Seeking Protection in Europe: Refugees, Human Rights, and Bilateral Agreements Linked to Readmission

This thesis lies at the junction of migration control and refugee protection. As asylum is a migration-related matter, it can be difficult for States to dissociate it from the fight against irregular immigration. Asylum, as a measure for protecting refugees and other persons in need of international protection, may thus easily come into conflict with policies and practices derived from strict border control considerations. This thesis concentrates upon this tension and aims, primarily, to investigate - with a specific focus on the European Union (EU) geographical context - whether the implementation of bilateral agreements linked to the readmission of irregular migrants can hamper refugees’ access to protection, understood here as the combination of the right to non-refoulement and an individual’s right to have access to asylum procedures and effective remedies before return. The material content and the normative scope of these protection standards is thus analysed through the lens of international refugee and human rights law and in respect of the traditional rules of treaty interpretation. The central objective of this thesis is to develop the concept of agreements linked to readmission by broadening – to my knowledge, for the first time - the scope of legal analysis to the multifaceted framework of bilateral cooperation arrangements connected to the readmission of irregular migrants from the EU to third countries of origin or transit. This encompasses written accords employed to facilitate the forced return of undocumented migrants from the territory of an EU Member State (standard readmission agreements and diplomatic assurances on the fair and humane treatment of the deportee, especially if formalized within MoUs), and those agreements for technical and police cooperation that are de facto utilized by EU Member States to divert migrants back to the ports of departure before they arrive to the destination country. In order to fully understand the real impact of bilateral agreements linked to readmission on refugee rights, it is necessary to acknowledge that the study of legal texts alone will not suffice in gaining a sufficiently comprehensive approach. Rather, equal attention has also to be accorded to the implementation of the law, and, as a result, a number of case studies have been incorporated as an integral element of the methodological framework. This thesis concludes that the text of agreements linked to readmission does not seem to raise per se issues of incompatibility with core refugee rights. However, in situations of informal border controls, massive arrivals, public emergency, and pre-arrival maritime interceptions, the enforcement of these bilateral agreements can de facto hamper refugees’ access to protection. Therefore, this thesis will make a number of recommendations as a platform for further discussion among legal scholars and policy-makers

State Responsibility Beyond Borders: What Legal Basis for Italy’s Push-backs to Libya?

This article takes Italy’s widely-debated 2009 push-backs to Libya campaign as a point of reference to address whether bilateral agreements for technical and police cooperation provide the legal foundation for the forced return of intercepted refugees to countries of embarkation. Through a detailed analysis of both the facts and the texts of the published and unpublished bilateral accords, it concludes that, although push-backs do not have a clear legal basis, the agreements between Italy and Libya constitute a fundamental component of the multifaceted legal and political framework underpinning Italy’s practice of interdiction and return. Moreover, by entrusting a non-EU third country with the authority and legal competence for the maritime operations, bilateral agreements for migration control may distance the responsibility (for international wrongful acts) of the outsourcing state. Migrants and refugees are autonomously intercepted by the third country in international waters, or in its coastal waters, before their arrival at the EU’s gateways. By venturing into the labyrinth of state responsibility in general international law, this article considers Italy’s possible liability for ‘aiding and assisting’ Libya, in a variety of ways, in the unlawful containment of irregular migration by sea and the resulting refoulement of intercepted refugees

Watered-Down Rights on the High Seas: Hirsi Jamaa and Others v Italy (2012)

On 23 February 2012, the European Court of Human Rights (the Court), sitting as a Grand Chamber, delivered its long-anticipated judgment in theHirsi Jamaa and Others v Italy(Hirsi) case.1The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of 231 migrants and refugees (191 men and 40 women) that left Libya heading for the Italian coast. Halted on 6 May 2009 by three ships from the Italian Revenue Police (Guardia di Finanza) approximately 35 miles south of Lampedusa on the high seas, in the SAR zone under Maltese competence, they were summarily returned to Libya without identification and assessment of their protection claims.2</jats:p