Blog post written by Syd Bolton and Catriona Jarvis (The Last Rights Project) and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.

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“We welcome objective 8 on saving lives and establishing coordinated international efforts on missing migrants. We believe that this objective should be consistent with the provisions set out in the Mytilini Declaration for the Dignified Treatment of all Missing and Deceased Persons and their Families as a Consequence of Migrant Journeys.”

Joint Open Letter of mandate holders of the Special Procedures system of the Human Rights Council on Draft Rev2 of the Global Compact for Safe, Orderly and Regular Migration, 7 June 2018, UN.Doc.^[1]

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The movement of people, through forced, internal displacement and across international borders, is sadly part of everyday life and unlikely to reduce.

National responses to migrant deaths have mainly been determined by tighter border control policies and anti-smuggling strategies. However, little attention has been paid to the respect owed to the dead and the missing and the protection of their bereaved family members, so as to ensure that already traumatic experiences are not made worse. The names of most of the dead and missing are not known; their families have not been traced; and, where bodies have been found, they are often piled in makeshift morgues or buried in unmarked graves. Families have no answers to what happened; they do not know if a missing relative – a parent, spouse, brother, sister or child – is alive or dead. 

International norms do not directly address the rights of those who die or go missing at international borders and of their families. There is an assumption that human rights end with death – where legal rules addressing the treatment of the dead or the missing exist, they do not directly apply to the particular context of irregular migration and border deaths. 

Likewise, little attention has been paid to the importance of respecting local communities where bodies arrive. Although human rights courts have recognised the collective experience of pain, the importance of preserving the memory of the dead and the disappeared, and the need for collective healing and reparation, they have only been acknowledged in very specific contexts, that do not address irregular migration.

There is no single document setting out the explicit duties of States in relation to death or loss as a result of migrant journeys. There are no agreed international guidelines setting out the steps States are reasonably expected to take to trace the missing or to collect, identify, preserve and bury the deceased and inform their families. A non-governmental organisation, The Last Rights Project, produced the Mytilini Declaration in 2018 seeking to remedy the situation. Based on the research undertaken in the context of this project, the New York Declaration and the GCM as adopted, the rights of the family members of those who lose their lives in migratory movements have been set out in the blog we previously wrote about Objective 8. 

In accordance with the core international legal obligations, or duties, many of which are subject to a requirement that reasonable means be exercised,(bearing in mind that space within this article is limited), the following are examples of some of the indicators that could be used to measure progress against Objective 8 of the GCM and which will be included in the forthcoming Last Rights Protocols:

1. To search for all missing persons

Does the state have in place a clear set of rules on the duties of national and regional entities responsible for search and rescue, including to report back to a central entity or agency their responses to all distress messages made known to them and related to border crossings?

Are there effective reporting requirements on state entities responsible for carrying out search and rescue missions in the context of cross border activities? Are there systems to provide urgent medical assistance? 

New, internationally agreed standards are needed in this regard as well as in other areas and The Missing Persons Project of the ICRC has begun what will be a four year programme of work to develop technical standards and best practice that can be applied anywhere in the world.

Some indicators of prevention of harm would include figures that are as reliable as possible to show a reduction in the total numbers of those who die or go missing, perhaps from improved search and rescue or increased provision of visas for safe travel.  Also sought would be an increase in the numbers of those missing who are found alive and in the identification of those who die, as well as an increase in the numbers reunited with loved ones. Careful collection of data in this regard will be of huge importance and the IOM Missing Migrants Project has begun this work in terms of counting the dead and missing across the world which needs to continue. But the sphere also needs to widen to include figures for the missing who are found and much better levels of identification of those who die.

2. To collect the bodies of the dead

Does the state have in place both law and practice requiring specified state entities or agencies to collect bodies? What oversight is there of the activities of that agency?

3. To respect the bodies of the dead

Does the state have in place laws which require the entities or agencies responsible for the collection and disposal of bodies found in the context of cross border movements to do so in accordance with good practice and in a manner appropriate to enable collection of the relevant evidence of the best possible quality and that is consistent with their dignity and that of their families?

4. To preserve any personal effects of the dead, and to restore them to the next of kin

What measures does the state have in place to ensure that the personal effects of bodies discovered in the context of cross border movements are preserved, catalogued (including valuable objects) and safeguarded for a reasonable period in order to assist with identification, with criminal or civil enquiries and in case family members seek to recover them? The conservation period should be consistent with the obstacles which both the authorities and family members are likely to encounter in such circumstances. The preservation of these effects must be in secure units which are protected against damage.

5. To take all reasonable steps to identify the deceased and to determine the cause of death

What measures have states taken to allocate responsibility for the identification of the deceased to a specific authority unrelated to entities responsible for immigration enforcement? How have states implemented their duty to identify the cause of death of such bodies?

In order to give effect to these examples of indicators, a national mechanism could be attached to an existing human rights commission or ombudsperson’s office where these are sufficiently independent and robust charged with ensuring implementation. Services potentially provided by a national mechanism will be set out more fully in the Last Rights Protocols.

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^[1]Joint open letter sent by the Special Rapporteur on the human rights of migrants; the Working Group on Arbitrary Detention; the Special Rapporteur on the situation of human rights in Belarus; the Special Rapporteur on the rights of persons with disabilities; the Working Group on Enforced or Involuntary Disappearances; the Special Rapporteur on the situation of human rights in Eritrea; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special Rapporteur on the situation of human rights defenders; the Special Rapporteur on the human rights of internally displaced persons; the Independent Expert on human rights and international solidarity; the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self- determination; the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material; the Special Rapporteur on contemporary forms of slavery, including its causes and consequences; the Special Rapporteur on trafficking in persons, especially women and children; the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights; and the Working Group on the issue of discriminationagainst women in law and in practice. https://www.ohchr.org/Documents/Issues/Migration/JointOpenLetterGlobalCompactMigration.PDF

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