Migrant Deaths and U.S. Border Policy: Human Rights Violated

Guest blogger: Anna Manuel, J.D. Candidate 2017, University of San Francisco, School of Law

During the 1990s and again after 9/11, border security was beefed up around the more frequently traversed migrant paths from Mexico into the U.S. This has caused a funnel-effect wherein migrants are now diverted from safer urban routs into dangerous remote reaches of borderland deserts, primarily in Arizona and Texas. Dangers include scalding hot temperatures during the day, freezing temperatures at night, rough mountainous terrain, desert washes, exceedingly dry or humid environments, poisonous snakes, and lack of drinking water. It is impossible to hand carry the amount of water required to sustain a human for the number of days it takes to reach the safety of a town or residence. Many migrants perish due to exposure and/or dehydration as a result of losing their group and becoming lost in these vastly uninhabited lands; some become too sick or injured to keep up, while others scatter when running from Border Patrol. Between 2000 and 2015, more than 6,000 people died while trying to migrate into the U.S.[1]—presumably, however, many more have in fact perished, their bodies yet to be discovered.

At first blush, these migrant border deaths do not fit squarely into any existing international frameworks for missing persons investigations and related duties owed. These typically include situations of disaster recovery, enforced disappearances, armed conflict, and human rights violations. I would suggest, however, that the crisis at hand does in fact stem from systematic human rights violations. I could begin this human rights discussion by citing some root causes of migration: gang and cartel violence, (U.S. supported) repressive regimes, civil wars in Central America in the 1980s, the failed war on drugs, and economic structural violence resulting from “free trade” policies like the North American Free Trade Agreement. But instead, I will point specifically to U.S. border security policy as facially neutral law that in practice systematically violates human rights.

There is a paradigm in Constitutional Law, which provides that when a U.S. law is not discriminatory on its face but is discriminatory in practice, that law is rendered unconstitutional. Where intent to discriminate can be surmised, courts apply a strict scrutiny test, wherein the law must employ narrowly tailored means to accomplish a compelling state interest in order to survive a Constitutional challenge. Where intent cannot be proven, a rational basis review provides that the state must use reasonably related means to accomplish a legitimate state interest. Here I am not necessarily making a Constitutional argument, but merely drawing a parallel to this paradigm in order to illustrate how a rhetorically innocuous law can in fact be severely injurious in practice.[2]

Heightened border security is not facially contrary to human rights, however, U.S. border policy violates human rights law in practice, rendering it illegal, immoral, and unethical. Here I could proceed with the argument that under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), border policy discriminates against Latin-American migrants because the U.S.-Mexico border is militarized to extremes unseen anywhere else in the U.S. I could also argue that the Fifth Amendment’s due process clause protects unauthorized migrants inside U.S. borders from said discrimination. But instead, I will more simply point to the fact that these migrants’ fundamental human right to life is being violated. The right to life is codified in every major international treaty, and is accepted customary international law.

The policy interest put forth by the government is prevention through deterrence. The U.S. government intended to make it extremely difficult to enter the country without authorization in order to deter migrants from entering. If we apply either standard of review discussed above to this human rights violation, the law fails. The means, funneling migrants into corridors of death, have not justified the end goal of deterring migrants from entering the U.S. without inspection. It is well established that deterrence is ineffective. Further, when we consider the fact that these policies endure, unchanged, in the face of statistical evidence demonstrating that border policy has in fact brought on substantially higher numbers of border deaths,[3] and has not resulted in deterrence, this particular violation has transformed into a willful, ongoing, and systematic violation of human rights.

When human deaths occur as a result of a State’s human rights violations, certain duties are triggered. The Universal Declaration of Human Rights prescribes that States are obligated to promote observance of human rights. In order to comply, the U.S. must reform harmful border policy. It is also obligated to investigate all U.S.-Mexico border related missing persons cases and to identify unknown migrant remains found at the border, so that families of the missing can know the fates their loved ones. In a resolution on the Right to the Truth, the U.N. Human Rights Council stated that: “adequate steps to identify victims should also be taken in situations not amounting to armed conflict, especially in cases of massive or systematic violations of human rights.”[4] The U.S. also must recognize and classify these border deaths as the humanitarian crisis that it is, and must offer support to organizations that are already working with the families of the missing or utilizing forensic science to address this crisis.

[1] Sarah Illingworth, Identifying the Bodies of Border Crossers, Huffington Post, (April 8, 2015), available at http://www.huffingtonpost.com/sarah-illingworth/identifying-the-bodies-of-border-crossers_b_7023596.html.

[2] While Congress’ plenary power over border policy renders it immune to many if not most Constitutional challenges, Congress does not enjoy the same position of impunity where international law is involved. It is ironic then, that the U.S. very often caveats its entrance into international treaties with reservations that where there is conflict between the treaty and the U.S. Constitution, the Constitution controls.

[3] In Pima County, Arizona, only 12 migrant deaths occurred annually on average between 1990 and 1999, whereas the average was 163 deaths per year between 1999 and 2012.

Univ. of Ariz. Binat’l Migration Inst., A Continued Humanitarian Crisis at the Border: Undocumented Border Crosser Deaths Recorded by the Pima County Office of the Medical Examiner, 1990-2012 (2013), available at http://bmi.arizona.edu/.

[4] U.N. Human Rights Council Res. 21/L.16, 2, U.N. Doc. A/HRC/21/L.16 (Sept. 24, 2012).

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