Migration Law and the Externalization of Border Controls

European State Responsibility

Anna Liguori

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429798986
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Over the last few decades, both the European Union and European States have been implementing various strategies to externalize border controls with the declared intent of saving human lives and countering smuggling but with the actual end result of shifting borders, circumventing international obligations and ultimately preventing access to Europe. What has been principally deplored is the fact that externalizing border controls risks creating 'legal black holes'. Furthermore, what is particularly worrying in the current European debate is the intensification of this practice by multiple arrangements with unsafe third countries, exposing migrants and asylum seekers to serious human rights violations.

This book explores whether European States can succeed in shifting their responsibility onto Third States in cases of human rights violations. Focusing, in particular, on the 2017 Italy-Libya Memorandum of Understanding, the book investigates the possible basis for triggering the responsibility of outsourcing States. The second part of the book examines how the Italy-Libya MoU is only a small part of a broader scenario, exploring EU policies of externalization. A brief overview of the recent decisions of the EU Court vis-à-vis two aspects of externalization (the EU-Turkey statement and the issue of humanitarian visas) will pave the way for the conclusions since, in the author's view, the current attitude of the Luxembourg Court confirms the importance of focusing on the responsibility of European States and the urgent need to investigate the possibility of bringing a claim against the outsourcing States before the Court of Strasbourg.

Offering a new perspective on an extremely topical subject, this book will appeal to students, scholars and practitioners with an interest in European Law, International Law, Migration and Human Rights.

Part I

A case study

The 2017 Italy-Libya Memorandum of Understanding

1 The Italy-Libya Memorandum of 2 February 2017

On 2 February 2017, Italy signed a highly controversial Memorandum of Understanding on Cooperation in the Field of Development, Fight against Illegal Immigration, Trafficking in Human Beings and Smuggling and on Enhancement of Border Security¹ with Fayez Mustafa Serraj, President of the Council of the Libyan Government of National Accord.² The intensification of crossings through the Central Mediterranean Route to Italy in 2016, due to the closure of the Balkan route and the implementation of the EU-Turkey deal,³ is the reason for the new policy approach aimed at stopping sea arrivals at any cost, in a misguided attempt to deal with the growing hostility of Italian public opinion vis-à-vis migrants. Italy’s initiative was very welcomed by the European Union, which, in the Malta Declaration of 3 February 2017, expressed its explicit endorsement of the MoU and its readiness to support Italy in its implementation.⁴

As pointed out, “the key commitments of the partnership… is to resume the cooperation between Italy and Libya on security and irregular migration according to past bilateral agreements”,⁵ i.e. the Treaty of Friendship, Partnership and Cooperation signed in 2008 between Italy and Libya,⁶ which had opened the door to the push-backs of boat-refugees to Libya in 2009. This resulted in the well-known 2012 Hirsi judgment of the ECtHR,⁷ concerning the interception at sea and push-backs to Libya of eleven Somalians and thirteen Eritreans by the Italian Revenue Police (Guardia di Finanza) and the Coastguard. With this judgment, the ECtHR condemned Italy for violation of Article 3 ECHR (prohibition of torture and inhuman and degrading treatment), Art. 4 of Protocol No. 4 (prohibition of collective expulsions), and Article 13 (right to an effective remedy) taken in conjunction with Arts. 3 and 4 of Protocol No. 4. The 2008 Treaty had been suspended in 2011 after the fall of the Gaddafi regime and the subsequent civil war.

The 2017 MoU is composed of 8 articles and a preamble. Articles 1 and 2 outline the obligations of the parties; Article 3 envisages the institution of a mixed committee to implement the MoU; Article 4 concerns the financing; Article 5 contains a referral to international obligations and human rights; and Articles 6 to 8 regard the amendment procedure, the settlement of disputes and the duration of the agreement (three years).

First of all, it must be said that the memorandum adopts an unacceptable language, both from a formal and a substantial point of view. Indeed, it refers always to “illegal” or “clandestine” migrants, although the General Assembly of the United Nations has recommended the use of the terms “undocumented” or “irregular” migrants since 1975.⁸ But what is more disquieting is the fact that it does not make any reference to refugees and asylum seekers, even though it is well known that migration flows from Libya are mixed.

Moreover, it is quite vague with regard to the amount and origin of funding,⁹ simply stating that Italy will provide for the financing of the initiatives, in addition to making use of available funds from the European Union, “without additional obligations for the Italian State’s budget”. This provision was probably introduced to avoid allegations of violation of Article 80 of the Italian Constitution, which provides that treaties entailing expenses not included in the national budget cannot be concluded in simplified form but require the authorization of Parliament. However, as noted,¹⁰ since Article 80 of the Italian Constitution also states that “treaties of political nature” must be concluded in solemn form, and given that the MoU involves fundamental foreign policy choices of great political relevance, an allegation of violation of Article 80 of the Italian Constitution is not precluded by the formulation of Article 8.¹¹ Indeed, in February 2018, a claim was lodged before the Constitutional Court by four Italian deputies. In July 2018, the Constitutional Court declared the recourse inadmissible without examining it on merits¹² as it concerns “prerogatives which – by specific Constitutional requirement – is the responsibility of the Assembly as a whole, not its individual component. Only the Assembly may assess whether to take action regarding possible violations”.¹³

The core of the deal is represented by Articles 1 and 2, which state in very clear terms that the Parties agree to start cooperation initiatives with the explicit aim of stemming the illegal migrants’ fluxes¹⁴ and that to this end, Italy will provide, inter alia, “technical and technological support to the Libyan institutions in charge of the fight against illegal immigration …”, finance “reception centres already active” and train Libyan personnel.

As will be analyzed in the next paragraph, the most critical aspect of the MoU is the complete indifference to human rights, notwithstanding the rhetorical reference to human rights provided for in Article 5 of the MoU. Libya is not a signatory of the 1951 refugee Convention, a domestic regime for people in need of international protection is completely lacking and, above all, widespread violations and abuses vis-à-vis migrants in Libya had already been attested to by the European Court of Human Rights (ECtHR) in the abovementioned Hirsi judgement. With this decision, the Strasbourg Court found Italy responsible for violation of Article 3 of the European Convention on Human Rights (ECHR) for having taken intercepted migrants back to Libya specifically because of the inhuman treatment to which those people were subjected once they returned, with regard both to the conditions in the Libyan detention centres and to the risk of being sent back to the countries from which they were fleeing (indirect refoulement). Since that time, the risk of abuse of migrants in Libya has become increasingly worse, as will be examined in the next paragraph. Nevertheless, not only is any positive conditionality missing from the 2017 MoU (i.e. there is no clause making the aid subject to the improvement of human rights conditions and to the ratification of the Geneva Convention), but the cooperation aims explicitly at empowering Libyan authorities to pull migrants back to the hell in Libya. The only difference with the Hirsi case is that Italy will not be doing so by itself, aware that this might be contrary to the ECHR, but will be providing technical, technological and financial aid to Libya, in effect attaining the same result. In other words, Italy is doing “refoulement by proxy”,¹⁵ to circumvent the prohibition unequivocally affirmed by the ECtHR in the abovementioned Hirsi judgment. An unambiguous confirmation of this is in the words of Italian Admiral Enrico Credendino, who in an interview for the Italian magazine, Internazionale,¹⁶ stated:

We will create a Libyan system capable of stopping migrants before they reach international waters, as a result it will no longer be considered a push-back because it will be the Libyans who will be rescuing the migrants and doing whatever they consider appropriate with the migrants¹⁷.

The aim of this work is precisely to demonstrate that European States – in this particular case, Italy – cannot shift their responsibility under international law to Third States, at least with respect to the rule of customary international law prohibiting torture and inhuman treatment, which, as anticipated, will be the focus of this work.¹⁸ Of course, in the specific case under examination, the best way of respecting human rights should have been to give no support at all to Libya. In point of fact, during the months of July and August 2017, Libya started to implement the said agreement and arrivals of migrants to Italy’s coast decreased significantly. Such a result, however, was reached at the expense of migrants’ human rights, since, as examined in the next paragraph, people pulled back to Libya were (and still are) exposed to very serious violations of human rights.

1 Italian text available at http://www.governo.it/sites/governo.it/files/Libia.pdf; unofficial translation in English at http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf (accessed on 30 November 2018).

2 The Libyan Government of National Accord, born in January 2016, has been recognized as “the sole legitimate government of Libya” not only by the UN (whose mediation was essential for the establishment of the said Libyan Government), but also by the African Union, the EU and many states, including Italy. Since 2014, however, Libya has been divided into competing political and military factions and during the second half of 2018, instability became increasingly worse.

3 See part II, § 1.2.

4 See Malta Declaration, para. 6 lett. i), available at https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/ (accessed on 7 October 2018). The EU scenario will be further explored in the second part of this work.

5 See Palm, Anja, “The Italy-Libya Memorandum of Understanding: The Baseline of a Policy Approach Aimed at Closing All Doors to Europe?”, in EU Immigration and Asylum Law and Policy, 2 October 2017, available at http://eumigrationlawblog.eu/the-italy-libya-memorandum-of-understanding-the-baseline-of-a-policy-approach-aimed-at-closing-all-doors-to-europe/ (accessed on 7 October 2018).

6 Ronzitti, Natalino, “Italia-Libia: il Trattato di Bengasi e la sua effettiva rilevanza”, in Affari Internazionali Blog, 14 July 2018, available at http://www.affarinternazionali.it/2018/07/italia-libia-trattato-bengasi/ (accessed on 7 October 2018).

7 See supra p. 4, note 9.

8 Since Resolution 3449(XXX) Measures to improve the situation and ensure the human rights and dignity of all migrant workers, available at http://repository.un.org/handle/11176/151614 (accessed on 7 October 2018).

9 See Palm, cit.

10 Mancini, Marina, “Italy’s New Migration Control Policy: Stemming the Flow of Migrants from Libya Without Regard for Their Human Rights”, in Italian Yearbook of International Law, Vol. XXVII, 2018, p. 262.

11 On compliance with internal rules concerning the procedur...