Abstract
The International Organization for Migration (IOM) presents itself as a non-normative intergovernmental agency which ensures orderly and humane management of migration. Yet migration and the treatment of migrants is an issue which is highly normatively charged—as evidenced by the 2016 New York Declaration, the protection of the human rights of migrants is a matter of great concern to the international community. The IOM joined the United Nations (UN) as a related organisation in 2016 but continued to reaffirm its status as a non-normative agency. In this chapter we examine the coherence of the IOM’s new position as a related organisation of the UN from the perspective of the UN as a normative agency charged with assuring that its members protect human rights. We focus on two anomalies. First, there is a conflict between the IOM’s Constitution, which requires respect for national laws, and the UN Charter, which asserts the primacy of international human rights. Second, there is a contrast between the IOM’s independence as a ‘related agency’—notably its lack of reporting obligations—and the position of other UN organisations engaged in migration, including the United Nations High Commissioner for Refugees (UNHCR), International Labour Organization (ILO) and Office of the United Nations High Commissioner for Human Rights (OHCHR). We argue that the IOM member states—who are also UN members—should amend the Constitution to give priority to international law and specifically to international human rights law. This would bring the organisation into conformity with the UN Charter and its UN relationship agreement. Doing so would also provide a criterion against which the IOM operations could be decided and assessed.
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Notes
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An Agreement concerning the relationship between the United Nations (UN) and the International Organization for Migration (IOM). A/RES/70/296, Art. 2(5). Treaty, No. 384, UN Treaty Section. The parties had previously operated together on the basis of a 25 June 1996 agreement of cooperation. Relationship agreements in a broadly similar form exist between the UN and a number of specialised agencies.
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Universal Declaration of Human Rights, preamble 1: ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.
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The Policy states that ‘supportive protection is distinguishable from substitutive protection, which is a responsibility that has been conferred on some other organisations and bodies by States through specific and limited international treaties. Substitutive protection stands in addition to the primary protection role of states’ (para. 18).
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The IOM clarified as follows in an e-mail to Stefanie Grant, 29 November 2017:
IOM acknowledges that what is understood by ‘normative’ and ‘non-normative’ varies and can take on many different shapes depending on, inter alia, the context and the academic discipline. IOM understands being non-normative in the specific context of IOM and, hence, understands its non-normativity as being related to legal non-normativity and in a narrow sense, meaning that IOM’s non-normativity excludes it from setting new binding rules and enforcing binding rules upon its Member States or other States. IOM further understands that being a non-normative organization is linked to IOM’s functions and activities. IOM’s understanding of its non-normative nature and functions is based on the IOM Constitution, decisions and policies as adopted by the IOM Council, IOM Member States and the UN General Assembly. IOM does not understand that its non-normativity means to not be required to work in conformity with international law, including human rights law, and therefore allows IOM to be inconsistent with international law, since, in IOM’s view, this would be better referred to as ‘unnormative’, rather than ‘non-normative’. On the contrary, in its activities, IOM aims to ensure that the activities are consistent with international law, in particular with human rights law.
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‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’
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In contrast to the Conventions on the Rights of the Child (CRC), which protects the rights of migrant children and has 193 state parties.
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The two exceptions are Indonesia and Syria—parties to the UN migrant workers convention but not the IOM member states.
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Letter from Ban Ki-moon, UN Secretary General, to William Lacy Swing, Director General, International Organization for Migration, 5 February 2016; on file with authors.
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A/RES/70/296.
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General Assembly Resolution 428 (V) of 14 December 1950, Annex, Chapter III, para. 13.
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UNHCR Statute, Art.11. http://www.unhcr.org/3b66c39e1.pdf; GA Resolution A/RES/58/153, 24 June 2004, para. 10.
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Art. 4, A/RES/70/296.
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A/RES/70/296.
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A/RES/70/263.
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IOM Council Resolution No. 1317, 30 June 2016.
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Email from IOM to Stefanie Grant, 29 November 2017.
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ILO: General Survey Promoting fair migration—General Survey concerning the migrant workers instruments (2016) https://www.ilo.org/global/standards/WCMS_453917/lang%2D%2Den/index.htm accessed 28 June 2019.
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In its Preamble, the Constitution refers to the ‘needs of the migrant as an individual human being’.
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See, for example, the statement signed in 2012 by more than 50 UN organisations and departments at http://www.un.org/millenniumgoals/pdf/Think%20Pieces/13_migration.pdf
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ILO: General Survey Promoting fair migration—General Survey concerning the migrant workers instruments (2016) https://www.ilo.org/global/standards/WCMS_453917/lang%2D%2Den/index.htm, accessed 28 June 2019.
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UNHCR’s mandate is limited to refugees, internally displaced persons and forced migration in general.
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‘Human mobility’ is not included in the IOM’s list of Key Migration Terms at https://www.iom.int/key-migration-terms
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For instance, organising conferences (https://www.iom.int/idmreturnmigration) and training (http://www.iom.int/news/libyan-detention-centre-staff-receive-human-rights-training).
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http://www.coe.int/t/dg3/migration/archives/Source/MalagaRegConf/20_Guidelines_Forced_Return_en.pdf. See commentary paragraphs 1, 7 and Appendix.
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UN Committee against Torture General Comment No. 3(2012).
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Other human rights such as the right to life may also come within this category.
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The Danish Refugee Council raised the issue of Kenyan nationals living in the Dadaab refugee camp, which primarily houses Somali refugees in Kenya. The Danish Refugee Council estimated that 30% of the camp’s inhabitants were Kenyan nationals. As a result, biometric cards were issued to the refugees in the camp on the basis of which rations were given out. However, a negative externality of the exclusion of Kenyans from access to rations in the camp was a substantial diminution of national support for the camp and Somali refugees. The president’s decree in 2016 that the camp must be closed and the Somalis sent back to Somalia is also a reflection of the change of the composition of the camp. http://webcache.googleusercontent.com/search?q=cache:nuek3So8QhUJ:www.alnap.org/pool/files/socio-economic-environmental-impact-study-of-the-dadaab-refugee-camp-on-the-host-community.pdf+&cd=5&hl=nl&ct=clnk&gl=nl
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‘Art. 2(5) of the IOM-UN Agreement is … only a reiteration of IOM’s general practice to act in accordance with international law, including human rights law. There is no conflict between Article 1 3. of the IOM Constitution and Art. 2(5) of the IOM-UN Agreement.’ Email from IOM to Stefanie Grant, 29 November 2017.
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One indication of how the IOM has seen this role can be found in its proposal to the UN Secretary General that a follow-up mechanism—which would include priority setting and progress review—could be based on the IOM Council and its subsidiary International Dialogue on Migration. See ‘IOM Input to Secretary General’s Report on the Global Compact for Safe, Orderly and Regular Migration’, September 2017, at https://www.iom.int/sites/default/files/our_work/ODG/GCM/Input1-IOM-Input-to-SG-Report-Structure-and-Elements.pdf
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Guild, E., Grant, S., Groenendijk, K. (2020). Unfinished Business: The IOM and Migrants’ Human Rights. In: Geiger, M., Pécoud, A. (eds) The International Organization for Migration. International Political Economy Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-32976-1_2
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