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The IOM’s New Status and its Role under the Global Compact for Safe, Orderly and Regular Migration: Pause for Thought

Published on March 29, 2019        Author: 
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On 8 July 2016, the UN General Assembly adopted by consensus the Agreement Concerning the Relationship between the UN and the International Organization for Migration (IOM) (the UN-IOM Agreement). In broad terms, the objective of the UN-IOM Agreement was to ensure better coordination between UN agencies and the IOM as they fulfil their respective mandates. The Agreement created a formal relationship between the two institutions, making the IOM a UN “related organization”.

The formalisation of various interconnections between the UN and the IOM makes intuitive sense. The UN is without a generalised agency for migration, and although the UN High Commissioner for Refugees has widened its mandate somewhat, it remains primarily concerned with refugees.

Since the IOM has become a UN related organization, the UN has transferred escalating levels of responsibility for secretariat processes on the topic of migration to the IOM which would ordinarily be undertaken by the UN Secretariat or a UN specialized agency. The problem is that the organisational structure of the IOM is fundamentally different from the UN, including in terms of mandate, funding, and governance, such that this transfer of responsibility gives rise to a problematic conflict of interest. Moreover, accountability mechanisms have been lost in the ether. This blog post elaborates some of the challenges arising from the new related status of the two organizations and flags concerns about states transferring escalating levels of secretariat responsibility directly to the IOM in the field of migration.

The difference between a “related organization” and a “specialized agency” of the UN

The phrase “related organization” does not appear anywhere within the text of the UN Charter. It is an umbrella expression used to refer to any organization that has a cooperation agreement with the UN but is not a UN specialized agency. (There are three UN related organizations, the other two are the IAEA and the WTO). Nevertheless, in many respects, the UN-IOM Agreement mimics that between the UN and its specialized agencies under articles 57 and 63 of the UN Charter. The key distinction is that a “specialized agency” is subject to the direct oversight of the General Assembly.

The General Assembly is authorized under the UN Charter to make recommendations to specialized agencies in respect of both substantive and financial matters. Moreover, specialized agencies can be financially dependent on contributions from the UN, as decided by the General Assembly (Arts 17; 58). In addition, the UN Economic and Social Council can demand regular reports from specialized agencies, including on the steps those agencies have taken to implement General Assembly and ECOSOC recommendations (Art 64).

In an agreement similar to that between the UN and the other two related organizations (available here and here), under the terms of the UN-IOM Agreement, the Organization’s independence and non-normative structure is explicitly retained: the IOM “shall function as an independent, autonomous and non-normative international organization in the working relationship with the United Nations established by this agreement”. It is this feature of the Agreement that initiated my pause for thought about the IOM’s role as secretariat under the Global Compact Agreement, and its future place in international legal processes.

The IOM’s role under the Global Compact

Shortly after the UN-IOM Agreement was finalised, the General Assembly charged the IOM with facilitating the negotiation of the Global Compact for Safe, Orderly and Regular Migration (the Compact) through the provision of “technical and policy expertise”, as was recommended in the New York Declaration for Refugees and Migrants (Annex II, para 12). This was unusual insofar as negotiations towards a General Assembly-led agreement would ordinarily be facilitated by the UN Secretariat or one of the UN’s specialized agencies.

In December 2018 the Compact was agreed. It is a non-legally binding agreement that provides a framework through which state cooperation on migration. At paragraph 45 provides that the IOM will serve as secretariat and coordinator of the new “UN Network on Migration” which is responsible for follow-up and review of the Compact commitments, and provides support for the implementation of those commitments, including capacity-building.

Both the preparatory work towards the Compact and subsequent follow-up and monitoring are of a kind typically undertaken by the UN Secretariat (which includes the Office for the UN High Commissioner for Refugees and the UN Office for the UN High Commissioner for Human Rights, among others).

The problem with IOM leadership of the Global Compact processes

The IOM is a non-normative independent institution that provides migration management services to states. It assists with migration management in various forms, including the return of migrants and the prevention of unauthorised migration. That it can prioritise projects without normative constraints makes it more competitive: it does not critique government policy against any normative standards. Operationally, the IOM is more comparable to a private subcontractor than a traditional intergovernmental organization. It prides itself on its cost-efficiency and champions its decentralization as a feature which permits flexibility. Capital flows into the IOM are secured through ad hoc donations, mostly from states and inter-governmental organizations, to fund specific projects. Accordingly, the IOM has a commercial interest in the management of migration.

Whereas the purpose of the UN is to maintain international peace and security in conformity with the principles of justice and international law, including the promotion and encouragement of respect for human rights and fundamental freedoms (Art 1). The constitutional mandate of the IOM is to provide services to facilitate migration management “at the request of and in agreement with the States concerned” and “shall conform to the laws, regulations and policies of the states concerned” (Art 1). The UN-IOM Agreement provides that the IOM is required to conduct itself in accordance with the purposes and principles of the UN Charter, and to have “due regard” to UN policies more generally (Art 2(5)), but it is easy to see how a conflict of interest might arise.

Unlike the UN Secretariat, the IOM it is not limited by the broader framework of the UN Charter or the checks or balances inherent with it. One advantage of having the UN Secretariat manage processes such as those provided for in the implementation of the Global Compact (paras 40 to 47, especially para 45) is that it has an obligation of impartiality in the advice it provides. Article 100(1) of the UN Charter specifies that the UN Secretariat “shall not seek or receive instructions from any government…”. Subparagraph 2 requires that UN member states “not seek to influence [the Secretariat] in the discharge of [its] responsibilities”. The independence of the UN Secretariat is taken seriously by its leadership: Boutros Ghali described it as “psalm 100” to the Secretary General (Foreign Affairs, Mar/Apr 1996). Neither these paragraphs, nor any equivalent, govern the IOM. On the contrary, the IOM is institutionally structured in order to receive instructions from governments, for it is governments that the IOM serves.

The IOM as a political scapegoat?

The distinguishing features of the IOM could well make it more attractive in the eyes of those states that would prefer to have the migration agenda largely off the table at the UN General Assembly. That is, states uncomfortable with the issue of migration will have an ”out” in terms of transferring any issue associated with migration to the IOM so that rather than debate the issues in the committee system of the General Assembly, an intervention will be made that such matters ought to be deferred to the IOM. We have seen this already with the IOM leading on the Global Compact, and may see this continue with its administration of the Network that has come out of it.

There are obvious concerns where a state service provider, with a commercial interest at stake, and no normative mandate, provides both the technical advice and secretariat services to support implementation of a process through which the fundamental human rights of individuals are at stake. One need only glance at the docket of the European Court of Human Rights, or the communications procedures of the UN human rights treaty bodies, to appreciate that migration is the human rights zeitgeist of our time.

None of this is to say that the UN’s leadership on migration (cf refugees) was or is particularly well-coordinated, that the UN system of checks and balances is either particularly sturdy or above reproach, nor that its oversight of specialized agencies is somehow ideal. But for the kind of network management, follow-up and implementation, such as that required under the Global Compact, it is significant that the UN has, and the IOM does not have, a normative constitutional framework that provides for the protection of human rights, incorporates specific mechanisms for accountability, and explicitly requires of its Secretariat impartiality in providing advice to states.

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Filed under: Migration, Refugee Law
 
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