The Fate and Whereabouts of Social Rights in the Practice of the Committee on Enforced Disappearances

doi:10.1017/9781009461719.005

5 - The Fate and Whereabouts of Social Rights in the Practice of the Committee on Enforced Disappearances

Published online by Cambridge University Press: 07 August 2025

Ariel Dulitzky

Edited by

Grażyna Baranowska and

Milica Kolaković-Bojović

Show author details

Grażyna Baranowska: Affiliation:
Friedrich-Alexander-Universität Erlangen-Nürnberg
Milica Kolaković-Bojović: Affiliation:
Institute of Criminological and Sociological Research, Belgrade

Book contents

Summary

The concept of enforced disappearance has undergone a multifaceted normative and jurisprudential evolution which occurs, among other areas, in the legal determination of which rights are violated in each case of enforced disappearance. In addition to the rights that were initially protected, other rights have arisen. The International Convention for the Protection of All Persons from Enforced Disappearance has created new rights including the right not to be forcibly disappeared and, the right of the victims of (enforced) disappearance to be searched for. However, neither the Convention as the most modern instrument in this evolving process or the Committee on Enforced Disappearances do not explicitly recognize the violation of economic, social, and cultural rights in cases of disappearances. As the Convention requires the Committee to “cooperate” and “consult” with all the relevant organs, it is crucial to look at the contributions of the Working Group on Enforced or Involuntary Disappearances and the Inter-American Court of Human Rights in the field.

Keywords

Enforced disappearances: characteristics Economic, Social and Cultural Rights International Convention on the Protection of All Persons from Enforced Disappearance: interpretation

Information

Type: Chapter
Information: Enforced Disappearances
On Universal Responses to a Worldwide Phenomenon
, pp. 103 - 129

DOI: https://doi.org/10.1017/9781009461719.005 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2025
Creative Commons: This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-ND 4.0 https://creativecommons.org/cclicenses/

5 The Fate and Whereabouts of Social Rights in the Practice of the Committee on Enforced Disappearances

5.1 Introduction

The concept of enforced disappearance has undergone a multifaceted normative and jurisprudential evolution. This evolution occurred, among other areas, in the legal determination of which rights are violated in each case of enforced disappearances. In addition to the rights that were initially protected, other rights have arisen.Footnote ¹ The victims, advocates, human rights bodies and the international community in general gained greater knowledge of elements that both define and enable enforced disappearance and of its effects.Footnote ² Protection provided by international human rights bodies and by the international community is a process in constant evolution, achieved, among others, by the evolutive method or living instrument theory to human rights interpretation.Footnote ³

The International Convention for the Protection of All Persons from Enforced Disappearance (the Convention) is the most modern instrument in this evolving process of responses to enforced disappearances. The Convention has created new rights including the right not to be forcibly disappeared, the right not to be secretly detained, the right of the victims of (enforced) disappearance to be searched for, the right for appropriate measures to be adopted with regard to the legal situation of disappeared persons whose fate has not been established and the legal situation of their relatives and the right to establish and participate freely in organizations and associations whose objective is to contribute to clarifying the circumstances of enforced disappearances and the fate of disappeared persons.Footnote ⁴

The Convention does not explicitly recognize the violation of economic, social and cultural rights (ESCR) in cases of disappearances. Nor has the Committee on Enforced Disappearances (CED or the Committee) made sufficient progress in recognizing the link between forced disappearances and ESCR. Article 28 of the Convention requires the Committee to ‘cooperate’ with all the relevant organs, offices and specialized agencies and funds of the United Nations, with the treaty bodies and the special procedures of the United Nations and with the relevant regional intergovernmental organizations, as well as with all relevant State institutions, agencies or offices and to ‘consult’ other treaty bodies and, in particular, the Human Rights Committee (HRC).Footnote ⁵ The CED Rules of procedure also refers to the cooperation with the Working Group on Enforced or Involuntary Disappearances (WGEID). Given this duty to cooperate and consult, it is useful to analyze the practice of the UN WGEID and the case law of the Inter-American Court of Human Rights (IACtHR or Inter-American Court) and other UN treaty bodies. Looking at the WGEID allows us to explore its more than forty years of experience dealing with enforced disappearances. The Inter-American Court is known for its leading role in developing jurisprudence in this area and particularly for its creative and forward-looking approach to enforced disappearances. Finally, the approaches of other treaty bodies to enforced disappearances present complementary methods from the perspective of those treaty bodies’ specific mandates.

This chapter proceeds in the following way. The chapter starts (Sections 5.2–5.7) with a critical view of the CED current practice in approaching enforced disappearances from an ESCR viewpoint. Sections 5.8 and 5.9 present an analysis of the approaches taken by the WGEID and the IACtHR to the intersection of enforced disappearances and ESCR. Section 5.10 explains the benefits of bringing an ESCR perspective when dealing with enforced disappearances looking, among other things, to the practices of other UN treaty bodies. The chapter offers some brief conclusions.

5.2 The Limitations of the Committee in Its Approach to ESCR and Some Possibilities

The Convention explicitly refers to the International Covenant on Economic, Social, and Cultural Rights in its Preamble.Footnote ⁶ However, in general, CED fails to specifically address ESCR. For instance, CED referred to ‘health needs’ rather than to health rights.Footnote ⁷ While there is no need to enter into the discussion on the relationship between needs and rights,Footnote ⁸ it is clear that a human rights–based approach requires a clarification of the scope of the rights implicated in any enforced disappearance and the corresponding State obligations.

In almost all of its Concluding Observations, the CED includes a paragraph emphasizing ‘the particularly cruel effect of enforced disappearance on the rights of women and children’. Women relatives of a disappeared person are likely ‘to suffer serious social and economic disadvantages and to be subjected to violence, persecution and reprisal as a result of their efforts to locate their loved ones’.Footnote ⁹ Children who are victims of enforced disappearance (whether they themselves were subjected to disappearance or due to the disappearance of a family member) ‘are especially vulnerable to numerous human rights violations’.Footnote ¹⁰ The Committee therefore calls States to ‘ensure that gender issues and the specific needs of women and children are systematically taken into account in implementing the recommendations … and the rights and obligations under the Convention’.Footnote ¹¹ The paragraph identifies particular social and economic impacts of enforced disappearances and calls for a systematic approach to address the needs, consequences and cruel effect of enforced disappearances. This approach should lead the Committee to spell out the meaning more clearly of ‘cruel effect’ of a disappearance, the ways that the ‘serious and economic disadvantages’ are manifested, the specific manner in which children are ‘vulnerable to numerous human rights violations’, which ‘numerous human rights’ are being violated and in which manner those violations take place. Responding to those crushing impacts from a holistic emphasis on ESCR would provide a broader and more effective response to enforced disappearances. Of course, recognizing the intersectionality based on gender and age is crucial in this endeavour. In fact, in its only individual petition on enforced disappearances decided, CEDAW specifically recommended the adoption and implementation of a comprehensive ‘national policy to prevent and eradicate disappearances of women which includes due diligence standards, a differentiated approach and a human rights-based approach as cross-cutting components’. The policy should address and combat the causes of enforced disappearances of women.Footnote ¹²

5.3 Autonomous Right, Complex Act and Multiple Violation and Interdependency with Other Rights

The Convention recognizes a new autonomous right of any person not to be subjected to enforced disappearance. As a new right, this provision should be interpreted in conjunction with the rest of the corpus iuris of international human rights law, including ESCR.

The CED had already recognized that enforced disappearance constitutes a complex offense.Footnote ¹³ However, it limited this analysis of complexity to the criminal aspects of enforced disappearances.Footnote ¹⁴ So far, the Committee has not spelled out the particular meaning that the phenomenon of disappearances constitutes a complex and multiple form of violation of numerous human rights. In some instances, referring to the crime of enforced disappearance, the Committee stated that the practice violates ‘various rights’ but described neither those rights nor how they are violated.Footnote ¹⁵ Most of CED considerations are around criminal investigations and the search for the disappeared rather than on the impact on other violations of human rights, including ESCR.

A more appropriate approach would be the one taken by the Committee on ESCR when it expressed its concerns ‘about the daily challenges faced by the families and loved ones of disappeared persons in the effective enjoyment of their economic, social, and cultural rights’.Footnote ¹⁶ The ESCR Committee recommended that the State adopt measures that not only meet the needs of the victims but also ‘ensure those persons effective enjoyment of their economic, social, and cultural rights, especially the rights to an adequate standard of living, health, and education’.Footnote ¹⁷

5.4 Definition of Enforced Disappearance

The Convention defines enforced disappearances as ‘the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law’.Footnote ¹⁸ This chapter might serve as the basis for the CED to construct a more robust practice in understanding that enforced disappearances affect social and economic rights.

Particularly relevant for our purpose is the reference to placing the disappeared person ‘outside the protection of the law’. This reference should be considered or understood as a consequence of the commission of the crime of enforced disappearance, rather than as a necessary element of intent (animus) that would have to be present for the act to be considered criminal conduct.Footnote ¹⁹ A proper and expansive interpretation of the ‘protection of the law’ should include the protection of ESCR, such as the right to education or work or housing, as recognized both by domestic and international law. A good example comes from the Committee on the Rights of Persons with Disabilities (CRPD) in the case of the disappearance of two victims with psychological disabilities. The CRPD concluded that the State failed to discharge its positive obligation to ensure respect for the victims’ rights to ‘the enjoyment of the highest attainable standard of health’. The State did not provide information on any measures taken ‘to ensure that they have access to adequate health care, taking into account their psychosocial disabilities and particularly vulnerable situation’.Footnote ²⁰

5.5 The Right to Truth Includes the Right to Know the Circumstances of an Enforced Disappearance

The Committee has been quite consistent in asserting that the right of the victims to know the truth includes the ‘circumstances of an enforced disappearance’.Footnote ²¹ The CED has extended this right regardless of whether the crime occurred during a civil war, a dictatorship, an armed conflict, a communist regime, a ‘dirty war’, a ‘post-election crisis’ or a specific period.Footnote ²² The circumstances should be interpreted as including the causes and reasons of the disappearance and the impact of the disappearance on the ESCR of the disappeared and other persons.

The CED highlighted how the social and economic situation of the victims affects the right to know the truth. For instance, the Committee noted that the limited resources of a forensic institute has forced it ‘to concentrate most of its campaigns for collecting genetic samples in urban areas’.Footnote ²³ However, the recommendation to address the problem, ‘conducting extensive campaigns to collect ante-mortem information and genetic samples from disappeared persons’ relatives, with a special focus on rural areas’,Footnote ²⁴ does very little to spell out the particular situation of persons living in rural areas such as distance, language, daily work and childcare (to mention a few) that would have provided more clear guidance to the State. A slightly better approach to ESCR could be found in the same document where CED made a requirement for the State that ‘all actions to identify and return remains duly take into account the traditions and customs of the peoples or communities to which the victims belong, in particular Indigenous peoples or Afro descendent communities’.Footnote ²⁵

5.6 The Duty to Investigate

The Committee has developed specific guidance on how to conduct investigations in cases of enforced disappearances. It referred to the duty to conduct a thorough, impartial, complete, diligent and effective investigation without delay, even if there has been no formal complaint.Footnote ²⁶ In this respect, it has requested that States Parties ensure that enforced disappearances are investigated as such and not as any other offence,Footnote ²⁷ that investigations are not only initiated immediately after receiving information with reasonable grounds to believe that a person has been subjected to an enforced disappearance but also that investigations continue until the fate or whereabouts of the disappeared person have been clarifiedFootnote ²⁸ and that the perpetrators are punished for the offence.Footnote ²⁹

The CED’s approach appears to be limited to criminal investigation. When the Committee refers to the context, it appears to be circumscribing it to ‘all lines of inquiry’Footnote ³⁰ and to ‘similar crime commission patterns and regional contexts’.Footnote ³¹ The investigation of ‘all circumstances’ of a disappearance appears to be limited to the criminal aspects rather than a holistic broad investigation (criminal or otherwise) of all the causes, modalities and consequences of the phenomenon.

The Committee has highlighted that in a particular State ‘new cases of enforced disappearance in recent times [are] particularly targeting young persons in situations of extreme poverty and social marginalization’.Footnote ³² While CED is aware of the link between extreme poverty and social marginalization and the risk of becoming a victim of enforced disappearance, its recommendations delink the connection to extreme poverty and generically encourages the State ‘to adopt all the necessary measures and to intensify its efforts to root out these contemporary forms of enforced disappearance’Footnote ³³ and to ‘promote institutional reform of the police forces so as to eradicate violence and ensure that police officers who commit such offences are duly investigated, prosecuted and punished’.Footnote ³⁴ Again, the CED appears to take a limited criminal investigation response rather than addressing the root causes of the disappearances.

Recently, CED took a more sensitive approach. In its Concluding Observations on Brazil, CED recalled with alarm the information ‘concerning enforced disappearance allegedly perpetrated in recent times, mostly against persons of African descent and persons living in slums or on the peripheries of large cities’.Footnote ³⁵ The Committee did not limit the recommendation, as in the Argentine situation, to the criminal investigation but specifically required Brazil to ‘redouble its efforts to tackle discrimination against certain targeted vulnerable groups as a means for preventing their disappearance and ensuring full access to their right to justice’.Footnote ³⁶ However, the Committee then reverted to generic references to the fact that reparations need to be sensitive to the victims’ specific needsFootnote ³⁷ ‘in view of, inter alia, their sex, sexual orientation, gender identity, age, ethnic origin, social status or disability’.Footnote ³⁸ No references were made to the needs created by their economic situation, place of residency or structural racism.

5.7 The Right to Reparation and the Concept of Harm

States should take measures to guarantee that all persons who have suffered harm as a direct result of an enforced disappearance can effectively enjoy their right to obtain full and adequate reparation.Footnote ³⁹ So far, the CED has not defined the scope or type of ‘harm’ that should be the reason for a reparation except stating the harm should be direct but not necessarily personalFootnote ⁴⁰ and cover ‘any natural person, without exception, who has suffered harm as the direct result of an enforced disappearance’.Footnote ⁴¹ The Committee has been consistent in embracing a broad concept of victim as defined by the Convention. Therefore, it has criticized restrictive domestic legislation.Footnote ⁴² However, sometimes it has limited the references to the relatives of the disappeared person.Footnote ⁴³

The right to reparation must include restitution, means and measures for rehabilitation,Footnote ⁴⁴ satisfaction, guarantees of non-repetitionFootnote ⁴⁵ and a prompt, fair and adequate compensation. The broad categories, in particular the concepts of restitution, rehabilitation and satisfaction, represent recognition of the harm that enforced disappearances produce on the social, cultural, economic and family life of the victims. As such, it is necessary to understand that those impacts may constitute violations of ESCR and that the reparation is meant to amend such ESCR violations. Sadly, in Yrusta,Footnote ⁴⁶ the first individual communication decided by CED, the Committee failed to properly spell out the content of specific measures of rehabilitation (for example, psychological support for the sisters of Mr Yrusta).Footnote ⁴⁷ The Committee on the Rights of the Child, for instance, has been more specific in its recommendations requiring a State to provide ‘psychological support to … address trauma and other mental health issues … to children who have been internally displaced and/or deprived of a family environment owing to violence and/or enforced disappearance’.Footnote ⁴⁸

Victims are particularly vulnerable rights holders and it is crucial to protect them from stigmatization, moral ill-treatment and security risks.Footnote ⁴⁹ The respect for their human dignity also implies that the remains of a disappeared person should be handed over to the family under decent conditions, in accordance with the cultural norms and customs of the peoples or communities to which the victims belonged, keeping in mind that they are human remains and not objects.Footnote ⁵⁰

The Committee has specifically referred to social benefits and other measures of social support,Footnote ⁵¹ medical and psychological rehabilitation,Footnote ⁵² restitution and satisfaction, including restoration of dignity and reputation.Footnote ⁵³ All those references appear to be related to ESCR, such as the right to health and social security, which deserve a proper recognition as rights violated by an enforced disappearance. However, CED has never mentioned explicitly the reparation of ESCR violations.

Article 24.6 of the Convention appears to make a distinction between rights and other areas when it refers to ‘social welfare, financial matters, family law and property rights’. The Committee has been consistent in repeating this phrase in its Concluding Observations.Footnote ⁵⁴ However, so far it has failed to explain in more detail if the reference to ‘rights’ is limited to property (an economic right but recognized in some civil and political treaties) or to the contrary if it includes all ESCR that were affected by an enforced disappearance. In fact, CED’s practice appears to demonstrate a restrictive approach when it explicitly makes references to ‘access to social welfare services and family and property rights’.Footnote ⁵⁵ A more expansive interpretation could have added a reference to the enjoyment of ESCR.

The Committee on Enforced Disappearances has also insisted on considering that reparations be sensitive to the victims’ individual characteristics, such as their sex, sexual orientation, gender identity, age, ethnic origin, social status and disability.Footnote ⁵⁶ These calls necessarily require States to consider the status of and level of enjoyment of certain ESCR in order to properly assess the needs and rights of the victims with a right to a reparation. Nevertheless, a more perceptive approach to ESCR could have led to references to the victim’s situation such as employment status, education and literacy level, housing and food access, to mention a few relevant in many situations. The Committee on the Rights of Persons with Disabilities specifically recommended, on a case of enforced disappearance, the State to guarantee the victims’ safety and access to medical care, including in relation to their disabilities.Footnote ⁵⁷ The Special Rapporteur on housing, has made a reference to the direct connection between administrative problems that the families of disappeared persons must overcome to be able to take part in housing programs, obtain social security, enjoy the right to own and inherit property, and ‘the direct impact of those problems on their right to housing’.Footnote ⁵⁸

The Yrusta case also reflects the limited approach to reparations. After determining Argentina’s responsibility for the short-term disappearance of Mr Yrusta, the Committee included a series of redress measures for the violations suffered. For instance, CED urges the State to ‘recognize the authors’ status as victims, thereby allowing them to play an effective part in the investigations into the death and enforced disappearance of their brother’.Footnote ⁵⁹ This recommendation and the CED’s determinationsFootnote ⁶⁰ appear to be linking the status as victims to the participation in the criminal procedure, when the Convention takes a much broader concept of victim linked to the harm suffered. Similarly, the CED made a generic reference to measures of rehabilitationFootnote ⁶¹ without spelling out anything about the specific harm suffered. The CED made no mention of the victims’ right to health or whether it had been violated. These aspects need to be further developed in the future jurisprudence of the Committee.

5.8 The Innovative Approach of The UN Working Group on Enforced and Involuntary Disappearances

The WGEID, the only specialized body worldwide dealing with enforced disappearances for forty years, has played a crucial role in developing the understanding, scope, rights and obligations surrounding enforced disappearances.Footnote ⁶² Since its first annual report in 1980, the WGEID has considered that enforced disappearances may involve the denial or violation of many and very diverse human rights of the victims or their family, including both civil and political rights as well as economic, social and cultural rights. The WGEID added that when enforced disappearances occur, most economic, social and cultural rights are denied to a greater or lesser degree.Footnote ⁶³

In 2015, the Working Group published a Study on Enforced or Involuntary Disappearances and Economic, Social and Cultural RightsFootnote ⁶⁴ (hereinafter the Study). The Study analyzes the relationship between enforced disappearances and economic, social and cultural rights in a comprehensive and systematic manner.Footnote ⁶⁵ Given the inseparable, indivisible and interdependent nature of all human rights, the Working Group indicates that, by their very nature, enforced disappearances violate and have a particularly negative effect on the enjoyment of the ESCR of the disappeared person, their family and other persons. In addition, in many cases, people who are unable to fully exercise their ESCR are more likely to become victims of enforced disappearance.Footnote ⁶⁶ States need to be able to effectively address enforced disappearances in a holistic manner, understanding the relationship between enforced disappearances and economic, social and cultural rights.Footnote ⁶⁷

The conditions of extreme poverty (considered to some extent as a lack of protection and enjoyment of ESCR) in which victims of enforced disappearances live are considered both a cause and a consequence of enforced disappearances. Hence, it is necessary to understand how the absence of an effective enjoyment of ESCR can be a factor that leads to or contributes to enforced disappearances, since individuals living in poverty are more vulnerable to becoming victims of enforced disappearance. Persons living in poverty often lack social integration, political and legal recognition and factual protection. This lack of security could mean insufficient protection with respect to several human rights violations, including enforced disappearances. In fact, in many conflict situations, a high percentage of enforced disappearances are concentrated in the poorest regions and most of the victims are poor.Footnote ⁶⁸

The Study adds that ‘in many contexts, people who participate in the promotion or exercise of the enjoyment of ESCR are at a greater risk of becoming victims of enforced disappearance. In these circumstances, enforced disappearances are used as a tool to deter the population from promoting and exercising ESCR’.Footnote ⁶⁹

The WGEID then analyzes how enforced disappearances impact the ESCR of the disappeared person. Any person subjected to enforced disappearance is removed from the protection of the law, meaning that all kinds of protections, including those secured by and securing ESCR, cease to exist. In particular, the Group refers to violations of the right to work and the enjoyment of the highest attainable standard of physical and mental health.Footnote ⁷⁰

Enforced disappearances also have a negative impact on the ESCR of the victim’s relatives and other dependents including their right to health, education, participation in a cultural life, the right to social security, property, family life and the right to housing. Such violations appear to be most evident when the person disappeared against their will is the household ‘breadwinner’.Footnote ⁷¹ For the Working Group, the effects on family members are not simply violations of their right to physical and mental integrity or suffering or damages. On the contrary, for the Working Group, in these circumstances, multiple ESCR such as the right to health, education, social security, property and a family life are infringed.Footnote ⁷²

A logical consequence of this approach is for States to consider the intrinsic relationship between enforced disappearances and ESCR. The effectiveness of prevention, eradication and reparation measures in the area of enforced disappearance requires a comprehensive approach that includes an adequate promotion or protection of ESCR. The Working Group considers that States should analyze ‘the causes of enforced disappearances and … the context in which they take place’.Footnote ⁷³

Measures to prevent, eradicate, investigate, punish and provide reparations for enforced disappearances must focus on the underlying context that produced vulnerability to enforced disappearance and that led to violations of ESCR after enforced disappearance. All measures to prevent, eradicate, investigate, punish, provide reparation and guarantee non-repetition must consider the factors that lead to an enforced disappearance, including the identification of those who could benefit from the act, as well as all the rights that the enforced disappearance violated.Footnote ⁷⁴

Measures to protect ESCR are necessary to prevent enforced disappearances or to address them should they occur.Footnote ⁷⁵ Reparations must be holistic and must consider all rights violated. Reparation programs and measures must consider how enforced disappearances violate ESCR. Such measures should be designed as reparations for violations of ESCR suffered by victims of enforced disappearances and not simply as damage to physical or mental integrity or the aftermath of a disappearance.Footnote ⁷⁶

5.9 The Case Law of the Inter-American Court of Human Rights

Since its first case on enforced disappearance, the Inter-American Court has established that the forced disappearance of a person constitutes a multiple and continuous violation of numerous rights recognized in the American Convention on Human Rights (the Convention).Footnote ⁷⁷ Forced disappearance constitutes a multiple violation of several protected rights that entails ‘other related violations’.Footnote ⁷⁸

The phenomenon of enforced disappearances requires a systemic and comprehensive analysis, due to the plurality of behaviours carried out for a single purpose (the disappearance).Footnote ⁷⁹ Enforced disappearances should be treated as a complex form of human rights violation considering its multi-offensive nature.Footnote ⁸⁰ An enforced disappearance should not be analyzed in an isolated, divided and fragmented manner but rather must cover the totality of all the facts.Footnote ⁸¹ The context in which the disappearances occurred needs to be analyzed to consider the prolonged effects over time and comprehensively focus on the consequences of an enforced disappearance.Footnote ⁸² The historical, social and political contexts are relevant to determine the State’s international responsibility, better understanding the violations, as well as the scope of the reparations.Footnote ⁸³

The Inter-American Court has made references to economic, social, cultural, ethnic, gender or age circumstances that were contributing factors to the damage caused by enforced disappearances or that condition the way violations occurred or how they should be remedied. Unfortunately, and similarly to the CED, the Court did not analyze those circumstances from the perspective of ESCR or find violations of Article 26 of the American Convention on Human Rights (The American Convention) related to economic, social and cultural rights or the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (the Protocol of San Salvador).

For the Court, the disappearance of an indigenous leader affects not only their individual rights but also those of their community. The leader’s disappearance removes that person from various areas of the social structure and prevents the leader from representing the community in its interactions with the State, which is a prerequisite for the realization of fundamental aspects such as inclusion, self-determination and development of indigenous communities.Footnote ⁸⁴ In a case of a massacre (with enforced disappearances), the Court referred to the deterioration of the cultural and spiritual life due to the impossibility of burying their dead according to their beliefs,Footnote ⁸⁵ by the loss of spiritual guides and sacred places and by the deterioration in their social and family structure.Footnote ⁸⁶ The disappearance of a leader and the displacement of the indigenous community causes a break with their cultural identity, affecting their bond with their relatives, their language, and their ancestral past requiring the State to adopt specific protection measures considering the particularities of indigenous peoples, as well as their customary law, values and customs to prevent and reverse the effects of such a situation.Footnote ⁸⁷ However, the Court analyzed these effects from the perspective of personal integrity (article 5 of the Convention) and/or religious freedom (article 12 of the Convention) but not using article 26 on ESCR or the right to culture recognized in the Protocol of San Salvador.

The disappearance of a union leader intended to prevent the legitimate exercise of another right such as freedom of association, protected in article 16 of the Convention, is in turn an autonomous violation of this right.Footnote ⁸⁸ Freedom of association recognizes the right and freedom to associate freely with other persons, without the authorities limiting or hindering such right. Freedom of association also derives positive obligations to prevent attacks against it, to protect those who exercise it and to investigate violations of that freedom.Footnote ⁸⁹ The forced disappearance of a union leader most likely has a chilling and intimidating effect on other members of the union.Footnote ⁹⁰ For this reason, the Court ordered the State to strengthen the protection mechanisms for trade unionists and trade union organizations.Footnote ⁹¹ So far, the Court has not found a violation of the union rights under article 26 or under the San Salvador Protocol. The textual differences between Article 16 of the American Convention and Article 8 of the Protocol indicate that the scope of the rights and the State obligations, although similar, are not identical.Footnote ⁹²

The Court, together with the Working Group, has been a pioneer in the analysis of family members as victims of enforced disappearance, considering that the suffering, anguish and uncertainty about the fate or whereabouts of the loved one generates a violation of the right to personal integrity of family members.Footnote ⁹³ The Court presumes, without the need for proof, that immediate family members suffer harm and are entitled to reparation due to the disappearance of the person.Footnote ⁹⁴ In several cases, given the specific circumstances of the disappearance, the Court has found an independent violation of the rights of the family as recognized by Article 17 of the Convention.Footnote ⁹⁵ However, neither the effects related to family life,Footnote ⁹⁶ nor the reparations ordered on this aspect were analyzed from the perspective of ESCR.Footnote ⁹⁷ Specifically, the Protocol of San Salvador contains a different approach to family life than the American Convention. Article 15 of the Protocol, on the Right to the Formation and the Protection of Families, is not only much more detailed than the Convention but also broader in scope and in spelling out the State obligations.Footnote ⁹⁸ Additionally, article 15 of the Protocol should be analyzed considering other norms of the same instrument such as social security, education, food or health.Footnote ⁹⁹ For instance, an enforced disappearance clearly affects the State duty to see to the improvement of the spiritual and material conditions of the family, to adopt ‘adequate’ family protections or to create a ‘stable and positive’ family environment as specifically required by the Protocol but not by the Convention.

Enforced disappearance affects the right to health of both the disappeared person and their family members. The Court has understood that family members or other related persons should have access to prompt and effective judicial procedures or remedies as a means of determining not only the whereabouts of a disappeared person but also his or her state of health.Footnote ¹⁰⁰ The violation of the mental and moral integrity of the next of kin is a direct consequence of such enforced disappearance.Footnote ¹⁰¹ For this reason, the Court usually orders as a measure of reparation the provision of appropriate, effective, immediate and free of charge care for the physical and psychological effects suffered by the victims.Footnote ¹⁰² However, the Court has never established a direct violation of the right to health of the disappeared persons or their relatives. The Court’s failure is surprising given its compelling case law on the right to health in general.Footnote ¹⁰³

In several cases, alongside or in addition to an enforced disappearance, the home of the victim is affected. For instance, in a case the Court found that the military personnel, in the context of perpetrating a massacre including enforced disappearances, burned houses, destroyed and scorched crops and killed cattle. Therefore, the Court considered that the State violated the right to private property recognized in Articles 21.1 and 21.2 of the American Convention.Footnote ¹⁰⁴ Again, the Court failed to consider the violation of housing rights as recognized, among others, in Articles IX, XI and XXIII of the American Declaration on the Rights and Duties of Man, Article 26 of the American Convention and 34.k of the OAS Charter. The Committee on Economic, Social and Cultural Rights understood housing as the right to live in a home in peace, security and dignity. This right, at a minimum, includes security of tenure, availability of services, affordability, habitability, accessibility, appropriate location and cultural adequacy. In the Committee’s view, the right to housing should not be interpreted narrowly. It should not be equated with the shelter provided by merely having a roof, or considering shelter exclusively as a commodity.Footnote ¹⁰⁵ This definition is even broader than the very broad and flexible understanding of the IACtHR of the right to property that includes material goods, intangible things, all movable and immovable property, corporal and incorporeal elements and any other intangible object of any value as well as any right that may form part of a person’s assets and rights incorporated into a person’s patrimony.Footnote ¹⁰⁶

The right to education can be affected in multiple ways. A disappeared person could be a student or teacher.Footnote ¹⁰⁷ The Gómez Palomino case illustrates some aspects of the relationship between enforced disappearances and the right to education. In this case, due to the disappearance of the father, only one sister was able to complete secondary education. Some of the brothers had to abandon their studies to help their mother economically. Another sister, fourteen years old at the time, had to postpone her studies because her mother could not read or write, so she accompanied her in the search for the father, both to read documents and to help with the care of her younger sister. The Court found that, after the disappearance, all the brothers interrupted their studies, not only due to economic factors but also because of emotional factors such as depression, worry and sadness. The Tribunal ordered a series of educational measures such as participation in special adult education programs, the possibility that such benefits could be transmitted to their sons and daughters, participation in a literacy program for the mother and a scholarship for the daughter of the disappeared.Footnote ¹⁰⁸ While all these reparation measures are quite important, the Court once more failed to address the specific and autonomous violation of the right to education.

In several cases, the Tribunal recognized how the work of the families of disappeared persons is affected by such a situation. Relatives of a forcibly disappeared person had to leave the country and lost their jobs.Footnote ¹⁰⁹ A mother who devoted herself exclusively to the search for her son had to abandon her work.Footnote ¹¹⁰ In these cases, unfortunately, the Court, despite recognizing the impact on the employment situation of the relatives of the victim of disappearance, did not make any special consideration of the right to work nor ordered reparations differentiated by the violation of such right. In another case, the relatives, partly due to the disappearance of their loved ones, had to move from their place of residence. As a result, they left their jobs and faced unemployment, in part due to the difficulties and stigmas of being displaced. The Court considered these situations proven. The Court, however, ignored a request to specifically guarantee the right to work without giving any explanation of the reasons why this request should not be accepted.Footnote ¹¹¹

5.10 Consequences and Challenges of the ESCR Approach to Enforced Disappearances

A new reading of enforced disappearances from an ESCR perspective is one of the possible strategies to respond to current demands. This approach could offer a fresh and deeper understanding of the causes and consequences of an enforced disappearance and a roadmap to properly revise the scope, duties and rights in terms of prevention, eradication, investigation, search, truth, reparation and memorialization.

For instance, the Special Rapporteur on extreme poverty has explained that, in general but perfectly applicable to enforced disappearances,

human rights experts and groups do not focus on any detail, either in their fact-finding or their assessments, specifically on the situation of persons living in poverty. As a result, neither the diagnosis of situations nor the resulting policy recommendations are tailored to address the distinctive ways in which people living in poverty are affected by police brutality … left unprotected … deprived of their liberty … confined in their freedom of movement by the criminalization of homelessness … to mention just a few of the major violations.Footnote ¹¹²

In investigating and documenting violations of civil and political rights (including enforced disappearances), distinctions according to class or socio-economic status often are not made.Footnote ¹¹³ As a result, there is an inadequate capturing of either the diverse characteristics of those living in poverty or the very specific consequences of the varied forms of discrimination, oppression, stigmatization and violence many of them experience on a daily basis.Footnote ¹¹⁴

If poverty and the lack of effective enjoyment of ESCR create situations of vulnerability to being victims of enforced disappearances, prevention measures must include combating poverty and guaranteeing ESCR. The Committee should consider, in conducting its analysis of the duty to prevent enforced disappearances, that, in many contexts, persons who do not fully enjoy economic, social and cultural rights may find themselves in a situation of greater vulnerability of being victims of enforced disappearances. In this regard, CEDAW has recommended the adoption of measures to prevent gender-based violence against women, including enforced disappearances of women, which requires ‘addressing the root causes of such violence, such as … poverty and the marginalization of women’.Footnote ¹¹⁵ Similarly, the Committee on the Rights of the Child has promoted the adoption of effective measures to prevent the killings and disappearances of children and their recruitment by criminal groups and particularly addressing ‘the root causes of violence and child recruitment such as poverty and discrimination’.Footnote ¹¹⁶

In terms of truth and justice, ESCR’s approach to enforced disappearances also poses innumerable challenges. The lack of protection or violation of ESCR (prior to or as a consequence of enforced disappearance) produces new and/or greater obstacles in the search for justice and truth.Footnote ¹¹⁷ In general, stigmatization and marginalization lead to poor people’s complaints being taken less seriously and reduce those people’s access to legal representation.Footnote ¹¹⁸ Therefore, it must be considered that combating poverty and promoting ESCR are necessary to ensure truth and justice. In parallel, ESCR obligations may involve considering that general and universal truth and justice policies may not be sufficient or effective for persons whose ESCR is not adequately guaranteed. This will require the adoption of special measures for such situations.

The incorporation of ESCR into the analysis of State obligations to investigate and guarantee the right to know the truth requires an inclusion of ESCR when investigating the ‘circumstances’ surrounding disappearances. It should be understood how the lack of protection of ESCR or the work in defence of ESCR was one of the causes of the disappearance. In addition, the circumstances of the disappearance require analysis of how ESCR were affected or their violations exacerbated as a consequence of the disappearance. In other words, what should be investigated and sanctioned must be rethought. At the same time, criminal investigation and sanction should be complemented by other types of judicial and administrative remedies to address ESCR violations in the context of enforced disappearances.

Taking into consideration ESCR violations in the context of disappearances draws attention to the question: Who were the perpetrators? Several UN human rights bodies have made references to the disappearances of persons due to their exerciseFootnote ¹¹⁹ or defenceFootnote ¹²⁰ of economic, social and cultural rights. Is it enough in those situations just to investigate the State agents who conducted the disappearance and those who may have ordered them or had control over the repressive apparatus? Or should the investigations extend to those who economically benefitted from such enforced disappearances?Footnote ¹²¹

Similar or even greater challenges arise in terms of reparations. The perspective of ESCR, particularly in the analysis as a cause and effect of disappearances, should lead the Committee to require the adoption of transformative reparation measures. For example, the CEDAW has highlighted the difficulties of accessing proper reparations for enforced disappearances with reference to rural women. The CEDAW expressed its concern that many rural women are ‘financially responsible for their families owing to the conflict-related killing or disappearance of their spouses [and] are unable to benefit from State support and protection, including access to basic services, such as potable water, housing, infrastructure, education, and health care, which are delivered in urban areas’.Footnote ¹²²

In the case of the right to health, there is a need to reevaluate the causal relationship between enforced disappearance and the impact on the physical and psychological health of family members in order to determine full and integral reparations. That is, what kind of health problems do enforced disappearances cause? What type of specialized care should be provided to secure the right to health for victims of enforced disappearances? If ESCR are violated, the reparations ordered must be consistent with the ESCR violated. The Rapporteur on the Right to Truth has called for a distinction between development interests in general, the duty to protect ESCR, the obligation to provide assistance under international humanitarian law and the need to provide reparations for human rights violations. It is extremely advantageous to increase the impact of these programs by linking them. However, it is important to be clear that the programs respond to diverse sources of obligation. In fact, the programs that achieve the best results are those that respond to the characteristics of the particular obligation on which they are based.Footnote ¹²³

Addressing the root causes and violations of ESCR in the area of enforced disappearance will produce important, albeit modest, contributions to promoting social change.Footnote ¹²⁴ By recognizing that part of the cause of disappearances is due to the lack of enjoyment of ESCR, that the damage caused by disappearances is a violation of ESCR and that it is exacerbated in many cases by the lack of effective enjoyment of ESCR, there is clearly a need to remedy this situation. There are many reasons why this neglect matters. It renders invisible major groups of victims; it fails to expose the fact that many civil and political rights violations are rooted in poverty and that only by addressing this can sustainable solutions be found; it overlooks the fact that poor victims may suffer violations of a different nature requiring different reparations and responses.Footnote ¹²⁵

In short, the intrinsic link between enforced disappearances and ESCR demonstrates that the prevention of enforced disappearances is a fundamental element for the protection of ESCR and, in turn, the protection of those rights is at the same time an essential element for the prevention of enforced disappearances. Effective measures to prevent and eradicate enforced disappearances require a comprehensive approach that encompasses the appropriate promotion and protection of economic, social and cultural rights.Footnote ¹²⁶

5.11 Conclusion

This chapter, rather than being an exhaustive analysis of all possible links between enforced disappearances and ESCR, seeks to provide a first analytical framework on the positive aspects of the Committee’s practice in this area as well as to make gaps visible and suggest possibilities for alternative analysis of ESCR considering developments provided by other human rights bodies. It also shows the possibilities already offered by the practice of the WGEID, the IACtHR and other UN organs that could serve as a model for the Committee’s future developments.

The Committee’s first decade or so has been enormously productive in deepening the development and understanding of enforced disappearance in the field of international law. Nevertheless, the Committee also has used a restrictive interpretation of some innovative Convention provisions. This restrictive approach is not consistent with the practice of other human rights bodies such as the WGEID or the Inter-American Court. The Committee will also have to address issues that remain unexplored given the limited number of individual complaints and concluding observations and the total lack of any general comment.

As the Convention is a victim-oriented treaty,Footnote ¹²⁷ the Committee on Enforced Disappearances needs to interpret it in a more expansive way in order to properly recognize the interdependency and indivisibility of all human rights, including ESCR. To analyze enforced disappearances in a comprehensive manner means ultimately to consider that the interdependence and indivisibility of human rights denies any separation, categorization or hierarchy between rights for the purposes of their respect, protection and guarantee. Interpreting the Convention without considering economic, social and cultural rights detracts from the full effectiveness of these rights, distorting their essence. An analysis in the light of ESCR contributes to a greater clarification of State obligations, including those related to enforced disappearances. More importantly, it will provide analytical tools to respond more properly to the needs of the victims of enforced disappearances using a holistic view of human rights.

Footnotes

^* Thanks to Ted Magee for helping, as always, with the editing of the text. Also, thanks to the editors of the book, for their insightful comments.

¹ M. C. Galvis Patiño, ‘Rights related to enforced disappearance: New rights in the International Convention for the Protection of All Persons from Enforced Disappearance’ in A. Von Arnaud, K. Von der Decken and M. Susi (eds.), The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric (Cambridge University Press, 2020), pp. 416–21.

² Footnote Ibid., at 415.

³ See for instance, D. Keane, ‘Mapping the International Convention on the Elimination of All Forms of Racial Discrimination as a living instrument’ (2020) 2 Human Rights Law Review 236–68.

⁴ Galvis Patiño, ‘Rights related to enforced disappearance’, 422.

⁵ O. Frouville, ‘The Committee on Enforced Disappearances’, in P. Alston and F. Megret (eds.), The United Nations and Human Rights: A Critical Appraisal, 2nd ed. (Oxford University Press, 2020), pp. 579–600.

⁶ The Preamble of the Convention cannot be considered legally inconsequential. According to Art. 31(2) of the 1969 Vienna Convention on the Law of Treaties, the context for the purpose of the interpretation of a treaty shall, inter alia, comprise the text of the treaty, which is defined to include its preamble. M. M. Mbengue, ‘The notion of preamble,’ in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (Oxford University Press, 2008).

⁷ Concluding observations on the report submitted by Tunisia under Art. 29(1) of the Convention, U.N. Doc. CED/C/TUN/CO/1, 2016, para. 22.

⁸ See, e.g., O. O’Neill, ‘Hunger, needs, and rights’, in Steven Luper-Foy (ed.), Problems of International Justice (Routledge, 2019), pp. 67–83; L. T. Munro, ‘Risks, needs and rights: Compatible or contradictory bases for social protection’ in A. Barrientos and D. Hulme (eds.), Social Protection for the Poor and Poorest (Springer, 2008), pp. 27–46, or Hartley Dean, ‘The translation of needs into rights: Reconceptualising social citizenship as a global phenomenon’ (2013) 22 International Journal of Social Welfare S32–S49.

⁹ See, e.g., Concluding observations on the report submitted by the Niger under Art. 29 (1) of the Convention, CED/C/NER/CO/1, 2020, para. 40, or Concluding observations on the report submitted by Mongolia under Art. 29(1) of the Convention, CED/C/MNG/CO/1, 2021, para. 45.

¹⁰ See, e.g., Concluding observations on the report submitted by the Niger under Art. 29 (1) of the Convention, CED/C/NER/CO/1, 2020, para. 40, or Concluding observations on the report submitted by Mongolia under Art. 29(1) of the Convention, CED/C/MNG/CO/1, 2021, para. 45.

¹¹ See, e.g., Concluding observations on the report submitted by the Niger under Art. 29 (1) of the Convention, CED/C/NER/CO/1, 2020, para. 40, or Concluding observations on the report submitted by Mongolia under Art. 29(1) of the Convention, CED/C/MNG/CO/1, 2021, para. 45.

¹² Committee on the Elimination of Discrimination against Women Views adopted by the Committee under Art. 7(3) of the Optional Protocol, concerning communication No. 153/2020, 22 November 2022, para. 9.b.iii.

¹³ See, e.g., Concluding observation on the report submitted by Germany under Art. 29, para. 1, of the Convention, UN. Doc. CED/C/DEU/CO/1, 2014, para. 7; by Spain, UN. Doc. CED/C/ESP/CO/1, 2013, para. 9; by Belgium, UN. Doc. CED/C/BEL/CO/1, 2014, para. 11; by Burkina Faso, UN. Doc. CED/C/BFA/CO/1, 2016, para. 13; and by Gabon, UN. Doc. CED/C/GAB/CO/1, 2017, para. 12.

¹⁴ See, e.g., Concluding observations on the report submitted by Kazakhstan under Art. 29(1) of the Convention, UN. Doc. CED/C/KAZ/CO/1, 2016, para. 11; by Bosnia and Herzegovina, UN. Doc. CED/C/BIH/CO/1, 2016, para. 13; by Japan, UN. Doc. CED/C/JPN/CO/1, 2016, para. 13; and by Portugal, U.N. Doc. CED/C/PRT/CO/1, 2018, para. 14.

¹⁵ Belgium, UN. Doc. CED/C/BEL/CO/1, 2014, para. 11.

¹⁶ Concluding observations on the combined 5th and 6th periodic reports of Mexico, Committee on Economic, Social and Cultural Rights, E/C.12/MEX/CO/5-6, 2018, para. 43.

¹⁷ Footnote Ibid., para. 44.

¹⁸ OHCHR, International Convention for the Protection of all Persons against Enforced Disappearances, UN. Doc. ST/HR/3/Rev.1, 20 December 2006, Art. 2.

¹⁹ Concluding observations on the report submitted by Paraguay under Art. 29, para. 1, of the Convention, UN. Doc. CED/C/PRY/CO/1, 2014, para. 14; by Bolivia, UN. Doc. CED/C/BOL/CO/1, 2019, para. 13(a); and by France, UN. Doc. CED/C/FRA/CO/1, 2013, paras. 12–13.

²⁰ Committee on the Rights of Persons with Disabilities Views adopted by the Committee under Art. 5 of the Optional Protocol, concerning communications No. 67/2019 and No. 68/2019, 22 May 2023, para. 8.8.

²¹ See e.g., UN. Doc. CED/C/ESP/CO/1, 2013, para. 32–3; Japan, UN. Doc. CED/C/JPN/CO/1, 2016, para. 25; Chile, UN. Doc. CED/C/CHL/CO/1, 2019, para. 17(b).

²² M. C. Galvis Patiño, The Work of the Committee on Enforced Disappearances: Achievements and Jurisprudence Ten Years after the Entry into Force of the Convention (The Geneva Academy of International Humanitarian Law and Human Rights, 2021), p. 12.

²³ Concluding observations on the report submitted by Colombia under Art. 29(1) of the Convention UN. Doc. CED/C/COL/CO/1, 2016, para. 25.

²⁴ Footnote Ibid., para. 26(b).

²⁵ Footnote Ibid., para. 26(f).

²⁶ Concluding observations on the report submitted by Mexico under Art. 29, para. 1, of the Convention, UN. Doc. CED/C/MEX/CO/1, 2015, para. 28; by Iraq, UN. Doc. CED/C/IRQ/CO/1, 2015, para. 20(a) and 23(a); by Colombia, UN. Doc. CED/C/COL/CO/1, 2016, para. 20(a); by Senegal, CED/C/SEN/CO/1, 2017, para. 28; by Gabon, UN. Doc. CED/C/GAB/CO/1, 2017, para. 25–6; by Honduras, UN. Doc. CED/C/HND/CO/1, 2018, para. 25(a); by Japan, UN. Doc. CED/C/JPN/CO/1, 2016, para. 24 (b); by Argentina, UN. Doc. CED/C/ARG/CO/1, 2013, para. 17; by Spain, UN. Doc. CED/C/ESP/CO/1, 2013, para. 12; by Armenia, UN. Doc. CED/C/ARM/CO/1, 2015, para. 5; and by Bolivia, UN. Doc. CED/C/BOL/CO/1, 2019, para. 21(a).

²⁷ Concluding observations on the report submitted by Uruguay under Art. 29, para. 1, of the Convention, UN. Doc. CED/C/URY/CO/1, 2013, para. 14.

²⁸ Argentina, UN. Doc. CED/C/ARG/CO/1, 2013, para. 17); Spain, UN. Doc. CED/C/ESP/CO/1, 2013, para. 12; Iraq, UN. Doc. CED/C/IRQ/CO/1, 2015, para. 20; Tunisia, U.N. Doc. CED/C/TUN/CO/1, 2016, para. 23.

²⁹ Uruguay, UN. Doc. CED/C/URY/CO/1, 2013, para. 14; Spain, UN. Doc. CED/C/ESP/CO/1, 2013, para. 12; Serbia, UN. Doc. CED/C/SRB/CO/1, 2015, para. 14; Iraq, UN. Doc. CED/C/IRQ/CO/1, 2015, para. 20(b); Montenegro, UN. Doc. CED/C/MNE/CO/1, 2015, para. 17; Bosnia and Herzegovina, UN. Doc. CED/C/BIH/CO/1, 2016, para. 22. Tunisia, U.N. Doc. CED/C/TUN/CO/1, 2016, para. 22.

³⁰ Mexico, UN. Doc. CED/C/MEX/CO/1, 2015, para. 28(a).

³¹ Colombia, UN. Doc. CED/C/COL/CO/1, 2016, para. 20.

³² Argentina, UN. Doc. CED/C/ARG/CO/1, 2013, para. 14.

³³ Footnote Ibid., para. 15.

³⁴ Footnote Ibid.

³⁵ Concluding observations on the report submitted by Brazil under Art. 29 (1) of the Convention, UN. Doc. CED/C/BRA/CO/1, 2021, para. 29.

³⁶ Footnote Ibid., para. 23(c).

³⁷ Footnote Ibid., para. 23(g).

³⁸ Footnote Ibid., para. 29(b).

³⁹ Germany, UN. Doc. CED/C/DEU/CO/1, 2014, para. 25; Paraguay, UN. Doc. CED/C/PRY/CO/1, 2014, para. 26(b); Serbia, UN. Doc. CED/C/SRB/CO/1, 2015, para. 26(b); Tunisia, U.N. Doc. CED/C/TUN/CO/1, 2016, para. 23(d); Colombia, UN. Doc. CED/C/COL/CO/1, 2016, para. 36(b); Chile, UN. Doc. CED/C/CHL/CO/1, 2019, para. 25(a); Albania, UN. Doc. CED/C/ALB/CO/1, 2018, para. 10(c).

⁴⁰ France, UN. Doc. CED/C/FRA/CO/1, 2013, para. 35.

⁴¹ Concluding observations on the report submitted by Peru under Art. 29 (1) of the Convention, UN. Doc. CED/C/PER/CO/1, 2019, para. 29(a); Bolivia, UN. Doc. CED/C/BOL/CO/1, 2019, para. 33.

⁴² France, UN. Doc. CED/C/FRA/CO/1, 2013, para. 34; Serbia, UN. Doc. CED/C/SRB/CO/1, 2015, para. 24; Montenegro, UN. Doc. CED/C/MNE/CO/1, 2015, para. 29; Lithuania, UN. Doc. CED/C/LTU/CO/1, 2017, para. 27; Honduras, UN. Doc. CED/C/HND/CO/1, 2018, para. 36; Japan, UN. Doc. CED/C/JPN/CO/1, 2016, para. 39; Peru, UN. Doc. CED/C/PER/CO/1, 2019, para. 28; and Bolivia, UN. Doc. CED/C/BOL/CO/1, 2019, para. 32.

⁴³ Mexico, UN. Doc. CED/C/MEX/CO/1, 2015, para. 28(a); Colombia, UN. Doc. CED/C/COL/CO/1, 2016, para. 20(c).

⁴⁴ Mexico, UN. Doc. CED/C/MEX/CO/1, 2015, para. 33(d); Albania, UN. Doc. CED/C/ALB/CO/1, para. 10(c).

⁴⁵ Serbia, UN. Doc. CED/C/SRB/CO/1, 2015, para. 26(b); Paraguay, UN. Doc. CED/C/PRY/CO/1, 2014, para. 26.

⁴⁶ CED, Estela Deolinda Yrusta and Alejandra del Valle Yrusta v. Argentina, Communication No. 1/2013, 11 March 2016.

⁴⁷ G. Citroni, ‘The first years of the United Nations Committee on Enforced Disappearances: Achievements and future challenges’ in M. Bidault, M. Boumghar, O. De Frouville and L. Trigeaud (eds.), Réciprocité et universalité: sources et régimes du droit international des droits de l’homme: Mélanges en l’honneur du professeur Emmanuel Decaux (Éditions Pedone, 2017), p. 402.

⁴⁸ Committee on the Rights of the Child Concluding observations on the combined fifth and sixth periodic reports of Sri Lanka, CRC/C/LKA/CO/5-6, para. 49(b).

⁴⁹ Guiding Principles for the Search for Disappeared Persons, UN. Doc. CED/C/7, Principles 2.2, 2.3.

⁵⁰ Footnote Ibid., Principle 2.4; Colombia, UN. Doc. CED/C/COL/CO/1, 2016, para. 26(f).

⁵¹ Bosnia and Herzegovina, UN. Doc. CED/C/BIH/CO/1, 2016, para. 38.

⁵² Paraguay, UN. Doc. CED/C/PRY/CO/1, 2014, para. 26(b); Montenegro, UN. Doc. CED/C/MNE/CO/1, 2015, para. 31.

⁵³ Montenegro, UN. Doc. CED/C/MNE/CO/1, 2015, para. 31.

⁵⁴ See for instance, Germany, UN. Doc. CED/C/DEU/CO/1, 2014, para. 27; Paraguay, UN. Doc. CED/C/PRY/CO/1, 2014, para. 30; Ecuador, UN. Doc. CED/C/ECU/CO/1, 2017, para. 22; Bolivia, UN. Doc. CED/C/BOL/CO/1, 2019, para. 37; Slovakia, UN. Doc. CED/C/SVK/CO/1, 2019, para. 27.

⁵⁵ Mongolia, CED/C/MNG/CO/1, 2021, para. 38.

⁵⁶ Colombia, UN. Doc. CED/C/COL/CO/1, 2016, para. 36(a); Cuba, UN. Doc. CED/C/CUB/CO/1, 2017, para. 32; Honduras, UN. Doc. CED/C/HND/CO/1, 2018, para. 37(b); Japan, UN. Doc. CED/C/JPN/CO/1, 2016, para. 40(b); Peru, UN. Doc. CED/C/PER/CO/1, 2019, para. 29(c); Bolivia, UN. Doc. CED/C/BOL/CO/1, 2019, para. 35(d); Slovakia, UN. Doc. CED/C/SVK/CO/1, 2019, para. 25.

⁵⁷ Committee on the Rights of Persons with Disabilities Views adopted by the Committee under Art. 5 of the Optional Protocol, concerning Communications No. 67/2019 and No. 68/2019, 22 May 2023, para. 9(b).

⁵⁸ Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik, Addendum, Mission to Algeria, UN. Doc. A/HRC/19/53/Add.2, 26 December 2011, paras. 54 and 66.

⁵⁹ CED, Estela Deolinda Yrusta and Alejandra del Valle Yrusta v. Argentina, Communication No. 1/2013, 11 March 2016, para. 12(a).

⁶⁰ Footnote Ibid., para. 10.8 and 10.9.

⁶¹ Footnote Ibid., para. 12(d).

⁶² See, e.g., B. Duhaime, ‘Multilateral human rights in a shifting world order: Perspectives from a UN special procedure mandate’ (2018) 31, 2 Revue québécoise de droit international 213–18; and O. Frouville, ‘Working out a working group: A view from a former working group member’ (2017) The United Nations Special Procedures System 223–60.

⁶³ Report of the Working Group on Enforced or Involuntary Disappearances, UN. Doc. E/CN.4/1435, 1980, paras. 184 and 186.

⁶⁴ Report of the Working Group on Enforced or Involuntary Disappearances, Addendum, Study on Enforced or Involuntary Disappearances and Economic, Social and Cultural Rights (Hereinafter, Study), UN. Doc. A/HRC/30/38/Add.5.

⁶⁵ Study, paras. 3 and 5.

⁶⁶ Footnote Ibid., Summary, para. 2.

⁶⁷ Footnote Ibid., Section IV and para. 42.

⁶⁸ Footnote Ibid., paras. 2, 6, 8 and 9. See also, Report of the Working Group on Enforced or Involuntary Disappearances on its mission to Peru, U.N. Doc. A/HRC/33/51/Add.3, 2016, para. 69.

⁶⁹ Study, Summary, Section III and paras. 33 and 35.

⁷⁰ Footnote Ibid., paras. 17, 18, 19 and 21.

⁷¹ See also, General comment on women affected by enforced disappearances, adopted by the Working Group on Enforced or Involuntary Disappearances at its 98th session, U.N. Doc. A/HRC/WGEID/98/2, 31 October–9 November 2012, para. 12 and General comment on children and enforced disappearances, adopted by the Working Group on Enforced or Involuntary Disappearances at its 98th session, 31 October–9 November 2012, para. 7.

⁷² Study, paras. 23–4.

⁷³ Footnote Ibid.

⁷⁴ Footnote Ibid., para. 44.

⁷⁵ Footnote Ibid., Section III.A.

⁷⁶ Footnote Ibid., Section III.B.

⁷⁷ Velásquez Rodríguez v. Honduras, Merits, Judgment of 29 July 1988, Inter-Am. Ct. H.R. (ser. C) No. 4, para. 155.

⁷⁸ Goiburú et al. v. Paraguay, Merits, Reparations and Costs, Judgment of 22 September 2006, Inter-Am. Ct. H.R. (ser. C) No. 153, para. 84. Emphasis is ours.

⁷⁹ Ibsen Cárdenas and Ibsen Peña v. Bolivia, Merits, Reparation and Costs, Judgment of 1 September 2010, Inter-Am. Ct. H.R. (ser. C) No. 217, para. 57.

⁸⁰ Heliodoro Portugal v. Panama, Preliminary Objections, Merits, Reparations and Costs, Judgment of 12 August 2008, Inter-Am. Ct. H.R. (ser. C) No. 186, para. 106.

⁸¹ Gonzalez Medina and family v. Dominican Republic, Preliminary Objections, Merits, Reparations and Costs, Judgment of 27 February 2012, Inter-Am. Ct. H.R. (ser. C) No. 240, para. 175.

⁸² Radilla Pacheco v. Mexico, Preliminary Objections, Merits, Reparations and Costs, Judgment of 23 November 2009, Inter-Am. Ct. H.R. (ser. C) No. 209, para. 146 and IBAHRI and FLACSO, ‘Violaciones, derechos humanos y contexto: herramientas propuestas para documentar e investigar, Manual de Análisis de Contexto para Casos de Violaciones a los Derechos Humanos’ (2017), available at www.flacso.edu.mx/sites/default/files/violaciones-ddhh-y-contexto-herramientaspropuestas-para-documentar-investigar.pdf at 13–19.

⁸³ Véliz Franco et al. v. Guatemala, Preliminary Objections, Merits, Reparations and Costs, Judgment of 19 May 2014, Inter-Am. Ct. H.R. (ser. C) No. 277, para. 65.

⁸⁴ Chitay Nech et al. v. Guatemala, Preliminary Objections, Merits, Reparations and Costs, Judgment of 25 May 2010, Inter-Am. Ct. H.R. (ser. C) No. 212, paras. 113–14.

⁸⁵ Bámaca Velásquez v. Guatemala, Merits, Judgment of 25 November 2000, Inter-Am. Ct. H.R. (ser. C) No. 70, paras. 136–7.

⁸⁶ The Río Negro Massacres v. Guatemala, Preliminary Objection, Merits, Reparations and Costs, Judgment of 4 September 2012, Inter-Am. Ct. H.R. (ser. C) No. 250, paras. 84, 153, 154 et seg.

⁸⁷ Chitay Nech et al. v. Guatemala, paras. 146–7.

⁸⁸ García and family members v. Guatemala, Merits, Reparations and Costs, Judgment of 29 November 2012, Inter-Am. Ct. H.R. (ser. C) No. 258, paras. 116 and 121; and Isaza Uribe et al. v. Colombia, Merits, Reparations and Costs, Judgment of 20 November 2018, Inter-Am. Ct. H.R. (ser. C) No. 363, para. 145.

⁸⁹ García and family members v. Guatemala, paras. 116 and 121.

⁹⁰ Footnote Ibid.

⁹¹ Isaza Uribe et al. v. Colombia, para. 197.

⁹² Compare Protocol of San Salvador Art. 8 Trade union rights, ‘1. The States Parties shall ensure a. The right of workers to organize trade unions and to join the union of their choice for the purpose of protecting and promoting their interests. As an extension of that right, the States Parties shall permit … trade unions, federations and confederations to function freely, b. The right to strike …’ with the plain text of the Convention Art. 16 Freedom of Association ‘Everyone has the right to associate freely for … labor … purposes’. The Convention allows restrictions of this right for reasons of ‘national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others’. Meanwhile, the Protocol is more limited on the permissible grounds for restrictions including only ‘public order or for protecting public health or morals or the rights and freedoms of others …’ (excluding national security and public safety, two of the most often mentioned ‘justifications’ for ED). See particularly, I/A Court HR. Rights to freedom to organize, collective bargaining and strike, and their relation to other rights, with a gender perspective (interpretation and scope of Arts. 13, 15, 16, 24, 25 and 26 in relation to Art. 1(1) and 2 of the American Convention on Human Rights; Arts. 3, 6, 7 and 8 of the Protocol of San Salvador; Arts. 2, 3, 4, 5 and 6 of the Convention of Belém do Pará; Arts. 34, 44 and 45 of the Charter of the Organization of American States; and Arts. 2, 4, 14, 21 and 22 of the American Declaration on the Rights and Duties of Man. Advisory Opinion OC-27/21 of 5 May 2021. Series A No. 27, paras. 72, 73, 192.

⁹³ Blake v. Guatemala, Merits, Judgment of 24 January 1998, Inter-Am. Ct. H.R. (ser. C) No. 36.

⁹⁴ Gudiel Álvarez et al. (Diario Militar) v. Guatemala, Merits, Reparations and Costs, Judgment of 20 November 2012, Inter-Am. Ct. H.R. (ser. C) No. 253, para. 286.

⁹⁵ Art. 17 Rights of the Family. ‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state … 4. The States Parties shall take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. In case of dissolution, provision shall be made for the necessary protection of any children solely on the basis of their own best interests ….’

⁹⁶ See, e.g., R. Hernández et al., v. El Salvador, Merits, Reparations and Costs, Judgment of October 14, 2014, Inter-Am. Ct. H.R. (ser. C) No. 285, paras. 111–12; The Members of the Village of Chichupac and neighboring communities of the Municipality of Rabinal v. Guatemala, Preliminary Objections, Merits, Reparations and Costs, Judgment of 30 November 2016, Inter-Am. Ct. H.R. (ser. C) No. 328, para. 165; and Contreras et al., v. El Salvador, Merits, Reparations and Costs, Judgment of 31 August 2011, Inter-Am. Ct. H.R. (ser. C) No. 232, paras. 116 and 121.

⁹⁷ I. de Paz Gonzalez, The Social Rights Jurisprudence in the Inter-American Court of Human Rights: Shadow and Light in International Human Rights (Elgar Studies in Human Rights, 2018), p. 115.

⁹⁸ Art. 15 Right to the Formation and the Protection of Families ‘1. The family is the natural and fundamental element of society and ought to be protected by the State, which should see to the improvement of its spiritual and material conditions. 2. Everyone has the right to form a family … 3. The States Parties hereby undertake to accord adequate protection to the family unit and in particular: a. To provide special care and assistance to mothers during a reasonable period before and after childbirth; b. To guarantee adequate nutrition for children at the nursing stage and during school attendance years; c. To adopt special measures for the protection of adolescents in order to ensure the full development of their physical, intellectual and moral capacities; d. To undertake special programs of family training so as to help create a stable and positive environment in which children will receive and develop the values of understanding, solidarity, respect, and responsibility.’

⁹⁹ See, for example, Inter-Am. Comm’n H.R., Rapporteurship on the Rights of the Child, The right of girls and boys to a family. Alternative care. Ending institutionalization in the Americas, OEA/Ser.L/V/II. Doc.54/13, 2013.

¹⁰⁰ T. Millacura et al. v. Argentina, Merits, Reparations and costs, Judgment of 26 August 2011, Inter-Am. Ct. H.R. (ser. C) No. 229, para. 114.

¹⁰¹ Gómez Palomino v. Peru, Merits, Reparations and Costs, Judgment of 22 November 2005, Inter-Am. Ct. H.R. (ser. C) No. 136, para. 61.

¹⁰² Gomes Lund et al. (‘Guerrilha do Araguaia’) v. Brazil, Preliminary Objections, Merits, Reparations and Costs, Judgment of 24 November 2010, Inter-Am. Ct. H.R. (ser. C) No. 219, para. 267.

¹⁰³ See M. Morales Antoniazzi and L. Clérico (eds.), Interamericanización del derecho a la salud: Perspectivas a la luz del caso ‘Poblete’ de la Corte IDH (Instituto de Estudios Constitucionales de Querétaro, 2019).

¹⁰⁴ The Massacres of El Mozote and surrounding areas v. El Salvador, Merits, Reparations and Costs, Judgment of 25 October 2012, Inter-Am. Ct. H.R. (ser. C) No. 252, para. 202.

¹⁰⁵ Committee on Economic, Social and Cultural Rights, General comment No. 4: The right to adequate housing, Art. 11(1) of the Covenant, paras. 7 and 9.

¹⁰⁶ Furland and Family v. Argentina, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 246, 31 August 2012, para. 220 57; Ivcher-Bronstein v. Peru, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 74, Feb. 6, 2001, para. 122.

¹⁰⁷ See for example, La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Inter-Am. Ct. H.R. (ser. C) No. 162 (University students and professors) or Castillo Páez v. Peru, Merits, Judgment of 3 November 1997, Inter-Am. Ct. H.R. (ser. C) No. 34 (student) or Caballero Delgado and Santana v. Colombia, Merits, Judgment of 8 December 1995, Inter-Am. Ct. H.R. (ser. C) No. 22 (teacher).

¹⁰⁸ Gómez Palomino v. Peru, Merits, Reparations and Costs, Judgment of 22 November 2005, Inter-Am. Ct. H.R. (ser. C) No. 136, para. 144–8.

¹⁰⁹ Molina Theissen v. Guatemala, Reparations and Costs, Judgment of 3 July 2004, Inter-Am. Ct. H.R. (ser. C) No. 108, para. 37.9 and 59.

¹¹⁰ Gómez Palomino v. Peru, para. 127.

¹¹¹ The Mapiripán Massacre v. Colombia, Merits, Reparations and Costs, Judgment of 15 September 2005, Inter-Am. Ct. H.R. (ser. C) No. 134, para. 175 and seq. and 291.h. viii.

¹¹² Report of the Special Rapporteur on extreme poverty and human rights, UN. Doc. A/72/502, 4 October 2017, para. 2.

¹¹³ Footnote Ibid., para. 6.

¹¹⁴ Footnote Ibid., para. 3. See also, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, UN. Doc. A/HRC/30/42, para. 34 (while the causes of violence or rights violations cannot be reduced to inequality or poverty, it is true that inequality and poverty are closely correlated with violence and violations of various rights, including ESCR).

¹¹⁵ Committee on the Elimination of Discrimination against Women, Concluding observations on the ninth periodic report of Mexico, CEDAW/C/MEX/CO/9, para. 24(a).

¹¹⁶ Committee on the Rights of the Child, El Salvador, UN. Doc. CRC/C/SLV/CO/5-6, 2018, para. 23.

¹¹⁷ Report of the Special Rapporteur on extreme poverty and human rights, UN. Doc. A/67/278, 9 August 2012.

¹¹⁸ Report of the Special Rapporteur on extreme poverty and human rights, UN. Doc. A/72/502, 4 October 2017, para. 9.

¹¹⁹ Report of the Special Rapporteur in the field of cultural rights, Visit to Maldives, UN. Doc. A/HRC/43/50/Add.2, 2021, para. 58. This is the case of a disappearance of a journalist and poet due to extremist ideology.

¹²⁰ CERD, UN. Doc. CERD/C/THA/CO/4-8, 2022, para. 21 (expressing concern for the disappearance of those advocating for land rights, protection of the environment and the rights of ethnic and ethno-religious groups and indigenous peoples); Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes, Visit to Canada, UN. Doc. A/HRC/45/12/ADD.1, 2020, para. 91) (allegations related to the disappearance of an indigenous woman who raised concerns of exposure to toxic pollution from oil sands operations); and CRC-OP-SC, UN. Doc. CRC/C/OPSC/LAO/CO/1, 2015, para. 19 (disappearance of a leading social activist who, inter alia, worked to tackle the root causes of child trafficking and exploitation by improving children’s access to education).

¹²¹ See, among others, J. Sarkin and G. Baranowska, ‘Why enforced disappearances are perpetrated against groups as state policy: Overlaps and interconnections between disappearances and genocide’ (2018) 2, 3 Católica Law Review 11–50, 33, available at https://doi.org/10.34632/catolicalawreview.2018.9098; Center for Legal and Social Studies, Corporate responsibility in crimes against humanity: repression of workers during State terrorism (Responsabilidad empresarial en delitos de lesa humanidad. Represión a trabajadores durante el terrorismo de Estado) (Ministry of Justice and Human Rights, 2015); H. Verbitsky and J. P. Bohoslavsky (eds.), The Economic Accomplices to the Argentine Dictatorship: Outstanding Debts (Cambridge University Press, 2016); L. Payne and G. Pereira, ‘Corporate complicity in international human rights violations’ (2016) 12, 20 Annual Review of Law and Social Science.

¹²² CEDAW, U.N. Doc. CEDAW/C/SSD/CO/1, 2021, para. 44(a).

¹²³ Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, UN. Doc. A/69/518, para. 60.

¹²⁴ C. Sandoval, Transitional Justice and Economic, Social and Cultural Rights (United Nations Office of the High Commissioner for Human Rights, 2014), available at www.ohchr.org/Documents/Publications/HR-PUB-13-05.pdf.

¹²⁵ Report of the Special Rapporteur on extreme poverty and human rights, UN. Doc. A/72/502, 4 October 2017, para. 71.

¹²⁶ Study, para. 77.

¹²⁷ E. Decaux, ‘The International Convention for the Protection of All Persons from Enforced Disappearance, as a victim-oriented treaty’ in Margaret M. de Guzman and D. M. Amann (eds.), Arcs of Global Justice: Essays in Honour of William A. Schabas (Oxford University Press, 2018), pp. 57–64.

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