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Notes on the ideology of international organizations law: The International Organization for Migration, state-making, and the market for migration

  • Jan Klabbers (a1)

Abstract

This article discusses the law and practice of the International Organization for Migration (IOM), a little-known but important international organization. The article aims to illuminate what it is the IOM does; how it influences its member state practices while simultaneously working on member state assignments; and how this affects the dominant theory underpinning the law of international organizations, i.e., the theory of functionalism. The article concludes that the IOM takes functionalist thought to extremes, and in doing so makes visible the latter’s ideological nature.

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1 I will consistently speak of international organizations, in alignment with standard international legal terminology. These are organizations having states as their members, and therefore need to be distinguished from non-governmental or private organizations.

2 The notion is borrowed from Weber to suggest that there is a model which may exist in theory but may not often (and possibly never) be fully met in practice. Weber himself suggests, with respect to ideal types of economic actors, that these are usually ‘unrealistic or abstract in that they always ask what course of action would take place if it were purely rational and oriented to economic ends alone’. See Roth, G. and Wittich, C., Max Weber, Economy and Society (2013), Vol. I, 1822 .

3 An early comprehensive formulation is P. S. Reinsch, Public International Unions; Their Work and Organization: A Study in International Administrative Law (1911); the leading recent statement is H. G. Schermers and N. Blokker, International Institutional Law: Unity within Diversity (2018).

4 For an overview of this development see Klabbers, J., ‘The EJIL Foreword: The Transformation of International Organizations Law’, (2015) 26 EJIL 9.

5 Think of the European Union, or the Organization of Islamic Cooperation.

6 Think of the Organization of Petroleum Exporting Countries, or the International Olive Council.

7 N. Singh, Termination of Membership of International Organisations (1958), vii.

8 Further study of the assumptions underlying functionalism will have to wait for a different occasion.

9 This Global Compact is negotiated under auspices of the United Nations; the words cited can be found in point 8. See UN Doc. A/RES/73/195.

10 1990 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, 2220 UNTS 3948, Art. 79.

11 See UN Doc. A/HRC/35/25 (2017), paras. 25 and 17 respectively. Note that the special rapporteur advocates the regulation of mobility rather than the imposition of restrictions.

12 Constitution of the International Organization for Migration, Art. 1(3), available at www.iom.int/constitution (accessed 3 February 2018).

13 Ong, A., Neoliberalism as Exception: Mutations in Citizenship and Sovereignty (2006), 125.

14 Players on this market include global consultancy firms. See, e.g., www2.deloitte.com/global/en/pages/legal/solutions/mobility-immigration.html (accessed 3 February 2018); www.pwc.com/ca/en/law/immigration-law/global-immigration.html (accessed 3 February 2018).

15 The UN special rapporteur on the human rights of migrants, Francois Crépeau, reaches a similar conclusion; see UN Doc. A/HRC/35/25 (2017), para. 30.

16 As Koslowski summarizes: ‘If all countries had “open border” policies toward migration and none had laws limiting the number of migrants and requiring them to enter through official ports of entry, there would be no such thing as “illegal” migration, and no one would need to pay smugglers to cross a border.’ See R. Koslowski, ‘Immigration, Crime, and Terrorism’, in M. R. Rosenblum and D. J. Tichenor (eds.), Oxford Handbook of The Politics of International Migration (2012), 511–31.

17 See generally J. Harding, Border Vigils: Keeping Migrants Out of the Rich World (2012).

18 Guilfoyle conceives of people-smuggling as ‘often a flexible, entrepreneurial activity’ and juxtaposes this with monopolistic criminal organizations – the latter may be too set in their ways to be very successful, so the implicit suggestion runs. See D. Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), at 183. Others hold that states often lack the power to impose conditions for immigration on their own: see Newland, K., ‘The Governance of International Migration: Mechanisms, Processes, and Institutions’, (2010) 16 Global Governance 331, at 342 (approvingly quoting Pechoud and de Guchteneire).

19 Cooley issues a general word of caution, noting that governance based on contracting of services and activities tends to diminish governance outcomes and may have ‘important, and often unintended, transformative consequences for the roles, priorities, and even legitimacy of governors’. See Cooley, A., ‘Outsourcing Authority: How Project Contracts Transform Global Governance Networks’, in Avant, D. D., Finnemore, M. and Sell, S. K. (eds.), Who Governs the Globe? (2010), 238.

20 Political geographers point out that border management, under New Public Management mantras, is expected to be profitable, or at least cost-effective. See, e.g., Prokkola, E. K., ‘Technologies of Border Management: Performances and Calculation of Finnish/Schengen Border Security’, (2013) 18 Geopolitics 77.

21 See generally P. Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about it (2007).

22 This is, one may surmise, one of the benefits of delegation (at least for the authorities doing the delegating), but not usually recognized as such in the rationalist literature. See, e.g., D. G. Hawkins et al., ‘Delegation under Anarchy: States, International Organizations, and Principal-Agent Theory’, in D. G. Hawkins et al. (eds.), Delegation and Agency in International Organizations (2006), 3 (listing, amongst others, the management of policy externalities, the facilitation of collective decision-making and enhancement of credibility as benefits of delegation).

23 See M. Bovens, The Quest for Responsibility: Accountability and Citizenship in Complex Organizations (1998).

24 Ashutosh and Mountz do not mince their words: ‘… governments contractually employ the IOM to carry out a range of migration-related services that governments find themselves unable or unwilling to carry out for legal and political purposes’. See I. Ashutosh and A. Mount, ‘Migration Management for the Benefit of Whom? Interrogating the Work of the International Organization for Migration’, (2011) 15 Citizenship Studies 21.

25 www.iom.int/immigration-and-border-management (accessed 30 August 2017).

26 Ibid. IBM, incidentally, stands for Immigration and Border Management.

27 See Immigration and Border Management Annual Review 2012 (2013), at 5.

29 See supra note 25.

30 See generally the fine study by T. Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (2011).

31 Harding, supra note 17, at 80.

32 Additional EU alternatives (the European Agenda on Migration, the so-called Khartoum Process) are briefly discussed in Ferstman, C., International Organizations and the Fight for Accountability: The Remedies and Reparations Gap (2017), 37.

33 Harding, supra note 17, at 80.

34 See also Hirsch, A. and Doig, C., ‘Outsourcing Control: The International Organization for Migration in Indonesia’, (2018) 22 International Journal of Human Rights 681. In 2016, news broke of all sorts of human rights related issues in these centres, but without there being mention of the IOM: see P. Farrell, N. Evershed and H. Davidson, ‘Australia’s Detention Horror’, Guardian Weekly, 10 August 2016, available at www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention (accessed 8 April 2019).

35 See McNevin, A., ‘Forced Migration in Australia, New Zealand and the Pacific’, in Fiddian-Qasmiyeh, E. et al. (eds.), Refugee and Forced Migration Studies (2014), 639, at 644.

36 Moreover, since the 1980s, airlines have been tasked with immigration control on airports and terminals far from their destinations, operating as de facto immigration officials. See Scholten, S. and Terlouw, A., ‘Private Carriers as Experts in Immigration Control’, in Ambrus, M. et al. (eds.), The Role of ‘Experts’ in International and European Decision-Making Processes: Advisors, Decision Makers or Irrelevant Actors? (2014), 288.

37 See, e.g., Bradley, M., ‘The International Organization for Migration (IOM): Gaining Power in the Forced Migration Regime’, (2017) 33 Refuge 97.

38 Antecedent thinking can be traced back to F. B. Sayre, Experiments in International Administration (1919), who merrily characterized joint ventures between states to protect certain particular, private interests as examples of international organizations.

39 The power of international organizations is often held to rest in part on their legitimacy, and this, in turn, owes something to how they behave. Among the leading studies on legitimacy and international organizations, concentrating on the UN Security Council, is I. Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (2007).

40 Some of Arpaio’s antics are sketched in Harding, Border Vigils, 108–18. Arpaio would gain further notoriety when he was pardoned by US President Trump in 2017: D. Smith, ‘Donald Trump defends controversial pardon of “patriot” Joe Arpaio’, Guardian, 28 August 2017, available at www.theguardian.com/us-news/2017/aug/28/donald-trump-defends-joe-arpaio-pardon-patriot (accessed 13 September 2017).

41 Ashutosh and Mount, supra note 24, at 27.

42 Ibid., at 34.

43 See D. Shelton (ed.), The Oxford Handbook of International Human Rights Law (2013).

44 See Rosenblum and Tichenor, supra note 16; V. Chetail and C. Bauloz, Research Handbook on International law and Migration (2014); E. Fiddian-Qasmiyeh et al. (eds.), The Oxford Handbook of Refugee and Forced Migration Studies (2014).

45 See S. S. Juss, International Migration and Global Justice (2006); V. Chetail, ‘The Human Rights of Migrants in General International Law: From Minimum Standards to Fundamental Rights’, (2013) 28 Georgetown Immigration Law Journal 225.

46 See C. Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (2008).

47 See Reinalda, B., Routledge History of International Organizations: From 1815 to the Present Day (2009), 352.

48 See Schermers and Blokker, supra note 3; P. Sands and P. Klein, Bowett’s Law of International Institutions (2009); C. F. Amerasinghe, Principles of the Institutional Law of International Organizations (2005); S. Cassese (ed.), Research Handbook on Global Administrative Law (2016). The IOM gets some mentions in the work of Klabbers, but not too much either. See, e.g., Klabbers, J., An Advanced Introduction to the Law of International Organizations (2015), 14, at 115.

49 Ironically, the IoM more deeply discussed in that volume is the Institute of Medicine (IoM), affiliated with the US National Academy of Science and by no means to be considered an international organization. See Koenig-Archibugi, M., ‘Accountability’, in Cogan, J. K., Hurd, I. and Johnstone, I. (eds.), The Oxford Handbook of International Organizations Law (2016), 1146, at 1158–9.

50 See Thomas, C., ‘Transnational Migration, Globalization, and Governance: Theorizing a Crisis’, in Orford, A. and Hoffmann, F. (eds.), The Oxford Handbook of the Theory of International Law (2016), 882, at 899.

52 See Perruchoud, R., ‘From the Intergovernmental Committee for European Migration to the International Organization for Migration’, (1989) 1 International Journal of Refugee Law 501, at 503.

53 See Ducasse-Rogier, M., The International Organization for Migration 1951-2001 (2001), 15.

54 For a useful discussion of the creation of PICMME see Karatani, R., ‘How History Separated Refugee and Migrant Regimes: In Search of their Institutional Origins’, (2005) 17 International Journal of Refugee Law 517.

55 See generally also Elie, J., ‘The Historical Roots of Cooperation between the UN High Commissioner for Refugees and the International Organization for Migration’, (2010) 16 Global Governance 345.

56 Indeed, the drafting history reveals that the member states opted for something ‘intergovernmental’ on purpose, in the mistaken belief that this would somehow be less of an abdication of sovereignty than creating an ‘international’ entity. See Karatani, supra note 54, at 537.

57 See, e.g., Klabbers, J., ‘Two Concepts of International Organization’, (2005) 2 International Organizations Law Review 277.

58 See Perruchoud, supra note 52, at 516.

59 See N. R. Micinski and T. G. Weiss, ‘International Organization for Migration and the UN System: A Missed Opportunity’, available at www.futureun.org/media/archive1/briefings/FUNDS_Brief42_IOM_UN_Migraton_Sept2016.pdf (accessed 13 September 2017). See also, critically, E. Guild, S. Grant and K. Groenendijk, ‘IOM and the UN: Unfinished Business’, Queen Mary Legal Studies Research Paper No. 255/2017.

60 See UN Doc. A/68/283 (2013), paras. 112, 113. Note that none of these concerns was decisively addressed when the IOM joined the UN family, although the relevant agreement stipulates that the IOM ‘undertakes to conduct its activities’ in accordance with the UN Charter and other relevant legal instruments. The text is contained in UN Doc. A/70/976 (2016).

61 To be sure, the provision also refers to Art. 1(d), which essentially addresses the other side of the coin: return migration, including voluntary repatriation.

62 In 2013, the UN special rapporteur on the human rights of migrants noted that more than 97% (!) of the IOM budget came from sources other than compulsory membership fees, leading him to conclude that ‘the donor states have a large role in determining the organization’s work and priorities’. See UN Doc. A/68/283 (2013), para. 114.

63 See, e.g., Bradley, supra note 37; Hirsch and Doig, supra note 34.

64 Its rules of procedure were adopted by the Council in 2007, as were its terms of reference. Both were amended in 2013. Note again how opaque the available information is.

65 Constitution of the International Organization for Migration, Art. 10 gives the Council the authority to set up such subsidiary bodies as ‘may be required for the proper discharge of its functions’.

66 www.iom.int/labour-migration (accessed 16 June 2016).

67 Ibid.

68 Ibid.

69 Reportedly, the IOM regularly applies for grants from local governments for specific trafficking projects, competing with NGOs, universities, and both for-profit and non-profit organizations. Among those issuing grants is the US Department of State through its G/TIP office, the office dealing with trafficking in persons. See Engle Merry, S., The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking (2016), 132.

70 www.iom.int/counter-trafficking (accessed 16 June 2016).

73 http://www.iom.int/facilitating-migration (accessed on 28 June 2016).

74 See Ducasse-Rogier, supra note 53, at 29.

75 See Expansion of Advanced Border Control and Management Technologies in Armenia (2008), available at publications.iom.int/books/expansion-advanced-border-control-and-management-technologies-armenia (accessed 28 June 2016).

76 www.iom-nederland.nl/en/voluntary-return (accessed 28 June 2016); www.iom.fi/AVRR (accessed 28 June 2016). Intriguingly, both suggest the possibility of financial support for repatriation, including flight tickets and possible cash assistance.

77 www.iom.int/countries/denmark (accessed 28 June 2016).

78 See Dembour, M. and Martin, M., ‘The French Calaisis: Transit Zone or Dead End?’, in Dembour, M. and Kelly, T. (eds.), Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States (2011), 123, at 138. In the same spirit, Guild et al. suggest that local IOM offices reliant on funding from local governments ‘may not be as careful … as head office’ about upholding the principle that forced expulsion is wrong. See Guild et al., supra note 59, at 13.

79 See Penovic, T. and Dastyari, A., ‘Boatloads of Incongruity: The Evolution of Australia’s Offshore Processing Regime’, (2007) 13 Australian Journal of Human Rights 33, at 35.

80 Ibid., at 52. And this still says nothing about the human costs, which can be considerable: IOM camp conditions may be dismal, and the IOM is sometimes accused of not paying attention: ibid., at 43–4.

81 The Standards are available at www.ohchr.org/Documents/Issues/Detention/DraftBasicPrinciples/IOM3.pdf (accessed 4 November 2017).

82 See, e.g., Bradley, supra note 37.

83 The words are Foucault’s, as cited in Rose, N., Malley, P. O’ and Valverde, M., ‘Governmentality’, (2006) 2 Annual Review of Law and Social Science 83, at 83.

84 The involvement with UNRRA of Francis Sayre, one of the founding fathers of international organizations functionalism, suggests tantalizing avenues for exploration. On Sayre’s role generally, see Klabbers, supra note 4, at 41–8. Sayre’s work for UNRRA is documented in his autobiography: see F. B. Sayre, Glad Adventure (1957).

85 A similar intuition underlies S. Legg, ‘“The Life of Individuals as well as of Nations”: International Law and the League of Nations’ Anti-Trafficking Governmentalities’, (2012) 25 LJIL 647.

86 Much the same characterized the UN’s administration of East Timor, where human rights (conceptualized in terms of individual incidents and such things as convictions for violations) took priority over the far more difficult and sprawling task of nation-building. See briefly J. Klabbers, ‘Redemption Song: Human Rights Versus Community-building in East Timor’, (2003) 16 LJIL 367.

87 See Developing a Road Map for Engaging Diasporas in Development: A Handbook for Policymakers and Practitioners in Home and Host Countries (2012), accessible at publications.iom.int/system/files/pdf/diaspora_handbook_en_for_web_28may2013.pdf (accessed 29 April 2019).

88 Ibid., at 14.

89 See IOM Project Handbook (2011), available at publications.iom.int/es/system/files/pdf/iom_project_handbook_6feb2012.pdf (accessed 29 April 2019).

90 See Passport Examination Procedure Manual (2007), available at cb4ibm.iom.int/ibm/index.php/2012-06-13-02-09-37/publications-and-training-manuals/passport-examination-procedure-manual (accessed 29 April 2019).

91 The Emergency Manual is set up as an app, or a collection of linked chapters separately navigable on the internet and on smartphones: emergencymanual.iom.int/ (accessed 5 September 2017).

92 See Immigration and Border Management Annual Review 2012, supra note 27, at 8.

93 One classic formulation is by E. B. Haas, Beyond the Nation-State (1964); for a more recent elaboration, see J. Mathiason, Invisible Governance: International Secretariats in Global Politics (2007).

94 It has been observed that especially during the 1990s, the IMF itself was dancing to the tune of the US Treasury, which complicates causality: US influences IMF which, in turn, influences, say, Burundi. For the argument, with considerable empirical substantiation, see R. W. Stone, Controlling Institutions: International Organizations and the Global Economy (2011).

95 See S. Pedersen, The Guardians: The League of Nations and the Crisis of Empire (2015).

96 See Sinclair, G. F., ‘State Formation, Liberal Reform and the Growth of International Organizations’, (2015) 26 EJIL 445 ; G. F. Sinclair, To Reform the World: International Organizations and the Making of Modern States (2017); M. Fahkri, Sugar and the Making of International Trade Law (2014).

97 See Klabbers, supra note 4. As Hirschman has observed, sometimes propositions seem so obvious ‘that they are never fully or systematically articulated.’ See Hirschman, A. O., The Passions and the Interests (1977), 69.

98 The seminal volume is Hawkins et al. (eds.), Delegation and Agency (2006).

99 So do social scientists, but they tend to mean something else by the term. In relation to international organizations, functionalism usually refers to the idea that once forms of co-operation around specific functions are established, they will beget further co-operation. The standard reference is D. Mitrany, A Working Peace System (1943). In a nutshell, lawyers ask themselves how co-operation is structured, while political science functionalists ask how co-operation can be stimulated. Still, often the two meanings are confused; a telling example is A. A. Fatouros, ‘On the Hegemonic Role of International Functional Organization’, (1980) 2 German Yearbook of International Law 9.

100 Some such narrative underlies T. Johnson, Organizational Progeny: Why Governments are Losing Control Over the Proliferating Structures of Global Governance (2014).

101 See further J. Klabbers, ‘What Role for International Organizations in the Promotion of Community Interests? Reflections on the Ideology of Functionalism’, in E. Benvenisti and G. Nolte (eds.), The Community Interest Across International Law (2018), 86.

102 See J. Klabbers, ‘Theorising International Organisations’, in Orford and Hoffmann, supra note 50, at 618.

103 See D. D. Avant, M. Finnemore and S. K. Sell, ‘Who Governs the Globe?’, in Avant et al. (eds.), Who Governs the Globe? (2010), 1, at 11–14.

104 See, e.g., L. Smith, ‘Fiduciary Relationships: Ensuring the Loyal Exercise of Judgment on Behalf of Another’, (2014) 130 Law Quarterly Review 608. On the relevance of loyalty in this context see also G. Fletcher, ‘Loyalty’, in D. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (1996), 524.

105 This is a broad and loose definition, but sufficient for present purposes, derived from M. Goldie, ‘Ideology’, in T. Ball, J. Farr and R. L. Hanson (eds.), Political Innovation and Conceptual Change (1989), 266, at 267. A useful overview of the various meanings that the term ideology can be given in S. Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000), 8, while the role of ideology in judging is discussed at length in D. Kennedy, A Critique of Adjudication: (Fin de Siècle) (1997).

106 See, e.g., M. Hirsch, The Responsibility of International Organizations toward Third Parties: Some Basic Principles (1995).

107 See, e.g., Schwartz, B. and Leven, E., ‘International Organizations: What Makes Them Work?’, (1992) 30 Canadian Yearbook of International Law 165.

108 An arguably extreme rendition is the fiduciary version proposed by Criddle and Fox-Decent, which is not cast in explicitly functionalist terms but nonetheless highly compatible. To their minds, the legal competences of international organizations are ‘held in trust by international institutions on behalf of humanity. Accordingly, international institutions must exercise their legal power in a manner that serves humanity’. See E. J. Criddle and E. Fox-Decent, Fiduciaries of Humanity: How International Law Constitutes Authority (2016), 288. A related, if more philosophical, approach is developed by C. E. Pavel, Divided Sovereignty: International Institutions and the Limits of State Authority (2015).

109 See Newland, supra note 18, at 332.

110 It has been documented that IOM’s conceptualization of ‘irregular migration’ for instance, was received with some reluctance by both UNHCR and NGOs such as Human Rights Watch. See J. Handmaker and C. Mora, ‘Experts: The Mantra of Irregular Migration and the Reproduction of Hierarchies’, in Ambrus et al. (eds.), The Role of ‘Experts’, 263, at 275–7.

111 Anecdotal, but telling: in March 2016, I attended a small expert meeting on Europe’s refugee influx, organized by the EU’s Fundamental Rights Agency. Around the table were representatives from several humanitarian agencies and NGOs (UNHCR, Aire, EASO) as well as from several border protection agencies (two national ones, plus the EU’s Frontex), but none from the IOM. When I asked the chairperson afterwards, he acknowledged that he had not given much thought to inviting the IOM, but would have probably extended an invitation had the meeting been set up on a larger scale.

112 See generally Klabbers, supra note 4; and Klabbers, supra note 102.

113 Indeed, one popular study of the origins of the UN carries this title: see S. C. Schlesinger, Act of Creation: The Founding of the United Nations (2003).

114 This applies in particular to Sayre, supra note 38.

115 This legitimacy in turn owes much to the (ostensible) public mission of international organizations, who are typically seen to be working for the common good.

116 See Barnett, M. and Solingen, E., ‘Designed to Fail or Failure of Design? The Origins and Legacy of the Arab League’, in Acharya, A. and Johnston, A. I. (eds.), Crafting Cooperation: Regional International Institutions in Comparative Perspective (2007), 180.

117 Herbst tellingly claims that the OAU was ‘despite its name, devoted to ensuring the division of Africa was viable by strengthening individual states’. See J. Herbst, ‘Crafting Regional Cooperation in Africa’, in ibid., 129, at 133.

118 See Pedersen, supra note 95, at 406.

119 See Engle Merry, supra note 69; see also K. E. Davis et al., Governance by Indicators: Global Power through Quantification and Rankings (2012).

120 The same point transpires from Sinclair, To Reform the World, supra note 96.

121 See, e.g., Bradley, C. and Kelley, J. G., ‘The Concept of International Delegation’, (2008) 71 Law and Contemporary Problems 1.

123 One of the classic textbooks on international organizations carries this motto in its title: see I. L. Claude Jr., Swords into Plowshares: The Problems and Progress of International Organization, (1959).

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