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.Footnote 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.Footnote 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.’Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.’Footnote 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.’Footnote 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.Footnote ¹¹ As Schermers and Blokker put it, most IOs have ‘a “constitution,” the interpretation of which changes with the development of society.’Footnote ¹² As bureaucracies, IOs themselves shape this ongoing process of interpretation, helping to underpin their governance ambitions.Footnote ¹³

Every IO has a ‘legal order’Footnote 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.’Footnote ¹⁵ If the constitution is ‘the skeleton of the legal order of an international organization, its decisions are its flesh and blood.’Footnote 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.Footnote 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.Footnote ¹⁸ Beyond their constitutions and internal rules, IOs also have obligations under general rules of public international law, which arguably include customary international law.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.’Footnote 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.’Footnote 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.Footnote 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.Footnote 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.Footnote 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.’Footnote 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.Footnote ³⁰ Signed by 16 states, the Brussels Resolution articulated PICMME’s functions, indicating in Article 2 that the organization was

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.’Footnote 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.Footnote 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.’Footnote 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.Footnote 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).Footnote 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.’Footnote 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.’Footnote 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.’Footnote 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

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.’Footnote 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.Footnote 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.Footnote 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.’Footnote 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.’Footnote 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.Footnote ⁴⁶

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.Footnote 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.Footnote 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.Footnote 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.

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.Footnote 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.Footnote 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.’Footnote 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.’Footnote 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.’Footnote ⁷⁰ ‘Adherence to international standards and fulfilment of migrants’ rights’ is the first of the MiGOF’s three foundational principles.Footnote 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.Footnote 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.’Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁷⁹

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.’Footnote 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.Footnote 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.

3.1 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.’Footnote 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 organizationsFootnote ² and funders to co-financiers to service-providers.Footnote 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’.Footnote 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,Footnote 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.Footnote 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 StatesFootnote ⁷); by threatening to withdraw from the organizationFootnote ⁸ or even by ousting the director-general.Footnote 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.Footnote 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 EagletonFootnote ¹¹ and by GintherFootnote ¹² 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 organizationFootnote ¹³), 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.Footnote 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.Footnote ¹⁵ Others went a bit further and started to explore arguments of principleFootnote ¹⁶ and, more inductively, the relevant case law of international and domestic tribunals.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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 KantFootnote ²³ 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 togetherFootnote ²⁴), 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’.Footnote 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 telosFootnote ²⁶), 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.Footnote 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’.Footnote ²⁸ The message is clear: let international organizations do what they were set up to do, and the world will be a better place.Footnote 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.Footnote 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.Footnote 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.Footnote ³² This does little to boost confidence in closing the widely perceived remedies deficit.Footnote 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.Footnote 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,Footnote 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.Footnote 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:Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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’,Footnote 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.Footnote 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.Footnote 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,Footnote ⁴⁵ and therefore binding on the EUFootnote ⁴⁶), and Frontex is an agency of the EU – hence, responsibility is prima facie likely.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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?Footnote 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.Footnote 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.Footnote 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.Footnote ⁵⁵ Thus, IOM has an Office of the Inspector-General, which can evaluate the acts of individual IOM officialsFootnote ⁵⁶ 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.Footnote 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.Footnote 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.Footnote ⁵⁹

In 2020, IOM summarized and streamlined its accountability policies by means of a newly established Accountability to Affected Populations framework,Footnote 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’.Footnote 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.Footnote 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 implementationFootnote ⁶³) 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 leadershipFootnote ⁶⁴, and may be extended to global governance, including international organizations such as IOM.Footnote ⁶⁵

4.1 IntroductionFootnote ¹

Despite its rapid growth since the 1990s, the International Organization for Migration (IOM) remains an understudied actor in the migration field.Footnote ² Today, IOM’s size and the scale of its operations are closing in on those of the UN High Commissioner for Refugees (UNHCR).Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote ¹⁰

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

Building on these insights, Klabbers has explained how IOM stands out from the ideal type of international organizations.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote ¹⁸

Another factor distinguishing IOM from this ideal type is its weak association with global public goods.Footnote 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.Footnote 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’.Footnote 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.Footnote ²²

Moreover, IOM does not shy away from exercising what Bradley characterizes as ‘compulsory power’ over migrants.Footnote 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.Footnote 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’.Footnote 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).

4.4 IOM’s Accountability Mechanisms

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.Footnote 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.Footnote 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.Footnote ²¹⁵ The enforcement of such domestic court judgments will likely also be difficult – both in law and in practice.Footnote 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.Footnote 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.Footnote ²¹⁸ Finally, restricting the immunities of international organizations is no ‘quick fix’, since the doctrine of absolute immunity is firmly entrenched in treaties.Footnote 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.Footnote 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:

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.

5.1 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.Footnote 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.Footnote 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.Footnote ³ Just as in its sister field of international refugee law,Footnote 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 exampleFootnote ⁵ in this area.Footnote ⁶ Cooperation between states is deeply entrenched in the normative DNA of this document.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote ¹² The formalization of the decades-long relationship between the two organizationsFootnote ¹³ has raised some concerns about the human rights of migrantsFootnote ¹⁴ and the organization’s accountability for possible breaches thereof.Footnote ¹⁵ These concerns stem from IOM’s image as a managerial organization that has so far lacked a ‘protection mandate’Footnote 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’.Footnote 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,Footnote 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’Footnote ¹⁹ organization.Footnote 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).

5.3 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

Even though the HRDDP itself is a non-binding policy document, UN entities are obliged to respect it,Footnote ⁶⁷ establish an implementation framework,Footnote ⁶⁸ and report on their activities concerning the policy.Footnote ⁶⁹ These elements aim at reducing the accountability deficits of UN entities in such operations, one of the key aims of the HRDDP.Footnote 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).

5.4 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.

6.1 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,Footnote ¹ through which it became ‘part of the UN family’.Footnote ² Yet the phrase ‘UN-related’ is neither mentioned in the agreement nor an expression of legal art.Footnote 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.Footnote 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.Footnote 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,Footnote ⁶ and notwithstanding fairly pervasive deficiencies in those mechanisms as they apply to international organizations generally.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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’.Footnote ¹¹ For most of these organizations, some institutional distance makes intuitive sense. Of the eight UN-related organizations listed in the UN organization chart,Footnote 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.Footnote ¹³ Thereafter the UN indicated that the arrangement ‘cannot represent a realistic model for future relations with any other organization’.Footnote 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.Footnote 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,Footnote ¹⁶ information sharing and exchange,Footnote ¹⁷ representation and participation in meetings,Footnote ¹⁸ avoiding the unnecessary duplication of work,Footnote ¹⁹ reporting to the UN,Footnote ²⁰ and personnel arrangements.Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote ³³ Deliberations on the topic were then paused to allow for the findings of the Global Commission on International Migration to be concluded.Footnote ³⁴ Thereafter, in 2007 another report was produced: Options for the IOM-UN Relationship: Additional Analysis of Costs and Benefits.Footnote ³⁵ A further Working Group on IOM-UN Relations was established in 2013.Footnote ³⁶ The ‘regularly prepared background documents’ produced by the IOM Administration over the 17 meetings of this Working Group are not publicly available.Footnote 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.Footnote ³⁸ It was these negotiations which led to the conclusion of the 2016 UN-IOM Agreement.Footnote 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’.Footnote 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.Footnote 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’.Footnote ⁴² That is, the adoption of the UN brand would grant it easier recognition and acceptance as well as the potential for additional funding.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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’.Footnote 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.Footnote ⁴⁸ The UN GA can also make recommendations to specialized agencies in respect of both substantive and financial mattersFootnote ⁴⁹ and ECOSOC can demand reports on the steps specialized agencies have taken to implement UNGA and ECOSOC recommendations.Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote ⁵⁴ Others too have suggested the 2016 Agreement constitutes a ‘change in its legal status’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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,Footnote 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’.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote ⁷⁰ At least in this respect, the interpretation of the 2016 Agreement by IOM officials and the activities of the organization itself appear misaligned.Footnote 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.Footnote 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.Footnote ⁷³

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.Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁹⁹ Human rights standard setting is widely accepted to be the principal normative role of the UN,Footnote ¹⁰⁰ enlivened by specific obligations embedded throughout its Charter.Footnote 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’Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote ¹¹¹ In fact, IOM provides services to millions of people each year through its crisis-related activities.Footnote 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.Footnote 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,Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.