The International Organization for Migration and the Duty to Protect Migrants: Revisiting the Law of International Organizations

Abstract

This chapter moves from the conventional belief that the International Organization for Migration (IOM) has no protection mandate simply because it is not explicitly enshrined in its Constitution. The common complaint 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 legal duties of IOM towards migrants and its correlative responsibility.

This chapter revisits the law of international organizations as an avenue of legally binding commitments for IOM and thus contributes to the growing demand for accountability. It demonstrates that the IOM is legally bound to protect migrants and respect their human rights under the current state of international law, even without any change in its Constitution. The obligation of the IOM stems from a threefold legal basis: the internal law of the organization, as informed by the practice of its governing body; the international agreement concluded in 2016 with the UN; and the general rules of international law, including jus cogens norms.

This insight from the law of international organization provides a new critical step for both scholars and activists to move from a posture of IOM-bashing to a more incisive and efficient engagement with a view to ensuring its accountability.

Keywords: IOM, migration, human rights, governance, international organizations law