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

May 28, 2023 | Online Features, Online Scholarship, The Impact of International Law on Refugees and Migration

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 Grounded in a (now outdated) vision of state sovereignty, this doctrinal emphasis on “single-state” responsibility not only oversimplifies the socio-political reality of our times, but in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