁹

Given IOM’s merely supporting and ostensibly human rights-promoting role, it is debatable whether human rights violations occurring in Indonesian detention centers may engage the responsibility of IOM. That is partly because the international law rules on derived responsibility (aid and assistance, direction and control, et cetera)⁹⁰ are still somewhat unsettled.⁹¹ The lack of clarity is in part due to a dearth of practice. There are, for instance, hardly any cases before international courts where responsibility due to aid and assistance has been as much as alleged.⁹² At the same time, the rules on derived responsibility are well-suited for analysing the typical modus operandi of international organizations, which is that of influencing or directing state behavior.⁹³ This is because, in such cases, the human rights-violating conduct of the state will only exceptionally be directly attributable (also) to the organization.⁹⁴

With regard to IOM’s involvement with Indonesian detention operations, the key question is whether (derived) responsibility arises for IOM due to its aid and assistance. Although states and international organizations agree that they may be responsible for aiding and assisting the internationally wrongful acts of each other, they hold differing views on the exact content of almost every condition for such responsibility to arise.⁹⁵ Still, there is sufficient agreement that the three main criteria can be roughly outlined.⁹⁶ First, there must be an action or omission that facilitates the commission of an internationally wrongful act by another state or international organization.⁹⁷ Second, the assisting state or international organization must have knowledge of the circumstances of the wrongful act or omission.⁹⁸ Third, the act or omission in question must be internationally wrongful if it had been committed by the assisting state or organization.⁹⁹

Considered in light of these criteria, IOM’s conduct in relation to the Indonesian detention centers does not appear to constitute internationally wrongful aid and assistance. That is because IOM’s conduct did not contribute toward the (alleged) human rights violations – as is required under the first criterion.¹⁰⁰ Quite the contrary: IOM provides technical assistance aimed at improving the human rights situation in these detention centers. Whether it succeeds in that endeavor or not is immaterial.

Performing supporting functions alongside states is a typical of IOM’s work. It may also at times be ‘a useful tactic which may help to deflect attribution of responsibility if and when necessary’.¹⁰¹ Still, some supporting functions performed by IOM may potentially engage its responsibility.

In particular, human rights violations caused by IOM’s ‘Assisted Voluntary Return’ programs are likely to engage the responsibility of IOM, due to its direct involvement in the return operations themselves.¹⁰² This is not an unlikely scenario, as there is a particularly high risk of human rights violations associated with such return operations.¹⁰³ Indeed, the very concept of voluntariness employed by IOM in this connection has been criticized:

The IOM takes a different view of voluntariness to the UNHCR, offering a false choice between two different forms of return: ‘Either as a free person receiving certain financial benefits in the form of return or reintegration assistance, or in shackles without any financial assistance’ […] This is in contrast to […] the accepted international legal view of refoulement. If people have no basis to stay in the host country, they cannot freely choose to return.¹⁰⁴

IOM has, for example, ‘urged refugees, asylum seekers and migrants to repatriate by taking advantage of their lack of knowledge and advising against claiming asylum [and also] threatened refugees and asylum seekers with criminal charges for illegal entry’.¹⁰⁵ By thus assisting with – or carrying out – returns that are ‘voluntary under compulsion’, IOM risks violating the prohibition against refoulement.¹⁰⁶ Indeed, given the high volume of returns facilitated by IOM,¹⁰⁷ it is almost inevitable that at least some violations occur. The conduct causing those violations will either be attributable to IOM directly (when IOM carries out returns itself), or IOM could be responsible for aiding and assisting states engaging in refoulement, provided that the above-described criteria are fulfilled.¹⁰⁸

To summarize, IOM has a core bundle of human rights obligations, and it may breach them in the conduct of its operations. There is thus a clear need for human rights accountability mechanisms.

4.4 IOM’s Accountability Mechanisms

4.4.1 An Overview

To be able to identify IOM’s accountability mechanisms, one must first know what to look for. In line with my previous work on the accountability mechanisms of international organizations,¹⁰⁹ I define them as mechanisms that:

• are distinct from the immediate power-wielder;

• are established by, and apply, law;

• operate according to predetermined rules of procedure;

• have a duty to handle complaints from individuals;

• have competence ratione personae in relation to one or more international organizations;¹¹⁰

• operate ex post (after the fact);¹¹¹ and

• conclude their consideration of complaints by issuing a decision or finding.

Since this chapter is concerned with human rights accountability mechanisms, I will limit my analysis and assessment to mechanisms that are capable of holding IOM to account for human rights violations. I will also limit the analysis and assessment to the mechanisms that may hold IOM to account toward third party individuals. That is because staff members can hold international organizations to account through an entirely separate set of accountability mechanisms, notably so-called international administrative tribunals.

Even with these caveats, my definition casts a pretty wide net. Mechanisms ranging from simple administrative appeals procedures, through ombudspersons and internal oversight mechanisms, to national and international courts are caught by the definition.¹¹²

When this net is cast in IOM’s waters, however, the catch is meager. There are only two potential IOM human rights accountability mechanisms: the Office of the Inspector General – an internal oversight mechanism – and domestic courts.¹¹³ The former is IOM-specific, while the latter is always a potential accountability mechanism vis-à-vis international organizations. This puts IOM roughly on par with UNHCR in terms of the types of accountability mechanisms available – though that is far from a gold standard.¹¹⁴

In the following, I will analyse and assess both mechanisms, using the framework I developed in The Human Rights Accountability of International Organizations.¹¹⁵ First, I will summarize this framework, in Section 4.4.2. Then, I will apply it to the Office of the Inspector General in Section 4.4.3, and finally domestic courts in Section 4.4.4.

4.4.2 The Analysis and Assessment Framework

Each IOM accountability mechanism will be subjected to a two-step process: First, the lex lata applicable to and within each accountability mechanism is identified. Second, the lex lata is confronted with a set of normative yardsticks. These normative yardsticks are sourced from two well-established approaches to assessing accountability mechanisms generally: the right to an effective remedy and procedural justice.¹¹⁶

The right to an effective remedy should be familiar to most international lawyers, as it is enshrined in most global and regional human rights treaties.¹¹⁷ It consists of two core requirements:¹¹⁸ First, individuals with arguable claims of human rights violations must have access to effective accountability mechanisms.¹¹⁹ Second, those accountability mechanisms must be capable of providing victims of human rights violations with substantive redress.¹²⁰

While most states are legally obliged to provide an effective remedy when the rights of individuals are violated, it is doubtful whether that is the case for international organizations. No international organization is party to human rights treaties providing for the right to remedy. Moreover, it is uncertain whether the right to remedy forms part of general international law and – even if it does – whether it is suitable for application to international organizations.¹²¹ These uncertainties aside, the right to an effective remedy is in any event relevant as a lex ferenda standard. As Shelton argues, ‘[i]mpunity that leaves human rights victims without a remedy calls into serious question the integrity of human rights guarantees and the rule of law’.¹²² When states establish international organizations capable of violating human rights, it is thus normatively justified to expect that the right to an effective remedy is ensured by those international organizations.¹²³

The second approach, procedural justice, is a conception of justice that focuses on the procedures used to make decisions on how benefits and burdens are allocated.¹²⁴ Legal theorists have discussed procedural justice in connection with the extensive debates on the rule of law. Even though the rule of law is a classic example of a contested concept, there appears to be a broad agreement that it includes the requirements that decision-makers are independent and impartial, and that those affected may participate in the proceedings.¹²⁵

Outside the fields of law and philosophy, procedural justice has in particular been studied by social psychologists, who are interested in people’s perceptions of justice.¹²⁶ After decades of research, the overarching conclusions reached by social psychologists is that people care more about how allocations are made (procedural justice) than the outcome of the allocation (distributive justice).¹²⁷ Two of the factors that affect people’s perceptions of justice are particularly relevant for the assessment of international organization accountability mechanisms: participation and neutrality.

From these two approaches – the right to an effective remedy and procedural justice – it is possible to derive four groups of normative yardsticks that are relevant for assessing international organization accountability mechanisms. The four groups of yardsticks coincide with the aspects of international organization accountability mechanisms they are capable of assessing: access, participation, neutrality, and outcome. I will briefly outline each group of yardsticks in the following.¹²⁸

4.4.2.1 Access

The importance of access is emphasized by both the right to an effective remedy and procedural justice research.¹²⁹ An accountability mechanism can only serve as an effective remedy if it is accessible.¹³⁰ Access is also a precondition for participation.

To be sufficiently accessible, international organization accountability mechanisms must have jurisdiction to deal with all potential human rights violations the organization may cause. This means that they must have jurisdiction ratione personae over the organization and aggrieved individuals, jurisdiction ratione materiae over all factual and legal issues that may arise as a result of human rights-violating conduct of the international organization in question, and appropriate jurisdiction ratione loci and temporis.¹³¹

Accountability mechanisms must be available to aggrieved individuals both in theory and in practice.¹³² This entails that the applicable admissibility requirements cannot be overly restrictive.¹³³ Moreover, aggrieved individuals must be given direct access to the accountability mechanism in question.¹³⁴

4.4.2.2 Participation

That people value participation when entrusting the solution of a problem or conflict to a third party is probably the most well-documented finding of procedural justice research.¹³⁵ But mere participation is not enough. ‘People only value the opportunity to speak to authorities if they believe that the authority is sincerely considering their arguments.’¹³⁶

Individuals should therefore be able to participate in the proceedings of international organization accountability mechanisms. The level of participation is not decisive, as long as aggrieved individuals perceive that they had the opportunity to express what was important to them.¹³⁷

Moreover, the decisions of international organization accountability mechanisms should make clear that the aggrieved individual has been listened to, and that their arguments have been considered.¹³⁸ This requires reasoned decisions. Unfavorable decisions must demonstrate that the individual’s views ‘were taken into account, but that they unfortunately could not influence the decision made’.¹³⁹

4.4.2.3 Neutrality

The right to an effective remedy requires that accountability mechanisms are neutral – i.e. independent and impartial.¹⁴⁰ Procedural justice research also highlights the neutrality of the decision-maker as a key factor affecting people’s perceptions of justice.¹⁴¹

Independence is usually associated with institutional safeguards that allow decision-makers to ‘free themselves to some extent from external pressures’.¹⁴² An accountability mechanism is sufficiently independent if two conditions are fulfilled. First, it must be functionally independent from the alleged human rights violator. This does not mean that international organizations must be subject to external accountability mechanisms. An internal accountability mechanism – that is, a mechanism that is part of the international organization alleged to have violated human rights – is sufficient if it is established as an independent body of the organization.¹⁴³ Second, the appointment and removal of members of the accountability mechanism must be done in a manner that ensures independence and protects against abuse of authority.¹⁴⁴

Impartiality is characterized by an emphasis on the subjective mindset and biases of the decision-maker.¹⁴⁵ As procedural justice research reveals, people believe that decision-makers ‘should not allow their personal values and biases to enter into their decisions, which should be made based upon rules and facts’.¹⁴⁶ It is not sufficient that members of international organization accountability mechanisms are impartial; they must also be perceived as impartial by reasonable observers.¹⁴⁷

4.4.2.4 Outcome

The final category – outcome – is concerned with the results that individuals may achieve by resorting to an international organization accountability mechanism. What kind of substantive redress should international organization accountability mechanisms offer?

When answering this question, tensions emerge between procedural justice research and the right to an effective remedy. Procedural justice research has demonstrated that the fairness of the procedures is more important than outcomes.¹⁴⁸ At the same time, substantive redress is a core aspect of the right to an effective remedy. There is no direct conflict between the two approaches, though. Procedural justice research does not dispute that the outcomes of disputes affect people’s perceptions of justice, but merely shows that the fairness of the procedure has an independent and significant impact on such perceptions.¹⁴⁹ Procedural justice research, in other words, does not oppose substantive redress, while at the same time, the right to remedy requires it.¹⁵⁰

A fundamental normative outcome yardstick – which can be derived from the right to an effective remedy – is that international organization accountability mechanisms must be able to stop a continuing human rights violation, prevent its re-occurrence, and/or afford redress to those individuals whose rights have been violated.¹⁵¹ That said, it is not possible to establish a general yardstick setting out the forms of redress that should be offered by international organization accountability mechanisms.¹⁵² This will depend on the circumstances. In some cases, for example when international organization accountability mechanisms hear arguable claims of violations of the right to life, they must be empowered to order compensation.¹⁵³

At the very minimum, the right to an effective remedy requires that human rights accountability mechanisms may render binding decisions.¹⁵⁴ Additionally, international organizations must respect and carry out the decisions of their accountability mechanisms.¹⁵⁵

4.4.3 IOM Office of the Inspector General

Turning now to the assessment of IOM’s accountability mechanisms, I begin with the Office of the Inspector General (OIG). The OIG exercises all the four key oversight functions that are typical for internal oversight mechanisms: auditing, evaluations, inspections, and investigations.¹⁵⁶ Only the latter function – investigations – is relevant for the present purposes, because it is the only one that entails handling complaints from individuals.¹⁵⁷

The purpose of OIG investigations is to examine allegations of misconduct by IOM staff members.¹⁵⁸ Like other internal oversight mechanisms, the OIG suffers from the structural weakness that it lacks jurisdiction over the organization itself. It may only hold individual staff members to account. That said, the ‘on duty’ conduct of staff members is attributable to the organization they are employed by – even if the staff member acted in excess of his or her authority or in contravention of instructions.¹⁵⁹ If an internal oversight investigation concludes that a staff member has engaged in misconduct, that finding therefore indirectly implicates the organization, too.¹⁶⁰

To fulfill its investigative tasks, the OIG as of 2021 employed 15 fixed-term investigators, four temporary investigators, and 12 consultants who are engaged ‘on a roster basis’.¹⁶¹ Since internal oversight investigations resemble police investigations, it should not come as a surprise that the OIG staff members consist of former law enforcement personnel, lawyers, and forensic accounting specialists.¹⁶²

OIG investigations are opened on the basis of allegations of misconduct submitted by individuals within or outside the organization. The OIG’s investigative process has two steps: a preliminary assessment and an investigation.¹⁶³

The purpose of the preliminary assessment step is not just to weed out issues that fall outside the OIG’s jurisdiction.¹⁶⁴ It is also possible to shelve a case at this stage if it is too complex, risky, or resource-intensive to handle. On the other hand, if the report itself contains conclusive evidence of misconduct, thus rendering further investigation unnecessary, the OIG may refer the case directly to the relevant Office of Legal Affairs.¹⁶⁵ It will then consider and advise the Director General on possible disciplinary measures (for staff) or contract termination (for contractors).

If the case is neither shelved nor closed at the preliminary assessment stage, an investigation is launched provided that the allegation(s), if proven, would constitute misconduct. The investigator(s) assigned to the case have wide powers of investigation. All IOM staff members are obliged to provide the OIG with ‘information in any form, including testimony’.¹⁶⁶ When the investigation is complete, the findings are written down in an investigation report. It, together with all relevant documents, is then submitted to the relevant Office of Legal Affairs,¹⁶⁷ which will then consider the report and the supporting evidence, before advising the Director General on possible disciplinary measures (for staff) or contract termination (for contractors).

The number of allegations of misconduct reported to the OIG has increased substantially over the last couple of years. The OIG attributes this to the launch of its new, more user-friendly, and secure online system for reporting allegations of misconduct.¹⁶⁸ Between July 2019 and August 2020, the OIG received reports of 715 cases of alleged misconduct – more than twice the amount the year before.¹⁶⁹ Despite the sharp increase in case load, the OIG managed to process 852 cases – more cases than the number received – thus reducing its backlog.¹⁷⁰ These numbers reveal that the level of investigatory activity at the OIG is quite substantial when compared to other internal oversight mechanisms. For example, the UN’s internal oversight mechanism (the Office of Internal Oversight Services) received 628 reports of alleged misconduct in the fiscal year of 2019–2020, an increase of about 70 compared to the year before.¹⁷¹ In this connection though, it must be added that the UNHCR, which is formally a UN body, has its own internal oversight mechanism (the Inspector General’s office). In the fiscal year of 2019–2020, the latter received 1 140 reports.¹⁷²

It should be noted, though, that 683 of the cases processed by the OIG were closed following an initial assessment, meaning that no particular investigative steps were taken.¹⁷³ The proportion of reported allegations of misconduct closed after an initial assessment was thus significantly higher in 2019–2020 than in the preceding years. The cause of this is unclear, since the OIG’s annual report does not comment on it at all. The proportion of cases closed following an initial assessment appears to be higher for the OIG than the UN Office of Internal Oversight Services and the UNHCR Inspector General’s Office. But the numbers are difficult to compare due to their statistics being reported in different ways, and in varying levels of detail. It is particularly difficult to assess the OIG’s practice of closing most cases at the initial assessment stage, since its statistics do not distinguish between cases that are closed due to conclusive evidence of misconduct and cases closed for other reasons.

As one can glean from this brief introduction to the OIG, it is an accountability mechanism with some potential. In the following section, I will analyse and assess the OIG’s investigative function more closely, using the analysis and assessment framework developed above in Section 4.4.2.

4.4.3.1 Access

Anyone can file a complaint with the OIG.¹⁷⁴ However, since the OIG can only investigate misconduct by IOM staff members, human rights violations caused by cumulative or anonymous conduct cannot be investigated. This restriction on the OIG’s jurisdiction is in itself problematic in light of the right to an effective remedy.

Moreover, the OIG’s investigative jurisdiction ratione materiae is limited to allegations of misconduct. The internal law of IOM defines misconduct as

[T]he failure by staff members to comply with obligations under the [staff regulations and rules], administrative instructions and other administrative issuances and bulletins issued by the organization or to observe the standards of conduct expected of an international civil servant.¹⁷⁵

There are no references to human rights in this definition. Nor are there (direct or indirect) references to human rights in the instruments referred to by the definition that are publicly available, such as IOM Staff Regulations.¹⁷⁶ In comparison, the UN Staff Regulations (which also apply to the UNHCR) require staff members to ‘uphold and respect the principles set out in the [UN] Charter, including faith in fundamental human rights’.¹⁷⁷ It may be tempting to speculate that IOM’s lack of a protection mandate explains this discrepancy, but it is rather the UN that is the outlier here, as there are rarely comparable human rights provisions in the staff regulations of other international organizations.

That aside, the UN and IOM instruments referred to by their respective misconduct definitions contain provisions that cover (at least some) human rights. The UN Staff Rules contain a range of broad-ranging provisions prohibiting different forms of ‘abuse’ that could potentially cover a broad range of human rights violations.¹⁷⁸ The internal law of IOM contains comparable prohibitions against ‘abuse of authority’ and ‘sexual exploitation and abuse’.¹⁷⁹ The OIG’s jurisdiction ratione materiae therefore covers at least some of the human rights violations that IOM can potentially commit.¹⁸⁰ However, the fact that many potential IOM human rights violations stem from institutional policies might in practice restrict the OIG’s jurisdiction ratione materiae. That is because staff members that are merely implementing organizational policies can hardly be said to perform misconduct.

Apart from these, there are no other restrictive jurisdictional limitations or admissibility criteria. However, there may be practical access hurdles. Migrants may not know about the OIG, which is arguably a quite obscure and remote accountability mechanism, and there may be difficulties associated with contacting and communicating with the OIG.¹⁸¹

Overall, though, the OIG is fairly accessible. But it nevertheless does not live up to the normative access yardsticks – particularly due to its lack of jurisdiction ratione personae over the organization itself, as well as the legal and practical limitations to its jurisdiction ratione materiae.

4.4.3.2 Participation

Due to the nature of the OIG’s investigatory function, which is intended to hold staff members accountable toward the organization, victims play a minor role. They are in principle not considered parties to the proceedings, but may provide information and arguments to the OIG like any other witness.

Victims who file the complaint themselves do gain some additional rights, though. Complainants are informed if the OIG closes an investigation after a preliminary assessment.¹⁸² Complainants alleging to be victims of harassment, sexual exploitation, and sexual abuse shall in addition be given ‘sufficient and relevant information regarding the closure of the case’, and have a subsequent ‘right to submit further evidence for consideration by OIG’.¹⁸³

Except in cases concerning allegations of harassment, sexual exploitation, and sexual abuse, victims do not have a right to access the OIG’s investigation reports.¹⁸⁴ This is typical for internal oversight mechanisms; the UNHCR’s Inspector General’s Office and the UN Office of Internal Oversight Services have rules that are at least as restrictive.¹⁸⁵

The limited opportunities for victim participation before the OIG are nevertheless inconsistent with the normative yardsticks concerning participation. Notably, it is virtually impossible for victims of most forms of human rights violations to confirm that their voice has been heard – an aspect of participation that procedural justice research has demonstrated the particular importance of.¹⁸⁶

4.4.3.3 Neutrality

As is customary for internal oversight mechanisms, the OIG is an independent organ of the organization it is tasked with holding to account.¹⁸⁷ The OIG’s broad powers of investigation, which it freely decides whether and how to make use of in misconduct cases, further contributes to its independence.¹⁸⁸ Moreover, while the OIG reports to the Director General,¹⁸⁹ there are safeguards in place to protect the OIG against undue interference. A key safeguard is the Audit and Oversight Advisory Committee, which is composed of persons external to – and independent of – IOM.¹⁹⁰ This committee inter alia supervises the interactions between the OIG and other IOM bodies, and acts as an outlet for complaints from the Inspector General against encroachments on the OIG’s independence.¹⁹¹ The OIG has also been delegated the authority to manage its budget and operations without the constraints that apply to other bodies within IOM.¹⁹² The functional independence of the OIG therefore appears to be sufficient.

Next, the procedures for appointing and removing the Inspector General and the OIG staff must be assessed. The Inspector General is appointed by the Director General.¹⁹³ There do not appear to be any term limits or limitations on reappointment, which is common for heads of internal oversight mechanisms in order to protect their independence. More importantly, though, there appear to be no special provisions protecting the Inspector General from removal. This is a significant weakness, but it is counter-balanced by the fact that any removal decision can be challenged before the ILO Administrative Tribunal.¹⁹⁴ Therefore, on balance, the procedures for appointment and removal arguably protect the independence of the OIG to a sufficient degree.

The impartiality of the OIG can only be assessed in the abstract, due to the lack of public allegations of bias.¹⁹⁵ Generally, the legal framework around the OIG appears to provide fertile ground for impartiality. Moreover, IOM internal law proclaims that investigators ‘have a duty of objectivity, thoroughness, ethical behavior, and observance of legal and professional standards’.¹⁹⁶ As yet, there are thus no indications that the OIG lacks impartiality.

4.4.3.4 Outcome

If the OIG finds that misconduct has occurred, it will make a declaration to that effect in its investigation report. This declaration may, but does not have to, be followed up with the imposition of disciplinary measures. An array of such measures may be imposed – ranging from written reprimand to dismissal.¹⁹⁷ Consultants and interns are not subject to disciplinary measures, but may have their contract terminated.¹⁹⁸

The decision to impose disciplinary measures is not taken by the OIG itself. It shall not even recommend whether or not to impose disciplinary measures. That is the domain of the Office of Legal Affairs, in coordination with the Office of Human Resources Management.¹⁹⁹ This separation of powers between the OIG (which determines whether misconduct has occurred or not) and management (which decides whether the imposition of disciplinary measures is warranted) is typical for internal oversight investigations.²⁰⁰

For victims, knowledge that disciplinary measures have been imposed against staff members may offer some consolation. However, the victims may not even get to know about it, since reports about the imposition of disciplinary measures are only published in an internal IOM Information Bulletin, with names redacted.²⁰¹ Except for victims of harassment, sexual exploitation, and sexual abuse, the OIG is not obliged to – and likely does not – communicate its investigation reports to victims.²⁰²

The outcomes of OIG investigations are in other words quite weak. Given the real risk that IOM may cause serious human rights violations, they fall far short of what the normative yardsticks require.

4.4.3.5 Overall Assessment

On its own, the OIG is clearly an insufficient accountability mechanism. This is not due to faults and weaknesses that are particular to the OIG, but rather due to the structural weaknesses inherent to internal oversight mechanisms generally. Notable among these is the fact that the OIG cannot investigate the organization as such, only staff members and contractors. This means that the OIG is particularly ill-equipped to deal with many of the more well-known allegations of IOM human rights violations, which are caused by broader institutional policies and practices, rather than deviant behavior by individual ‘bad apples’ among the staff or contractors.

4.4.4 Domestic Courts

In theory, domestic courts may function as international organization accountability mechanisms. However, there are insurmountable hurdles that make them a completely inaccessible mechanism through which to hold IOM to account. While there are substantial legal and practical hurdles relating to the fundamental issue of jurisdictional competences (adjudicative jurisdiction),²⁰³ the most insurmountable hurdle is IOM’s jurisdictional immunity.

The privileges and immunities of IOM are laid down in its Constitution and in bilateral agreements with states.²⁰⁴ The IOM Constitution Article 23 contains a general provision granting functional immunity, while the bilateral agreements contain more detailed provisions, usually including absolute jurisdictional immunity for the organization itself. Up until 2013, however, there were large variations between the different bilateral agreements – including ‘large gaps in privileges and immunities’.²⁰⁵ In a 2013 resolution, the IOM Council called on the member states to grant the organization immunities ‘substantively similar’ to those of the UN specialized agencies.²⁰⁶ The motivation for calling for such an immunity reform was not just the inconsistency observed – which could place some states in ‘an unduly favourable position’ – but also that ‘improving IOM’s status in host countries could significantly reduce the financial burden on the Organization’.²⁰⁷

This immunity reform has progressed far in its first seven years. As of 2020, IOM has a total of 102 agreements with states that grant the organization privileges and immunities substantially similar to those of the UN specialized agencies.²⁰⁸ It is worth emphasizing that the jurisdictional immunity granted to UN specialized agencies is absolute.²⁰⁹ Not even the ‘commercial activities’ (acta jure gestionis) exception, which is central to the modern doctrine of state immunity, is available.²¹⁰ IOM, in other words, enjoys absolute jurisdictional immunity from the domestic courts in at least those 100 states.²¹¹ Moreover, it appears that the ‘partial’ immunity agreements IOM has previously concluded with around 60 further states routinely include provisions providing for absolute jurisdictional immunity for the organization itself.²¹²

IOM has immunized itself from the jurisdiction of domestic courts not just in (international) law, but also in practice. As of 2021, there are no reported examples of cases where domestic courts, sans waiver, have asserted jurisdiction over IOM by ignoring its absolute jurisdictional immunity under international law. Nor is this likely to happen in the future. Domestic courts therefore do not function as IOM human rights accountability mechanisms. While the organization may of course choose to waive its immunity in concrete cases, a system leaving access to accountability mechanisms up to the discretion of the alleged human rights violator is incompatible with the right to an effective remedy.

4.5 Conclusion

In this chapter, I have so far demonstrated that IOM has a core bundle of human rights obligations, and that its work carries with it real risks of serious human rights violations. IOM’s lack of a protection mandate, and its corporate culture, are important contributing factors in this regard. There is also evidence of instances where IOM operations have directly caused human rights violations, or aided and assisted such violations by states.

For victims of IOM human rights violations, accountability mechanisms are either unavailable or insufficient. Domestic courts are in practice completely unavailable, due to IOM’s absolute jurisdictional immunity. The only other potential accountability mechanism – the OIG – is not accessible enough, does not offer sufficient participation rights, and the outcomes of its investigations are clearly inadequate.

At present, therefore, the human rights accountability of IOM is insufficient. Even when compared with other international organizations, IOM’s human rights accountability mechanisms are among the weakest – despite the high risk of human rights violations associated with its work.²¹³

While it is a straight-forward exercise to demonstrate the insufficiency of IOM’s accountability mechanisms – as I have now done – suggesting appropriate reforms is more difficult. Although research on the accountability mechanisms of international organizations is still in an early phase, it prima facie appears that insufficient systems of accountability is the norm. There are few, if any, bright guiding stars to draw inspiration from. Moreover, it is uncertain whether the experiences of one organization can be transposed to another, since they have vastly different powers and functions. Despite these caveats, I will nevertheless attempt to sketch out some possibilities for reform.

One approach would be to strengthen IOM’s existing accountability mechanisms. However, major reforms of the OIG seem unlikely, as its key limitations are inherent to its nature as an internal oversight mechanism.²¹⁴ That leaves domestic courts, which are prevented from acting as accountability mechanisms due to IOM’s jurisdictional immunity.

It may seem tempting to simply do away with that immunity, or to establish a human rights exception. However, the apparent advantages of doing so may be mitigated by domestic courts using other avoidance techniques to shy away from litigating cases involving international organizations.²¹⁵ The enforcement of such domestic court judgments will likely also be difficult – both in law and in practice.²¹⁶ At the same time, the disadvantages of limiting the jurisdictional immunities of international organizations are clear and tangible: immunities are the only protection they have against undue interference.²¹⁷ Compared to states, international organizations are particularly vulnerable in this regard. Their functions can only be carried out on the territory of states, by nationals of states.²¹⁸ Finally, restricting the immunities of international organizations is no ‘quick fix’, since the doctrine of absolute immunity is firmly entrenched in treaties.²¹⁹

The preferred approach thus appears to be to establish new accountability mechanisms at the international level, for example within IOM itself. IOM’s governing bodies may in principle establish independent organs that function as human rights accountability mechanisms. For example, it should be within their powers to establish a human rights ombudsperson or inspection panel, along the lines of the European Ombudsman or the World Bank Inspection Panel. That could solve the access and participation problems, although the non-binding outcomes that characterize such mechanisms still leave something to be desired.²²⁰ Filling that gap would likely require some sort of court or tribunal.

Establishing an IOM-internal human rights court is not a completely utopian idea – at least legally speaking. As radical as it may seem, the IOM Council likely has the competence to establish judicial organs. Indeed, the plenary organs of international organizations have generally been regarded as having the implied competence to establish internal courts, in particular to litigate labor disputes between it and its staff members. In Effect of Awards, the ICJ affirmed that the UN General Assembly had the implied power to establish such a court, and it is worth quoting the key part of the reasoning given in support of that conclusion:

[A] situation arose in which the relations between the staff members and the Organization were governed by a complex code of law. […] The [UN] Charter contains no provision which authorizes any of the principal organs of the United Nations to adjudicate upon these disputes, and Article 105 secures for the United Nations jurisdictional immunities in national courts. It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals […] that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.²²¹

Could a similar line of argument support the conclusion that the IOM Council has the implied power to establish a court with jurisdiction over human rights disputes between the organization and third party individuals? Some of the reasons given by the ICJ appear quite easily transposable to such a situation: the relationship between IOM and third party individuals that allege that they are victims of human rights obligations is also governed by complex legal rules. Moreover, IOM’s jurisdictional immunity is as absolute as that of the UN. But IOM lacks an express aim to promote freedom and justice for individuals, which the ICJ seems to have put quite a bit of emphasis on. Yet, in the more than 65 years since the ICJ handed down its advisory opinion in Effect of Awards, general international law has evolved in a significantly more human rights-oriented direction. It is thus entirely possible that the power to establish an internal human rights court is more easily implied than the dictum in Effect of Awards may suggest.

For reform at the international level, the legal hurdles for meaningful reform are, in other words, not insurmountable. At the same time, the opportunities for reform at the international level appear to fly under the radar of, for example, activists and NGOs, who often have their focus elsewhere – e.g. on immunities and domestic litigation. Perhaps a shift in focus could provide the necessary political pressure to surmount the hurdles that stand in the way of reform at the international level.

5 A Human Rights Due Diligence Policy for IOM?

Helmut Philipp Aust and Lena Riemer

5.1 Introduction

The idea of cooperation occupies a central place in the construction of international law. It is a noble idea that symbolizes the overcoming of a narrow and selfish understanding of state sovereignty in which the main actors merely guard over their interests. In comparison, the law of cooperation stands for a departure to a more constructive and engaging international community in which states cooperate to protect and realize common interests.¹ Along these lines, it was assumed for a long time that international organizations (IOs) were precisely set up for the realization of these common goals and interests. This turned IOs into an apparently positive phenomenon, a force for good whose conduct would bring the world closer to a state of peace and justice.² Most likely, international cooperation can be both – a vice and a virtue, depending on the values it helps to defend or undermine.

This phenomenon is nowhere more apparent than in the field of international migration law. Notoriously complex, fragmented and unordered as a field of law, intergovernmental cooperation is at its base, cherishing it in its most prominent legal and policy documents.³ Just as in its sister field of international refugee law,⁴ there exists a normative expectation resulting from a practical necessity for states to cooperate when it comes to the transnational phenomenon of migration. This is equally apparent in the various legal and policy instruments governing this area. The Global Compact on Safe, Orderly and Regular Migration adopted in 2018 (GCM) is a prominent example⁵ in this area.⁶ Cooperation between states is deeply entrenched in the normative DNA of this document.⁷ For states and migrants alike, cooperation can be a positive value associated with the Compact as explicitly highlighted in its Preamble where the signing parties agree to ‘recognize that [migration] is a source of prosperity, innovation and sustainable development’.⁸ The GCM calls inter alia for durable solutions and regular pathways for migration – which can only be realized by cooperation between ‘sending’ and ‘receiving’ states.⁹ However, cooperation can certainly be menacing for migrants who find themselves without a legal title for residence in third states and whose return will also be administered through means of cooperation. Likewise, a lack of cooperation can have positive and negative consequences for all involved. Imagine a state’s refusal to issue new identity papers or any at all, thereby significantly hampering the chances of a migrant to travel and seek a place of residence or to naturalize in her/his destination state. Such unwillingness may even contribute to the migrant’s statelessness in a de facto sense. Conversely, for states aiming to return migrants without a title to remain in their territory, the inability or unwillingness of certain home countries to readmit their nationals (or even acknowledge them as nationals) is a significant challenge.¹⁰

The GCM foresees a central role for the International Organization of Migration (IOM) in overcoming these challenges of cooperation. This prominent role for IOM was written into the GCM hard on the heels of what some have described as IOM’s admission into the UN family.¹¹ In 2016, the UN and IOM entered into an agreement which has the purpose of strengthening their cooperation and enhancing ‘their ability to fulfil their respective mandates in the interests of migrants and their Member States’.¹² The formalization of the decades-long relationship between the two organizations¹³ has raised some concerns about the human rights of migrants¹⁴ and the organization’s accountability for possible breaches thereof.¹⁵ These concerns stem from IOM’s image as a managerial organization that has so far lacked a ‘protection mandate’¹⁶ and rather existed as a service provider for states in the context of the management of both international and internal migration flows. The design of IOM’s 1989 Constitution has certainly contributed to bring about these critical viewpoints. It does not confer any protection mandate upon the organization, which is traditionally seen as the operational counterpart on some issues otherwise dealt with by the United Nations High Commissioner for Refugees (UNHCR). Instead, the Constitution seems to defer status rights questions entirely to host states with scant reference to migrants’ rights. The only explicit reference to migrants in the Constitution is the duty of member states to cooperate regarding the ‘needs of the migrant as an individual human being’.¹⁷

What does the new ‘related status’ of IOM to the UN bring for states and migrants alike? Does it solidify and enhance IOM’s position as an organization that seems to pay insufficient attention to the rights of migrants, focusing instead on the interests of those states who pay the organization for its service? Or does the inclusion of IOM in the UN family instead point towards a long-overdue mainstreaming of human rights concerns in IOM’s work – an issue that the organization can now no longer ignore due to its integration into the UN? Full answers to these questions can only be given based on empirical work and in the light of the future practice of both UN and IOM. This is not what this contribution can offer. Instead, it wishes to focus on a specific question that has not received much attention in this context.

In 2013, the Secretary-General of the United Nations formulated a ‘Human Rights Due Diligence Policy’ (HRDDP) for the organization,¹⁸ which was amended in 2015 by a ‘Guidance Note’ clarifying the policy and should therefore be read in conjunction with it. This policy and its Guidance Note are meant to provide a general framework for cooperation between the UN and ‘non-United Nations security forces’. The policy’s significance laies in its aim at mainstreaming human rights principles and procedural character establishing concrete measures to ensure their protection while fostering awareness of how the UN should cooperate with national entities. These contributions of the policy paired with the mentioned discussions surrounding IOM’s accountability regarding human rights violations merit a chapter in this volume assessing a possible relevance of the organization’s policy due to its new status. In the following pages, we will introduce this instrument and discuss whether it can now be used as a normative yardstick for IOM’s activities, which professes to remain a ‘non-normative’¹⁹ organization.²⁰ In the first step, we will briefly recapitulate some features about the debate on the relationship between IOM and human rights protection (Section 5.2), before turning in greater detail to the impact that the HRDDP could have in this context (Section 5.3). The contribution will conclude with a summary of its arguments and some suggestions on how the HRDDP could be reformed in light of IOM’s new relation with the UN (Section 5.4). Our main argument is that even though the HRDDP itself does not directly bind IOM due to the fact that the organization does not constitute a UN entity in the sense of the policy, it is, however, bound by the principles underlying the policy. At the same time, not too much hope should be levelled on this document which only aspires to prevent ‘grave violations’ of human rights. Those who wish to strengthen the human rights aspects of IOM’s work will need to look elsewhere. However, the HRDDP is an important symbolical marker, as it makes it more difficult for IOM to escape debates about the human rights limits of its work. The analysis of the relevance of the HRDDP to IOM thus offers a particular analytical angle for the cross-cutting questions underlying this volume. It pertains to the human rights obligations that IOM has. It sets out a specific tool to provide for its accountability while being mindful of the limitations that this normative state of affairs and institutional set-up have. Arguably, overcoming these limits will depend significantly on the ethos of those in charge of implementing IOM policies.

5.2 IOM and Human Rights: Where Do We Stand?

Other contributions to this volume address the general history of IOM and its rapprochement with the UN. Accordingly, we need not go into the details of all this here. Suffice it here to point out some central considerations for the relationship between IOM and human rights law. These pertain both to the normative framework in which IOM is acting (Section 5.2.1), its sometimes controversial practices (Section 5.2.2) as well as its new relationship with the UN (Section 5.2.3).

5.2.1 A Normative Framework of a Non-normative Nature?

The starting point for assessing the controversial relationship between IOM and human rights lies in its mandate, which is defined by the 1989 IOM Constitution, a document going back in parts to 1954. Article 1 of the IOM Constitution details the purposes and functions of IOM. These are vast and include making arrangements for the ‘organized transfer of migrants’, to concern itself ‘with the organized transfer of refugees, displaced persons and other individuals in need of international migration services’, to provide ‘migration services’ of various kinds as well as ‘similar services as requested by States, or in cooperation with other interested international organizations, for voluntary return migration, including voluntary repatriation’. Besides that, the provision stresses that IOM shall ‘provide a forum to States as well as international and other organizations for the exchange of views and experiences, and the promotion of cooperation and coordination of efforts on international migration issues, including studies on such issues to develop practical solutions’.

As mentioned above, the Constitution does not set forth what is called in the literature a ‘protection mandate’.²¹ In other words, it is not clear from its constitutive document that IOM is to act to ensure the rights of migrants. Instead, both its Constitution and subsequent practice portray IOM as a service-driven organization which operates at the behest of its member states and caters to their demands in the field of migration.²² This is in and of itself neither surprising nor scandalous – after all, IOs are creatures of their member states, and it is to be expected that the member states have a considerable influence in the shaping of how a given IO will evolve. Simultaneously, IOM is criticized in the migration literature for going well beyond what is typical of IOs in this regard. This is attributed to the lack of the protection mandate and a general dependence of the organization on project-specific funding (‘earmarking’), which makes the organization overly responsive to the demands of some of its member states, those which can pay for its services. Problematic in this regard is that some of these requested services infringe on or even violate human rights obligations, as shown in more detail below. Furthermore, from an organizational perspective, the substantial decentralization and significant independence of IOM’s over 590 countries and sub-offices worldwide²³ from the organization’s headquarters in Geneva contributes further to this problématique, especially as the country offices are mostly responsible for generating their funding.²⁴

This, in turn, is connected with criticism about IOM’s service-oriented nature and the lack of an explicit protection mandate which contributes to an institutional culture in which the organization does not understand itself as a watchdog of member states, overseeing their compliance with international human rights law. In recent years, IOM has expanded its work inter alia to data collection and migration analysis and strengthened its focus on humanitarian programs and cooperation among other things with UNHCR in resettlement programs. This refocusing arguably went hand in hand with a gradual shift of its ethos²⁵ leading to the circumstance that today the organization prides itself for engaging in various forms of humanitarian work, not least including to its facilitation of regular pathways of migration.²⁶

5.2.2 Controversial Practices of IOM

However, the controversial practices that IOM engages in have led to a significant amount of criticism against the organization. Despite its various internal policies addressing human rights standards, it would lack a binding commitment to human rights obligations in its Constitution. Too often it would fall behind its commitments and no effective mechanisms would be available to hold the organization accountable. This is especially the case in cooperation with authoritarian and repressive governments in ‘assisted voluntary return’ and ‘repatriation’ programs like it was²⁷ the case with Libya in 2017.²⁸ Accordingly, NGOs and scholars alike²⁹ have criticized IOM repeatedly for only paying lip service to human rights, while violating them or contributing to such violations in practice in several situations. These include its strong focus on removal (including ‘voluntary’ return),³⁰ the facilitation of the assistance in ‘voluntary returns’ in clearly coercive circumstances of migrants from Libya to home countries such as Nigeria or Senegal³¹ or the role in the administration of Australia’s so-called ‘Pacific solution’ and its detention centres in Nauru. Human Rights Watch (HRW), which has had observer status with IOM since 2002, has publicly criticized IOM for years in its reports to the organization’s Governing Council. According to HRW, IOM only pays lip service to human rights, while violating them in practice.³² IOM has particularly been criticized for its involvement in the cases of Libya³³ and Australia.³⁴ The most recent example sparking loud criticism is IOM’s contribution in facilitating the EU’s externalization practices,³⁵ for instance, in the Sahel region by supporting the identification of persons arguably in need of international protection in offshore processing centres alongside UNHCR and African states.³⁶ Critics argue that this contribution in implementing these offshore asylum determination policies triggers human rights and protection issues such as the questions how, under such circumstances, non-refoulement can be upheld, family unity ensured, and the right to a fair and impartial status determination be secured.³⁷

Despite the ‘non-normative nature’ of the organization, it is not the case that these practices developed in a normative void. As introduced above, IOM’s original area of work evolved significantly over the past decades – driven by, amongst other things, the need to reinvent itself as its initial reason for existence, namely assisting in the mass emigration of ‘surplus’ people to states outside Europe, was no longer pertinent.³⁸ The initial mandate of the organization (then called Provisional Intergovernmental Committee for the Movement of Migrants from Europe) focusing on arranging the transport of migrants from European countries to states overseas came to formally include the organization’s involvement in humanitarian responses³⁹ to displacement,⁴⁰ emergency relief and data analysis.⁴¹ The organization’s humanitarian mandate is also reflected in recent policy instruments such as the 2012 ‘Migration Crisis Operational Framework (MCOF)’,⁴² the 2012 ‘Humanitarian Policy’⁴³ or the 2015 ‘Migration Governance Framework’.⁴⁴ Also, the 2016 UN-IOM Agreement implicitly acknowledges IOM’s humanitarian role, recognizing the organization as ‘an essential contributor […] in operational activities related to migrants, displaced people and migration-affected communities, […] and in mainstreaming migration in development plans’.⁴⁵ Covering this broad array of different tasks from providing shelter to returning migrants while providing services for its member states necessarily puts the organization in a difficult conundrum of expectations.

One phenomenon exemplifying this inherent tension between the different tasks is the organization’s approach to human rights and the question of how to include them into its policy. Human rights language, in particular references to the protection of migrants, increasingly received a significant status in its internal policy development processes. In 2007, for example, IOM acknowledged its role in this regard rather vaguely stating that even though it has no legal protection mandate, its activities ‘contribute to protecting persons involved in migration’.⁴⁶ Similarly, in 2009, the IOM Council stressed that international actors such as IOM ‘have a key supporting role to play in achieving the effective respect of the human rights of migrants’.⁴⁷ The organization’s role in promoting the human rights of migrants was also highlighted in its 2009 ‘Human Rights of Migrants Policy and Activities’ report.⁴⁸ In contrast, the 2012 MCOF stresses that IOM is not only supporting other actors to the adherence to human rights or promoting them but is itself ‘bound and committed to the existing legal and institutional frameworks contributing to the effective delivery of assistance and protection and ultimately to the respect and promotion of human rights’.⁴⁹ This meandering path of stipulating the organization’s commitment to human rights is also visible in the 2016 UN-IOM Agreement. The Agreement does not explicitly mention IOM’s adherence to human rights, but vaguely describes the organization as an ‘essential contributor in the protection of migrants’⁵⁰ which ‘undertakes to conduct its activities in accordance with the Purposes and Principles of the Charter of the United Nations and with due regard to the policies of the United Nations furthering those Purposes and Principles and to other relevant instruments in the international migration, refugee and human rights fields’.⁵¹ Considering only the organization’s internal policies, particularly the straight forward language of the 2012 MCOF, which was unanimously adopted by the member states in Resolution 1243, it seems that IOM has indeed come around to self-commit to human rights acknowledging its obligations via its internal rules.

At the same time, one should not accept these IOM pledges to adhere to human rights blindly. For example, Human Rights Watch has raised concerns in this regard warning that IOM has fine-tuned the language of human rights in its policies and guidelines while disrespecting human rights in its practical work.⁵² Scholars warn in this regard of a ‘blue-washing’ of the organization by its new relationship with the UN and of IOM portraying itself solely as a humanitarian organization ‘while still maintaining its core role in conceptualising, proposing, and implementing migration control activities on behalf of states’.⁵³ At the same time, it should not be forgotten that IOM sees its humanitarian assistance as part of ‘migration management’.⁵⁴ There are also human rights concerns related to its humanitarian work in emergencies, not only in its migration management work.⁵⁵

5.2.3 The Formalized Relationship with the UN and Its Impact on IOM’s Engagement with Human Rights

This gradual turn towards including protection issues and human rights language into its strategies and policy documents seems to find a logical conclusion in the light of the intensified relationship between the UN and IOM, the 2016 Agreement constituting the ‘formalization of an old relationship’⁵⁶ between the two international organizations.⁵⁷ In the run-up to the 2016 New York Declaration for Refugees and Migrants, the idea was also broached that IOM could be transformed into an UN-specialized agency, a specific status with clear connotations within the UN system. This was deemed impossible due to time constraints, as states wanted IOM to support the negotiation and eventual implementation of the Global Compact on Migration, following the New York Declaration. In particular, turning IOM into a ‘specialized agency’ would have required the ECOSOC’s approval, which was considered unfeasible due to these time constraints.⁵⁸ Thus, the pragmatic solution was to choose the path of turning IOM into a ‘related organization’, which does not require such approval. This step was achieved via the 2016 Agreement. Irrespective of the 2016 agreement’s exact legal nature, it undoubtedly formalized the close relationship between both actors.

This development of including human rights language into its policies culminated in the UN-IOM Agreement in 2016. Here several provisions of the Agreement speak of IOM’s changed focus and responsibility for the protection of the persons of concern involved in its work. Article 1, for example, establishes that both actors, the UN and IOM ‘fulfil their respective mandate in the interest of migrants’. However, it should be noted here that the Agreement fails to define what this very general terminology means in terms of project implementation, whether the affected migrants are consulted, and even which migrants’ interests shall be decisive.

Furthermore, Article 2, para. 2 explicitly ‘recognizes’ IOM as ‘an essential contributor in the field of human mobility, in the protection of migrants in operational activities related to migrants, displaced people and migration-affected communities, including in the areas of resettlement and returns, and in mainstreaming migration in development’.⁵⁹ This provision highlights IOM’s broadened mandate as ‘protection’⁶⁰ was not part of the organization’s initial mandate as laid down in its Constitution.

The crucial component of the Affiliation Agreement in this connection is Article 2, para. 5, which reads as follows:

The International Organization for Migration undertakes to conduct its activities in accordance with the Purposes and Principles of the Charter of the United Nations and with due regard to the policies of the United Nations furthering those Purposes and Principles and to other relevant instruments in the international migration, refugee and human rights fields.

This commitment is anything but clear-cut. Its interpretation first of all hinges on the broader question of the exact legal nature of the Agreement. Does IOM become a formal part of the UN? This impression is conveyed in parts of the literature where it is at times written that IOM is now part of the ‘UN family’.⁶¹ However, This description alone throws up more questions than it answers. The Agreement itself is quite ambiguous on the future relationship between the UN and IOM. In any case, IOM retains a separate existence from the UN.⁶² It remains an independent international organization for which specific cooperative ties with the UN have been formulated. Indications to this extent range from the language in the Preamble of the Agreement (‘desiring to establish a mutually beneficial relationship’, ‘respective responsibilities’) over operative parts like Article 3 on cooperation and coordination, Article 5 on reciprocal representation to Article 9 (cooperation between the Secretariats). IOM certainly does not become an organ of a subsidiary nature to the UN but retains a significant amount of independence.

If IOM has not become a part of the UN, what does the language in Article 2, para. 5 of the Agreement then mean? Interpreting it in the light of the general rule of interpretation of international agreements that is outlined in Article 31 of the Vienna Convention on the Law of Treaties (VCLT) – and which represents customary international law and is hence applicable beyond the cases of treaties directly covered by the VCLT – requires taking a look at its wording, its systematic context as well as its object and purpose.⁶³

While we do not wish to engage in a mechanical application of the interpretive maxims of the VCLT, it is evident already from the ordinary meaning of the formulations outlined in Article 2, para. 5 that this clause differentiates between the Purposes and Principles of the UN on the one hand and a set of other commitments, that is policies adopted by the UN and other relevant instruments in ‘the international migration, refugee and human rights fields’ on the other. What to make of this distinction? It is clear from the wording of the provision that IOM only undertakes a formal commitment to conduct its activities in accordance with the Purposes and Principles of the UN. For the other commitments, only ‘due regard’ is required. There is accordingly a clear distinction between a legally binding commitment and a mere political undertaking to show due regard, which can be equated with a commitment to consider them when acting. However, assessing the broader systematic context of the Agreement and taking particularly Article 1 and Article 2 into account, one may conclude that IOM must indeed do more than just ‘consider’ these commitments. Instead, it must actively ensure that it acts not only in the interest of states but also of migrants (Article 1) and contributes to the protection of the migrants’ rights (Article 2, para. 1).

What does the legally binding commitment to conduct IOM activities in accordance with the Purposes and Principles of the UN mean, in particular concerning questions of human rights law? The Purposes and Principles of the UN are set out in Articles 1 and 2 of the Charter. They only contain a fleeting mention of human rights, discreetly tucked away in Article 1, para. 3 of the Charter stipulating that it is a purpose of the UN

To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without discrimination as to race, sex, language, or religion (…).

This is not much of a commitment to human rights. First of all, it is only directed to a specific issue area of UN action – particularly not for UN action in the field of peace and security. Second, it then calls for ‘promoting and encouraging respect for human rights’, which is a considerably weaker formulation than a requirement to act in conformity with human rights. It is subject to a considerable debate whether the meaning and content of the UN’s purposes and principles have expanded over time. Anne Peters, for instance, argues that through the practice of the UN organs, additional internal policies have emerged and that, for instance, the Security Council would now also be bound by the protection of human rights, the prohibition of genocide, the principle of self-determination and basic principles of international humanitarian law.⁶⁴ It is convincing to hold that the UN’s purposes and principles are not frozen in time but rather evolve dynamically in the light of the UN and its member states’ organizational practice. However, this also does not mean that any normative development in the field of human rights law can now claim to fall entirely in line with the UN’s purposes and principles. And the precarious framing of human rights in Article 1, para. 3 of the Charter need to be accounted for what it is. Of course, one can argue that a teleological reading of Article 1, para. 3 of the Charter also implies that an organization that is supposed to encourage and promote respect for human rights should not violate them. On a general level, this is true. Yet, it remains the case that the UN Charter itself does not demand a lot from the UN organs when it comes to protecting human rights. In any case, the binding commitment to act only in conformity with the Purposes and Principles of the UN does not necessarily provide for a far-reaching obligation on the side of IOM. Read literally, it requires IOM to also ‘promote and encourage respect’ for human rights.

In our case, the considerable progress in human rights instruments instead speaks to the second prong of Article 2, para. 5 of the Agreement between IOM and the UN. ‘Due regard’ is to be had both concerning UN policies as well as to ‘other relevant instruments in the international migration, refugee and human rights fields’. Here, a whole panoply of instruments that are not explicitly mentioned in the Agreement, related to migration matters is indeed relevant, from the non-binding 1948 Universal Declaration of Human Rights (representing customary international law in wide parts) to the 1965 Convention against Racial Discrimination, the 1966 Covenants, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women to the 1989 Covenant of the Right of the Child. The wide-open language of this specification also extends to non-binding instruments like the GCM and agreements in refugee law. More difficult to assess is whether the formulation ‘relevant instrument’ also extends to customary international law. On the face of it, this would seem to be difficult to reconcile with the wording as customary norms are certainly not an ‘instrument’. However, this particular question seems to be of limited importance as IOM is bound to human rights that form part of the general norms of customary international law by its status as an international organization. An interlinked debate, however, remains open regarding their internalization and their specific content. For this chapter’s purpose, we can hold that IOM is bound to these norms regardless of the interpretation of its Agreement with the UN.

The Achilles heel of the formulation in Article 2, para. 5, however, is undoubtedly the formulation ‘due regard’. From a human rights perspective, this can only be described as a very weak and indeed disappointing component of the Agreement. At the same time, IOM member states may welcome such a ‘soft’ formulation as it allows for more flexibility in the implementation of its human rights policies and adaptability depending on the concrete circumstances of the various tasks the organization fulfils for its members. Looking at this formulation in other international instruments such as the United Nations Convention on the Law of the Sea (UNCLOS) (Articles 56 para. 2, 58 para. 3 and 87 para. 2) may help clarify the meaning of the term in Article 2, para. 5 of the Agreement. Applying general interpretative conclusions on the UNCLOS provisions⁶⁵ to the UN-IOM Agreement and the organization’s internal policies, ‘due regard’ implies a certain degree of legal commitment.

‘Due regard’ can also mean that IOM takes a good look at a given human rights norm but considers it irrelevant and then basically moves on. The question is, what precisely is ‘due’. A systematic interpretation of Article 2, para. 5, certainly signals that ‘due regard’ must be something else than ‘in accordance with’, as this is the formulation concerning the Purposes and Principles. This comparative look can only mean that ‘due regard’ means less than acting in conformity with something. At the same time, interpreting this term in the systematic context of the Agreement, in particular with Articles 1 and 2, para. 1, it becomes apparent that IOM must not act in any way that would go against the ‘interest of migrants’ or their ‘protection’. While this does not give IOM a carte blanche to entirely disregard human rights, it is less than what advocates of a clearer set of human rights obligations regime for IOM would have hoped for. Simultaneously, the vagueness, the heterogeneity of the broad group of migrants and the lack of a definition of what their ‘interest’ implies for IOM’s work make it difficult to assign this wording a clear scope of duties to IOM.

5.3 The UN Human Rights Due Diligence Policy as an Answer?

This rather bleak finding might be compensated by applying the UN Human Rights Due Diligence Policy (HRDDP). As mentioned in the introduction to this chapter, the HRDDP was formulated by the UN Secretary-General in 2013 and amended by the 2015 Guidance Note. It shall provide general normative guidance to cooperation between UN and non-UN forces. The fundamental principle underlying this policy is that

Support by United Nations entities to non-United Nations security forces must be consistent with the Organization’s purposes and principles as set out in the Charter of the United Nations and with its obligations under international law to respect, promote and encourage respect for international humanitarian, human rights and refugee law.⁶⁶

Even though the HRDDP itself is a non-binding policy document, UN entities are obliged to respect it,⁶⁷ establish an implementation framework,⁶⁸ and report on their activities concerning the policy.⁶⁹ These elements aim at reducing the accountability deficits of UN entities in such operations, one of the key aims of the HRDDP.⁷⁰ The HRDDP refers clearly to already existing obligations under international law that bind these entities. Hence, it can be best characterized as an effort to provide guidance on the relevant law and the implications that these existing legal obligations have on cooperation between the UN and other security forces.

For this book chapter, there are three pertinent questions that will be addressed in turn. First, we need to assess whether the HRDDP applies to IOM in the light of the 2016 Agreement between the two organizations (Section 5.3.1). Second, we assess the potential contribution of the HRDDP (Section 5.3.2) before, third, turning to the limitations of the HRDDP as an instrument in general and in the specific case of IOM (Section 5.3.3).

5.3.1 The Preliminary Question: Is the Human Rights Due Diligence Policy Applicable to IOM?

IOM officials answered this question in the affirmative. After several interviews with IOM staff, Megan Bradley highlighted that the ‘IOM Legal Office has concluded that the organization is now obligated to uphold all the common laws and principles that bind UN agencies. IOM […] is obliged to support the implementation and monitoring of the UN’s mandatory Human Rights Due Diligence Policy, which may have important implications for its work in countries such as Libya’.⁷¹ But is this commitment to HRDDP only an ethical one or does the policy legally bind IOM due to its new status as a related organization?

HRDDP and its Guidance Note specify that the applicability of the policy requires three prerequisites, first, a ‘UN entity’; second, ‘support’; and third, ‘non-UN forces’ as counterparts. The 2015 Guidance Note clarifies that the HRDDP should be applied in a ‘flexible’ manner and ‘complementary to each UN entity’.⁷²

The last two requirements are applicable to IOM in various contexts of action without significant difficulties. The Guidance Note clarifies that ‘support’ in the sense of the HRDDP starts when an entity begins contemplating to provide support.⁷³ Support is defined in broad terms encompassing training, mentoring, advisory services, capacity- and institution-building and other forms of technical cooperation, as well as financial support, strategic or tactical logistical support to operations in the field or joint operations. As described above, IOM’s current mandate encompasses among other things humanitarian services, training, advice-giving in different forms in various international contexts that unproblematically meet this requirement. The same is true regarding the requirement of lending support to ‘non-UN security forces’. These also include border control forces, coast guards and similar security forces, police and those in charge of such forces.⁷⁴ IOM offers its expertise and practical support to such forces in various contexts from removing individuals to their country of origin in cooperation with the national police and security forces to assist them in implementing the ‘Pacific Solution’ including in Australia’s detention, processing and return policies.⁷⁵ What is more, in our view, the term ‘security forces’ should be understood widely. Due to the securitization of many aspects of governing in today’s world, it seems that the treatment of migration is inherently related to security concerns of states and other actors in the field. In any case, given that states have contributed to this security focus of migration policy, it would be questionable to evade the human rights obligations of IOs – creatures of member states – with a narrow definition of security forces in turn.

In contrast to these two requirements, the question of whether IOM constitutes a ‘UN entity’ in the sense of the HRDDP poses a more difficult problem. HRDDP defines this term as ‘any office, department, agency, programme, fund, operation or mission of the United Nations’.⁷⁶ IOM, as a related organization, constitutes none of these entities. Even though UN-related organizations and UN agencies share several attributes, they are two distinct forms of entities⁷⁷ within the UN system.⁷⁸ Thus, as IOM was explicitly granted with the status of ‘related-organization’, instead of ‘agency’⁷⁹ the narrower UN-entity requirement, set up by HRDDP, is not fulfilled.

Does HRDDP nevertheless apply to IOM, in a legal sense? We argue that it does. HRDDP constitutes the operational implementation of human rights standards which IOM indirectly committed itself to by signing the 2016 UN-IOM Agreement. The holistic and systematic reading of the provisions of the Agreement referring to the protection of migrants’ rights and their interests in conjunction with the statement to pay ‘due regard’ to UN policies as well as to ‘other relevant instruments in the international migration, refugee and human rights fields’ speak in favour of a commitment of IOM to standards such as HRDDP by virtue of the Agreement between the UN and IOM. Therefore, the HRDDP and its Guidance Note have become indirectly applicable to IOM via the 2016 Agreement with the UN – at least to the degree that it cannot act against the principles laid down in the policy.

5.3.2 The Potential Contribution of the Human Rights Due Diligence Policy

As then UN Secretary-General Ban Ki-moon highlighted in his letters to the President of the General Assembly and the President of the Security Council in February 2013, the policy aims at ensuring that any UN support provided to non-UN forces is ‘consistent with the purposes and principles as set out in the Charter of the United Nations and with its responsibility to respect, promote and encourage respect for international humanitarian, human rights and refugee law’.⁸⁰

In and of itself, the HRDDP can be seen as a faithful implementation of the UN’s existing legal obligations. This finding is particularly true considering the rules on complicity in the law of international responsibility, requiring states and IOs alike not to render aid or assistance to the commission of internationally wrongful acts.⁸¹ Further, the policy’s main benefit in practical terms for preventing complicity in grave crimes is its procedural and preventive approach.⁸² It demands a proactive and forward-looking assessment by the UN on whether support in a concrete situation can be provided. This is not the case when ‘there are substantial grounds for believing there is a real risk of the receiving entities committing grave violations of international humanitarian, human rights or refugee law and where the relevant authorities fail to take the necessary corrective or mitigating measures’.⁸³ This is a standard which is reminiscent of commitments states have under Article 3, para. 1 of the Convention against Torture and other sources for the obligation of non-refoulement in international human rights law. What is more, the policy also demands from any UN entity that receives reliable information providing such substantial grounds, that it immediately ‘must intercede with the relevant authorities to bring those violations to an end’.⁸⁴ Lastly, if such grave crimes continue to occur, despite the UN entities’ efforts to end them, the policy demands the cessation of the support.⁸⁵ The 2015 Guidance Note to the HRDDP complemented this procedural, proactive and preventive approach by offering concrete models of risk assessments, monitoring frameworks, and procedures for intervention.⁸⁶ The policy’s approach is flexible as it applies in different contexts and to the specific mandates of the various UN entities that fall under the definition provided above.⁸⁷

In a nutshell, the practical impact and the main contribution of the HRDDP in the applicability to IOM are its requirement to conduct a preventive balancing exercise to examine whether a real risk of a grave violation of refugee and human rights law exists. This risk assessment is a tool applicable when IOM lends support to states and domestic entities such as border patrol and demands continuous diligence before and throughout the entire duration of the collaboration with the respective partners in case reliable information suggests a change in the basis of the risk assessment.

5.3.3 Limitations of the Human Rights Due Diligence Policy

On the other hand, the normative impact of the HRDDP on IOM is quite another question. First of all, it needs to be noted that the HRDDP is not an all-encompassing human rights tool, the application of which will ensure that no human rights violations take place. It is quite limited in substantive scope. It only means to prevent ‘grave violations of international humanitarian law, human rights or refugee law’ in the context of providing support to non-UN security forces. Accordingly, the HRDDP does not require the UN to monitor whether its cooperation with third parties leads to any form of human rights violation. Furthermore, the wording regarding situations in which the UN receives information that grave crimes occur on the part of the cooperative entity is somewhat evasive and weak. The UN entity must only ‘intercede […] with a view to bringing those violations to an end’. No immediate and direct cessation of support is necessarily demanded. Besides, it is only the furthering of ‘grave violations’ of human rights law which is falling within the scope of the HRDDP. This should caution against too sweeping hopes for the impact that the HRDDP might have on the practical work of IOM, given that it applies to IOM in the first place.

Some scepticism about the importance of the HRDDP for the work of IOM can also be better understood against the background of the general characteristics of the notion of due diligence. This concept is as ubiquitous in international law as it is unclear. It has a different meaning in different sectoral regimes of international law.⁸⁸ At times, it is understood as a primary obligation of states and other subjects of international law in and of itself. At times it is referred to as belonging to the realm of secondary rules and laying out a standard of fault. In general terms, it is described as a standard of conduct necessary for the avoidance of probable or foreseeable undesirable consequences.⁸⁹ It also comes with different normative dynamics attached depending on the context in which it is used. In some contexts, insisting on ‘due diligence’ might mean reducing substantive protection as only a procedural screening of compliance with the law is needed. In other parts, it might mean an enhancement of control – where no substantive limits for certain conduct exist. Often, due diligence standards establish obligations for the duty bearer to protect others against violations of the law committed by third parties. Thereby, due diligence requires positive action.⁹⁰ Nevertheless, due diligence is a notion with variable geometry and certainly no panacea to ensure human rights compliance of IOM.

5.4 Conclusion

This chapter focused on the UN Human Rights Due Diligence Policy’s applicability as introduced in 2013 and concretized in the 2015 Guidance Note, to IOM and possible implications thereof. Our main argument in this context is that by signing the 2016 UN-IOM Agreement, IOM is indirectly bound by the principles underlying the HRDDP as far as it cannot act against its core principles. At the same time, given the policy’s limitations, one should not put too much hope into the applicability of the HRDDDP to IOM as it only aims at preventing ‘grave violations’ of human rights in specific contexts.

Despite these deficits, one should keep in mind that the HRDDP is at least a relevant symbol and prominent tool which forces IOM to face the human rights implications of its conduct as promised in the 2016 UN-IOM Agreement. Scholars and activists aspiring to hold IOM accountable for its complicity in human rights violations and demand IOM’s explicit commitment to human rights will need to take another pathway. Different avenues of reform are conceivable. We have mixed views on whether IOM should just adopt its own due diligence policy, especially if it would be coupled with a weak enforcement form. More promising would be the creation of specific IOM avenues of redress. A well-tested approach by now consists of creating an office of an Ombudsperson who could receive complaints from affected individuals who were subject to measures carried out by or in conjunction with IOM. The IOM system already counts with an Office of the Ombudsperson. However, its mandate is strictly limited to internal employment-related issues excluding persons seeking redress from outside the organization. Expanding the current jurisdiction of the IOM’s Ombudsperson to including the right to make recommendations to external complaints on the organization’s conduct to which IOM would need to give ‘due regard’ could constitute such an avenue. It is another question, of course, how realistic such a proposal is. But in terms of curing a legitimacy deficit of IOM, it would go a long way. However, it might also reduce the attractiveness of IOM as a service provider to member states in the migration context. Whether this would be a good or a bad thing is in the eye of the beholder.

6 The Legal Relationship between the UN and IOM What Has Changed since the 2016 Cooperation Agreement?

Miriam Cullen

6.1 Introduction

On 8 July 2016, the UN General Assembly (UN GA) adopted by consensus an Agreement Concerning the Relationship between the UN and the International Organization for Migration (IOM) (the 2016 Agreement). IOM renamed itself ‘UN Migration’ on the grounds that the Agreement had transitioned it into ‘UN-related’ status,¹ through which it became ‘part of the UN family’.² Yet the phrase ‘UN-related’ is neither mentioned in the agreement nor an expression of legal art.³ Such an interpretation fails to reflect the pre-existing legal relationship between the two organizations which was set out in a similar agreement concluded twenty years earlier. This chapter finds that in legal terms, the differences between the 1996 and 2016 UN-IOM Agreements are modest. That finding is important because the later Agreement has been used to justify a significant shift in IOM identity. IOM has taken on a new leadership role in legal standard setting and development, including through the negotiation of the Global Compact for Safe, Orderly and Regular Migration, and its follow-up and review.⁴ There is a disconnect between the actual legal effect of the agreement and the impression of it which is important because what IOM can be held accountable for, as a matter of law, is defined by its formal legal obligations. Therefore, clarity over what the 2016 Agreement achieves is essential. This is true whether one views accountability in international law in a narrow sense, manifested in tribunals of legal enforcement, or perceives it more broadly as fostered through procedural mechanisms which facilitate transparency and access to information.⁵ As has often been remarked, legal obligations provide a common language for compliance and accountability mechanisms, whether meted out through legal or political processes,⁶ and notwithstanding fairly pervasive deficiencies in those mechanisms as they apply to international organizations generally.⁷

This chapter begins by examining what ‘UN-related’ means, the term being not one of law but description, used to refer to a certain grouping of international organizations that possess similar cooperation agreements with the UN. That is followed by an account of why this arrangement was pursued instead of specialized agency status. Thereafter the 1996 and 2016 UN-IOM Cooperation Agreements are compared to find that while the 2016 Agreement has clearly triggered internal policy changes within IOM, those changes are not necessarily demanded by its terms. In fact, already modest accountability mechanisms in the 1996 Agreement were actually watered down in the 2016 version.

6.2 What Is ‘UN-Related’ Status and When Did IOM Achieve It?

IOM has interpreted its most recent cooperation agreement as having transitioned it to become ‘a part of the UN family’, its press release at the time was entitled ‘the IOM Becomes [a] “Related Organization” of the United Nations’.⁸ It changed its twitter handle to @UNmigration and added the words ‘UN Migration’ after its acronym on its branding. Although the 2016 Agreement appears to have inspired the adoption of a new UN-related identity for IOM, there is nothing express in the 2016 Agreement to justify it. Guy S. Goodwin-Gill has written that ‘Although banners and leaflets may suggest otherwise, the International Organization for Migration (IOM) is not a United Nations agency, and neither has it “entered” or “joined” the UN’.⁹

The phrase ‘UN-related’ is not a recognized or defined legal category. UN-related organizations are not contemplated within the UN Charter or other international instruments. Rather, the expression is used adjectivally to describe a small suite of international organizations that have cooperation agreements with the UN of certain similar character and yet are not UN-specialized agencies.¹⁰ At least some of the other international organizations described as ‘UN-related’ seem to have understood their cooperation agreements as keeping them at arm’s length from the formal UN regime. The International Criminal Court (ICC), for example, provides on its website that ‘while not a United Nations organization, the Court has a cooperation agreement with the United Nations’.¹¹ For most of these organizations, some institutional distance makes intuitive sense. Of the eight UN-related organizations listed in the UN organization chart,¹² three are judicial bodies (the International Seabed Authority, the International Tribunal for the Law of the Sea, and the ICC). A further three deal with the control of particularly hazardous weapons and materials (the International Atomic Energy Agency, the Comprehensive Nuclear Test Ban Treaty Organization, and the Office for the Prohibition of Chemical Weapons) which, being sensitive both materially and politically, arguably warrant standalone institutional arrangements. The final two are the World Trade Organization (WTO) and IOM. For reasons that are not material to the argument here, the UN-WTO Agreement was, as IOM has acknowledged, ‘based on exceptional circumstances’ associated with the character of its predecessor organization, the General Agreement on Trade and Tariffs (GATT), being both temporary and an ‘agreement’ rather than an organization as such. The WTO, on its establishment, simply continued the pre-existing arrangements between the UN and the GATT, through an exchange of letters with the UN Secretary-General.¹³ Thereafter the UN indicated that the arrangement ‘cannot represent a realistic model for future relations with any other organization’.¹⁴

Overall, the cooperation agreements between the UN and its related organizations are sufficiently similar that while not pro forma, they together form part of an obvious set, distinguishable from those the UN has concluded with, for example, non-governmental organizations, other international organizations, or regional arrangements.¹⁵ While not identical, the cooperation agreements follow the same general structure and are markedly similar in both substance and form. Each agreement – including both the 1996 and 2016 IOM iterations – contains comparable clauses on general cooperation and coordination between the organizations,¹⁶ information sharing and exchange,¹⁷ representation and participation in meetings,¹⁸ avoiding the unnecessary duplication of work,¹⁹ reporting to the UN,²⁰ and personnel arrangements.²¹ Most stipulate that the autonomy and/or institutional independence of the non-UN organization remains unchanged as a result of the agreement, although, notably, the 1996 UN-IOM Agreement did not.²² The order in which the clauses appear, specific phrasing, and provisions that deal with the sui generis character of the relevant non-UN organization, distinguish one UN cooperation agreement from another. None of the cooperation agreements between the UN and other international organizations incorporate the phrase ‘UN-related’, nor do any recognize that becoming UN-related, or something like it, is a legal status the relevant agreement affords.

According to a 2007 report of IOM, an ‘UN-related agency’ is one ‘whose cooperation agreement with the UN has many points in common with that of specialized agencies, but does not refer to Art. 57 or 63 of the Charter’.²³ Article 57 of the UN Charter defines a specialized agency as one with ‘wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields’. IOM is different from other UN-related organizations because it is the only one for which its main activities fall directly within the categories which would qualify it for UN specialized agency status.²⁴ Unlike the others, IOM performs services, albeit on behalf of states, for the care, migration, transfer of individuals on a one-on-one basis through the broadly migration-related processes and activities it facilitates. With the exception of the WTO, UN-related organizations tend to be those the mandates of which deal with matters outside the economic, social, cultural, educational or health realms.²⁵ Why, then, did the IOM not pursue specialized agency status?

6.3 Why a New Agreement?

In 2014 a draft resolution was tabled in the Second Committee of the UN GA that proposed, among other things, the creation of a centralized UN agency for migration. In response, the Director-General of IOM, William Swing, wrote to the IOM-Council warning that ‘the UN General Assembly’s Second Committee discussions have given substantial momentum to the idea that migration should be institutionalized in the UN system’.²⁶ He suggested that ‘as a matter of self-defence’ the Council ought to ‘consider the possibility of a more formal association with the UN system’ or ‘other agencies would duplicate aspects of our mandate to the point where we risked losing our global migration agency status’.²⁷ Yet, the process of becoming a specialized agency is relatively cumbersome by comparison with what is necessary to conclude a new cooperation agreement. Specialized agencies are brought into relationship with the UN in accordance with Article 63 of the UN Charter, which permits ECOSOC to enter into, and define the terms of those agreements, subject to the final approval of UNGA. Thus, to become a specialized agency, IOM would need to finalize an agreement with ECOSOC and later the UNGA, in accordance with a decision by the IOM Council.²⁸ It would not necessarily require any amendment to the IOM Constitution and could take a year or two to implement, depending on the complexity of the arrangement.²⁹ On the other hand, a cooperation agreement need only be negotiated, signed by those with the appropriate authority, and adopted by the UNGA. That a cooperation agreement would be more expeditious could have been important. Ban-Ki Moon was months away from ending his term as Secretary-General of the United Nations at the time the 2016 UN-IOM Agreement was signed. Had IOM waited, new diplomatic relationships would need to be fostered and there was a risk that the new Secretary-General may not share Moon’s enthusiasm for the new terms.

The notion that IOM might reconsider its relationship with the UN in order to defend its interests was not new. The previous IOM Director General, Brunson McKinley, held similar concerns about the possibility of a broader UN migration agency and reported to the IOM Council in 2002 that ‘the UN is conscious of a gap in coverage and is looking for ways to fill the gap’.³⁰ When, in January 2004, the IOM Council endorsed a course of action to advance the UN-IOM relationship in which ‘improvements to the existing cooperation agreement with the United Nations should be sought’, the UN Secretariat took the view that ‘the sole viable option’ for a more formal institutional link between IOM and the UN ‘would be specialized agency status’.³¹ On the face of it, IOM’s expanded program of work, into a far broader spectrum of migration-related activities than logistics alone, arguably rendered it of a character suited to specialized agency status given the alignment of that work with the definition of specialized agency in Article 57 of the UN Charter. Yet IOM is not a UN-specialized agency, nor has it become one as a result of the 2016 Agreement. In fact, it intentionally avoided that form of relationship, the possibility of which had long been the subject of internal deliberation.³²

Between 2003 and 2013, the IOM Administration produced a series of reports which gave thorough consideration to the options for future UN-IOM relations and detailed the pros and cons of becoming a UN-specialized agency. In 2003, the IOM Council established the IOM Working Group on Institutional Arrangements and asked the IOM Administration to prepare a report for further deliberation. The Preliminary Report on the IOM-UN Relationship was delivered to IOM member states on 7 April 2003, an Addendum provided on 22 September 2003, and a summary report on 10 November of the same year.³³ Deliberations on the topic were then paused to allow for the findings of the Global Commission on International Migration to be concluded.³⁴ Thereafter, in 2007 another report was produced: Options for the IOM-UN Relationship: Additional Analysis of Costs and Benefits.³⁵ A further Working Group on IOM-UN Relations was established in 2013.³⁶ The ‘regularly prepared background documents’ produced by the IOM Administration over the 17 meetings of this Working Group are not publicly available.³⁷ IOM Council Resolution 1309 was adopted in December 2015 and contained the terms for negotiating the 2016 Agreement. It appears to have been informed by the 2013 Working Group’s findings insofar as resolution 1309 thanks the (2013) Working Group for its efforts, acknowledges its report, and thereafter requests the Director-General to formally approach the UN to convey its views on how the relationship between IOM and the UN could be improved.³⁸ It was these negotiations which led to the conclusion of the 2016 UN-IOM Agreement.³⁹

In its reporting to the IOM Council, the Working Group assessed that as a specialized agency IOM would be advantaged in several respects. It would be ‘accorded additional and enhanced rights, privileges, opportunities, visibility and standing at United Nations Headquarters, in the Field, and in capitals around the world’.⁴⁰ These privileges included membership of the Chief Executives Board of the UN, Executive Committees on Humanitarian Affairs, ‘full membership in UN country teams’, UN privileges and immunities for its staff including the use of the UN passport (laissez passer), and a ‘higher profile’ for IOM in general.⁴¹ It also identified the possibility of ‘additional funding sources’ and ‘clarity’ because ‘IOM’s formal organizational status would be easier for interlocutors – including governmental officials – to understand’.⁴² That is, the adoption of the UN brand would grant it easier recognition and acceptance as well as the potential for additional funding.⁴³ Existence outside the UN had meant ‘IOM has to work harder to gain acceptance and recognition, to raise funds, to join inter-agency planning processes and assessment missions, and to acquire the international legal status that comes automatically to UN agencies’.⁴⁴ IOM reporting noted that without specialized agency status, participation in UN Headquarters working groups and UN country team meetings was at the discretion of the UN Secretariat or the relevant UN Resident Coordinator and ‘never automatic nor as of right’.⁴⁵ The potential use of the laissez passer and its associated privileges by IOM staff were also perceived as a benefit that specialized agency status would afford.⁴⁶

IOM internal reporting recognized that among the disadvantages of becoming a UN-specialized agency were the inefficiencies to which it might lead and potential reporting requirements. IOM recognized that it would have to make an annual report to the Economic, Social and Cultural Committee and through h it, the UN GA, submit its budget to the Advisory Committee on Administrative and Budgetary Questions (ACABQ) and ‘expect a visit from the 15 ACABQ members once every few years’.⁴⁷ Indeed, ECOSOC can coordinate the activities of specialized agencies, obtain reports from them, make recommendations to them, and communicate its observations on those reports to the UN GA.⁴⁸ The UN GA can also make recommendations to specialized agencies in respect of both substantive and financial matters⁴⁹ and ECOSOC can demand reports on the steps specialized agencies have taken to implement UNGA and ECOSOC recommendations.⁵⁰ While hardly accountability mechanisms of the strongest order, the additional lines of reporting and the need to adapt to the UN’s ‘more bureaucratic and less results-oriented work-style’ were among the perceived disadvantages of specialized agency status.⁵¹

Assessing the terms of the 2016 Agreement against these documents is insightful. It becomes clear that what the 2016 Agreement achieved for IOM is many of the benefits that specialized agency status would afford, while avoiding the perceived pitfalls such as centralized reporting and UN oversight. Specifically, the 2016 Agreement granted IOM additional and enhanced access to UN systems and meetings, privileges associated with the use of the laissez passer, participation in the UN Chief Executives Board for Coordination, its subsidiary bodies, and country teams,⁵² and, although this was not expressly provided for under the terms of the 2016 Agreement, a launching point for the adoption of the UN brand.⁵³

6.4 What Does the 2016 Agreement Change? The 1996 and 2016 Agreements Compared

The 2016 UN-IOM Agreement largely mirrors the 1996 iteration, in both structure and form. The 2016 Agreement is longer than its 1996 counterpart: it contains 25 paragraphs (nine in the preamble), whereas the 1996 version contains 14 (four in the preamble). At no point does the 2016 Agreement state in express terms that its effect is to alter the ‘status’ of IOM, nor that the Agreement transforms the character of the organization vis-à-vis the UN. This is perhaps not remarkable insofar as none of the other agreements held between the UN and other international organizations recognized as ‘UN-related’ do so either. The reason one searches for express terms in this instance is because IOM has claimed that the effect of the 2016 Agreement was to grant IOM a new UN-related status and is the justification for its reconstituted identity.⁵⁴ Others too have suggested the 2016 Agreement constitutes a ‘change in its legal status’.⁵⁵ Accordingly, one expects a sufficient distinction between the 2016 Agreement and the pre-existing 1996 UN-IOM Agreement to warrant this interpretation.

It is true enough that Article 1 of the 2016 Agreement does expressly provide, in a way that the 1996 Agreement did not, that ‘the present Agreement defines the terms on which the United Nations and the International Organization for Migration shall be brought into relationship with each other’.⁵⁶ The words ‘shall be brought into relationship with each other’ could imply that the two organizations were not already in a relationship and that this agreement is doing something new. But equivalent express terms about being ‘brought into relationship’ do not appear universally in the other UN relationship agreements either, and yet these agreements have done just that. Moreover, the 1996 Cooperation Agreement is evidence of the pre-existing legal relationship between the two.

When viewing the two instruments side by side, the overarching impression is that the 1996 and 2016 Agreements are largely similar, if anything the later agreement insulates IOM from UN-administered accountability and direction as compared with the earlier version. For example, in subparagraph (6) of Article 2 of the 2016 Agreement, each organization commits to cooperating with the other ‘without prejudice to the rights and responsibilities of one another under their respective constituent instruments’. Similar wording appears at several points, where the relevant legal obligation is confined to matters which fall within the ‘respective mandates’ or ‘respective constituent instruments’ of the two organizations.⁵⁷ This is not particularly significant on its own because without express words to the contrary, that the two would act within their respective mandates is implicit in any case. Comparable language appeared in the 1996 Agreement too, but there was less of it.⁵⁸ The difference is the greater degree of importance the institutional distinctions appear to carry in the 2016 Agreement as compared with the earlier version. In particular, as a ‘principle’ on which the 2016 Agreement rests, it places emphasis on the institutional distinctions between the two organizations rather than their ties.⁵⁹

The 2016 Agreement also extinguished already modest accountability mechanisms insofar as accountability includes procedural mechanisms such as transparency, participation and access to information. For example, Article V of the 1996 Agreement provides that IOM ‘shall take into consideration any formal recommendations that the United Nations may make to it’ and that IOM shall ‘upon request, report to the United Nations on the actions taken by it, within its mandate, in order to respond to or otherwise give effect to such recommendations’.⁶⁰ In contrast, the 2016 Agreement does not provide for recommendations to flow from the UN to IOM in any formal sense, nor for mandatory reporting in response to such recommendations should they arise. Rather, Article 4 of the 2016 Agreement reads in its entirety: ‘The International Organization for Migration may, if it decides it to be appropriate, submit reports on its activities to the General Assembly through the Secretary-General’.⁶¹ This phrasing renders reporting essentially a matter of discretion and in this way, the already meagre accountability mechanisms are effectively extinguished. That said, neither the 1996 Agreement nor its 2016 counterpart specifies any process or penalty for non-compliance with its terms. Nor has the author identified any recommendations from the UN to IOM under Article V in the 1996 Agreement, nor reporting from IOM to the UN as a result. Still, it is notable that the possibility has disappeared as a result of the very agreement purported to bring IOM into the UN.

The 1996 Agreement stipulates that the UN and IOM ‘agree to exchange information and documentation in the public domain to the fullest extent possible on matters of common interest’.⁶² In contrast, the 2016 Agreement stipulates that each party shall, upon the request of the other party, furnish the other with ‘special studies or information relating to matters within the other organization’s competence to the extent practicable’.⁶³ There could be arguments about whether the limitation in the 1996 Agreement to ‘material within the public domain’ is more or less open than the 2016 version, but the language has notably shifted: from ‘fullest extent possible’ to simply ‘the extent practicable’. Similar attenuations of the 1996 version are evident elsewhere. The 2016 Agreement states that the UN and IOM ‘agree to cooperate closely within their respective mandates and to consult on matters of mutual interest and concern’. Whereas the 1996 Agreement provides that the UN and IOM ‘shall act in close collaboration and hold consultation on all matters of common interest’, without any reference to respective mandates.⁶⁴ Even if the 2016 Agreement is more or less equivalent to its predecessor, it cannot reasonably be described as strengthening cooperation on these points.

Entitled ‘principles’, Article 2 of the 2016 Agreement contains no statements of principle in terms of moral code but establishes the design principles from which the agreement proceeds, including the institutional independence of each organization from the other. Subparagraphs (1) to (3) list the various ways in which the UN ‘recognizes’ certain features of IOM, including that it shall function as ‘independent, autonomous and non-normative’. In subparagraph (4) of Article 2, IOM recognizes ‘the responsibilities of the United Nations under its Charter’ as well as those of its subsidiary organs and agencies. UN recognition of IOM independence and autonomy must be interpreted based on the ordinary meaning of those words, and in light of the object and purpose of the Agreement itself,⁶⁵ which in this case is to strengthen cooperation between the two organizations. Thus the IOM independence and autonomy being emphasized is its independence from the UN. Whereas in other contexts IOM is constrained from acting independently because its own Constitution requires that in carrying out its activities IOM ‘shall conform to the laws, regulations and policies of the states concerned’.⁶⁶

The adoption of the expression ‘non-normative’ in this clause has been more controversial. To focus on an organization’s non-normative character in a legal arrangement with the UN is curious, insofar as human rights standard setting is widely accepted to be the UN’s principle normative role.⁶⁷ Yet it is unlikely that IOM is using the phrase ‘non-normative’ to describe itself as not having to comply with human rights norms.⁶⁸ What is meant by ‘non-normative’ is not explained in the text of the 2016 Agreement, nor IOM Council resolution 1309 — which sought to insert the term into the Agreement — and it is not a term of art in international law. IOM officials have expressed the view that ‘non-normative’ means that ‘the IOM is not a venue for setting binding standards’.⁶⁹ Yet, that interpretation stands in contrast to the organizational pursuit of leadership in normative processes such as its involvement in the negotiation of the Global Compact for Safe, Orderly and Regular Migration, and responsibility for its follow-up and review.⁷⁰ At least in this respect, the interpretation of the 2016 Agreement by IOM officials and the activities of the organization itself appear misaligned.⁷¹

Article 3 of the 2016 Agreement gave IOM membership in the UN System Chief Executives Board for Coordination and its subsidiary bodies, as well as the Inter-Agency Standing Committee, the Executive Committee on Humanitarian Affairs, the Global Migration Group, and country-level security management teams.⁷² Article 7 permits IOM staff to use the laissez-passer as a travel document, which grants certain privileges and immunities pursuant to the 1946 Convention on Privileges and Immunities of the UN. Crucially, the 2016 Agreement preserved the organization’s ‘independent, autonomous and non-normative’ character as directed by the IOM Council, all of which were previously identified by IOM as being afforded by specialised agency status.⁷³

6.4.1 What Does Article 2(5) Achieve?

In Article 2(5), IOM undertakes to ‘conduct its activities in accordance with the Purposes and Principles of the Charter of the United Nations and with due regard to the policies of the United Nations furthering those Purposes and Principles and to other relevant instruments in the international migration, refugee and human rights fields’.

The purposes of the UN are set out in Article 1 of the UN Charter. They are, essentially, to maintain international peace and security, to promote friendly relations between states and to advance international cooperation in solving problems of economic, social, cultural, or humanitarian character. The UN purpose most directly relevant to IOM is to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.

To ‘achieve international cooperation’ in these fields, rather than to advance them, will probably not upset the IOM apple cart. Indeed, this obligation aligns rather well with Article 1(e) of the IOM Constitution. That provision stipulates that among the purposes and functions of IOM is ‘to provide a forum to States as well as international and other organizations for the exchange of views and experiences, and the promotion of cooperation and coordination of efforts on international migration issues, including studies on such issues in order to develop practical solutions’.⁷⁴ The UN obligation to achieve international cooperation in solving problems and encouraging respect for human rights goes a step further, but, as others in this volume have acknowledged, there is a difference between encouraging cooperation on a topic and advancing it.⁷⁵

The principles of the UN are set out in Article 2 of the Charter and have little relevance to IOM. For instance, the principle that international disputes should be settled by peaceful means and that the use or threat of force are to be avoided, are hardly matters that IOM can influence directly, albeit that a state’s compliance with these principles can impact its work. It is also in Article 2 that the Charter requires that UN member states fulfil their Charter obligations in good faith. While IOM is not a UN member state, the principle of good faith would apply to its conduct in any case under general principles of international law.

The duty to have ‘due regard’ to relevant policies of the UN and ‘instruments in the international migration, refugee and human rights fields’ is ambiguous, insofar as what constitutes ‘due’ is relatively open, and as other authors in this volume have noted, it could arguably be met by simply considering a given norm.⁷⁶ ‘Due regard’ obligations have been the subject of fairly extensive consideration in other areas of international law, in particular the international law of the sea.⁷⁷ In that regime, it has at various points in time been treated as synonymous with standards of ‘reasonable regard’,⁷⁸ ‘keep under review’,⁷⁹ and ‘take into account’,⁸⁰ and operates as a mechanism through which to reconcile the competing interests of states and to interpret duties of cooperation.⁸¹ Overall, ‘due regard’ is best understood as a ‘procedural restraint’⁸² which requires the legal actor to consider and weigh the competing interests in a given situation.⁸³ It is not a pledge to comply, but a commitment to proffer some active deliberation as part of a suite of other considerations.

Article 2(5) must be interpreted in light of the surrounding provisions. Article 2(3) provides, inter alia, that the UN ‘recognizes that the International Organization for Migration, by virtue of its Constitution, shall function as an independent, autonomous and non-normative international organization in the working relationship with the UN established by this Agreement, noting its essential elements and attributes defined by the Council of the International Organization for Migration as per its Council Resolution No. 1309’.⁸⁴ It is notable that the 1996 Agreement did not mention the institutional independence of IOM, yet the 2016 Agreement does so expressly in the same provision said to bring it under the UN umbrella. IOM Council resolution 1309 provided the instructions for IOM negotiators. It directs that any new agreement should be made under the ‘explicit condition’ that certain ‘essential elements’ of the organization be preserved. These include that the ‘IOM is the global lead agency on migration and is an intergovernmental, non-normative organization with its own constitution and governance system, featuring a predominantly projectized budgetary model and decentralized organizational structure’⁸⁵ and that IOM ‘must’ retain its ‘responsiveness, efficiency, cost-effectiveness and independence’.⁸⁶ According to some scholars, IOM member states were concerned about potential ‘mandate creep’, towards a more protection-oriented agenda,⁸⁷ the avoidance of which could explain, at least in part, why the IOM Council insisted that in any new Agreement with the UN, the independence, mandate and efficiencies of IOM were expressly retained.

The commitment to conduct its activities in line with the purposes and principles of the UN could signify that IOM commits to a wider set of human rights standards than it already possesses⁸⁸ insofar as to ‘promote and encourage respect for human rights’ is among the purposes of the UN. Yet, as others in this volume have also observed, it is unlikely that this clause adds much to pre-existing obligations.⁸⁹ When identifying what those pre-existing obligations are, however, it is notable that over the course of the past decade, IOM has advanced its human rights engagement through institutional policies such as the 2012 Migration Crisis Operational Framework, the 2015 Migration Governance Framework, and since 2016 it has participated in programmes such as the UN Human Rights Up Front Initiative and the Human Rights Due Diligence Policy.⁹⁰ Policy while is not always irrelevant as a matter of law. The internal rules of an organization, such as ‘decisions, resolutions, and other acts of the organization adopted in accordance with those instruments, and established practice of the organization’⁹¹ possess the potential to give rise to responsibility under international law.⁹²

6.5 How the Organizations Continue to Differ: The IOM Constitution and the UN Charter

The Constitution of an international organization sets out the organization’s fundamental purpose and the scope of its power, including its basic structure, key organs, finances, and how decisions are made.⁹³ As the International Court of Justice has observed, an international organization’s Constitution establishes ‘the very nature of the organization being created, the objectives which have been assigned to it by its founders, [and] the imperatives associated with the effective performance of its functions’.⁹⁴ It can be distinguished from the suite of other documents that might come to inform aspects of the organization’s legal obligations and relationships – such as the agreements the subject of this chapter – in that the objective of the Constitution is the creation of a new subject of law, to which the parties ‘entrust the task of realizing common goals’.⁹⁵ Thus, although there is scope for the interpretation of a Constitution to shift over time alongside the practice of the organization and its internal documents, the central purpose of the organization and its governing structure, as set out in its constituent instrument, set some boundaries for that evolution.⁹⁶ For that reason, this section compares the Constitution of the International Organization for Migration and the UN Charter. The differences between these documents are recognized in the 2016 Agreement itself insofar as it is ‘by virtue of its Constitution’ that the UN recognizes the IOM ‘shall function as an independent, autonomous and non-normative organization’ in the working relationship between the two.⁹⁷

The UN, and in particular the Office of the UN High Commissioner for Refugees (UNHCR), and IOM were designed to work side-by-side and have long done just that.⁹⁸ The UN was established by states to maintain international peace and security, to promote friendly relations between states, and to promote international cooperation including in promoting respect for human rights and fundamental freedoms.⁹⁹ Human rights standard setting is widely accepted to be the principal normative role of the UN,¹⁰⁰ enlivened by specific obligations embedded throughout its Charter.¹⁰¹ The preamble to the UN Charter expresses states’ determination ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person’¹⁰² Article 13 of the Charter provides that the UNGA must make recommendations towards, inter alia, ‘assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’.¹⁰³ UN member states make an express commitment in Article 55 of the Charter to promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all’.¹⁰⁴ That is not to say that the UN or its member states have always lived up to these commitments, but it remains notable that they are an express element of the organization’s purpose, repeatedly referred to throughout the UN Charter, and human rights promotion and protection comprise specific obligations for UN member states by virtue of their membership of the UN.

There are notable differences in the way that UNHCR and IOM are funded and how they operationalize their budgets. As a matter of principle, UNHCR seeks to direct funds where the need is greatest, with the first priority being to ensure the protection of people.¹⁰⁵ However, there is usually a significant gap between the assessed needs and the funds it has available, and it routinely undertakes funding appeals to address the shortfall.¹⁰⁶ That shortfall leaves obvious, if potential, scope for state influence. Nonetheless, empirical studies suggest that ‘even if donors attempt to influence UNHCR based on their diverse geopolitical and economic interests, this does not undermine the mandate of the organization to provide aid to displaced populations’.¹⁰⁷ IOM initiates projects at the request of states and is financed predominantly by earmarked contributions for those projects, which is perfectly in line with its constitutional mandate to provide migration services to states.¹⁰⁸

What is now IOM was established in 1951 as the Provisional Intergovernmental Committee for the Movement of Migrants from Europe (PICMME). It was created as a counterpart to the Office of the UN High Commissioner for Refugees, to provide logistical support for migration out of Europe in the wake of the Second World War.¹⁰⁹ Its purpose, according to its Constitution, is ‘to make arrangements for the organized transfer of migrants’ and to provide various migration services ‘at the request of and in agreement with the States concerned’.¹¹⁰ The scope of IOM operations has shifted markedly since. It now routinely supports states with internally displaced persons, border management, counter-trafficking, evacuations, emergency shelters, policy development, and the implementation of detention programs, assisted voluntary returns and reintegration.¹¹¹ In fact, IOM provides services to millions of people each year through its crisis-related activities.¹¹² Indeed, it is this very feature that makes it prima facie more akin to a UN Specialised agency than any of the other UN-related organizations: it is the only one which directly engages with individuals in situations of precarity. The absence of human rights priorities within its central purposes enshrined in its Constitution, combined with its constitutional onus to respect the policies of states, has led to criticism that it has prioritized state interests over migrant interests in its work.¹¹³

6.6 Addressing the Disconnect: The Path Forward

The cooperation agreements between the UN and other international organizations, including those with IOM, incorporate no express terms to indicate that becoming ‘UN-related’ is a status the relevant agreement affords. If ‘UN-related’ is an attribute that an organization derives from having concluded a cooperation agreement with the UN, then IOM became ‘UN-related’ when the 1996 Agreement entered into force. Indeed, express wording recognizing the independence of IOM from the UN was an addition to the 2016 Agreement,¹¹⁴ not present in the version from two decades earlier. It is therefore perplexing that the later legal instrument has been heralded as the source of the shift.

Internal advice within IOM dating back to the early 2000s illustrates an understanding within IOM that to achieve what the 2016 UN-IOM Agreement does would maintain the ‘status quo’ of the 1996 Agreement while obtaining the benefits of being a UN-specialized agency, without actually becoming one.¹¹⁵ Overall the legal effect of the 2016 Agreement is to maintain its pre-existing legal status, reduce potential reporting, while granting IOM greater access to UN systems, high-level meetings, and the use of the laissez passer. It is notable too that IOM’s own internal reporting on UN-IOM relations anticipated that improved international recognition and funding would flow from the use of the UN brand. While the 2016 Agreement does not include any language about it being within the UN or acquiring a new status, the rebranding of the organization at the same time as the new agreement provides that impression.

Notwithstanding the absence of a meaningful legal change in status, IOM could certainly embrace the 2016 Agreement as a launching point for its own more UN-like initiatives. In some respects, it appears to have done just this. It is indeed possible that IOM’s more active advancement of human rights policies constitutes a ‘sincere shift in priorities since the beginning of this decade’.¹¹⁶ Whether or not this is so, it remains the case that this shift in priorities lacks the ‘solid foundation’ that IOM itself recognized would come with legally effective commitments.¹¹⁷ There is a meaningful difference between the internal policy approaches an organization might adopt, and the legal obligations that apply. While the internal rules of an organization can be a source of legal obligation, a persistent lack of clarity over their nature inhibits the strength of such claims.¹¹⁸ As others have observed, the adoption of human rights policies and the UN logo, without a concomitant binding and express legal commitment to advance human rights as an institutional imperative, could serve to cloak the organization’s activities that inhibit access to protection.¹¹⁹ None of this is to suggest that the UN ought to be perceived as the flagbearer for accountability. It certainly has its own failings which have been widely documented elsewhere. It is rather to observe that whatever the failings of accountability within the UN, those of IOM vis-à-vis the UN are weakened by the 2016 Agreement.

One way to address the challenges this chapter has raised would be to amend the Constitution of the IOM to include an unequivocal commitment to both promote human rights standards and to prioritize their protection in its operational activities.¹²⁰ At the very least, this would clarify the scope of its obligations. Guild, Grant and Groenendijk have argued that as the UN GA considers the institutional architecture for the GCM, the UN member states that are also members of IOM should move to revise the IOM Constitution to include a protection mandate.¹²¹ IOM member states could also clarify which of its internal policies constitute internal and binding law of the organization, alongside its formal Constitution. There are, of course, obstacles to the accomplishment of such suggestions. Even if such commitments were made, it is unclear how they would be monitored and enforced. Further legal scholarship alongside relevant adjudication could also advance legal clarity.

Stian Øby Johansen, in this volume, has contemplated the establishment of a new internal accountability mechanism. While technically within the IOM machinery, it would stand as independent, similar to the European Ombudsman or the World Bank Inspection Panel. The idea is one of some merit, particularly for its potential to advance transparency, depending on the particular form that it might take. Before it gets to that, in more practical terms, an amendment of the IOM Constitution would require a minimum a two-thirds majority of the IOM Council to vote in favour of such a proposal.¹²² That would be difficult to achieve in the context of an evident tendency among IOM member states to favour efficiency over accountability. The political climate is not encouraging. The trend towards the mass securitization of borders has only been heightened by the Covid-19 pandemic, and it is difficult to see how a majority of states would approve any measures that could inhibit the scope, efficiency or conduct of the services that IOM currently provides. In the meantime, not only should IOM’s operational compliance with human rights standards continue to be closely monitored, including by third parties and NGOs,¹²³ but any trend to assign leadership to IOM – an expressly non-normative institution – in processes that lead to the development of norms must be monitored and restrained.