Ana Srovin Coralli, Master in International Law from Graduate Institute Geneva and Master in Law from the Faculty of Law Ljubljana, Dealing with the Past program at Swisspeace, Bern.

Irene Manganini, Master in International Law from Graduate Institute Geneva, Information Management and Reporting Consultant at IOM, Sarajevo.

The complex topic of international obligations concerning migration has been at the forefront of academic and political debates for many years, running parallel to the increase in the global numbers and facets of migration. However, while steady and fast progress (or regression) has been made when it comes to topics such as asylum, integration and expulsions, little attention has been so far diverted towards the search for missing migrants[1] and towards the question of who bears this obligation. Considering the high number of migrants who go missing, it is particularly worrisome to notice the reluctance of political circles to address this issue, as well as the lack of progress in implementing the much-needed reforms for the establishment of efficient and transparent mechanisms for the search for missing migrants.

To date, the debate on whether states, international organisations or other entities bear the (primary) responsibility for the search has not yet come to an end. It can be argued that this duty can be deducted from the principle of due diligence and that it thus falls primarily on states. Nevertheless, also international organisations share a high portion of responsibility with states depending on their role and on the context. Other entities such as non-governmental organisations, families of the missing migrants or civil society bodies may certainly participate in the search process and assume certain responsibilities. Some examples of currently active entities are the International Committee of the Red Cross with its “Restoring Family Links” initiative,[2] the Colibrí Center for Human Rights and the Argentine Forensic Anthropology Team. For as valuable as their contributions can be, these entities cannot, however, be considered as primary responsible.

The focus of this blog post shifts towards new ways, methods and practices for the creation and implementation of the search process. The contribution begins by outlining the current legal framework applicable when a migrant goes missing. It continues by identifying all the challenges which are currently standing in the way towards a more harmonised system. Recognising the important role that certain existing search mechanisms and frameworks play for the search of missing migrants, it concludes by analysing their strengths and exploring the untapped potential of the European region to create successful search mechanisms.

The obligation to search: current legal grounds

Currently, there is no ‘hard law’ explicitly regulating the search for missing migrants at the international level.[3] As for the non-binding documents, the general commitment to improve states’ cooperation on international migration by further enhancing states’ collaboration in all issues concerning migration contained in paragraph 8 of the Global Compact for Migration is among the most important guiding policy frameworks to be followed. The UN Sustainable Development Goals also specifically mention the need and the pathways for the improvement of migration policies and for better data exchanges on international migratory movements.[4] Another example of a very recent non-binding document concerning the search for disappeared migrants is the Guiding Principles for the Search for the Disappeared Persons. [5] These principles, which govern the search for disappeared persons in rather general terms, also contain an explicit reference to disappeared migrants. According to Guiding Principle 9, all concerned states are recommended to adopt specific search mechanisms for disappeared migrants, which should take into account their particular vulnerabilities.

Even if, as stated above, a precise duty for states to search for missing migrants does not yet exist as a binding international obligation, there certainly are duties that arise from these situations which states should abide to. Bearing in mind the transnational nature of migration and its impact on many different social groups (the migrant themselves, their families, etc.) these obligations are broader than it seems prima facie and automatically involve the responsibility of states of origin, transit and arrival.[6] They are born out of two basic human rights, the right to life and the right to truth, which are founded in international human rights law (IHRL).[7]

The right to life is clearly embodied in various international conventions and can be seen as a sufficient evidence for states’ duties to search for missing migrants.[8] Due to the procedural aspect of this right, states are obliged to conduct investigation into what happened to a missing migrant.[9] In parallel, the right to truth is of foremost importance for the relatives of migrants who have gone missing and is a legitimate justification for a series of states’ obligations towards them.[10] These obligations include those related to the search.

Without going into much detail on the (extra) territorial limitation of states’ IHRL obligations in general, it is clear that migration as a multinational phenomenon implies widely significant human rights consequences. This means, inter alia, that when it comes to migration-related issues, states’ responsibility should overcome secondary issues such as those of citizenship, economic factors and public opinion. It is the rule of law that should be the decisive factor in shaping states’ migration policies, including the one of the search processes for missing migrants.[11]

Key challenges ahead

Given the situation as it is today, there are many technical challenges, aside from the political ones, which still prevent the creation of a proper cooperation for the search for the missing migrant, let alone any form of transnational mechanism. Among these challenges it is worth mentioning the lack of existence of a transnational centralized apparatus to keep track of missing migrants, the absence of a systematic and collaborative data-collection procedure and a significant legal vacuum when it comes to the regulation of the obligations concerning the search for missing migrants.

Additionally, the obvious lack of political will from states to cooperate in the search processes and their reluctance to recognize that missing migrants should be afforded the same level of protection than other missing persons are standing in the way for discussions to be brought further and put into practice. [12]

An important point of concern is also the issue that it is often extremely challenging to know which states’ territory migrants find themselves in. Related to this is the fact that it is nearly impossible to establish how many people are actually present in a certain territory, data which would be useful in order to cross-check it with the number of recorded fatalities to establish how many went missing.

Untapped potential in Europe

As a general remark, this contribution supports the opinion of those who claim that the most effective and transparent search for missing migrants can be guaranteed by mechanisms established on a regional level and that some regions – Europe, in particular – have the potential to rise to these challenges.[13] Mexico’s newly established and internationally praised mechanisms for the search, which have been described as a “combination of a focus on the family, technical expertise, governance systems and functionality[14]”, will be taken as a point of reference in proposing the establishment of new transnational search mechanisms on the European continent.

European institutions have received substantial criticism for their current approach towards the ongoing migratory waves. At the same time, Europe has a good potential to create a regional mechanism for the search for missing migrants because of the interconnectedness of the European states and of their tradition of transnational cooperation and common policies. The necessity to take further steps towards the unification of the procedures for tracing missing persons has been previously highlighted in discussions within the Council of Europe. Given its mandate, normative flexibility, enhanced political independence and membership of almost all the European states, this international organisation could perhaps be regarded as the potentially most successful actor to drive the creation and implementation of such mechanisms.

In order to improve efficiency and strengthen the cooperation in the search, member states of the Council of Europe could begin by establishing a central database of the migrants who have gone missing within their territory. This should include a documentation of all unidentified bodies found in any of the European states. This idea has already been implemented in practice in some other regions, for example by the already mentioned Colibri Center for Human Rights operating on the US-Mexico border. Similar databases should be established also on the national level, in order to allow for easier access to information from state institutions, easier circulation of information between the authorities and the families of missing migrants and for a general facilitation of search processes. The data collected in each state should be then transmitted to the central database on a regular basis.

When a new case of a missing migrant is reported, all European states in whose territory the missing migrant could have disappeared should engage in a constructive dialogue and fully participate in the transnational search process. They should be extremely careful and diligent when exchanging information received from the relatives of the missing migrant. They should also respect the rules on protection of personal data relevant to the circumstances of each case.[15]

Apart from creating a database on the regional level, Mexico’s decision to create specific mechanisms for the search could be taken as an example and applied within the European territory. The mechanisms in question are the Mexican Investigative Unit on Crimes against Migrants, the External Mechanism of Support for the Search and Investigation and the Forensic Commission.[16] While the Mexican Investigative Unit on Crimes against Migrants bears the primarily responsibility for the search of missing migrants, other two mechanisms play a no less important role in search processes; the External Mechanism of Support for the Search as an intermediary between families of the missing migrants and governmental authorities and the Forensic Commission as an entity charged with exhumation and identification of mortal remains of migrants.[17] Even though each of these mechanisms is involved with different tasks, their work remains closely interrelated and it ensures a highly participatory approach. European states should follow the example of Mexico in engaging anyone who could contribute to search processes, particularly civil society organisations and families of missing migrants.

Concluding remarks

It has been shown that international obligations concerning the search for missing migrants can be deducted from various widely recognized international norms. The real crux of the problem is therefore not the absence of an international framework on the topic but rather the lack of political will and the insufficient transnational cooperation existing on matters concerning the search for missing migrants. To that end, new binding rules are needed to determine more clearly which are the international obligations as to missing migrants and who bears the responsibility for applying them.

Following Mexico’s example, European countries should take a firm stance on the matter and invest effort and resources into finding effective solutions to tackle an issue which affects them so greatly. This would contribute in establishing a chain of best practices which started in the American continent and could later be imported in other areas of the world. It is time for states to overcome their political inactivity over such an urgent and tragic matter and to remind themselves of their legal and moral obligations towards missing migrants, as well as towards the families left behind.

[1] For the purposes of this contribution, “missing migrant” shall mean any migrant whose fate and whereabouts are unknown.

[2] Initiative which aims at locating people who went missing because of conflicts, disasters or migration, and at putting them back in contact with their families.

[3] Tara Brian and Frank Laczko (eds), ‘Fatal Journeys Volume 2: Identification and Tracing of Dead and Missing Migrants’ (International Organization for Migration, 2016) 65.

[4] See in particular Target 10.7.

[5] At this point, we shall explain that we tend to avoid the use of term “disappeared migrant” as we believe this term is narrower than “missing migrant”. Differently than the term “disappeared”, which can be used only in cases when a migrant goes missing because he or she is subjected to enforced disappearance, in cases of “missing migrants” the reason why they have gone missing remains unknown.

[6] Stéphanie Le Bihan, ‘Addressing the protection and assistance needs of migrants: The ICRC approach to migration’ (2017) 99 IRRC 99.

[7] Differently than the right to life, the right to truth was less widely recognized as a human right in the past. In this regard, the International Convention for Protection from All Persons from Enforced Disappearances and the discussions in the aftermath of its adoption greatly contributed to a wider recognition of the right to truth. For better argumentation on the existence of this right in IHRL see WGEID, ‘General Comment on the Right to the Truth in Relation to Enforced Disappearance’ in Report of the Working Group on Enforced or Involuntary Disappearances (26 January 2011) UN Doc A/HRC/16/48, at para 39.

[8] The right to life is set out in various international conventions, e.g. article 6 of ICCPR and article 2 of ECHR. For a detailed argumentation in support of this view see Stefanie Grant, ‘Dead and Missing Migrants: The Obligations of European States under International Human Rights Law’ (IHRL Briefing, 2016) 17; Vassilis P. Tzevelekos and Elena Katselli Proukaki, ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?’ (2017) 86 NordicJIL 427.

[9] See e.g. the ECtHR reasoning in the case Timurtaş v. Turkey, App no 23531⁄94 (ECtHR, 13 June 2000).

[10] Gabriella Citroni, ‘The first attempts in Mexico and Central America to address the phenomenon of missing and disappeared migrants’ (2017) 99 IRRC 745.

[11] For a better understanding of the importance to adopt a domestic legal framework for migrant policies see Missing Migrants and their Families – the ICRC’s Policy Recommendations to Policy-Makers (ICRC, 2017).

[12] UNGA, ‘Report of the Secretary-General: Missing persons’ (11 August 2014) UN Doc A/69/293, at para 68.

[13] For a better understanding of these challenges and the way to overcome them see Brian and Laczko (n 3) 46-48.

[14] Ibid, 51.

[15] In the absence of those, the ICRC recommends to rely on the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.

[16] For a detailed explanation on how these mechanisms function in practice, see Citroni (n 10) 739ff.

[17] The mandate of the Forensic Commission is however limited. Ibid, 749-751.