5.2.1 A Normative Framework of a Non-normative Nature?

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

As mentioned above, the Constitution does not set forth what is called in the literature a ‘protection mandate’.Footnote ²¹ In other words, it is not clear from its constitutive document that IOM is to act to ensure the rights of migrants. Instead, both its Constitution and subsequent practice portray IOM as a service-driven organization which operates at the behest of its member states and caters to their demands in the field of migration.Footnote ²² This is in and of itself neither surprising nor scandalous – after all, IOs are creatures of their member states, and it is to be expected that the member states have a considerable influence in the shaping of how a given IO will evolve. Simultaneously, IOM is criticized in the migration literature for going well beyond what is typical of IOs in this regard. This is attributed to the lack of the protection mandate and a general dependence of the organization on project-specific funding (‘earmarking’), which makes the organization overly responsive to the demands of some of its member states, those which can pay for its services. Problematic in this regard is that some of these requested services infringe on or even violate human rights obligations, as shown in more detail below. Furthermore, from an organizational perspective, the substantial decentralization and significant independence of IOM’s over 590 countries and sub-offices worldwideFootnote ²³ from the organization’s headquarters in Geneva contributes further to this problématique, especially as the country offices are mostly responsible for generating their funding.Footnote ²⁴

This, in turn, is connected with criticism about IOM’s service-oriented nature and the lack of an explicit protection mandate which contributes to an institutional culture in which the organization does not understand itself as a watchdog of member states, overseeing their compliance with international human rights law. In recent years, IOM has expanded its work inter alia to data collection and migration analysis and strengthened its focus on humanitarian programs and cooperation among other things with UNHCR in resettlement programs. This refocusing arguably went hand in hand with a gradual shift of its ethosFootnote ²⁵ leading to the circumstance that today the organization prides itself for engaging in various forms of humanitarian work, not least including to its facilitation of regular pathways of migration.Footnote ²⁶

5.2.2 Controversial Practices of IOM

However, the controversial practices that IOM engages in have led to a significant amount of criticism against the organization. Despite its various internal policies addressing human rights standards, it would lack a binding commitment to human rights obligations in its Constitution. Too often it would fall behind its commitments and no effective mechanisms would be available to hold the organization accountable. This is especially the case in cooperation with authoritarian and repressive governments in ‘assisted voluntary return’ and ‘repatriation’ programs like it wasFootnote ²⁷ the case with Libya in 2017.Footnote ²⁸ Accordingly, NGOs and scholars alikeFootnote ²⁹ have criticized IOM repeatedly for only paying lip service to human rights, while violating them or contributing to such violations in practice in several situations. These include its strong focus on removal (including ‘voluntary’ return),Footnote ³⁰ the facilitation of the assistance in ‘voluntary returns’ in clearly coercive circumstances of migrants from Libya to home countries such as Nigeria or SenegalFootnote ³¹ or the role in the administration of Australia’s so-called ‘Pacific solution’ and its detention centres in Nauru. Human Rights Watch (HRW), which has had observer status with IOM since 2002, has publicly criticized IOM for years in its reports to the organization’s Governing Council. According to HRW, IOM only pays lip service to human rights, while violating them in practice.Footnote ³² IOM has particularly been criticized for its involvement in the cases of LibyaFootnote ³³ and Australia.Footnote ³⁴ The most recent example sparking loud criticism is IOM’s contribution in facilitating the EU’s externalization practices,Footnote ³⁵ for instance, in the Sahel region by supporting the identification of persons arguably in need of international protection in offshore processing centres alongside UNHCR and African states.Footnote ³⁶ Critics argue that this contribution in implementing these offshore asylum determination policies triggers human rights and protection issues such as the questions how, under such circumstances, non-refoulement can be upheld, family unity ensured, and the right to a fair and impartial status determination be secured.Footnote ³⁷

Despite the ‘non-normative nature’ of the organization, it is not the case that these practices developed in a normative void. As introduced above, IOM’s original area of work evolved significantly over the past decades – driven by, amongst other things, the need to reinvent itself as its initial reason for existence, namely assisting in the mass emigration of ‘surplus’ people to states outside Europe, was no longer pertinent.Footnote ³⁸ The initial mandate of the organization (then called Provisional Intergovernmental Committee for the Movement of Migrants from Europe) focusing on arranging the transport of migrants from European countries to states overseas came to formally include the organization’s involvement in humanitarian responsesFootnote ³⁹ to displacement,Footnote ⁴⁰ emergency relief and data analysis.Footnote ⁴¹ The organization’s humanitarian mandate is also reflected in recent policy instruments such as the 2012 ‘Migration Crisis Operational Framework (MCOF)’,Footnote ⁴² the 2012 ‘Humanitarian Policy’Footnote ⁴³ or the 2015 ‘Migration Governance Framework’.Footnote ⁴⁴ Also, the 2016 UN-IOM Agreement implicitly acknowledges IOM’s humanitarian role, recognizing the organization as ‘an essential contributor […] in operational activities related to migrants, displaced people and migration-affected communities, […] and in mainstreaming migration in development plans’.Footnote ⁴⁵ Covering this broad array of different tasks from providing shelter to returning migrants while providing services for its member states necessarily puts the organization in a difficult conundrum of expectations.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Achilles heel of the formulation in Article 2, para. 5, however, is undoubtedly the formulation ‘due regard’. From a human rights perspective, this can only be described as a very weak and indeed disappointing component of the Agreement. At the same time, IOM member states may welcome such a ‘soft’ formulation as it allows for more flexibility in the implementation of its human rights policies and adaptability depending on the concrete circumstances of the various tasks the organization fulfils for its members. Looking at this formulation in other international instruments such as the United Nations Convention on the Law of the Sea (UNCLOS) (Articles 56 para. 2, 58 para. 3 and 87 para. 2) may help clarify the meaning of the term in Article 2, para. 5 of the Agreement. Applying general interpretative conclusions on the UNCLOS provisionsFootnote ⁶⁵ to the UN-IOM Agreement and the organization’s internal policies, ‘due regard’ implies a certain degree of legal commitment.

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

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

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

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

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

In contrast to these two requirements, the question of whether IOM constitutes a ‘UN entity’ in the sense of the HRDDP poses a more difficult problem. HRDDP defines this term as ‘any office, department, agency, programme, fund, operation or mission of the United Nations’.Footnote ⁷⁶ IOM, as a related organization, constitutes none of these entities. Even though UN-related organizations and UN agencies share several attributes, they are two distinct forms of entitiesFootnote ⁷⁷ within the UN system.Footnote ⁷⁸ Thus, as IOM was explicitly granted with the status of ‘related-organization’, instead of ‘agency’Footnote ⁷⁹ the narrower UN-entity requirement, set up by HRDDP, is not fulfilled.

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

5.3.2 The Potential Contribution of the Human Rights Due Diligence Policy

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

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

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

5.3.3 Limitations of the Human Rights Due Diligence Policy

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

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