Since its founding in 1951, the International Organization for Migration (IOM) has changed almost beyond recognition. Created with a narrow, time-bound mandate to support emigration from the ruins of post-war Europe, the agency was purposefully established outside the United Nations (UN) with a small membership comprising 16 states. Seven decades later, IOM is now among the largest international organizations (IOs) worldwide, with 175 member states, a budget of more than two billion dollars annually, and over 15,000 staff.Footnote 1 IOM became a related organization in the UN system in 2016 by virtue of the 2016 Agreement Concerning the Relationship between the United Nations and the International Organization for Migration (‘the 2016 Agreement’).Footnote 2 It now undertakes a striking range of activities, broadly related to human mobility, from humanitarian relief, emergency evacuations, resettlement, returns, and border management to counter-trafficking, data collection, and policy development. IOM can currently be seen surveying and distributing aid to internally displaced persons (IDPs) in Ukraine, receiving Haitians deported from the United States, renovating and facilitating returns from abysmal detention centres in Libya, coordinating the UN Network on Migration, and supporting the implementation of the 2018 Global Compact on Migration, amongst numerous other roles.
Such activities have a profound impact on the rights and well-being of people on the move, many of whom are refugees and IDPs, and all of whom have human rights irrespective of their legal status. Strikingly, however, IOM has no formal protection mandate under its Constitution, an institutional feature often wrongly characterized as implying that it has no human rights obligations.Footnote 3 It also has a long-standing reputation for deference to states. This deference is built into its Constitution, which recognizes admissions decisions as falling ‘within the domestic jurisdiction of States’, and pledges that ‘in carrying out its functions, [IOM] shall conform to the laws, regulations and policies of the States concerned’.Footnote 4 IOM’s deferential posture is also amplified by its ‘projectized’ structure, whereby IOM has little core funding and is instead contracted to provide specific migration-related services. These features have propelled IOM’s involvement in some migration management interventions in tension with, and indeed at times in clear violation of, human rights norms.Footnote 5 Yet in recent years, IOM has more actively integrated protection concerns into some of its field operations, adopted human rights discourses, and expressed commitment to international law.Footnote 6
This is a critical juncture in terms of IOM’s development and influence on the global governance of mobility. IOM’s diverse and impactful roles raise pressing questions about the drivers and implications of its expansion, especially in terms of its obligations and accountability. However, scholarship on IOM remains limited and has not entirely kept pace with these changes.Footnote 7 Most research on IOM comes from the field of migration studies and focuses on IOM’s involvement in projects supporting states’ interests in controlling movements from the global South to the global North – activities that are of critical importance but which do not on their own tell the full story of IOM’s contemporary activities and influence. The fields of international law and international relations (IR) are well positioned to shed light on IOM but have rarely devoted significant attention to the organization, and very few general studies of IOs address IOM in any detail.Footnote 8 This book, uniquely, brings together IR and legal scholars with the goal of examining IOM as an IO, from both legal and political perspectives.Footnote 9 It concertedly addresses a wide range of IOM activities, including under-examined issues such as IOM’s work in humanitarian emergencies, data collection, responses to internal displacement, migrant labour recruitment, and mobility related to climate change.
IOM’s rapid expansion has raised the stakes in debates on its obligations and accountability. This volume aims to advance understanding of IOM itself as an increasingly powerful actor, while also using it as a prism through which to contribute to scholarship on IOs generally, particularly burgeoning debates on IO accountability.Footnote 10 It does so by exploring the intersecting dynamics of institutional expansion, the gradual acknowledgement of obligations, and the key question of accountability mechanisms. The contributors are purposefully diverse in their approaches and perspectives. Some offer empirical explanations of IOM’s development, while others offer normative analyses of IOM in relation to particular bodies of law, including international organizations law, international human rights, humanitarian and refugee law. Some authors concertedly bridge empirical and normative analysis, considering how the interplay between law and politics has shaped IOM’s evolution and its contested contemporary position. The chapters are linked by a common approach of critical but constructive engagement with IOM’s work and its place in the global governance of migration, taking seriously the notion that IOM has responsibilities not only to states but also to individuals. The diverse chapters also reflect the understanding that independent scholarship has a vital role to play in both illuminating institutional dynamics and identifying avenues for improvement. To this end, many conclude with reflections on the implications of the arguments offered for reform.
Much of the existing scholarship on IOM is highly critical, reflecting concerns about the ways in which IOM enables states’ restrictive migration management goals. However, this scholarship tends to be unclear about the standards to which IOM can and should be held to account, and rarely grapples with the constraints and dilemmas it faces as an IO that has a distinct legal personality and a capacity for autonomous action, but is still largely governed by powerful states. In contrast, this book explicitly centres and wrestles with normative debates surrounding IOM as an IO. In particular, it refutes the misperception that IOM has no legal obligations simply because it was created outside the UN system and has no formal protection mandate. Admittedly, as many chapters evidence, IOM has certainly sometimes behaved as if it is unbound by the legal standards governing the fields in which it operates. Moreover, efforts to hold IOM accountable have been lacklustre, stymied both by deficits in IOM’s own systems and by structural limitations on IO accountability generally. However, the notion that IOM has no obligations, particularly in relation to human rights and humanitarian norms, simply because it has sometimes failed to recognize and adhere to them, does not withstand scrutiny. This view also overlooks significant recent changes in IOM’s articulated commitments, policy frameworks, field operations and relationship to the UN system. This volume takes these commitments seriously, offering careful analysis and reconsideration of long-standing assumptions.
This introductory chapter sets the stage for this contribution. First, it provides a brief overview of IOM’s history and structure. Second, it offers a primer on IOM’s entry into the UN system as a related organization in 2016, the consequences of which are examined in several chapters in this book. Third, it situates this collection in relation to the core concepts underpinning it, including IO obligations, accountability, and expansion dynamics. Fourth, it draws out key themes running through the volume, particularly in relation to grounding assessments of IOM in international law; understanding IOM’s roles as a norm ‘breaker, taker, and shaper’; analysing IOM as a protection actor; and developing more complex accounts of institutional change at IOM. Fifth, it maps out the structure, scope, and limitations of the book. Finally, it reflects on the legal and political implications of this volume, focusing on the need to recast the IOM Constitution to centre not only the organization’s obligations to its member states but also to the migrants it claims to serve.
1.1 From Modest Beginnings to an Era of Expansion
IOM was established in Brussels in 1951 as the Provisional Intergovernmental Committee for the Movement of Migrants from Europe (PICMME). Shortly thereafter, its first Constitution was adopted, renaming it the Intergovernmental Committee for European Migration (ICEM).Footnote 11 Designed as a temporary, operationally focused institution, its creation was prompted by the need to resolve displacement and perceived overpopulation problems in post-war western Europe by promoting and facilitating the orderly migration and settlement of ‘surplus populations’, including displaced persons and refugees, to countries overseas. Its origins were distinctly shaped by US interests. Through ICEM’s design, the United States and its allies sought to manage migration flows with full respect of sovereign rights, while delimiting membership (on US insistence) to non-Communist states by requiring that member states have a ‘demonstrated interest in the principle of free movement of persons’.Footnote 12 As large-scale emigration from Europe declined, ICEM attempted to maintain its relevance by expanding its geographic scope and its portfolio of operational and logistical services. In recognition of its expanded global presence, its Council removed ‘European’ from its name in 1980.
In 1989, the agency was again renamed, emerging as a permanent institution, the International Organization for Migration (IOM). The IOM mandate, as articulated in its 1989 Constitution, is in some senses highly specific, but also vague and expansive.Footnote 13 Under its Constitution, IOM’s purposes and functions are ‘to make arrangements for the organized transfer of migrants … refugees, displaced persons and other individuals in need of international migration services’; to provide a range of related ‘migration services’, including in connection to voluntary repatriation; and to ‘provide a forum … for the exchange of views and experiences, and the promotion of cooperation and coordination of efforts on international migration issues, including studies on such issues’.Footnote 14
As Bradley discusses in Chapter 2, in her examination of the evolution of IOM’s mandate and its identity as a ‘multi-mandate’ organization, the IOM Constitution is a ‘permissive’ document in the sense that it identifies a swath of activities IOM may undertake without ruling out other possibilities.Footnote 15 Similarly, the Constitution identifies some populations with whom IOM may work, including refugees and displaced persons, but does not legally define these categories or limit IOM’s engagement to these groups. In practice, IOM has come to embrace a remarkably broad operational definition of migrants, positioning it to work with a vast array of populations, including many who have never left their home country.Footnote 16 The Brussels Resolution through which the organization was founded recognized the significance of human rights norms to the new agency’s work, indicating that its goal was to bring 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 17 Strikingly, however, neither this reference to human rights nor humanitarian principles appear in the organization’s Constitution, although the lion’s share of IOM’s budget and field staff is related to humanitarian action and ‘post-crisis’ support for migrants, including IDPs, who now comprise IOM’s largest group of ‘beneficiaries’.Footnote 18 In this way, as Chetail argues, the ‘loosely defined terms of its mandate’ under its Constitution ‘has created a hiatus, if not a gulf, between what IOM can do and what it must do’.Footnote 19 Indeed, most of IOM’s contemporary activities are not mentioned in the Constitution, at least not explicitly. What has survived is the notion of IOM as a service provider, and deference to states in migration decision-making, with the Constitution providing that IOM ‘shall recognize the fact that control of standards of admission and the number of immigrants to be admitted are matters within the domestic jurisdiction of States, and, in carrying out its functions, shall conform to the laws, regulations and policies of the States concerned’.Footnote 20 This constitutional deference is remarkable when compared to other IO constitutions, which typically explicitly reflect the orthodox international legal position of the binding nature of international norms (and hence their primacy over national laws),Footnote 21 or recognize domestic standards only to a limited extent. For example, ILO’s Constitution defers to national laws only to the extent that they offer workers higher standards of protection.Footnote 22 If these constitutions refer to domestic jurisdiction at all, they do so only in defined fields. For example, the protection mandate of the Office of the UN High Commissioner for Refugees (UNHCR) refers to the need for additional state consent only where private actors are engaged.Footnote 23
IOM’s current ‘era of expansion’ has entailed dramatic growth on numerous levels, including in terms of IOM’s membership, budget, employees, offices, activities, ‘beneficiaries’, and responsibilities. With these changes, IOM’s influence has increased, fuelled also by new institutional partnerships, knowledge production activities, policy development efforts, and involvement in convening high-profile international dialogues and negotiations.Footnote 24 These developments have intensified dramatically over the last decade, but have their roots in the 1990s, when interest in international cooperation on migration increased, and IOM instituted a series of projectization and decentralization reforms that positioned it to play a growing role on the international stage.Footnote 25 Under the projectization model, states contract IOM to provide services in the form of discrete projects, with more than 97 per cent of IOM funds linked to particular projects.Footnote 26 This model incentivizes IOM to behave as a highly entrepreneurial jack of all trades, logistically efficient, flexible, and responsive to states’ priorities.Footnote 27 And yet, IOM is by no means unique amongst IOs in its dependence on donor funds; many other IOs are also highly dependent on earmarked or projectized funding.Footnote 28 This system amplifies donors’ influence and leaves the agency with relatively modest resources – derived largely from project-based overheads – to support cross-cutting activities such as training, protection, gender mainstreaming, and policy development.Footnote 29 Although some reforms are underway to provide more regular funding to the core structure of the organization, IOM’s donors generally consider the projectization model a resounding success, one that, in conjunction with its highly decentralized, operationally oriented structure, has kept the agency lean and nimble.Footnote 30 IOM clusters its diverse activities under the broad umbrella of ‘migration management’, a notion that suggests orderly, predictable migration may be ‘beneficial for all’, that is, for states, migrants, and sending and receiving communities.Footnote 31 Yet, fuelled by a constant thirst for projects and a decentralized approach that leads to significant variation in what IOM does and how it operates in different contexts, IOM sometimes stands accused of undertaking states’ ‘dirty work’ in controlling migration and papering over rights violations, particularly in relation to returns to unstable, insecure situations, and service provision in migrant detention centres.Footnote 32
Critics often point to IOM’s history, competitive bent, and institutional design to paint a picture of a Western-dominated, service-driven IO that, without a constitutionally assigned protection mandate, is naturally inclined to prioritize wealthy states’ interests over individual rights. On this account, IOM’s growth has been achieved on the back of its place outside the UN system, and its lack of obligations in relation to human rights and humanitarian norms.Footnote 33 While the ethical concerns underpinning such critiques remain prescient, they struggle to explain important recent developments, including the approval by IOM’s governing Council of major institutional policies and frameworks recognizing and fleshing out IOM’s normative obligations, the development of its internal policies and frameworks, and the key institutional development of its entry into the UN system in September 2016.Footnote 34
1.2 A Watershed Moment? IOM Becomes a ‘Related Organization’ in the UN System
Although IOM was created outside the UN system, the organizations have entangled histories, with IOM and the Office of the UN High Commissioner for Refugees (UNHCR) working closely – if uneasily – together, and IOM often operating in humanitarian emergencies as part of the UN country teams.Footnote 35 Since its founding, IOM staff and their UN counterparts have debated if IOM should join the UN system, whether as a specialized agency or in some other form.Footnote 36 IOM obtained observer status in the UN General Assembly in 1992, and in 1996 the organizations signed a cooperation agreement through which they pledged to ‘strive for the maximum cooperation and coordination to ensure complementary action at headquarters and field levels’.Footnote 37 In practice, however, the IOM–UN relationship was often tense, given differences in approaches, normative commitments, and institutional culture. IOM’s leadership recognized that it reaped some dividends from its place on the margins of the UN system, but also emphasized to its members the limitations of this liminal position, and suggested avenues to change it.Footnote 38 The member states demurred, however, with the United States’ traditional position being, ‘Never, over our dead body, will IOM join the UN’.Footnote 39
This began to change, and rapidly, in 2014–2015, owing to a combination of timing, turf battles, and shifting perspectives on the value of IOM entering the UN system. Having invested considerably in improving IOM–UN relationships that were antagonized during IOM’s aggressive expansion in the 1990s, IOM Director General Bill Swing (himself a former senior UN official) convinced member states to resurrect the dormant Working Group on IOM–UN Relations. At the same time, the perceived refugee and migration ‘crisis’ was gaining steam, which drew attention to serious gaps in the UN architecture for responding to migration, particularly operationally. Earlier discussions on IOM entering the UN system were stymied in part by the fact that IOM’s membership was very limited. By this point, however, the vast majority of UN member states were also part of IOM. These states generally opposed the creation of a new UN migration agency to fill these gaps – a possibility the IOM bureaucracy was also eager to avoid. Instead, in November 2015, IOM’s member states authorized Swing to approach the UN to ‘develop with it a way in which the legal basis of the relationship between IOM and the United Nations could be improved’.Footnote 40 Swing proposed three options to UN Secretary-General Ban Ki-moon: IOM could become a UN specialized agency, a related agency in the UN system, or the agencies could negotiate a sui generis agreement. Historically, IOM leaders tended to argue in favour of IOM becoming a specialized agency of the UN, like UNESCO or the World Health Organization.Footnote 41 However, the agreement signed at the September 2016 UN Summit for Refugees and Migrants made IOM a related organization in the UN system. The timing was key to this decision. Member states wanted IOM to play a leading role in supporting the negotiation of the Global Compact for Migration (GCM) stemming from the September Summit. As a UN initiative, this mantle needed to be assumed by actors within the UN system – generating fresh urgency to bring IOM into the fold. Under the UN Charter, specialized agency status must be approved by ECOSOC and then the General Assembly. This was deemed too time-consuming; instead, related organization status was confirmed directly via the General Assembly in time for the September Summit.Footnote 42
What this means, politically and legally, is a matter of some debate.Footnote 43 The UN Charter addresses specialized agencies, but it does not discuss the status of related organizations or define the ‘UN system’. Addressing this gap, White contends that the ‘UN “system” of organizations, organs and subsidiary bodies, agents, experts and employees is vast and diverse’ and includes specialized agencies as well as related organizations.Footnote 44 The UN Chief Executives Board for Coordination (CEB), the highest-level coordination platform in the UN system, states that ‘related organization’ is ‘a default expression, describing organizations whose cooperation agreement with the United Nations has many points in common with that of Specialized Agencies’ but does not refer to the relevant articles of the UN Charter.Footnote 45 The related organizations include prominent IOs such as the World Trade Organization (WTO), the International Atomic Energy Agency, and the International Criminal Court, as well as several treaty secretariats. Like specialized agencies, related organizations are legally distinct from the UN itself, and are governed and funded autonomously by the principal organs of the UN. In this sense, Chetail argues, the suggestion that IOM has become the ‘UN Migration Agency’ is ‘legally wrong’ in that IOM is not technically a UN agency, even if it is in the UN system.Footnote 46 The UN Secretariat recognizes related organizations as functional parts of the UN system,Footnote 47 yet related organizations themselves vary considerably in how they interpret and present their relationship to the UN ‘family’.
Notwithstanding these ambiguities, the 2016 Agreement establishes IOM as a formal, full member of all UN regional and country teams, as well as high-level UN governance bodies including the CEB, the UN Development Group and the Inter-Agency Standing Committee (IASC), the main platform for humanitarian response coordination.Footnote 48 Some suggest that the significance of these changes is limited, as IOM was already highly integrated into many UN mechanisms.Footnote 49 However, from IOM’s institutional perspective, the Agreement provides the recognition, standing and stability it craved, and removed barriers to its continued expansion. Although some UN officials expressed qualms, the move was vocally supported by member states and top UN officials including the Secretary-General and the heads of UNHCR and the UN Office for the Coordination of Humanitarian Affairs (OCHA).Footnote 50 As a practical matter, IOM is now widely recognized as the leading agency within the UN system on migration issues, and member states reportedly have little appetite for re-opening the question of its status.Footnote 51 Yet the conversation is not over: in 2017, UN Secretary-General Guterres argued that the IOM–UN relationship should be further consolidated by repositioning IOM as a specialized agency.Footnote 52
The 2016 Agreement expanded IOM’s legal obligations, while simultaneously exacerbating its constitutional ambiguities. The IOM’s member states insisted that the agency retain its ‘essential elements’, including the notion that IOM is a ‘non-normative organization with its own constitution and governance system, featuring a predominantly projectized budgetary model and a decentralized organizational structure’, characterized by its ‘responsiveness, efficiency, cost-effectiveness and independence’.Footnote 53 Accordingly, the 2016 Agreement noted these attributes, recognizing IOM as an ‘independent, autonomous and non-normative international organization’, yet also ‘an essential contributor in the field of human mobility, [including] in the protection of migrants’.Footnote 54 In the 2016 Agreement, IOM also ‘undertakes to conduct its activities in accordance with the Purposes and Principles of the Charter of the United Nations and with due regard to the policies of the United Nations furthering those Purposes and Principles and to other relevant instruments in the international migration, refugee and human rights fields’.Footnote 55
How, if at all, can these elements be reconciled? Notably, neither the 2016 Agreement nor the IOM Council has defined the term ‘non-normative’, which is not a legal term of art but was included on member states’ insistence.Footnote 56 Some participants in the 2016 negotiations suggest that in this context the term carried a particular connotation: that IOM is not a forum for negotiating binding international standards on migration.Footnote 57 The reference to ‘non-normative’ is seemingly unique in major legal agreements pertaining to IOs, with most IOs embracing their normative functions, reflecting on them,Footnote 58 and seeking to secure funding to enable them further.Footnote 59 IO constitutional documents often specify and delimit some standard-setting role for the IO, whether that be to adopt recommendations or binding measures, develop policies or standards, or advocate for the ratification and effective implementation of particular international instruments.Footnote 60 Even IOs, such as the Organisation for Economic Co-operation and Development (OECD), which do not themselves have a role in creating binding international norms, nonetheless have constitutional functions that include the evaluation of domestic policies and practices in light of particular aims, and as such are understood by the IO itself as a ‘normative role’.Footnote 61 While the IOM Constitution contains no express provisions on the organization’s involvement in such processes, the reference in the 2016 Agreement characterising the IO as ‘non-normative’ is nonetheless rather question-begging in the context of the acknowledgement of its own obligations in the same 2016 Agreement, and the organization’s leading role in normative processes, such as the Global Compact. IOM is routinely involved in the development of migration policies that are ‘normative’ in the sense that they often seek to guide the conduct of actors including IOM itself, states, NGOs, and in some cases private actors (for instance in the context of IOM’s work on ethical labour recruitment by private agencies). IOM’s recent organizational reform process suggests that it aspires to direct involvement in explicitly normative processes such as standard-setting and advocacy, despite the ‘non-normative’ designation. For example, the IOM Headquarters is now identified as having responsibility for ‘institutional policy, guidelines and strategy, [and] standard-setting’, amongst other functions; the objective of the recently established Migration Protection and Assistance Division is ‘to contribute to promoting and upholding the rights of migrants and their communities, including setting standards and advocacy and to manage migration in line with international legal and other internationally agreed standards and effective practices’.Footnote 62 Unsurprisingly, however, the use of the term ‘non-normative’ in such an important agreement has raised concerns that IOM may use this designation to sidestep its human rights and humanitarian obligations. This risk is amplified as the 2016 Agreement establishes no formal accountability mechanisms, leaving it to IOM’s discretion whether to report to the UN through the General Assembly.Footnote 63 Many of the following chapters probe these and other tensions apparent in the 2016 Agreement, and the implications of this development.
1.3 Core Concepts
This book examines IOM in relation to three core concerns: IOs’ obligations, accountability, and expansion dynamics. The chapters engage these concepts in different ways and to different degrees, with some, for example, focusing on IOM’s obligations, both legal and political, and accountability structures, and others detailing the drivers of IOM’s growth in particular areas. In this section, we do not, therefore, attempt to set out fixed definitions, but rather situate IOM and the collection in relation to ongoing debates on these interlinked issues.
1.3.1 Obligations
This book engages with legal as well as political obligations, looking at IOM’s formal obligations as a matter of international law, arising from a variety of sources, including the legal agreements to which it is party, its own Constitution and internal rules, and the pertinent aspects of customary international law. These legal obligations partly overlap with the larger domain of its political obligations, as set out in its policies and programmatic commitments. Some contributors also examine the wider field of its ethical obligations, considering the impact of its policies and practices on widely shared principles and values, such as ‘ethical recruitment’ and ‘data responsibility’.Footnote 64
IOM operates in fields regulated by various bodies of international law, including international migration law, human rights law, humanitarian law, labour law, refugee law, disaster law and transnational criminal law (for example as it relates to human smuggling and trafficking). As an IO, IOM has a legal personality and is a subject of international law. As the ICJ held in its 1980 Advisory Opinion on the Interpretation of the Agreement of 25 Mary 1951 between the WHO and Egypt, ‘[i]international organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’.Footnote 65 Too often, however, the literature on IOM implies that the organization’s legal obligations and its relationship to international norms can be understood simply in reference to its Constitution and its position outside the UN. The IOM Constitution is undeniably pivotal to understanding IOM’s mandate and obligations. However, as Chetail stresses, ‘The common complaint among scholars about the limits of its Constitution is not only ineffective but also misleading, as it fails to capture the potential of international law in addressing the responsibility of IOM towards migrants’.Footnote 66 A thorough account of IOM’s legal obligations also requires careful consideration of all the sources identified in the ICJ 1980 advisory opinion, including jus cogens principles and other ‘general rules’,Footnote 67 as well as its internal rules, such as policies and frameworks adopted by the IOM Council.Footnote 68 Indeed, the notion of the implied obligations of IOs is one ripe for further consideration, given that the doctrine of implied powers is so well established and enables IO expansion.Footnote 69 Accordingly, several contributors consider IOM’s obligations and responsibility from the vantage point of developments in various bodies of international law, taking into account the implications of the International Law Commission (ILC) Articles on the Responsibility of International Organizations (ARIO) (2011).Footnote 70
Regrettably, much of the existing scholarship on IOM wrongly regards IOM as having no human rights obligations simply because it has no formally articulated protection mandate in its Constitution. What does it mean for an IO to have a protection mandate, and how does this relate to IOM’s obligations? The IASC offers an influential conceptualization of protection as ‘all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law’, particularly international human rights, humanitarian and refugee law.Footnote 71 As its operational activities may contribute to the protection of migrants’ rights in practice, IOM now regularly asserts that it is a protection actor – a claim recognized in the 2016 Agreement with the UN.Footnote 72 The flip side, of course, is that IOM’s activities may also undermine or violate migrants’ rights. Rhetorically, IOM now recognizes its obligation to integrate protection concerns into its operations and has a bevy of internal policies and frameworks (some formally approved by the IOM Council) that address protection as a cross-cutting concern, and in relation to particular populations and operational issues.Footnote 73 Yet this differs from the sense in which some IOs have a formal, constitutionally inscribed mandate for legal protection in relation to particular populations. The most relevant comparison here is of course UNHCR, which serves as the custodian of international refugee law and is charged under its Statute with ‘provid[ing] for the protection of refugees falling under the competence of his Office’.Footnote 74 When compared to UNHCR, IOM may seem odd in that it is not responsible for a particular convention or legally defined population, nor does it serve as a forum for the negotiation of binding new norms on migration. Whether IOM’s Achilles heel is its lack of a formal legal protection mandate is a theme taken up throughout the volume, and addressed in more detail below.
As well as being a duty bearer under international law, IOM’s policies and practices may also support, or help undermine states’ adherence to their international obligations. States often turn to IOM to strengthen their ability to effectively manage different forms of mobility within the parameters of international law but also, arguably, to circumvent their obligations towards vulnerable migrants in need of protection and assistance.Footnote 75 States cannot, as a matter of law, evade their own obligations by acting through IOs, and IOM and its member states of course insist that their activities are in line with international and domestic legal requirements.Footnote 76 However, IOM’s work on issues such as returns and in migrant detention centres is normatively fraught and may result in human rights violations, which are either attributable to states, IOM itself, or more typically a combination of actors. Yet holding IOs responsible for their actions under international law has for the most part been ‘eminently theoretical’.Footnote 77 Nonetheless, interest in this issue has grown alongside IO misconduct scandals, fiascos such as the UN’s role in the cholera epidemic in Haiti, and massive protection of civilian failures in Rwanda and Bosnia.Footnote 78 Although criticized,Footnote 79 the ARIO represent a significant intervention in legal debates on IO responsibility, reflecting the fact that IOs are ‘now seen as “mature” subjects of the international legal order susceptible to the application of a comprehensive regime of responsibility whenever they breach their – sometimes considerable – powers’.Footnote 80
As Klein stresses, IOs ‘incur international responsibility whenever conduct attributable to them amounts to a breach of an international obligation binding upon the organization concerned’.Footnote 81 Determining which international obligations bind IOs is a matter of some contestation, in particular in the case of IOM, as its Constitution refers primarily to sovereign state control over admissions decisions, and does not clearly incorporate human rights and other pertinent international legal standards.Footnote 82 Although the 2016 Agreement and IOM’s internal rules go some way towards clarifying IOM’s legal obligations, the question of the precise scope of IOM’s international legal obligations remains unsettled.Footnote 83 The crucial provision of the 2016 Agreement, in terms of IOM’s international legal obligations, is Article 2(5), which provides that IOM undertakes to ‘conduct its activities in accordance with the Purposes and Principles of the Charter of the United Nations and with due regard to the policies of the United Nations furthering those Purposes and Principles and to other relevant instruments in the international migration, refugee and human rights fields’. Article 2(5) must be interpreted in light of the surrounding provisions. Article 2(3) provides, inter alia, that the UN ‘recognizes that the International Organization for Migration, by virtue of its Constitution, shall function as an independent, autonomous and non-normative international organization in the working relationship with the United Nations established by this Agreement, noting its essential elements and attributes defined by the Council of the International Organization for Migration as per its Council Resolution No. 1309’.Footnote 84 It is notable that the previous cooperation agreement between the organizations, signed in 1996, did not mention the institutional independence of IOM, yet the 2016 Agreement does so expressly as a subparagraph of the same provision said to bring it under the UN umbrella.Footnote 85 IOM Council resolution 1309 provided the negotiating instructions for the 2016 Agreement. It directs that any new agreement should be made under the ‘explicit condition’ that certain ‘essential elements’ of the organization be preserved. As discussed above, these include that the ‘IOM is the global lead agency on migration and is an intergovernmental, non-normative organization with its own constitution and governance system, featuring a predominantly projectized budgetary model and decentralized organizational structure’Footnote 86 and that IOM ‘must’ retain its ‘responsiveness, efficiency, cost-effectiveness and independence’.Footnote 87 According to some scholars, IOM member states were concerned about potential ‘mandate creep’, towards a more protection-oriented agenda.Footnote 88 Such concerns may explain, at least in part, why the IOM Council insisted that in any new Agreement with the UN, the independence, mandate and efficiencies of IOM must be expressly retained.
Contributors to this volume offer varying interpretations of Article 2(5). Johansen, for example, suggests that the pledge to conduct its activities in line with the purposes and principles of the UN could signify that IOM commits to a wider set of human rights standards than it had previously, insofar as to ‘promote and encourage respect for human rights’ is among the purposes of the UN.Footnote 89 Yet, as others in this volume have also observed, it is unlikely that this clause adds much to pre-existing obligations. Cullen highlights the weakness of the ‘due regard’ standard, arguing that it merely establishes a procedural obligation requiring IOM to consider and weigh the norms in question. She argues further that in some ways IOM’s previous agreement with the UN (that from 1996) entailed stronger obligations. Klabbers notes that ‘at least it would seem to suggest that IOM has committed itself to act with a human rights sensibility’. In contrast, Aust and Riemer assume that the ‘due regard’ standard effectively renders IOM bound to respect human rights. They state that ‘IOM must indeed do more than just “consider” these commitments. Instead, it must actively ensure that it acts not only in the interest of states but also of migrants (Article 1) and contributes to the protection of the migrants’ rights (Article 2, para. 1)’.Footnote 90 In considering the effects of Article 2(5), it must be borne in mind that over the course of the past decade, IOM has advanced its human rights engagement through institutional policies such as the 2012 Migration Crisis Operational Framework, the 2015 Migration Governance Framework, and since 2016 it has participated in programmes such as the UN Human Rights Up Front Initiative and the Human Rights Due Diligence Policy.Footnote 91 Policy is of course not legally insignificant. The internal rules of an organization, such as ‘decisions, resolutions, and other acts of the organization adopted in accordance with those instruments, and established practice of the organization’Footnote 92 possess the potential to give rise to responsibility under international law.Footnote 93
Like many IOs, IOM often acts jointly with national authorities. The imbrication of IO and member state responsibility raises particularly complex legal questions, with ARIO indicating that an IO ‘may in certain circumstances incur responsibility as a consequence of its own conduct in relation to an internationally wrongful act of one or several of its members’,Footnote 94 such as if an IO provides ‘aid or assistance’ in the conduct of an ‘internationally wrongful act’.Footnote 95 IOM and its member states would, again, deny that any of their collaborative activities breach their obligations. However, IOM’s involvement in activities such as training Libyan coast guard officials who intercept migrant vessels and refurbishing Libyan immigration detention centres raise complex questions about circumventing obligations and enabling rights violations, as these actors and facilities are linked to flagrant rights violations – abuses IOM itself has publicized and denounced.Footnote 96
Beyond ambiguities in the source and scope of IOs’ legal obligations, politically and ethically there is little consensus about the proper roles and obligations of IOs working on migration as a highly contested issue. Indeed, while there has been extensive philosophical analysis of states’ moral obligations in relation to diverse forms of migration, the duties of IOs such as IOM are remarkably under-examined.Footnote 97
1.3.2 Accountability
Accountability eludes tidy definitions but is associated with the prevention and sanctioning of ‘unethical, illegal, or inappropriate behaviour’, particularly by authority figures, and ensuring adherence to legitimizing norms, standards and expectations.Footnote 98 IOs are subject to a repertoire of ‘accountability regimes’, which arise from the different ways they are evaluated and called upon to give an account of their actions.Footnote 99
In global governance, the ‘magic wand of accountability’ is sometimes presented as ‘a supervening force able to promote democracy, justice, and greater human decency through the mechanisms of transparency, benchmarked standards, and enforcement’.Footnote 100 Although the nebulousness of the concept has elicited scepticism in some quarters,Footnote 101 there has been a strong accountability turn in the study of IOs, both in legal scholarship and IR.Footnote 102 This scholarship emerges against the backdrop of concern that IOs enjoy legal immunities that sit uneasily with their often significant powers, and their involvement in activities that may violate the rights and compromise the interests of states, individuals and communities, often the very entities they purport to serve.Footnote 103 IOs are increasingly under pressure to demonstrate their accountability not only to states but also to individuals affected by their actions and to the ‘international community’ writ large, notwithstanding manifest tensions between what accountability to these different actors might involve.Footnote 104 Indeed, doing so has become crucial to the maintenance of IOs’ authority and legitimacy, and preserving the notion that IOs serve public interests.Footnote 105
In this connection, there has been widespread concern to ensure the legal accountability of IOs, in the sense of ‘jurisprudence and legal sanctioning that is limited to rights that can be subjected to judicial review’, particularly but not only for international human rights violations.Footnote 106 Yet, IO experiences and their pathways to enhanced accountability are uneven, with significant variation between organizations in how accountability has been understood and embedded institutionally. As currently configured, international organizations law, in particular on immunities, creates a serious gap in legal accountability.Footnote 107 Without systemic general reforms,Footnote 108 IOs’ internal reforms are the main effective route to accountability. These emerge episodically, depending on a number of factors, such as coercion (by their member states); competition (market incentives); learning (changed beliefs); and emulation (of peers).Footnote 109 Interventions to achieve improved IO accountability often materialize from a combination of bottom-up and top-down pressure, such as through alliances between civil society groups and governmental actors in a position to exert greater oversight and control.Footnote 110 While IOs broadly have struggled or simply refused to establish adequate mechanisms to deal with grievances related to their conduct, scholars have probed the optimal design of accountability mechanisms, taking into account criteria such as transparency, access, participation, fairness and access to justice.Footnote 111
In terms of IOs working on migration and displacement, scholars have probed accountability concerns in relation to UNHCR, particularly in the context of camp administration.Footnote 112 IOM has, somewhat remarkably, not been extensively discussed in the accountability literature, despite its roles in several serious and well-documented cases involving human rights violations, such as in relation to its involvement in Australian offshore immigration detention.Footnote 113 To the limited extent that the existing literature on IOM broaches accountability, it tends to assume that the only or most pertinent form of accountability at play is vertical accountability of IOM as an agent towards its principals, especially donor states.Footnote 114 This book takes a more multi-faceted approach, integrating analysis of various forms and fora for accountability. Some chapters focus on formal legal responsibility and accountability, with Klabbers (Chapter 3) probing the ways in which the structure of international law itself limits the (possible) responsibility of IOM under international law. Other contributors consider the potential of internal accountability systems and accountability structures within the UN system. Still others concentrate on the potential role of civil society actors such as human rights advocacy NGOs in strengthening IOM’s accountability (Sherwood and Bradley, Chapter 15), understood as a socio-political relationship in which accountability holders help establish and uphold standards, including through monitoring and sanctions.Footnote 115
Debates about IO accountability typically unfold in relation to behaviour that is attributable to the organization or its employees, but which the agency clearly opposes as a matter of principle, such as sexual exploitation and abuse by peacekeepers or aid workers. In contrast, debates on IOM’s accountability stand out in that they often pertain to activities that the organization actively decides to undertake, although they are the subject of more overt normative contestation and raise risks of human rights violations that could evoke accountability claims. For example, as Sherwood, Lemay and Costello discuss (Chapter 13), migrant detention practices generally raise serious human rights concerns, and detention is opposed by many human rights advocates, including within the UN system.Footnote 116 IOM encourages alternatives to migrant detention, but it also provides services in detention centres.Footnote 117 Should such interventions be welcomed as a means to temper violations associated with detention, or decried as enabling abuse for which IOM should be held to account? Such questions point to the complexity of accountability issues surrounding IOM, and the urgent need for careful attention to them, particularly as IOM continues to grow.
1.3.3 Expansion, Ethos, and Institutional Culture
In its ‘era of expansion’, IOM has grown in terms of its membership, staff, budget, and operations; it has accrued increased power, influence and stature, alongside heightened expectations, commitments and responsibilities.Footnote 118 Although IOM is sometimes presented as a confounding institutional outlier,Footnote 119 when viewed through the prism of the extensive IR literature on IOs, the patterns, logics, and consequences of IOM’s expansion can be apprehended with greater analytical clarity.Footnote 120 For example, building on insights from IR scholarship on historical institutionalism, Krueder-Sonnen and Tantow (Chapter 7) show how IOM strategically approached humanitarian crises as opportunities for growth and wielded the ‘power of precedent’ ex-post to formalize and normalize its role in executing new tasks. Relatedly, Hall (Chapter 8) traces how IOM established itself as a key player in migration and climate change, recasting understandings of its mandate and obligations. Bradley (Chapter 2) draws on theories of IO legitimacy and legitimation – that is, the strategies IOs deploy to cultivate the perception that they are compliant with socially requisite norms and values – to explain the puzzle of why IOM would commit to human rights and humanitarian principles when its lack of pesky normative obligations was long assumed to be one of its defining institutional advantages.Footnote 121
More indirectly, the book also delves into the relationship between IOM’s expansion dynamics, its institutional design and organizational culture,Footnote 122 illuminating the diverse ways in which IOM as an institution, its leaders and employees, understand, articulate and enact their own institutional and professional values.Footnote 123 Running throughout the book is a recognition that IOM is neither static nor a monolith. Thinking about variations within the organization and shifts over time is critical to achieving a more robust and nuanced understanding of how and why IOM has changed – and the ways in which it has failed to do so. While IOM has historically had a reputation of being willing to ‘do anything for money’, IOM institutionally, and many within the organization, have a strong interest in challenging this view, although attempts to do so are constrained by entrenched ways of working and incentive structures.Footnote 124 Broadly, IOM’s projectized, decentralized structure, coupled with its imprecise mandate, has cultivated an organizational culture that prizes flexibility, efficiency and entrepreneurialism, and typically devotes less attention to protection and related normative concerns.Footnote 125 As Koch (Chapter 9) demonstrates in her examination of IOM’s emergence as a leading displacement ‘data entrepreneur’, these attributes have facilitated IOM’s expansion into new and lucrative areas of work, but have sometimes left IOM ill-equipped to systematically and proactively address the ethical questions and normative responsibilities they entail. These tensions are also evident in Chuang’s analysis (Chapter 10) of IOM’s International Recruitment Integrity System (IRIS). Presented as an ethical labour recruitment framework, IRIS provides a springboard for IOM to expand into another major area of work, and suggests a commitment to migrant welfare and rights protection. Yet, Chuang argues, the initiative favours states’ interests in controlling labour market access and perpetuates a trend towards reliance on incremental, soft law approaches rather than more robust and binding protections for migrant workers’ rights. In this sense, IRIS reflects broader shifts and persistent tensions in IOM’s organizational culture, which increasingly integrates recognition of migrants’ rights and protection concerns, but does not yet have a cohesive approach to centring and addressing them in practice.
1.4 Key Themes and Tensions
IOM can be a lightning rod for disagreement. Some observers suggest IOM has served as the ‘biggest driver’ of international cooperation and recent normative developments on migration, and have urged IOM to take on more prominent and powerful roles.Footnote 126 Others have dismissed IOM as largely peripheral to global migration governance.Footnote 127 Still others are unshakably suspicious or decry IOM as an active threat to migrants’ rights and wellbeing.Footnote 128 While united by an approach of critical but constructive engagement, the chapters in this volume also reflect tensions and even disagreements on questions ranging from IOM’s proper place in global governance to its relationship with the UN and prospects for reform. Authors differ on matters such as whether IOM is really a humanitarian organization, the interpretation of the 2016 IOM-UN Agreement, and, more broadly, the extent to which international law provides a strong scaffolding for holding IOM accountable.Footnote 129 These divergent perspectives are to be welcomed, as they reflect the unsettled nature of debates regarding IOM specifically and the state of international law broadly. Notwithstanding these differences, important themes emerge across the chapters. This section elaborates on four key areas of convergence: grounding assessments of IOM in international law; IOM’s roles vis-à-vis norms; its approach to protection; and the need for more nuanced explanations of institutional change at IOM.
1.4.1 Bound, Unbound? Grounding Assessments of IOM in International Law
IOM itself has sometimes suggested that it is not bound by key standards such as international human rights law.Footnote 130 This is no longer its position, although murkiness remains regarding IOM’s interpretation of its legal obligations.Footnote 131 Furthermore, as discussed above, IOM, as an IO, is subject to a range of legal obligations. Nonetheless, this mistaken notion persists, hindering understanding of IOM and its duties, as well as opportunities to hold it accountable. One of the key contributions of this book is therefore to put this erroneous view to rest by examining IOM as an IO, from the vantage point of pertinent bodies of law including international organizations law, and international human rights, humanitarian and refugee law. Relatedly, the volume corrects the mistaken perception that IOM has no protection obligations simply because it does not have a legal protection mandate under its Constitution. To be sure, contestation continues over the parameters of IOM’s obligations and protection responsibilities, but this conversation needs to move on from binary discussions of whether or not IOM is bound by international law, including in relation to protection, to a more nuanced discussion of the scope and implications of these obligations.
The idea also endures that states can and do use IOM to sidestep their own obligations under international law.Footnote 132 Yet, as discussed, while this is practically possible, it is a move international law seeks to thwart. International law may lack strong enforcement mechanisms, but states cannot escape their own obligations under international treaties by outsourcing migration ‘dirty work’ to IOM, nor can they legitimately contract IOM to provide services incompatible with international law. As Chetail stresses, ‘as a matter of principle, the continuing opposability of States’ duties under human rights law is well acknowledged in international jurisprudence’.Footnote 133 For example, the European Court of Human Rights has found that it ‘would be incompatible with the purpose and object’ of the European Convention on Human Rights if contracting states could be ‘absolved from their responsibility under the convention’ by outsourcing to IOs.Footnote 134 This again calls for a recalibration of assessments of IOM to better account for the obligations attendant upon the agency and its member states under contemporary international law. It also calls for reconsideration of why states turn to IOM to provide particular, sensitive or controversial migration services, if in doing so they cannot – in principle at least – evade their own legal obligations. Does working through IOM lend a veneer of increased legitimacy to contentious if not overtly proscribed practices? Does it shield the contracting state from scrutiny? By scrutinizing longstanding tropes about IOM and anchoring assessments of the agency in contemporary international law, this work provides a foundation for making these essential shifts, and in turn navigating the new questions they raise.
1.4.2 IOM as a Norm Breaker, Taker, and Shaper
Beyond updating assessments of IOM in light of contemporary international law, understanding this increasingly powerful player also requires careful empirical examination of how IOM engages with international norms. The chapters point to how IOM occupies different roles in relation to international norms, operating as a norm breaker, taker, and shaper.
Many IOM staff have historically seen their organization as one that ‘gets things done’ on behalf of member states by preserving its flexibility and not getting bogged down by principles that are often seen as overly legalistic, academic and constraining.Footnote 135 IOM has played fast and loose with norms seen as sacrosanct by IOs such as UNHCR. For example, it has compromised the right to seek asylum by supporting Australia in implementing offshore deterrence policies and detention programmes; it also facilitated US efforts to curtail the exodus from Haiti after the 1991 coup by corralling would-be asylum seekers at Guantanamo Bay and facilitating an in-country processing programme.Footnote 136 Although it is now less overt, IOM still provides some services that break international norms – in spirit, if not in ways that would trigger formal legal accountability. This is evidenced, for example, in Gauci’s discussion (Chapter 14) of how IOM’s assisted voluntary return (AVR) programmes sometimes fall short of international norms on voluntariness. Gauci traces how definitions and standards of voluntariness have eroded over time; in their analysis of IOM’s role in detention scenarios, Sherwood, Lemay, and Costello (Chapter 13) demonstrate how IOM’s AVR operational role and programming risks expanding arbitrary detention.
Yet as IOM aspires to occupy a more mature and increasingly visible place on the international stage, it is no longer in its interest to be an enfant terrible among IOs. Several chapters examine how IOM has attempted to jettison its reputation as a norm breaker and reposition itself as a dutiful norm taker, embarking on significant internal policy development processes through which it has (to some extent) mapped out its stance and commitments in relation to critical international standards and populations.Footnote 137 For example, Gilbert (Chapter 11) examines IOM’s 2015 Humanitarian Policy, while Ní Ghráinne and Hudson (Chapter 12) analyse its frameworks on IDPs. IOM’s uptake of international norms has been patchy but essential to its expansion, particularly its attempts to recast itself as a reliable and serious organization that can be trusted – not only by states but also by other IOs, NGOs and migrants themselves – to play a leading role in migration governance within and across borders. However, the extent to which such policies and commitments have affected IOM’s operations in practice remains an open question. Undoubtedly, in some of its operations, IOM undermines its declared values; IOM is by no means alone amongst IOs in this sense.Footnote 138 Indeed, by articulating commitments to foundational international norms, IOM opens itself up to charges of hypocrisy if its behaviour does not match its purported principles. The possibility of organizational hypocrisy represents a counterintuitive sign of progress, at least in comparison to having no clear normative commitments to which it may be held accountable.Footnote 139
IOM does not merely break or take norms. Despite its ‘non-normative’ designation, it is also extensively involved in shaping how existing norms are interpreted and applied, and advancing new (non-binding) norms.Footnote 140 IOs are often assumed to function as leading ‘norm entrepreneurs’ who play pivotal roles in introducing and (re)framing norms, and socializing states to accept them.Footnote 141 Yet IOM has long been dismissed as an outlier in this regard.Footnote 142 This is at odds with the fact that IOM has for decades assertively promulgated migration management norms intended to support states’ claim to independent, sovereign control of entry and membership – arguably still the fundamental norm underpinning global migration governance.Footnote 143 However, IOM is now tentatively extending into other areas of norm entrepreneurship more closely connected to human rights, humanitarianism, and other norms associated with IOs as a ‘force for good’ in the world.Footnote 144 If promoting ‘positive’ norms such as human rights is a critical function of IOs, particularly in the UN system,Footnote 145 IOM is arguably now behaving something more like a quintessential IO, insofar as it rhetorically urges states to recognize and respect international laws related to displacement and other forms of migration, and shapes perceptions of how this may be achieved by working closely with states to implement interventions in a wide range of areas. IOM has helped consolidate and advance norms on the rights and well-being of migrant populations, such as in the context of the GCM and the Migrants in Countries in Crisis Initiative (MICIC).Footnote 146 IOM’s Director General now regularly joins with the heads of UN agencies to publicly denounce massive violations of migrants’ rights, addressing situations such as mass deportations to Haiti and the 2021 crisis at the frontier of Belarus and Poland.Footnote 147 This practice suggests that IOM recognizes some public migrants’ rights advocacy as part of its remit, and is acknowledged by UN leaders as a counterpart in these efforts.Footnote 148
These activities underscore that while IOs’ roles as norm standard-bearers have often been linked to their formal mandates, neither a designated protection mandate nor custodianship of a particular treaty are necessarily requirements for an IO to engage in such activities. Strikingly, little attention has been paid in IR scholarship to the ways in which IOs are themselves socialized in relation to different international norms, particularly if this is not part of the organization’s historical or mandated identity.Footnote 149 Several chapters shed light on this issue, directly or indirectly, demonstrating how a desire to expand into new areas and be taken seriously as a reputable organization pushed IOM to expand its engagements as a norm taker and shaper – at the same time as its continued deference to states and lack of fully ingrained protection commitments mean it still functions as a norm breaker in some situations. While there is empirical evidence of IOM’s shifting roles vis-à-vis international norms, whether these changes are normatively legitimate or desirable is yet another question that remains unsettled. However, many contributors argue that in the absence of constitutional provisions firmly tying the organization to international human rights and humanitarian law, and requiring it to prioritize protection, its interventions may too often dilute migrants’ rights, rather than backstop and advance them. Certainly, there is a need for further analysis of these empirical developments in IOM’s relationship with international norms, and their consequences, principled and practical.
1.4.3 IOM as a Protection Actor
In refuting the notion that IOM has no protection obligations simply because it lacks a formal protection mandate, contributors trace the emergence and evolution of IOM commitments, policies and practices related to protection, and subject them to careful, critical analysis.Footnote 150 IOM’s approach follows a path worn by other IOs that were also created without statutory protection mandates, but which have subsequently recognized that they have protection responsibilities, including an obligation to tailor their programming to address protection concerns. The World Food Programme and the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), for example, were not established with protection mandates although they have come to view themselves as protection actors and have adopted policies to underpin this stance.Footnote 151 Likewise, IOM now asserts that it is a protection actor, but to what extent has it gone beyond mere lip service to human rights and humanitarian principles, and created mechanisms to ensure their effective implementation? This volume suggests the record remains mixed, with IOM still struggling to integrate attention to and understanding of protection concerns across the organization and develop internal structures that incentivize and ensure accountability in relation to protection. Some of IOM’s member states have pushed the organization to take a more active and reliable role in advocating for protection and integrating protection concerns into its interventions, but insist that IOM does not need a specialized, formal legal protection mandate akin to UNHCR’s in order to undertake such work.Footnote 152 That said, the IOM Constitution does not securely anchor even the pragmatic, operational approach to protection espoused in IOM’s discourse, leading many contributors to argue that the Constitution should be overhauled to clarify IOM’s normative commitments, particularly its protection obligations.
1.4.4 Towards More Complex Accounts of Institutional Change at IOM
Critiques of IOM have focused primarily on the IOM bureaucracy, and often miss the mark insofar as they fail to consider why IOM behaves as it does, and the levers of power that could be applied to achieve change. This underscores the need for more nuanced accounts of institutional dynamics and organizational change within IOM. The IOM bureaucracy, its leadership, and its staff all have important roles to play in internalizing normative obligations and redressing accountability deficits, as discussed for example by Johansen (Chapter 4) in his assessment of IOM’s internal accountability mechanisms. Yet a fulsome account of institutional change dynamics – and the strengthening of IOM’s accountability systems – also requires attention to a wider range of actors, including member states, other IOs and civil society. Aust and Riemer (Chapter 5) and Cullen (Chapter 6) provide insight into how IOM’s obligations and accountability structures have been shaped by its engagements with the UN system, including under the 1996 and 2016 IOM-UN relationship agreements, and IOM’s involvement in UN human rights due diligence processes. Despite IOM’s growing prominence, its increasingly explicit normative commitments, and its continued tendency to subvert some of these commitments in practice, IOM has rarely attracted sustained attention and critique from major international human rights advocacy organizations that serve as vital watchdogs for other IOs such as UNHCR.Footnote 153 Sherwood and Bradley (Chapter 15) analyse the causes and consequences of this curious disconnect, pointing to the important but underdeveloped role advocacy NGOs have to play in holding IOM to account for the norms it has taken on and encouraging continued institutional change.
1.5 Structure and Scope
This book is organized into two main parts. Part I considers how IOM’s mandate, structure, and its place in the international system – under international law and in relation to the UN – affects its obligations and accountability. Melding historical and legal analysis with insights from theories on IO legitimation, Bradley (Chapter 2) provides a foundation for the following chapters by mapping the evolution of IOM’s mandate and obligations, particularly in light of its expanded internal rules. Situating IOM in relation to international organizations law, Klabbers (Chapter 3) argues that difficulties surrounding attempts to hold IOM responsible for potential breaches of its obligations are attributable not only to IOM’s own characteristics but even more so to the limitations of international law itself. Turning to questions of accountability from an internal institutional perspective, Johansen (Chapter 4) outlines IOM’s current human rights obligations and assesses mechanisms through which IOM may be held to account for possible violations, considering questions of accessibility and claimant participation, neutrality, and potential remedial outcomes. The following pair of chapters grapple with the implications of IOM becoming a related organization in the UN system. Aust and Riemer (Chapter 5) examine how, as a result of the 2016 Agreement, IOM is now bound by the UN Human Rights Due Diligence Policy (HRDDP) and the principles underpinning it. Aust and Riemer warn against overstating the significance of this development, as the HRDDP aims only to avoid ‘grave violations’ of human rights, but highlights its symbolic significance. Cullen (Chapter 6) questions the legal significance of the shifts achieved through the 2016 Agreement compared to the 1996 Agreement, underscoring how IOM’s position as a related organization rather than a specialized agency curtails opportunities to advance accountability, particularly through UN reporting mechanisms.
Chapters in Part II explore ‘IOM in Action’, examining the empirical dynamics and normative significance of IOM’s dramatic expansion in different spheres. The first three chapters in this part trace and explain how IOM became a major player in the areas of crisis operations (Chapter 7), migration and climate change (Chapter 8), and data (Chapter 9). The next chapters offer more normative assessments of IOM’s interventions and policy frameworks in relation to its expanded work in the fields of ethical labour recruitment (Chapter 10), humanitarianism (Chapter 11), internal displacement (Chapter 12), immigration detention (Chapter 13), and AVR (Chapter 14). These chapters underscore the significant normative implications of IOM’s expansion, and how IOM’s obligations and accountability in these areas may be clarified and strengthened. Sherwood and Bradley (Chapter 15) close the volume by considering the potentially pivotal role of human rights advocacy organizations in this process.
Many of the contributors to this volume break new ground by concertedly analysing IOM in relation to different international legal standards. Yet the law does not and cannot provide comprehensive guidance on all the questions of obligations and accountability facing IOs generally or IOM in particular. Beyond legal obligations, it is also essential to think more broadly, in political, moral and ethical terms, about what IOM should and should not do. Addressing this gap requires further engagement with political theory and philosophy, as well as political analysis of the ways in which moral and ethical values shape institutional behaviour. While this is outside the aims of the present volume, this is an essential next step as debates on IOM’s proper role in the global governance of migration continue.
1.6 Implications: Time for Constitutional Reform
As an increasingly influential but still under-examined IO, IOM represents a critical case study for IR and international law theories on IO dynamics and accountability. However, the implications of this project are not only scholarly. Many contributors recommend reforms on the basis of their analyses, ranging from revising IOM’s projectized funding structure and recasting it as a specialized agency to shifting IOM’s organizational culture to better inculcate human rights values and openness to external critique. Amongst these diverse suggestions, one recommendation stands out as fundamental: it is now time to revamp the IOM Constitution to better reflect and direct its expansive roles in contemporary global governance.Footnote 154
This work suggests that constitutional reforms should achieve three core aims. First, they should update and clarify IOM’s mandate. Second, they should clearly recognize that IOM is bound by and in its work must promote respect for international law, including international migration law, human rights, humanitarian and refugee law. Third, they should explicitly acknowledge and direct IOM to uphold its protection obligations to all those affected by its operations. This need not entail the establishment of a legal protection mandate for IOM in relation to a particular convention or body of law, in the way that UNHCR is charged with refugee protection and the International Committee of the Red Cross is the champion of international humanitarian law.Footnote 155 Rather, these reforms should provide clarity for IOM, its partners and ‘beneficiaries’ on its approach and commitments, creating greater predictability and reliability. The reform process should also provide clarity on the scope and limits of IOM’s engagement in highly sensitive matters such as returns and immigration detention, and the correct interpretation of IOM’s ‘non-normative’ designation. To be sure, constitutional reform would not be a silver bullet to remedy accountability deficits at IOM – a fact made all too clear by the complicity of IOs with more pristine normative mandates in flagrant and unremedied rights violations.Footnote 156 Constitutional reform is a high-risk undertaking in a political environment in which xenophobia and aggressive anti-migrant policies are widespread and rewarded. Yet tackling the gross mismatch between IOM’s arcane Constitution and its new role as ‘the global lead agency on migration’ is essential to its continued maturation and meaningful accountability to all those affected by its work – including, most significantly, migrants themselves.Footnote 157
Even without such reforms, IOM has obligations under international law to which it should be held to account – a task that requires strengthening formal mechanisms, looking beyond formal approaches to also reconfigure incentive structures and organizational culture, and encouraging greater engagement with external accountability holders. Recourse to indirect modes of holding IOM to account surely have a role to play also, such as turning to domestic and regional human rights courts, UN Treaty Bodies and indeed other UN mechanisms to indirectly scrutinize IOM’s actions. In addition to other IOs and NGOs, researchers also have significant roles to play in holding IOM to account. Although IOM engages many researchers in its networks and as consultants, it has often been less receptive or even hostile to independent scholarly critique.Footnote 158 Yet another consequence of IOM’s era of expansion is that it will receive increased scholarly attention, much like other IOs such as the World BankFootnote 159 and UNHCR.Footnote 160 From the perspective of the detached, censorious approach that has dominated past scholarship on IOM, our focus on critical but constructive engagement and organizational reform may seem quixotic. We hope, however, that it is welcomed by IOM as an opportunity for reflection, learning, and increased accountability – all vital aspects of continued institutional growth.
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