17 Aug Supreme Court of Justice of Mexico: The Urgent Actions of the Committee on Enforced Disappearances Are Legally Binding
[Gabriella Citroni, Researcher in International Law and Adjunct Professor of International Human Rights Law at the University of Milano-Bicocca [email@example.com]; she is also a member of the United Nations Working Group on Enforced or Involuntary Disappearances. The opinions expressed in this post are strictly personal and do not in any way reflect the position of the United Nations Working Group on Enforced or Involuntary Disappearances or any of the institutions/organisations to which the author is affiliated.]
On 16 June 2021, the Supreme Court of Justice of Mexico issued a judgment that has been hailed as an historic landmark by civil society, international organisations and domestic institutions (see, among others, here, here and here), whereby it declares that State’s authorities are under an obligation to comply with the urgent actions of the United Nations Committee on Enforced Disappearances (CED).
Initially, the Supreme Court issued a press release (in Spanish), whilst the integral text (in Spanish, available here) of the judgment was published on 12 July 2021. As a matter of fact, the Supreme Court’s decision has been long awaited (Seiller & Gutiérrez) and, aware of its potential repercussions in Mexico and, more broadly, at the international level, NGOs, the academia, the National Commission of Human Rights and domestic institutions, had submitted numerous amici curiae briefs.
To fully understand the scope of the Mexican Supreme Court’s findings and their ramifications, it is relevant to give a bit of background on both what are urgent actions of the CED and the application on which the Supreme Court was called to pronounce itself.
Debates on the legal value of Views or decisions on individual complaints issued by United Nations Treaty Bodies are not new (among others, Van Alebeek & Nollkaemper and Casla) and, as a matter of fact, the subject has already been dealt with by domestic courts (among others, the Spanish Supreme Court). However, the application lodged before the Mexican Supreme Court of Justice was inherently different, as it refers to requests for urgent actions and not individual communications and the corresponding Views.
Urgent actions are a unique feature of the CED, entrusted to it by Art. 30 of the International Convention on the Protection of All Persons from Enforced Disappearance (ICPED). Contrary to individual and inter-state communications (Arts. 31 and 32 ICPED), States parties are not requested to make any separate declaration to recognise the competence of the CED with regard to urgent actions, which is triggered by ratification of, or accession to, the treaty.
Urgent actions are not directed at establishing the responsibility of States parties for breaches of the ICPED, but at pursuing a rather ‘humanitarian’ function, i.e. address to the State concerned a request that a disappeared person is sought and found (Huhle, p. 237; and Prophette-Pallasco & Batalla). Upon establishing with certainty the fate and whereabouts of a disappeared person, urgent actions are closed, without prejudice to the ongoing obligations to investigate, identify, prosecute and sanction perpetrators and to provide compensation and other measures of reparation to the victims. Under Art. 30, para. 3, the CED can also request the State party concerned to take all the necessary measures, including interim measures, to locate and protect the disappeared person in accordance with the ICPED and to inform the CED, within a specified period of time, of measures taken. Notably, the language used in Art. 30 of the ICPED is suggestive of the mandatory nature of the urgent actions.
According to the latest report on requests for urgent action issued by the CED, between its inception and April 2021, it has registered a total of 1,012 requests for urgent actions, out of which 424 concerning Mexico (this being the second highest score, after the 492 concerning Iraq). Of the 424 mentioned cases, 46 have been closed as the disappeared persons have indeed been located while the other cases remain open or have been suspended (para. 23). Albeit Mexico is increasingly responding to the requests sent by the CED, domestic authorities do not always seem keen on promptly implementing the – often extremely detailed – search and investigation strategies indicated by the CED. On occasions, authorities try to justify non-implementation by mentioning that those of the CED are mere recommendations, devoid of any binding character.
Nevertheless, the delay (or plain failure) in the implementation of effective and adequate measures, in these cases, may result in the loss of life of the disappeared person and unnecessarily prolong the acute suffering of his or her relatives caused by the ongoing uncertainty on his or her fate and whereabouts. All the more so, in a State where – since 2006 – more than 86,000 disappearances have been registered and, notwithstanding the adoption of robust legislation and the establishment of several domestic mechanisms and institutions to search for the disappeared and to investigate on the corresponding crimes, identify, prosecute and sanction those responsible, the results remain modest and the impunity rate is close to 98%.
The application lodged before the Mexican Supreme Court refers to a case occurred in the above-described context. In December 2013, during a security operation called Veracruz Seguro, Mr. Víctor Álvarez Damián, together with six other young men, was forcibly disappeared by the police of the state of Veracruz. The case was lodged before the CED under Art. 30 of the ICPED and the corresponding request for urgent action was granted (urgent action AU 281/2016 of 11 February 2016). However, the Prosecutor’s Office of Veracruz refused to comply with the measures indicated by the CED, arguing that they were not binding and that it had no legal obligation whatsoever to comply with them. On 19 October 2017, ID(h)EAS, the NGO representing Ms. Perla Damián Marcial (the mother of Mr. Víctor Álvarez Damián), filed an amparo (legal defence request) against the Prosecutor’s Office of Veracruz, challenging its interpretation of the legal nature of urgent actions. However, in 2018, the Third District Court of Veracruz rejected the application, also denying that the CED’s urgent actions could be regarded as binding. In disagreement with this decision, an application was therefore lodged in 2019 before the Supreme Court of Justice of Mexico, explicitly requesting it to attract the case and pronounce itself on whether urgent actions of the CED are binding. The appeal clearly pursued a strategic aim, bearing in mind that hundreds of other cases face similar challenges. On 7 August 2019, the First Chamber of the Supreme Court declared itself competent to adjudicate on the case (recurso de revisión No. 289/2019).
In its judgment (amparo en revisión No. 1077/2019) of 16 June 2021, the First Chamber of the Supreme Court of Justice unanimously held that domestic authorities – at all levels – are under an obligation to comply with the requests for urgent action received from the CED and the measures indicated therein (paras. 112-133 of the judgment). Moreover, the Supreme Court found that the said compliance must be subjected to judicial and constitutional control (paras. 144-145).
In particular, the Supreme Court granted the amparo requested and held that the Attorney General of the State of Veracruz, the Special Prosecutor’s Office dealing with claims concerning disappeared persons in Veracruz and the Head of the Special Prosecutor’s Office on Disappearances are under an obligation to adopt the measures indicated by the CED to fulfil Mexico’s international obligations to investigate and effectively search for Mr. Víctor Álvarez Damián(referred to as “Emiliano” in the judgment), ensuring that his relatives – and in particular his mother (referred to as “Julia” in the judgment) – are closely associated to the investigation and to any search operations (paras. 136-146).
In this sense, the Supreme Court held that the obligation to search for a disappeared person and the corresponding results of the investigation are at the core of the non-derogable right of every person not to be subjected to enforced disappearance (Art. 1 of the ICPED) and provide content and meaning to the obligations to prevent, investigate and guarantee redress for human rights violations and the corresponding rights to truth, justice and reparation (para. 107 of the judgment).
The Supreme Court considered that Mexican authorities must implement the requests for urgent action and the corresponding measures dictated by the CED, bearing in mind that the latter is the mechanism authorised to interpret the ICPED and mandated to request States parties to undertake all the necessary actions to search for and find a disappeared person. In the words of the Supreme Court, denying the binding nature of urgent actions of the CED, would amount to voiding the ICPED of any effet utile (para. 119 of the judgment), i.e. frustrating its object and purpose. Accordingly, the Supreme Court affirmed that the obligatory nature of the requests for urgent action of the CED is “indisputable” (para. 145).
Besides the findings of the Supreme Court on the legal value of the requests for urgent action of the CED – which are per se ground-breaking – the judgment analyses aspects so far overlooked and sets relevant precedents. In fact, the ICPED provides for the obligation of each State party to “take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains” (Art. 24, para. 3, of the ICPED – see also the 2019 Guiding Principles for the Search for Disappeared Persons adopted by the CED). The Supreme Court instead refers to the “right to search for” (derecho a la búsqueda), as the necessary corollary and precondition for the enjoyment of the rights to truth and justice (paras. 83-111 of the judgment). The Supreme Court held that such a notion entails the right of every disappeared person and his or her loved ones that all authorities, within the scope of the respective mandate and using all the available means and resources, take, without delay, the necessary measures to establish the fate and whereabouts of the disappeared (para. 108). The wording chosen by the Supreme Court thus spells out an – arguably justiciable – individual right (the said “right to search for”), at the same time detailing the corresponding positive obligations of the State. In this regard, the State must effectively organise its apparatus to ensure that all competent authorities, duly cooperating among themselves, and guaranteeing victims’ participation, abide by the said positive obligations (paras. 72 and 103 of the judgment).
Art. 1 of the Mexican Constitution, as amended in 2011, establishes that each person shall enjoy the fundamental rights enshrined in the Constitution, as well as in the treaties to which Mexico is a party. In particular, the norms concerning human rights must be interpreted in accordance with the Constitution and relevant international treaties, favouring at all times the rules that are more conducive to the protection of the persons concerned. The provision of the Mexican Constitution should be read bearing in mind Art. 26 of the 1969 Vienna Convention on the Law of the Treaties (pacta sunt servanda), pursuant to which every treaty in force is binding upon the parties to it and must be performed by them in good faith. Moreover, pursuant to Art. 26, para. 9, of the ICPED, States parties have an obligation to “cooperate with the Committee and assist its members in the fulfilment of their mandate”, including with regard to requests for urgent action.
Interpretations that question the mandatory nature of decisions of UN Treaty Bodies (and, by extension, of the requests for urgent action of the CED) seem hardly compatible with the rules at stake and favour a rather paradoxical situation, in which a State must abide by a treaty, but the measures and actions to do so clearly identified by the respective monitoring body (also created by a treaty and the competence of which the State concerned has accepted and with which it shall cooperate in good faith) would be merely illustrative. In its judgment, the Supreme Court of Justice of Mexico takes a clear-cut position on the subject, eventually reconciling domestic and international norms and reality and setting definite expectations on a matter that is even more critical when fundamental human rights are at stake (paras. 117-123 and 132).
As mentioned, it is not the first time that domestic courts, including Supreme or Constitutional Courts, are called to express themselves on the legal value of the decisions issued by the UN Treaty Bodies and – albeit with notable exceptions – there is a growing trend recognising their binding nature. However, the judgment of the Supreme Court of Justice of Mexico is certainly pioneering as it deals with urgent actions of the CED and it marks a significant progress that nourishes the hope of thousands of relatives of disappeared persons across the world and can meaningfully contribute to closing the implementation gap. Time will tell whether other domestic courts will follow this path. The soundness of the arguments concretely offered by the Mexican Supreme Court in its judgment can certainly have a bearing in this regard.
[This post was also published in German at Gewaltsames-verschwindenlassen]