Image Source: Faded and weathered poster of what looks like a missing child. loaf/freeimages.com
September 2016
REGION: Europe and Eurasia

The publication, “Dead and Missing Migrants: The Obligations of European States Under International Human Rights Law,” by Stefanie Grant, addresses a significant gap in international human rights law regarding migration: specifically, that there is a lack of international frameworks that provide protections and relief for migrants in situations of border death and loss in the course of migration. Border death and loss include the tracing of missing persons, recording deaths, the right of families to identify remains, and the right of families to bury their deceased.

This paper focuses specifically on European states’ responses to migration deaths and disappearances from Mediterranean crossings. Although there are international standards that relate to death and loss during humanitarian disasters or times of armed conflict, these frameworks largely ignore migrants. Regarding migrant deaths and loss, EU member states have referred to national laws even though all EU member states are parties to the European Convention on Human Rights (ECHR), as well as the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). These conventions and treaties require member states to adhere to certain international human rights standards, including in the drafting of their own national laws, but do not articulate any framework that outlines the responsibilities of states specifically concerning human rights protections for migrants in situations of border death and loss in the course of migration. As a result of this vacuum, it has been very difficult for individuals or organizations to use national or international law to seek justice or challenge states who, e.g., fail to investigate migrant deaths or identify the dead. Furthermore, there has been no concerted effort to collect data or improve record keeping for migrants, especially births and deaths.

This paper calls for this gap in international human rights law to be closed, stressing the importance of developing and implementing an international framework that addresses migrant border loss and death issues so as to provide common practices that guide states and inform individuals of their rights. Drawing on the application of international human rights law in other cases, specifically international humanitarian law (IHL), which outlines standards related to the dead and missing, this paper advocates for the development of international human rights law that addresses issues of migrant death and loss in a manner similar to the IHL. While this area of law is currently undeveloped and does not provide much assistance to parties seeking justice for the failure of states to protect human rights in instances of migrant border death and loss, this paper points out that EU member states are still bound to protect the right to life as articulated in the ECHR and the ICCPR, and that this principle can be interpreted to extend to instances of migrant border death and loss.

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NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).

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