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Case 4:18-cr-00223-RCC-BPV Document 137 Filed 11/30/18 Page 1 of 4

1 Gregory J. Kuykendall, Bar # 012508


Amy P. Knight, Bar # 031374
2 KUYKENDALL & ASSOCIATES
3 531 S Convent Avenue
Tucson, AZ 85701
4 (520) 792-8033
greg@kuykendall-law.com
5 amyknight@kuykendall-law.com
6 Pro Bono Attorneys for Defendant Scott Daniel Warren
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8 UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
9
United States of America, )
10 ) No.CR-18-00223-001-TUC-RCC
11 Plaintiff, )
) NOTICE OF SUPPLEMENTAL
12 vs. ) AUTHORTIY RE MOTION TO
13 ) DISMISS FOR VIOLATION OF
SCOTT DANIEL WARREN, ) INTERNATIONAL LAW
14 )
Defendant. )
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)
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On August 27, 2018, Defendant filed a Motion to Dismiss Indictment Due to
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18 Violation of International Law (Doc. 115). The Government filed a response (Doc. 125)

19 and Defendant filed a reply (Doc. 128). The Court held oral argument on October 16,
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2018. On November 7, 2018, the Magistrate Judge issued a report and recommendation
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(Doc. 134). Defendant filed an objection on November 21, 2018 (Doc. 136).
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23 It has just come to undersigned counsel’s attention that a coalition of United

24 Nations officials representing various mandates and special procedures issued a letter to
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the United States concerning this case on May 25, 2018. The letter was kept confidential
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to permit the United States an opportunity to reply prior to its publication. No reply
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Case 4:18-cr-00223-RCC-BPV Document 137 Filed 11/30/18 Page 2 of 4

1 having been received, the United Nations Office of the High Commissioner on Human

2 Rights recently published the letter as publication USA 6/2018.1


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The letter, a copy of which is attached to this notice, is signed by the following:
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• Working Group on Enforced or Involuntary Disappearances
• Special Rapporteur on extrajudicial, summary or arbitrary executions
6 • Special Rapporteur on the rights to freedom of peaceful assembly and of
7 association
• Special Rapporteur on the right of everyone to the enjoyment of the highest
8 attainable standard of physical and mental health
9 • Special Rapporteur on the situation of human rights defenders
10 • Special Rapporteur on the human rights of migrants
• Special Rapporteur on trafficking in persons, especially women and children
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12 It includes a brief summary of the facts of this case, expresses “[s]erious concern”
13 over the arrest and charges, and notes the implication of the International Covenant
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on Civil and Political Rights. This treaty is discussed extensively in Defendant’s
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16 motion, Doc. 115, at 13-15.
17 The letter also includes an annex discussing the application of various
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human rights instruments, including the Declaration on the Right and
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20 Responsibility of Individuals, Groups and Organs of Society to Promote and
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Protect Universally Recognised Human Rights and Fundamental Freedoms, a
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Report of the Special Rapporteur on the situation of human rights defenders in
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24 2018, (A/HRC/37/51), Human Rights Committee General Comments no. 6 and
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31(General Comment no. 6, para. 5 and CCPR/C/21/Rev.1/Add.13 para. 8), the
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27 1 The letter now is publicly available at a website maintained by the United Nations, at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?g
28 Id=23798 (last visited November 30, 2018).

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Case 4:18-cr-00223-RCC-BPV Document 137 Filed 11/30/18 Page 3 of 4

1 latest report of the Special Rapporteur on extrajudicial, summary or arbitrary


2 executions to the General Assembly (A/72/335), entitled “Saving lives is not a
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crime,” and resolution 9/5 of the Human Rights Council (A/HRC/RES/9/5).
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5 The letter asks the United States to provide additional information about the
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charges, and to “explain how such charges are compatible with international
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human rights laws and standards,” among other requests.
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9 Defendant submits this letter as additional persuasive authority supporting
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his argument that this prosecution is in violation of the United States’ binding
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international obligations.
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13 RESPECTFULLY SUBMITTED this 30th day of November, 2018.
14 By /s/ Amy P. Knight
15 Gregory J. Kuykendall
Amy P. Knight
16 531 S Convent Avenue
17 Tucson, AZ 85701
Attorneys for Defendant Scott
18 Daniel Warren
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1 CERTIFICATE OF SERVICE

2 I certify that on November 30th, 2018, I electronically transmitted a PDF version


of this document to the Clerk of Court using the CM/ECF System for filing and for
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transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
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Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov)
5 Anna R. Wright, Esq. (email: anna.wright@usdoj.gov)
6 United States Attorney’s Office
405 W. Congress, Suite 4800
7 Tucson, AZ 85701
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Case 4:18-cr-00223-RCC-BPV Document 137-1 Filed 11/30/18 Page 1 of 9
EXHIBIT 1
PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND

Mandates of the Working Group on Enforced or Involuntary Disappearances; the Special


Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the rights
to freedom of peaceful assembly and of association; the Special Rapporteur on the right of everyone
to the enjoyment of the highest attainable standard of physical and mental health; the Special
Rapporteur on the situation of human rights defenders; the Special Rapporteur on the human rights
of migrants; and the Special Rapporteur on trafficking in persons, especially women and children

REFERENCE:
AL USA 6/2018

25 May 2018

Mr. Allegra,

We have the honour to address you in our capacities as Working Group on


Enforced or Involuntary Disappearances; Special Rapporteur on extrajudicial, summary
or arbitrary executions; Special Rapporteur on the rights to freedom of peaceful assembly
and of association; Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health; Special Rapporteur on the
situation of human rights defenders; Special Rapporteur on the human rights of migrants;
and Special Rapporteur on trafficking in persons, especially women and children,
pursuant to Human Rights Council resolutions 36/6, 35/15, 32/32, 33/9, 34/5, 34/21 and
35/5.

In this connection, we would like to bring to the attention of your Excellency’s


Government information received concerning the arrest of Mr. Scott Warren and
charges against him, including harbouring and conspiracy to transport illegal
immigrants.

Mr. Scott Warren is a professor at Arizona State University and long-time


volunteer with No More Deaths, a humanitarian organisation based in southern Arizona
whose mission is to end the unlawful deaths and suffering of migrants, refugees and
asylum-seekers in the Mexico - United States borderlands through civil-initiative.

According to the information received:

On 17 January 2018, following several hours of surveillance by Border Patrol


agents, Mr. Scott Warren was arrested, along with two individuals receiving
humanitarian aid, at a location called “The Barn”, a shared humanitarian space in
Ajo, Arizona. His arrest occurred hours after the release of the No More Deaths
report entitled “Interference with Humanitarian Aid: Death and Disappearance
on the US-Mexico Border”.

The report sheds light on the situation of thousands of migrants in vulnerable


situations, including victims or potential victims of trafficking, in the desert of the
Arizona-Mexico borderlands, who are prevented from accessing lifesaving
resources and medical aid and are constantly dying of dehydration and heat-
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related illness. Over the last two decades, the remains of at least 7,000 people
have been recovered in the United States borderlands, taking into consideration
that, due to the remoteness of the area, only a small fraction of those who perish in
the desert are discovered.

The report also denounced the implication of Border Control agents in the
destruction of humanitarian aid supplies - such as food and safe drinking water -
and included video footage of such acts, concluding that the only actors with a
sufficiently large and consistent presence across a sufficiently wide area of the
desert, during periods when hunting is authorised or prohibited, are State
authorities.

In addition, the report denounced a pattern of intimidation, harassment and


surveillance against humanitarian-aid workers, including in instances where they
are taking migrants to medical clinics, which was considered as part of a systemic
feature of enforcement practices in the United States borderlands and a logical
extension of the broader strategy of prevention through deterrence, including
through the vandalising of safe drinking water. As a result, the work of
humanitarian aid workers attempting to reduce the number of migrants’ deaths
and disappearances has been routinely sabotaged by allegedly Border Patrol
agents.

It was in this context that Mr. Warren was detained overnight and released on his
own recognisance at a hearing in Tucson, Arizona, the next day.

Mr. Warren is charged with two felony counts of “harbouring”, both of which
carry a maximum penalty of five years, one felony count of “conspiracy to
transport”, which carries a maximum sentence of ten years, and two class B
misdemeanor charges of “operating a motor vehicle in a wilderness area” and
“abandonment of property”, both of which carry maximum penalties of six
months each. Mr. Warren thus faces a maximum sentence of 21 years in prison.

Mr. Warren’s charge of “operating a motor vehicle in a wilderness area” relates to


his alleged use of an administrative road in the Cabeza Prieta Wildlife Refuge in
western Arizona, an area with unusually high numbers of human remains. His
charge of “abandonment of property” relates to humanitarian aid packages
containing water bottles, food, blankets, clothing and medical supplies which
volunteers have left in the desert along known migration routes. Mr. Warren’s
trial hearing is scheduled to take place on 12 June 2018.

In addition, we have been informed that eight volunteers of No More Deaths have
been charged with Class B misdemeanors.

Serious concern is expressed over the arrest and charges against Mr. Scott Warren
and the charges against eight other volunteers for reasons directly linked to the provision
of humanitarian aid to migrants in their capacity as migrant rights defenders. We express

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additional concern that the arrest of Mr. Warren took place hours after the release of a
report seeking to document the situation of migrants in the US-Mexico borderlands. We
regret that this arrest takes place within the context of an apparent systematic pattern of
targeting migrant rights defenders in the United States for reasons either directly, or
tangentially, connected with their peaceful and legitimate work in the defence of human
rights. We are deeply concerned with the “chilling effect” of the arrest and charges on
legitimate human rights work aimed at saving lives. Serious concerns are also expressed
over the alleged implication of United States Border Control agents in the destruction of
humanitarian aid supplies, and their interference with migrants’ access to medical aid,
which may result in the unlawful deaths of migrants, as well as their disappearance,
including victims or potential victims of trafficking, in the Arizona desert.

While we do not wish to prejudge the accuracy of these allegations, we would like
to draw the attention of your Excellency’s Government to the relevant international
norms and standards that are applicable to the issues brought forth by the situation
described above, in particular articles 6, 13, 19 and 22 of the International Covenant on
Civil and Political Rights (ICCPR), ratified by the United States of America on 8 June
1992, which guarantee the right to life, not to be unlawfully expelled, and to freedom of
opinion and expression, and of association.

In connection with the above alleged facts and concerns, please refer to the Annex
on Reference to international human rights law attached to this letter which cites
international human rights instruments and standards relevant to these allegations.

As it is our responsibility, under the mandates provided to us by the Human


Rights Council, to seek to clarify all cases brought to our attention, we would therefore be
grateful for your observations on the following matters:

1. Please provide any additional information and/or comment(s) you may


have on the above-mentioned allegations.

2. Please provide detailed information on the factual and legal bases for the
charges against Mr. Scott Warren and explain how such charges are
compatible with international human rights law and standards, in particular
the treaty obligations undertaken by the United States under the ICCPR.

3. Please indicate what measures have been taken to ensure that migrant
rights defenders in the United States are able to carry out their legitimate
work in a safe and enabling environment without fear of threats or acts of
intimidation or retaliation directed against them or harassment of any sort.

4. Please provide information on the status of any investigations initiated into


the alleged implication of United States Border Control agents in the
destruction of life-saving humanitarian aid supplies, and interference with
migrants’ access to medical aid, meant to reduce the number of deaths and
disappearances of migrants, including victims or potential victims of

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trafficking. If no investigations have taken place or have proven


inconclusive, please explain why.

5. Please provide information on efforts taken by State authorities to protect


the lives and basic human rights of all people within its territory and under
its jurisdiction, regardless of their legal status.

6. Please provide information on how national criminalisation of


“abandonment of property” related to provision of humanitarian aid to
migrants in vulnerable situations, including victims and potential victims
of trafficking, is in line with the international human rights obligations
undertaken by the United States, in particular under the ICCPR.

7. Please indicate the measures being undertaken by the Government to


recover and identify the remains found in the United States borderlands. If
some of those remains have been identified, please indicate if the victims’
families have been duly informed about their relative’s fate.

We would appreciate receiving a response within 60 days. Your Excellency’s


Government’s response will be made available in a report to be presented to the Human
Rights Council for its consideration.

While awaiting a reply, we urge that all necessary interim measures be taken to
halt the alleged violations and prevent their re-occurrence and in the event that the
investigations support or suggest the allegations to be correct, to ensure the accountability
of any person(s) responsible for the alleged violations.

We may intend to publicly express our concerns in the near future as, in our view,
the information upon which the press release will be based is sufficiently reliable to
indicate a matter warranting immediate attention. We also believe that the wider public
should be alerted to the potential implications of the above-mentioned allegations. The
press release will indicate that we have been in contact with your Government’s to clarify
the issue/s in question.

Please accept, Mr. Allegra, the assurances of our highest consideration.

Bernard Duhaime
Chair-Rapporteur of the Working Group on Enforced or Involuntary Disappearances

Agnes Callamard
Special Rapporteur on extrajudicial, summary or arbitrary executions

Clement Nyaletsossi Voule


Special Rapporteur on the rights to freedom of peaceful assembly and of association

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Dainius Puras
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health

Michel Forst
Special Rapporteur on the situation of human rights defenders

Felipe González Morales


Special Rapporteur on the human rights of migrants

Maria Grazia Giammarinaro


Special Rapporteur on trafficking in persons, especially women and children

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Annex
Reference to international human rights law

In connection with above alleged facts and concerns, we would like to draw your
attention to the relevant international norms and standards that are applicable to the issues
brought forth by the situation described above.

Situation of Mr. Scott Warren

Articles 19 and 22 of the International Covenant on Civil and Political Rights


(ICCPR), ratified by the United States of America on 8 June 1992, provide for the rights
to freedom of opinion and expression and freedom of association.

We would like to refer your Excellency’s Government to the fundamental


principles set forth in the Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally Recognised Human
Rights and Fundamental Freedoms, also known as the UN Declaration on Human Rights
Defenders. In particular, we would like to refer to articles 1 and 2 of the Declaration
which state that everyone has the right to promote and to strive for the protection and
realisation of human rights and fundamental freedoms at the national and international
levels and that each State has a prime responsibility and duty to protect, promote and
implement all human rights and fundamental freedoms.

Furthermore, we would also like to bring to the attention of your Excellency’s


Government article 12 (2 and 3) of the UN Declaration on Human Rights Defenders,
which provides that the State shall take all necessary measures to ensure the protection of
everyone against any violence, threats, retaliation, de facto or de jure adverse
discrimination, pressure or any other arbitrary action as a consequence of his or her
legitimate exercise of the rights referred to in the Declaration.

We would further like to reprise the recommendations made in the Report of the
Special Rapporteur on the situation of human rights defenders in 2018, (A/HRC/37/51)
which underline, inter alia, that States should ensure that migrant rights defenders are not
threatened with and subject to arrest, detention or deportation when reporting crimes,
labour rights violations, and other forms of human rights violations and that States must
ensure that domestic law and administrative provisions facilitate the work of all actors
providing humanitarian assistance to, and defending the rights of, people on the move,
including by avoiding criminalisation.

Situation of migrants on the United States – Mexico borderlands

Article 6(1) of the ICCPR provides that every human being has the inherent right
to life and that no one shall be arbitrarily deprived of one’s life. The Human Rights
Committee, in its General Comments no. 6 and 31, confirmed that this right is not to be
narrowly interpreted and that its protection requires that the State adopt positive measures
(General Comment no. 6, para. 5 and CCPR/C/21/Rev.1/Add.13 para. 8). These positive

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obligations are only discharged if individuals are protected by the State against violations
of its own agents, and private persons and entities alike. Permitting or failing to take
appropriate action to exercise due diligence to prevent the death of any individual on its
territory or under its jurisdiction will result in a violation by the State party of the ICCPR
and give rise to State responsibility. If found true, the destruction by State agents of life-
saving humanitarian aid, i.e. food and safe drinking water, resulting in an increased risk
and death of migrants at the United States – Mexico borderlands, will give rise to such a
violation and consequent State responsibility for these deaths.

As stated in the latest report of the Special Rapporteur on extrajudicial, summary


or arbitrary executions to the General Assembly (A/72/335), the “weaponisation” of
terrain as part of a deterrence enforcement strategy, i.e. practices of “chase and scatter” or
leaving people in a hostile environment without supplies, as appears to be the result of the
destruction of this life-saving humanitarian aid by State agents, may also amount to
excessive use of force (violation of the principles of necessity and proportionality),
which, if resulting in deaths, again gives rise to State responsibility (ibid. para. 34). As
part of her recommendations, the Special Rapporteur indicated that all States should
ensure that migration governance measures respect, protect and fulfil the right to life of
all refugees and migrants, and that, in particular, no policies or practices rely on the
likelihood, risk or severity of the harm refugees and migrants may incur to deter entry
(Ibid. para. 91. In addition, all States should work with UNHCR to develop and
implement asylum protection-sensitive border management systems (Ibid. para. 95).

Further, we would like to bring to your Excellency’s Government’s attention to


article 13 of the ICCPR, stating that an alien lawfully in the territory of a State party to
the present Covenant may be expelled therefrom only in pursuance of a decision reached
in accordance with law and shall, except where compelling reasons of national security
otherwise require, be allowed to submit the reasons against this expulsion and to have his
case reviewed by, and be represented for the purpose before, the competent authority or a
person or persons especially designated by the competent authority.

In this regard we would like to highlight that the enjoyment of the rights
guaranteed in the ICCPR ratified by your Excellency’s Government are not limited to
citizens of States parties but “must also be available to all individuals, regardless of their
nationality or statelessness, such as asylum seekers, refugees, migrant workers and other
persons, who may find themselves in the territory or subject to the jurisdiction of the
State Party” (ICCPR/C/21/Rev.1/Add. 13 (2004), Para. 10).

We would like to draw to your Excellency’s Government’s attention resolution


9/5 of the Human Rights Council (A/HRC/RES/9/5), which requests States to effectively
promote and protect the human rights and fundamental freedoms of all migrants,
especially those of women and children, regardless of their immigration status, in
conformity with the Universal Declaration of Human Rights (UDHR) and the
international instruments to which they are party.

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In her country visit to the United States, the Special Rapporteur on trafficking in
persons, especially women and children noted that “the routine detention of migrants,
including possible victims of human trafficking who have been classified as smuggled
and processed for removal in the absence of accurate identification of trafficking grounds,
may amount to “penali[sing victims] solely for unlawful acts committed as a direct result
of being trafficked, such as using false documents, entering the country without
documentation or working without documentation” (A/HRC/35/37/Add.2).

The increased number of deaths along the Mexico/United States migratory route,
mentioned in Mr. Warren’s report, was also confirmed by the International Organisation
for Migration (IOM), which found that, due to increased criminalisation of migration,
migrants are forced to look for more remote paths to avoid detention. In addition,
similarly to the findings included in the No More Deaths report, according to IOM,
prolonged exposure to extreme environmental conditions at the borderlands, with
temperatures reaching up to 104°F (40°C) and lack of access to humanitarian assistance
are cited as the most frequent causes of death. Indeed, destruction of supplies, such as
safe drinking water, de facto hinders migrants’ access to that type of life-saving
humanitarian assistance that is essential to alleviate their suffering and prevent more
deaths.

Concerning the allegations of disappearances of migrants, the 1992 Declaration


on the Protection of All Persons from Enforced Disappearances in its article 13 (3)
establishes that steps shall be taken to ensure that all involved in the investigation,
including the complainant, counsel, witnesses and those conducting the investigation, are
protected against ill-treatment, intimidation or reprisal. In its report on enforced
disappearances in the context of migration (A/HRC/36/39/Add.2), the UN Working
Group on Enforced or Involuntary Disappearances recalls that the practice of pushing
back or collective expulsion of migrants does not comply with the international
obligation of non-refoulement and may lead to enforced disappearances. Similarly, all
returns of migrants must be formally documented and undertaken in accordance with the
law in order to avoid disappearances during those processes, including temporary
disappearances. Furthermore, the State in which any person has disappeared, including
migrants, regardless of their status, has the obligation to make the necessary efforts to
search for and locate her/him immediately, in fulfilment of the recognised right to know
the truth. In case of presumption of death, the State must search for the remains, identify
them and return them to the relatives. States shall also investigate whether clandestine
graves or other places where bodies may be concealed may exist in migratory transit
areas and establish a register of found corpses, documenting the circumstances of the
discovery. The Working Group also recommended that States should gather, compile and
systematise all the information in relation to all individuals who go missing in, or
transiting through, their countries. This information should also be systematically shared
with bordering countries as well as with relevant international and/or regional
organisations.

In this regard, we would like to refer to article 25 of the UDHR which guarantees
the right of everyone to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care. Similarly,

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we would like to bring the attention of your Excellency’s Government to article 12 of the
International Covenant on Economic, Social and Cultural Rights, signed by the United
States of America on 5 October 1977. While the United States of America has not ratified
ICESCR, it has agreed to bind itself in good faith to ensure that nothing is done that
would defeat the object and purpose of the international instrument, pending a decision
on ratification. This includes protecting and promoting the right to health, which extends
not only to timely and appropriate health care but also to the underlying determinants of
health, such as access to safe and potable water and adequate sanitation, an adequate
supply of safe food, nutrition and housing, amongst others (General Comment No. 14,
Committee on Economic Social and Cultural Rights, para 11).

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