IOM is located in Geneva, but it is not very well-known. Why do you say that it is a “strange creature”?
IOM is a strange creature because it is both a leader and an outsider, within the system and outside it. On the one hand, it is today a major building block of global migration governance and a leading international organisation with 174 member states and 30 million beneficiaries across the world. On the other hand, IOM has been established in 1951 outside the UN as a purely operational organisation. It has joined the UN only in 2016 as a “related organisation”. As such, it is part of the UN system, but it is not fully integrated into it, contrary to UN programmes and specialised agencies such as the United Nations High Commissioner for Refugees. The hybrid status of IOM is exacerbated by its open-ended and arguably vague mandate as endorsed in its Constitution of 1989. This versatility gives considerable flexibility and discretion to the organisation, but it has also raised several criticisms.
What has been the main criticism regarding IOM’s mandate?
One of the main criticisms relates to the lack of a formal protection mandate and the silence of its Constitution about the human rights of migrants. Activists, scholars and practitioners are used to lamenting this situation and calling for a revision of the Constitution. I argue that this approach is ineffective and misleading because the IOM Constitution is not the only source of legal duties under international law.
According to you, IOM is bound by international law to respect human rights and protect migrants. Can you explain this point?
My chapter revisits the law of international organisations as an avenue of legally binding commitments for IOM and thus contributes to the growing demand for accountability. I demonstrate that IOM is bound to respect the human rights of migrants, even without any change in its Constitution. This obligation stems from a threefold legal basis: the internal law of the organisation, as informed by the established practice of the IOM Council; the international agreement concluded in 2016 with the UN; and the general rules of international law, including jus cogens norms.
Can the crisis in Ukraine help illuminate IOM’s mandate regarding migrants and human rights?
Yes of course, especially because, contrary to the conventional belief, its mandate is not limited to international migrants. It also includes refugees and internally displaced persons. IOM is doing an important job in delivering humanitarian assistance in Ukraine and neighbouring countries with many other actors, such as UNHCR or ICRC. The needs are huge with 8 million internally displaced persons in Ukraine and more than 6 million refugees. IOM is also playing an important role regarding third-country nationals (like foreign students) who have fled the war in Ukraine.
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Full citation of the chapter:
Chetail, Vincent. “The International Organization for Migration and the Duty to Protect Migrants: Revisiting the Law of International Organizations.” Chapter in The Cambridge Companion to International Organizations Law, edited by Jan Klabbers, 244–64. Cambridge Companions to Law. Cambridge: Cambridge University Press, 2022.
The chapter can be downloaded on SSRN and Cambridge University Press.
Banner picture: excerpt from an illustration by PHOTOCREO Michal Bednarek/Shutterstock.com.