Online Features

Somewhere Over a Green Rainbow?—The Overlooked Intersection between the Climate Crisis and LGBTQ Refugees

May 29, 2023

Eoin Jackson*

The international community drafted the UN Refugee Convention (hereinafter ‘The Convention’) with the horrors of the Second World War still fresh in its mind. At the time, LGBTQ people were illegal in most countries and climate change was the stuff of scientific fantasy.^[1] Despite this historical context, activists have sought to use the Convention to protect LGBTQ refugees, and now seek to achieve similar success with recognizing climate refugees.

This article analyzes the intersection between recognition of LGBTQ people as refugees and the potential recognition of climate refugees. It intends to briefly sketch out how the climate crisis might exacerbate issues faced by LGBTQ people such that their circumstances may escalate to the point where formal recognition under the Convention would be justified. It also examines how a queer lens could help advance efforts to formally recognize climate refugees under the constraints of the contemporary approach. Part I of this article analyzes the impacts of the climate crisis on LGBTQ refugees. Part II criticizes the recent Human Rights Committee decision in Teitiota v. New Zealand (2020)^[2] for failing to consider the differentiated impact of climate change on vulnerable communities. Part III outlines suggestions for future efforts to recognize LGBTQ refugees and intersects these suggestions with the broader movement to recognize climate refugees.

Part I: The LGBTQ Community and the Climate Crisis

LGBTQ people are generally recognized as refugees using the ‘protected social group’ element of the Convention.^[3] Most asylum officers will focus on whether there is a nexus between the sexuality/gender identity and persecution of the applicant.^[4] Typically, this analysis involves an examination of home countries’ laws, attitudes, and policing of homosexuality/gender identity. Persecution of LGBTQ refugees includes considering how these laws and attitudes impact the capacity of the LGBTQ person to freely express their sexuality/gender identity.^[5]

Importantly, many LGBTQ refugees are from the same countries where climate change is likely to have the most immediate impacts. These countries are found in regions of Northern Africa, Southeast Asia, and the Middle East.^[6] In other words, countries’ existing poor track records on LGBTQ issues will now face additional social and economic challenges because of climate change.^[7] Resources which could have been used to address social progress will need to be diverted to climate mitigation and adaptation measures.^[8] This phenomenon most starkly exists in Pakistan, where large government resources will need to be devoted to addressing the impact of devastating floods.^[9] However, as tensions increase in countries experiencing extreme weather changes and natural disasters, so does the possibility of groups who deviate from norms being blamed for the crisis. During the Covid-19 pandemic, for instance, LGBTQ people were blamed for the outbreak by leaders in Nigeria, Liberia, and Zimbabwe, among others.^[10] Violence and state repression against LGBTQ people also increased during Covid-19, with many LGBTQ centers shut down and people arrested.^[11]Should this pattern repeat itself, LGBTQ people will increasingly face demonization under the pretense of being the ‘cause’ of the relevant climate disaster. This demonization may also happen in countries which, at least on paper, have LGBTQ protections or have legalized homosexuality. The instability caused by climate change means that old political norms may break down by extremist forces.^[12] Thus, there can be no guarantee that LGBTQ people retain their protected social standing, which may, in turn, complicate efforts to recognize their refugee status when they are from what were previously considered ‘safe’ countries.^[13]

The climate crisis exacerbates these issues by inflaming political controversy through the loss of dwindling resources. If LGBTQ people reside on the margins of society, it increases the chance that they will be denied access to these resources. Many LGBTQ communities report a higher rate of homelessness and poverty worldwide.^[14] This trend particularly affects the transgender community, who often experience higher rates of hatred and violence, and may struggle to access jobs and affordable housing.^[15] As countries experience a loss of wealth, LGBTQ people may be forced to flee to find better economic opportunities.^[16] In particular, the violence they experience when accessing resources in an ever-diminishing market may trigger a need to leave what could have been a previously stable country. However, the framework of the Convention does not generally include economic migrants, and it is already difficult to prove that an LGBTQ person merits asylum when there is no direct evidence of political persecution.^[17] The climate crisis may therefore raise barriers for LGBTQ people both economically and in terms of being able to adequately convey their need for asylum to officers.

This persecution is also intersectional. Climate change has a worse impact on females, with women being at higher risk of domestic violence and forced migration as the effects of climate change worsen.^[18] Similarly, people of color are more likely to reside in areas facing a high rate of pollution or be at greater risk from health problems as a result of climate change.^[19] LGBTQ people who exist within this spectrum therefore face multiple hurdles as they tackle the additional challenges posed by intersecting identities. From a refugee law perspective, it also makes it harder to have the LGBTQ aspect of their identity vindicated during the asylum process, as they may seek to confine themselves within the limited scope of the Convention. Gender, for example, is not automatically included under the definition of a refugee but is, like membership of the LGBTQ community, included under the ‘protected social group’ category.^[20] This intersectionality means that an LGBTQ woman fleeing climate change focuses on the female aspect of her identity without being able to demonstrate how or why being LGBTQ also exacerbates these effects.^[21]

Climate change could therefore heighten the nexus between persecution and identity, such that an LGBTQ person could partially rely on the climate crisis to obtain protection. It could also trigger persecution and a need to flee where none previously existed. However, as noted by Professors Goodwin-Gill and McAdam, it may prove difficult to tie the effects of climate change into persecution while maintaining the nexus between these effects and membership of a protected social group.^[22] It is not that the political and economic repression of LGBTQ people would go unrecognized. Instead, there is a theoretical problem that fails to appreciate how these issues were caused by or worsened by the climate crisis.^[23] If the cause of the persecution is not viewed holistically, then it is difficult for an asylum system to wholly encapsulate the individuality of the refugee, or the reasoning for justifying an asylum claim. This could, in turn, impact the capacity of the LGBTQ person to communicate how their identity worsened the impact of the instability generated by climate change. If climate change is only viewed in a ‘traditional’ manner (i.e., a focus on physical effects such as increased flooding), there is a risk that the unique difficulties experienced by LGBTQ people will go under-valued. Given how overlooked LGBTQ people often are in the grander scheme of refugee law,^[24] climate change may render the compounding of their problems invisible amidst the wider deluge.

Part II: Teitiota v. New Zealand

The UN Human Rights Committee’s recent decision in Teitiota v. New Zealand^[25] further indicates the difficulty of incorporating an intersectional perspective on LGBTQ refugees into the climate discourse. In Teitiota, the applicant attempted to halt his deportation back to Kiribati on the basis that the effects of climate change on the island posed a serious threat to life. This argument could have allowed the applicant to reside in New Zealand due to the Convention’s non-refoulement clause. The Human Rights Committee advised that, while it was possible for climate change-based displacement to trigger the non-refoulement clause, the applicant failed in his argument because there was no immediate threat to life.^[26]

Of particular interest for this article is the emphasis the Human Rights Committee placed on the requirement that the risk posed by climate change ‘must be personal, that it cannot derive merely from the general conditions in the receiving state, except in the most extreme case.’^[27] This requirement is problematic in the LGBTQ context when the decision of the New Zealand High Court (which the Superior Courts and the Human Rights Committee upheld) is examined.^[28] Here, the High Court noted that the alleged persecution from climate change was ‘indiscriminate,’^[29] and, as a consequence, could not fall within one of the five Convention grounds. In doing so, the Court did not acknowledge the particular vulnerabilities that marginalized people experience because of climate change. Professor Chhaya Bhardwaj correctly views this analysis as ‘surprising,’ given that refusal to allow the applicant to remain in New Zealand also affected his children,^[30] whose generation is, per the Inter-Governmental Panel on Climate Change, more likely to be adversely affected by climate change.^[31]

The emphasis on human agency when considering persecution under the Convention also complicates LGBTQ climate refugee protection under the existing regime. The Committee asserted that, because the state still had the capacity to engage in ‘intervening acts’ before climate change devastated the island, the threat to life was not imminent.^[32] Professor Simon Berhman points out that this ruling leaves states in a dilemma.^[33] On the one hand, the state could act to mitigate climate change. However, this intervention is likely to be ineffective considering the limited resources possessed by an individual state, particularly those who struggle with poverty and inequality. In doing so, the state condemns its population to a rejection of refugee claims under the Convention. On the other hand, the state could refuse to act to prevent the worst effects of climate change. This non-intervention results in the eventual decimation of the state’s resources but raises the chance that its population can obtain refugee status. In either scenario, LGBTQ people and, in particular, female members of the LGBTQ community are among the most disadvantaged.^[34] They are either likely to bear the brunt of the loss of resources as the state diverts its attention to climate change, or, as Balsari notes, experience the worst effects of the instability arising as a nation falls victim to environmental degradation.^[35] These impacts are also gender sensitive, due to the traditional tendency for women to be more dependent on the natural resources of the land, as a result of the lack of broader economic opportunities within oppressive systems.^[36] It can also be attributed to the wider trend within political systems in which women are one of the first groups to experience additional discrimination when there are social and cultural tensions caused by a loss of resources.^[37]

The intersectional consequences of the Teitiota approach to climate refugees are more apparent when examined in the context of the high threshold set by the Human Rights Committee to demonstrate that there was a serious threat to life. The applicant was obliged to demonstrate that ‘the supply of fresh water [was] inaccessible, insufficient or unsafe’ and that he would be exposed to a ‘situation of indigence, deprivation of food, and extreme precarity’ to make a successful claim.^[38] However, as Professor McAdam argues, this threshold is too high where a range of rights are impacted by environmental degradation.^[39] In both the queer and female context, insufficient access to food and water could, as documented by Marina Andrijevic, contribute to a rise in domestic violence, or increase the likelihood of falling into poverty as patriarchal structures react to environmental challenges by removing economic opportunities from women and trans communities.^[40] Gay men may also experience this backlash and be forced to conform with patriarchal standards by staying in the closet to avoid the backlash experienced by their more visibly vulnerable counterparts. Thus, not only is there a serious threat to life, but broader rights to equality, dignity, and liberty are also impeded.^[41] The gender-blind attitude taken in Teitiota will make it difficult for courts to interpret similar cases in a manner that could account for these cumulative violations. If courts view climate change as affecting everyone equally, it is more difficult to justify why LGBTQ people are uniquely vulnerable to its effects. This perspective has consequences for any minority seeking to have their experiences incorporated within modern refugee frameworks.

While Justice Max Barrett correctly praises the Teitiota decision for not precluding a future claim based on the effects of climate change,^[42] it does little to ameliorate concerns that the refugee framework ignores intersectional difficulties experienced by people who may be or will be fleeing the effects of climate change.

Part III: The Path Forward for LGBTQ Refugees and Climate Change

Our understanding of the intersection between the climate crisis and its impact on LGBTQ people is in its infancy. While climate refugees remain an unrecognized concept, there are several avenues asylum officers could take to ensure adequate protection of LGBTQ people caught up in the wider stream of migration.

Firstly, a broader interpretation of persecution will assist the general recognition of a climate refugee.^[43] Climate inaction will be the central cause of worsening effects of climate change. These increased effects, in turn, will perpetuate social and economic inequity that is consistent with the oppression of LGBTQ people. It will either increase their likelihood of facing a backlash or decrease their ability to advance equality as the state devotes its time and resources to managing climate change-related chaos. Recognizing how and why the effects of climate change are human-oriented, and therefore in line with our perception of persecution, will be an important marker in vindicating climate refugees.^[44]There will be a need for this broad lens as more climate refugees flee their homelands in search of safer territory.^[45] This should eventually lead to a reckoning in terms of reforming the wider Convention, but for the moment, the broader scope of persecution proposed here may be a useful stop gap.

Secondly, there should be a rejection of the view that climate change is indiscriminate. It is evident, from both a science and policy perspective, that climate change will have a worse impact on women, LGBTQ people, and other marginalized groups. One way in which to reject this view is to adopt the suggestion of Professor McAdam that a ‘range’ of potential rights violations be examined when considering the impact of climate change.^[46] A cumulative approach, as opposed to a strict threshold, would also assist LGBTQ refugees in meeting the harm element to the alleged threat posed by climate change.^[47] This approach could draw on the broader cultural and social dynamics that contribute to the disadvantage experienced by LGBTQ people in society. This would mean that LGBTQ people at risk of climate change-driven persecution could have this persecution recognized through citing a range of particular rights they feel have been threatened by the increased effort to challenge their existence.^[48] While this solution is imperfect, it is perhaps the most feasible method of recognizing intersectional concerns within the limited framework of the Convention, due to the avoidance of a political battle for wholescale reform.^[49] It would also ensure some form of queer lens is present in climate refugee interpretation. Claimants would not only be focusing on the physical effects of climate change, but the resulting social pressure on them to conform with the norms of the devastated vulnerable community.

Conclusion:

The battle to recognize climate refugees will begin in earnest this decade as the effects of climate inaction come to roost. Those pursuing this goal must ensure that marginalized social groups can see their persecution understood and vindicated through protection. The effects of the climate crisis on the LGBTQ community have thus far been under-researched and under-appreciated. This article intends to shed some light on the future dangers to the LGBTQ community and demonstrate how these dangers could align with Convention interpretations. The Teitiota decision is clearly a pyrrhic victory for climate activists, but it should be built upon. The hope is that any foundation will prioritize feminist and queer lenses to create a nuanced perspective on the climate refugee.

* LL.M. Candidate at Harvard Law School.

^[1] Edwin O. Abuya, Ulrike Krause, Lucy Mayblin, The Neglected Colonial Legacy of the 1951 Refugee Convention, 59 J. Int’l Migration 4 (2021).

^[2] Teitiota v. New Zealand, UN Human Rights Committee, (2020).

^[3] United Nations Refugee Agency, LGBTQI Persons, https://www.unhcr.org/en-us/lgbtiq-persons.html; Volker Türk, Ensuring Protection to LGBTI Persons of Concern, 25 Int’l J. Refugee 1 (2013).

^[4] Annamari Vitikainen, LGBT Rights and Refugees: a Case for Prioritizing LGBT Status in Refugee Admissions, 13 Ethics & Glob. Pol. 1, 64 -78 (2020).

^[5] Id.

^[6] World Meteorological Organization, State of the Climate in Africa 2020 (WMO-No. 1275) (2021); IPCC, Sixth Assessment Report (2022); OECD, Poverty and Climate Change (2015); NW Arnell et al., The Global and Regional Impacts of Climate Change Under Representative Concentration Pathway Forcings and Shared Socioeconomic Pathway Socioeconomic Scenarios, 14 Env’t Rsch. Letters 8 (2019).

^[7] S Nazrul Islam, Climate Change and Social Inequality, DESA Working Paper No. 152 (2017).

^[8] Id.

^[9] Suranjana Tewari, Pakistan Floods Put Pressure on Faltering Economy, BBC News (19th September 2022), https://www.bbc.com/news/world-asia-62830771.

^[10] Grame Reid, Global Trends in LGBT Rights During the Covid-19 Pandemic, Hum. Rts. Watch (2021); Graeme Reid, LGBTQ Inequality and Vulnerability in the Pandemic (2020); Hugo Greenhalgh, Religious Figures Blame LGBT+ People for Coronavirus, Reuters (2020).

^[11] Id.

^[12] Sellers S, Ebi KL, Hess J., Climate Change, Human Health, and Social Stability: Addressing Interlinkages, Environ Health Perspective; Von Uexkull, N., and Buhaug, H., Security Implications of Climate Change: A Decade of Scientific Progress, J. Peace Rsch., 58(1), 162–185, (2021).

^[13] See The Williams Institute, LGBTQI+ Refugees and Asylum Seekers: A Review of Research and Data Needs (2022).

^[14] The Williams Institute, LGBT People and Housing Affordability, Discrimination, and Homelessness (2020).

^[15] United Nations Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, The Impact of the Covid-19 Pandemic on the Human Rights of LGBT Persons (2021).

^[16] Johannes Lukas Gartne, (In)credibly Queer: Sexuality-based Asylum in the European Union, Transatl. Persp. on Dipl. and Diversity (2015).

^[17] Id.

^[18] Phudoma Lama, Gendered Dimensions of Migration in Relation to Climate Change, Journal of Climate and Development (2021); Chindarkar, Gender and Climate Change-Induced Migration: Proposing a Framework for Analysis, Env’t Rsch. Letters (2012); Brockhaus, Is Adaptation to Climate Change Gender Neutral? Lessons from Communities Dependent on Livestock and Forests in Northern Mali, Int’l Forestry Rev. (2011).

^[19] JD Kaufman, Confronting Environmental Racism, Env’t Health Persp. (2021).

^[20] Alice Edwards, Transitioning Gender: Feminist Engagement with International Refugee Law and Policy 1950–2010, Refugee Surv. Q. (2010).

^[21]Phudoma Lama, Gendered Dimensions of Migration in Relation to Climate Change, J. Climate and Dev. (2021).

^[22] Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, 4th Edition, Oxford University Press, 2021, 644.

^[23] Conor Cory, The LGBTQ Asylum Seeker: Particular Social Groups and Authentic Queer Identities, Geo. J. Gender l. (2019).

^[24] Id.

^[25] Teitiota v. New Zealand, UN Human Rights Committee, (2020).

^[26] For a full overview of the case see Bhardwaj, C. (2021). Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, UN Human Rights Committee, 7 January 2020. Env’t L. Rev., 23(3), 263–271.

^[27] Teitiota v. New Zealand, UN Human Rights Committee, (2020).

^[28] Teitiota v. The Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125.

^[29] Id.

^[30] Bhardwaj, C. (2021). Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, UN Human Rights Committee (HRC), 7 January 2020. Env’t L. Rev., 23(3), 263–271.

^[31] PCC, Sixth Assessment Report (2022).

^[32] Teitiota v. New Zealand, UN Human Rights Committee, (2020).

^[33] Simon Berhman, The Teitiota Case and the Limitations of the Human Rights Framework, Questions of Int’l l. (2020).

^[34] Id.

^[35] Satchit Balsari, Climate Change, Migration, and Civil Strife, Current Env’t Health Rep. (2020).

^[36] UN Environment Program, Women and Natural Resources Unlocking the Peacebuilding Potential (2013).

^[37] Id.

^[38] Teitiota v. New Zealand, UN Human Rights Committee, (2020).

^[39] Jane McAdam, Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-refoulement, Am. J. Int’l L. (2020).

^[40] Marina Andrijevic, Overcoming Gender Inequality for Climate Resilient Development, Nature Commc’n (2020).

^[41] Christel Querton, Gender and the Boundaries of International Refugee Law: Beyond the Category of ‘Gender-Related Asylum Claims’,Netherlands Q. Hum. Rts. (2019).

^[42] Justice Max Barrett, Climate Change Migration and the Views in Teitiota, Irish Jud. Stud. (2021).

^[43] Jenny Han, Climate Change and International Law: A Case for Expanding the Definition of “Refugees” to Accommodate Climate Migrants, Ford. Undergraduate L. Rev. (2019).

^[44] Joanna Apap, The Concept of ‘Climate Refugee’ Towards a Possible Definition, European Parliament Briefing (2019).

^[45] Id.; UN High Commissioner for Refugees (UNHCR), Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters, 1 October 2020, https://www.refworld.org/docid/5f75f2734.html.

^[46] Jane McAdam, Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-refoulement, Am. J. Int’l L. (2020).

^[47] Id.

^[48] Olajumoke Haliso, Intersectionality and Durable Solutions for Refugee Women in Africa, J. Peacebuilding and Dev. (2016).

^[49] Brienna Bagaric, Reforming the Approach to Political Opinion in The Refugee Convention, Ford. Int’l L. J. (2020).

Image Credit: Lauri Kosonen, CC BY-SA 3.0, https://creativecommons.org/licenses/by-sa/3.0/deed.en.

Online Features, Online Scholarship, The Impact of International Law on Refugees and Migration

Shared Responsibility: Building a Pathway to Justice for Missing Migrants and Their Families

May 28, 2023

ANGEL GABRIEL CABRERA SILVA*

Introduction

International human rights law was built on a straightforward legal assumption: that every human rights violation can be pinpointed as a single state’s responsibility. Grounded in a (now outdated) vision of state sovereignty, this doctrinal emphasis on “single-state” responsibility not only oversimplifies the socio-political reality of our times, but in certain circumstances, also imposes severe limitations on the prospects of justice.

The crisis of migrant disappearances sweeping through Central and North America highlights the increasingly evident limitations of this legal framework. As thousands of migrants go missing in transit to the United States, human rights has been a powerful language to mobilize a regional network of advocates. However, and perhaps ironically, human rights law has also proven to be largely insufficient as a tool for justice.

Drawing from my experience as a clinician, this article reflects on the mixed role that human rights play in this regional crisis. The first part summarizes the background context. The second part sheds light on how the emphasis that human rights puts on the model of “single-state” responsibility imposes practical limitations on migrants’ struggles for justice. The third part spotlights an emergent solution; it describes how the legal strategies pursued by collectives of families of Central American migrants are challenging these limits and pushing human rights towards a perspective based on “shared responsibility.” This reformulated perspective is opening a pathway for justice and delivering important lessons for the broader human rights ecosystem.

1. The Regional Crisis of Migrants’ Disappearances

On May 1, 2022, a group of 49 Central American women crossed the border between Mexico and Guatemala.^[1] Unlike most of their compatriots, they were bound not to the United States but to Mexico City. The women were taking part in the “XVI Caravan of Mothers of Missing Migrants,” a symbolic event organized every year by the Mesoamerican Migrant Movement to demand justice for the thousands of Central American migrants that have gone missing in their transit to the United States.^[2] This year, the caravan represented the struggle of various collectives of Central American families that are still searching for over 2,000 of their missing sons and daughters.^[3] That number does not include all cases of missing migrants, but is already higher than the 1,800 cases of missing foreigners reported by Mexican authorities.^[4]

The struggle of those women is sadly inserted in a human rights crisis of even greater proportions. Over the last decade, more than 75,000 migrants have gone missing along the corridor that connects Central America, Mexico, and the United States.^[5] This figure includes Mexicans, Central Americans, and persons from other countries that have perished or vanished somewhere along the journey north—most of them in Mexico, but also many within the United States. Statistics are by their nature imperfect, but evidence collected by civil society groups suggests that migrants disappear or go missing because they fall victim to criminal organizations, police abuse, or the harshness of the route.^[6] What all these migrants have in common is that they are all persons who left their homes hoping to find a better future, but would neither get there nor ever return home.

The regional crisis of missing migrants has an incommensurable human toll on every victim and his or her family. However, its effects are especially harsh when a migrant disappears outside his country of origin. In those situations, the families must grieve the loss of a loved one and, at the same time, they must confront all the migratory and administrative hurdles of trying to access the justice systems of foreign countries—from obtaining a visa to demonstrating their legal standing as relatives of a victim. In the case of Central American families, actions as simple as reporting a disappearance in Mexico or filing a judicial claim in the United States turn into onerous endeavours. More complicated tasks like participating in the search of a missing migrant, inquiring about the status of an investigation, requesting reparations, or even repatriating any mortal remains become extremely complex to complete.

Over the years, civil society groups have denounced and documented the difficulties that migrant’s families face in their pursuit for justice. In Central America, groups of families have organized through various “Colectivos de Familiares” (like COFAMIDE, COFAMIGUA, and many others) to put the issue under the international spotlight.^[7] Additionally, non-governmental organizations have established networks to facilitate families’ transnational access to state institutions.^[8] International bodies have documented patterns in the disappearances of migrants and failures in state policies.^[9] And even academic institutions have made efforts to support the forensic identification of migrant remains and to diagnose the structural bases of the problem.^[10]

However, the challenge persists, and the families of missing Central American migrants are still fighting an uphill battle simply to have access to justice. The obstacles that these families confront due to deficient inter-state cooperation then are compounded with the multiple flaws that already hamper the performance of national institutions charged with investigating disappearances. Many of the relatives of missing migrants are thus forced to embark on their own transnational odyssey: this time not to seek a better future, but to pursue justice.

2. Limits of Human Rights Law

Scholars have criticized human rights law for many reasons including its state-centric vision,^[11] ideological imperialism,^[12] reductive discourses,^[13] and tendency to individualize claims.^[14] However, the dire situation of families of missing Central American migrants sheds light on another problematic—yet under-analyzed—limit imposed by human rights norms, the doctrinal requirement to pinpoint a specific human rights violation as the individual responsibility of a particular state. Let me briefly summarize the implications of this model of legal reasoning based on “single-state” responsibility.

Under international human rights law, every person has the right to be protected against enforced disappearances.^[15] If an enforced disappearance occurs, the victim’s family has a right to truth, justice, and reparations.^[16] These standards apply to every state that has ratified the relevant human rights treaties—which arguably includes all states involved in the Central and North American crisis.^[17]

Correspondingly, international human rights law establishes rules to determine which state shall bear the responsibility for the realization of all these rights. In the case of enforced disappearances, the primary determinant of responsibility is territorial control.^[18] Generally, the state where the disappearance took place is the one responsible for guaranteeing the rights of migrants and their families.^[19] Within the regional crisis of missing migrants, this means that either Mexico or the U.S. would hold primary responsibility towards most families of Central American migrants—as most disappearances occur within their borders.

Allocating the primary legal responsibility to the country where a migrant went missing is quite problematic. The transnational nature of the crisis implies that no individual state can meet its obligations to missing migrants on its own. Without coordination with Central American authorities, it is extremely hard for Mexico or the U.S. to procure the necessary evidence to conduct an adequate investigation, perform the identification procedure required to repatriate migrant remains, or communicate with families entitled to reparations. In fact, without regional coordination, neither Mexico nor the U.S. can even receive reports of potential disappearances from relatives of migrants who stayed back home.^[20]

The mismatch between human rights law and the complexity of the migration crisis creates some perverse incentives. On the one hand, Central American governments could avoid their responsibilities to missing migrants by simply deflecting claims to their northern neighbors. On the other hand, Mexico and the United States could blame their inefficiency in handling the crisis to the challenges of inter-state cooperation.

Civil society organizations have made great efforts to avoid these pitfalls by fostering deeper inter-state coordination. Their strategies have been quite consequential. In 2015, for example, civil society advocacy led to the creation of the Mexican “Mecanismo de Apoyo al Exterior” (Mechanism for Foreign Support or MAE), an inter-institutional policy established by the Mexican government.^[21] The MAE is an unprecedented initiative that aims to offer a solution for families of Central American migrants who have disappeared in Mexico. At its core, the policy aims to use Mexican consulates in Central America as conveyors, to receive reports of migrants that disappeared in Mexico and then transmit the results of investigatory efforts back to the families. In this way, families in Central America can access the Mexican justice system without having to leave their own countries. Additionally, the MAE also strives to facilitate coordination between families in Central America and the complex ensemble of Mexican authorities in charge of searching missing migrants, investigating disappearances, and providing reparations.

The MAE has been formally operating for over half a decade now, but its practical implementation is still incomplete and deficient in many ways.^[22] During this time, the improvement of the MAE has become a tactical priority in the agenda of the regional movement for migrants’ rights. One key part of the ongoing improvement efforts seeks to enhance the performance of Mexican institutions involved with the MAE (especially the Mexican consulates and prosecutor’s office). However, another part of ongoing efforts to improve the MAE is to push Central American States to take a more proactive approach to the mechanism. The MAE can hardly succeed if Central American governments do not—at the very least—ensure that migrants’ families know of the MAE’s existence, are able to travel to the cities where Mexican consulates are located and are capable of obtaining technical advice to use the mechanism.

It is at this point where the model of “single-state” responsibility threatens to become increasingly problematic. Even if the MAE has planted the seeds for an unprecedented form of transnational cooperation, civil society efforts to improve its implementation must confront the predominant logic embedded in human rights law. The current logic creates the risk that if Central American states fail to engage adequately with the MAE, they can still squeeze out of formal human rights responsibility. Advocates could denounce recalcitrant states for violating basic moral principles or even for running against general principles of international cooperation.^[23] However, at the end of the day, under the formalistic logic of human rights law, the responsibility for migrants who disappear in Mexico would fall upon Mexico, and Mexico alone.

3. Building a Way Forward: A Vision of Shared Responsibility

From a strictly doctrinal perspective, the limitations imposed by human rights law often appear unescapable. However, socio-legal literature abounds with examples of social mobilizations that have been able to deploy human rights norms in innovative ways.^[24] The Central American movement for migrants’ rights is a clear example of how advocates can overcome these obstacles. A few years ago, civil society organizations launched an advocacy strategy that is outmaneuvering the doctrinal emphasis on single-state responsibility. While the process is still ongoing, if successful, it may very well create an institutionalized model of shared responsibility around the MAE.

Back in January 2021, a group of family collectives (with the support of the Fundación para la Justicia y el Estado de Derecho and Boston University’s Human Rights Clinic) filed a General Allegation before the UN Working Group on Enforced and Involuntary Disappearances (WGEID).^[25] Established in 1980, the WGEID is one of the earliest special procedures created by the United Nations Human Rights Commission—now the UN Human Rights Council.^[26] The General Allegation procedure is a non-judicial mechanism intended to alert states to obstacles in the implementation of the “Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance” (the Declaration).^[27] The General Allegation mechanism is activated when civil society groups approach the WGEID to denounce situations where the rights protected by the Declaration are being violated. After the reliability of the sources is confirmed, the WGEID transmits the information to the concerned state and typically requests further information.^[28] Subsequently, after a state submits its responses to the General Allegation, the WGEID can decide to keep monitoring the situation and assist that individual state to comply with their duties under the Declaration.

Even if the mechanism itself is anything but new, the strategy advanced by this civil society group incorporated two very innovative aspects. The first ground-breaking feature is that the General Allegation was effectively introduced against multiple states. In this case, the civil society coalition denounced all states involved in the regional crisis.^[29] To my knowledge, this was one the first occasions in which the WGEID transmitted the submission to multiple states at the same time (Honduras, Guatemala, El Salvador, and Mexico).^[30]

The second innovative characteristic of this legal strategy lies in the way it is framed around a transnational solution. Typically, General Allegations are used to denounce violations of human rights. However, the submission went a step beyond that. Besides denouncing the severity of the regional crisis of migrants’ disappearances, it also showcased the potential of the MAE to build a solution and documented the various obstacles that hinder this potential— especially the lack of inter-state coordination.

In this way, the advocacy strategy stands out, not only because it engages all States involved in the regional crisis, but because it does so through the lens of their shared responsibility in building a particular solution (namely the MAE). By stepping beyond a simple denunciation of the crisis itself, this framing avoids falling into the single-state model of allocating responsibility on the basis of territorial jurisdiction. In other words, putting the MAE at the center of the conversation means that the degree of responsibility of a particular state within a pattern of migrants’ disappearances becomes less relevant than the collective responsibility of all States to implement a transnational solution.

Today, this strategy is still developing. After its submission in early 2021, the WGEID transmitted the General Allegation to the States involved—who then were given the opportunity to provide a response and submit information. As is true with many international mechanisms, the procedural delays are lengthy. Knowing that it would take a while to process their submission, family collectives and their NGO allies continued to advocate for the gradual improvement of the MAE. A notable effort came in October of 2021, during a recent visit of the UN Committee on Enforced Disappearances to Mexico, where Central American families were able to highlight the situation of missing migrants as a pressing issue within Mexico’s titanic crisis of disappearances.^[31]

However, last January 2023 marked the second anniversary of the General Allegation. During these two years, the civil society coalition prepared a follow-up submission that took another step in their advocacy before the WGEID. This submission emphasizes the need for the WGEID to get more closely involved in monitoring the MAE’s performance. According to its mandate, the WGEID can “provide appropriate assistance in the implementation by States of the Declaration.”^[32] Given that the crisis of migrant’s disappearances is ongoing and that the MAE’s implementation remains deficient, the hope is that the WGEID will exercise its mandate to “assist” States more proactively to help create the transnational coordination required to realize the MAE’s full potential.

Naturally, this legal strategy is full of uncertainty—as most innovative strategies are. However, in its first submission, the civil society coalition has already suggested one way forward. The coalition requested the WGEID to conduct a sequence of country-visits to monitor the way each State engages with the MAE in order to recommend coordinated actions to improve its performance.^[33] Another potentially effective action would be for the WGEID to become a convening authority that brings representatives of each state and civil society together to deliberate about how best to implement the MAE. However, even for this author, it is unclear what form such proactive measures could (or should) take in practice. The only thing that seems certain is that an ideal solution would require a significant degree of creativity and an openness to experimentation.

Conclusion

It is not an overstatement to say that we live in troubled times. The struggle of the families of Central American migrants is just one among many others transnational social movements who are engaged in and are vying to open new ways forward for the protection of migrant’s rights. In the current global context, the innovative strategy before the WGEID not only holds the potential to advance a solution to this specific crisis but could also inspire other transformative actions.

We can learn two main lessons from the legal struggle of Central American families around the MAE. The first lesson is that human rights strategies need not subscribe to the “single-state” mode of responsibility that prevails in human rights doctrine. As the struggle of these families shows, when such framing becomes an obstacle for justice, activists can strive to articulate their claims in ways that foreground the “shared responsibility” of various states.

The second lesson is the possibility (and importance) of recognizing that the existing framework of human rights institutions is not a fixed set of rules and mechanisms, but an institutional edifice that can be updated—even if only gradually—without the need for formal legal reform. The WGEID is a decades-old human rights body, and yet a regional movement of migrants’ families conceived a strategy that aims to repurpose its procedures so that the institution can rise to the challenge presented by the regional crisis.

The ultimate outcome of the strategy is yet to be seen. However, whatever the future may bring, these lessons can inform struggles in other areas. Across the globe, human rights crises are becoming increasingly too complex to tackle through the strict lenses of mainstream human rights legal doctrine. Climate change, social inequality, and the ever-growing flows of migrants and refugees are challenges with transnational and collective dimensions that demand creative thinking, transnational action, and a whole lot of strategic savvy.

^[*] SJD Candidate; LLM’16 Harvard Law School; LL.B. Universidad de Guadalajara. Former Clinical Instructor at Boston University’s International Human Rights Clinic (2021-22). This article was inspired through collaborating with clinical colleagues Susan Akram and Yoana Kuzmova, our partner in Central America, Claudia Interiano and our team of excellent clinical students Rachel Medara, Katherine Grisham and David Andreu. I would also like to thank Susan Akram for her comments to this article and Lloyd Lyall for his help during the editing process. All flaws are my own. The author thanks the University of Guadalajara for its support.

^[1] ‘Marcha de Madres Centroamericanas’ Busca an sus Hijos en Mexico, Deutsche Welle (May 8, 2022), https://perma.cc/BHV3-C8AN (last visited Dec. 14, 2022).

^[2] Caravan of Mothers of Missing Migrants Kick Off a Global Migration Search Movement, UN News, Nov. 6, 2018, https://perma.cc/5QL6-SBYB (last visited Dec. 14, 2022).

^[3] Caravan of Central American Mothers Resumes Search for their Missing Children in Mexico, Pledge Times (May 2, 2022), https://perma.cc/CY48-GX4E (last visited Dec. 14, 2022).

^[4] Statistic extracted from the official database of foreigners reported missing and not found in Mexico since 2014. See Version Publica RNDPDNO, National Search Commission, https://versionpublicarnpdno.segob.gob.mx/Dashboard/Sociodemografico (last visited Dec. 14, 2022).

^[5] Boston Univ. Int’l Hum. Rts. Clinic, Disappeared Migrants from Central America: Transnational Responsibility, the Search for Answers and Legal Lacunae 7 (2021) [hereinafter Disappeared Migrants From Central America], https://perma.cc/V6MQ-NVL8.

^[6] See generally Servicio Jesuita a Migrantes-Mexico, Informe sobre Desaparicion de Personas Migrantes en Mexico: Una Perspectiva desde el Servicio Jesuita a Migrantes-Mexico (Apr. 2022), https://perma.cc/QJ24-LHU2.

^[7] COFAMIDE stands for “Comite de Familiares de Migrantes Desaparecidos de El Salvador.” COFAMIGUA stands for “Comite de Familiares de Migrantes Desaparecidos la Guadalupe.” Other examples of family collectives are “Comite de Familiares del Centro de Honduras,” the “Comite de Familiares de Migrantes Desaparecidos de Amor y Fe” and the “Asociacion de Familiares de Migrantes Desaparecidos de Guatemala “AFAMIDEG.” However, this is not an exhaustive list.

^[8] One influential coalition is the Forensics Border Coalition which coordinates various organizations working to identify and repatriate migrant remains found in the United States. See Forensic Border Coalition, https://forensicbordercoalition.org/about/ (last visited Apr. 7, 2023).

^[9] See Missing Migrant Project, International Organization for Migration, https://missingmigrants.iom.int/ (last visited Dec 14, 2022); Inter-Am. Comm’n. H.R., Human Rights of Migrants and Other Persons in the Context of Human Mobility in Mexico, OEA/Ser.L/V/II., doc. 48/13 (Dec. 30, 2013), https://perma.cc/3TAP-24MB (last visited Dec. 14, 2022).

^[10] See Disappeared Migrants From Central America, supra note 5; Boston Univ. Int’l Hum. Rts. Clinic, Missing Migrants in the United States: International Responsibility, the Search for Accountability and Legal Lacunae (2021) [hereinafter Missing Migrants in the United States], https://perma.cc/37WU-YJTJ; Stephanie Leutert, Sam Lee & Victoria Rossi, Migrant’s Deaths in South Texas (2020) https://perma.cc/9R3B-5NJB; Samuel Gilbert, Treated like Trash: The Project Trying to Identify the Bodies of Migrants, The Guardian (Jan. 12, 2020), https://perma.cc/QUU6-NS6N (last visited Apr. 10, 2023) (reporting on the Operation Identification project of the Forensic Anthropology Center at South Texas State University).

^[11] See, e.g., Andrew Clapham, Human Rights in the Private Sphere (Clarendon Press 1993).

^[12] See, e.g., Samuel Moyn, The Last Utopia: Human Rights in History (Belknap Press 2010).

^[13] See, e.g., Makau Mutua, Savages, Victims and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L. J. 201 (2001).

^[14] See, e.g., David Kennedy, The International Human Rights Movement: Part of the Problem?, 15 Harv. Hum. Rts. J. 101 (2002).

^[15] International Convention for the Protection of All Persons from Enforced Disappearance [hereinafter ICPAPED], arts. 1 and 24, Dec. 23, 2012, 2716 U.N.T.S. 3.

^[16] Id. arts. 1 and 24.

^[17] Mexico, Guatemala and Honduras have either ratified the ICPAPED and/or the Inter-American Convention on the Forced Disappearance of Persons. El Salvador and the United States have not ratified either of those treaties but are still States Parties to the American Convention on Human Rights and/or the International Covenant on Civil and Political Rights. These two treaties provide protection against enforced disappearances through the rights to life, personal integrity and protection against arbitrary arrest and detention.

^[18] ICPAPED, supra note 15, art. 9.

^[19] Id. art. 9.1.a.

^[20] Disappeared Migrants From Central America, supra note 5 at 100 (explaining how Central American foreign ministries often neglected to ensure that reports from families of missing migrants who disappeared abroad would prompt an official investigation).

^[21] Acuerdo A/117/15 por el que se crea la Unidad de Investigación de Delitos para Personas Migrantes y el Mecanismo de Apoyo Exterior Mexicano de Búsqueda e Investigación y se establecen sus facultades y organización, Diario Oficial de la Federación [DOF] 16-12-2015 (Mex.), https://perma.cc/8CNL-D678 (last visited Dec. 14, 2022).

^[22] For details about the flaws in the MAE’s implementation, see Disappeared Migrants From Central America, supra note 5 at 95-101.

^[23] This duty has been explicitly invoked in the context of migration. See U.N. International Migration Review Forum, Progress Declaration of the International Migration Review Forum, ¶ 6, Res. A/AC.293/2022/L.1 (May 12, 2022), https://perma.cc/Y6KQ-XXKE (last visited Dec. 14, 2022).

^[24] See Sally Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago Univ. Press 2016); Shannon Speed, Rights in Rebellion: Indigenous Struggles and Human Rights in Chiapas (Stanford Univ. Press 2007); Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global Poverty (Lucie White & Jeremy Perelman, Eds., Stanford Univ. Press 2011).

^[25] Boston Univ. Int’l Hum. Rts. Clinic & Fundacion para la Justicia y el Estado Democratico de Derecho, General Allegation to the United Nations Working Group on Enforced or Involuntary Disappearances (Jan 26, 2021), https://perma.cc/J93B-J8TL (last visited Dec. 14, 2022).

^[26] Commission on Human Rights Res. 20 (XXXVI), U.N. Doc. E/CN.4/RES/1980/20 (Feb. 29 1980), https://perma.cc/N8UX-YQM3 (last visited Dec. 14, 2022).

^[27] Human Rights Council, Rep. of the Working Group on Enforced or Involuntary Disappearances on its Revised Methods of Work, U.N. Doc. A/HRC/WGEID/102/2 (May 2, 2014) https://perma.cc/9AT8-C4NW (last visited Dec. 14, 2022).

^[28] Id. arts. 33-34.

^[29] The General Allegation submitted in January 2021 denounced Mexico, Honduras, Guatemala and El Salvador. See Boston Univ. Int’l Hum. Rts. Clinic & Fundacion para la Justicia y el Estado Democratico de Derecho, supra note 25. Information about the United States was submitted at a later time. This document, however, is not public.

^[30] The information submitted through the General Allegation was transmitted by the WGEID in conjunction with the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions; the Special Rapporteur on the Human Rights of Migrants; the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; and the Special Rapporteur on Truth, Justice and Reparations. See Working Group on Enforced and Involuntary Disappearances et al., Letter dated Apr. 16, 2021 from the WGEID et. al. to Mexico, AL MEX 5/2021 (Apr. 16, 2021) https://perma.cc/25DQ-KBD2 (last visited Mar. 17, 2023); Working Group on Enforced and Involuntary Disappearances et al., Letter dated Apr. 16, 2021 from the WGEID et. al. to Guatemala, AL GTM 4/2021 (Apr. 16, 2021) https://perma.cc/SWX3-XNS3 (last visited Mar. 17, 2023); Working Group on Enforced and Involuntary Disappearances et al., Letter dated Apr. 16, 2021 from the WGEID et. al. to El Salvador, AL SLV 1/2021 (Apr. 16, 2021) https://perma.cc/NJC5-JSYD (last visited Mar. 17, 2023); Working Group on Enforced and Involuntary Disappearances et al., Letter dated Apr. 16, 2021 from the WGEID et. al. to Honduras, AL HND 2/2021 (Apr. 16, 2021) https://perma.cc/X53W-F8X4 (last visited Mar. 17, 2023). A communication to the United States is still pending.

^[31] Comm. on Enforced Disappearances, Rep. of the Comm. on Enforced Disappearances on Its Visit to Mexico Under Article 33 of the Convention, ¶ 36-37, U.N. Doc. CED/C/MEX/VR/1 (Recommendations) (May 16, 2022), https://perma.cc/C54D-M5WN (last visited Dec. 14, 2022).

^[32] Human Rights Council Res. 7/12, U.N. Doc. A/HRC/RES/7/12, art 2(h) (2008), https://perma.cc/R42V-AUGA (last visited Dec. 14, 2022).

^[33] Disappeared Migrants From Central America, supra note 20 at 11.

Cover Image: Digasalinas, CC BY-SA 3.0: https://creativecommons.org/licenses/by-sa/3.0/deed.en