Dissertation

Extraterritoriality and the future of the refugee

regime: an Italian case study

Bsc International Politics Project – 2011/2012

Clarissa Crippa

090014695

ABSTRACT

The present paper is analysing the policy of extraterritoriality, which refers to the practice of

establishing centres for processing asylum applications outside the external borders of the state that is

the final destination of the asylum seekers, hence appearing as a measure employed by the states to

exercise borders’ control outside their own sovereign territory. As it will be claimed, this way of de-

territorialising the asylum regime, coupled with recent phenomena such as the securitization of

migration and the growing importance of domestic political concerns in the making of national

migration policies, presents a number of important issues and has very profound consequences on the

status of the global refugee regime. The paper will avail itself of a case study of Italian migration

policies and practices and especially of its cooperative relationship with Libya: it will be

demonstrated that, although much has been said about the co-management of migrants between the

two countries in terms of extraterritoriality, the term does not seem to provide the best definition for

what are largely seen as ‘collective expulsions’ of third-country nationals from Italy to Libya. In so

doing, this paper will commence, after having provided a theoretical framework through which the

case study will be analysed, by examining the global refugee regime and the role of the 1951 United

Nations Convention Relating to the Status of Refugees and of the United Nations High

Commissioner for Refugees (UNHCR). The following chapter will deal with the management of

migration policies at the level of the European Union and of Italy; subsequently, the practice of

extraterritoriality will be analysed, and the case study of the relationship between Italy and Libya will

be presented. The ultimate aim of this research is to demonstrate that extraterritoriality is a very

contested practice that calls into question some of the fundamental pillars of the global refugee

regime and that, when it is applied as in the context of Italy and Libya, it risks to profoundly

jeopardise global standards of refugee protection.

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TABLE OF CONTENT:

Extraterritoriality and the future of the refugee regime: an Italian case study

1. Introduction

1.1. Problem statement

1.2. Aims and objectives

1.3. Methodology

1.4. Limitations

2. Theoretical framework and literature review

3. Chapter 1 – The refugee regime: introduction and general considerations

3.1. The 1951 Convention

3.2. The role of the UNHCR

4. Chapter 2 – The management of migration and refugee policies- the European

Union and Italy: the importance of being Southern?

4.1. The EU migration and refugee regime

4.2. Migration and refugee policies in Italy

5. Chapter 3 – Extraterritorial processing of asylum requests: development of a

contested practice

6. Chapter 4 – Extraterritoriality in the context of Italy and Libya: externalisation of

asylum procedures or denial of asylum rights?

7. Conclusion

Appendix

Bibliography

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1. Introduction

1.1. Problem statement

It is necessary to begin this paper with the core definitions of the

fundamental terms related to the research that has been undertaken. This

section is hence meant to clarify the definitions of refugee, refugee

regime and extraterritoriality that have been adopted to conduct my

research.

With regard to the term ‘refugee’, the definition universally adopted is

the one provided by Article 1 of the 1951 Convention Relating to the

Status of Refugees, which, as amended in the 1967 Protocol, states that

“ The term ‘refugee’ shall apply to any person who […] owing to a well-founded fear

of being persecuted for reasons of race, religion, nationality, membership of a

particular social group or political opinion, is outside the country of his nationality

and is unable or, owing to such fear, is unwilling to avail himself of the protection of

that country; or who, not having a nationality and being outside the country of his

former habitual residence as a result of such events, is unable or, owing to such fear,

is unwilling to return to it”.. 1

The 1951 Convention is considered to be the centrepiece of the refugee

regime, a protection regime that, for the purpose of this dissertation, will

1 1951 Convention Relating to the Status of Refugee, Art.1

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be considered as the regime founded on the norms of asylum, non-

refoulement and burden-sharing 2 - although it will be demonstrated that,

while the former have a strong and widely accepted legal basis, the latter

is not clearly defined and indeed extensively contested 3 . A regime is here

classically understood as the implicit or explicit set of “ ‘principles,

norms, rules and decision-making procedures’ around which the

expectations of actors converge in a given area of IR” 4 .

The principle of non-refoulement, which is nowadays a solidly grounded

customary rule in international law 5 , requires that states that are part to

the 1951 Convention do not forcibly return a refugee to states where he

or she might either not enjoy the same degree of protection or face a well-

founded fear of being persecuted.

The practice of extraterritoriality with which the research is dealing is

especially problematic when looked at through the lenses of the norm of

non-refoulement. The term refers to the practice of establishing centres

for processing asylum applications outside the external borders of the

state in question, being hence understood as a way of exercising borders’

control outside the sovereign territory of the state: in the case of EU

2 The term ‘burden-sharing’ refers to “the obligations of states to contribute to the protection of

refugees who are in the territory of another state” (Betts, A. 2009:2-3) 3 Betts, A. (2009) Protection by Persuasion, London: Cornell University Press; Betts, A. (2005),

International Cooperation Between North and South to Enhance Refugee Protection in Regions of

Origin, RSC Working Paper No. 25 4 Krasner, 1983 as cited in Betts, 2009 p.9

5 Goodwin-Gill, G.S. (2011) “The Right to Seek Asylum: Interception at Sea and the Principle of Non-

Refoulment”, International Journal of Refugee Law, Vol. 23 (3)

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Member States externalisation implies the establishment of centres in

North African countries, for example, or in the Balkan area 6 . The

practice, which is considered as stemming both from domestic political

concerns 7 and, especially in the case of the European Union, from the

abolition of internal borders, which automatically required the

strengthening of external ones 8 , is seen as presenting both legal and

practical issues.

The research that has been undertaken will mainly deal with these legal

and practical issues associated with the practice of external processing:

leaving aside the claim that extraterritoriality is a means to escape Human

Rights obligations 9 , it will be argued and demonstrated that

“externalization has the potential to be illiberal, indeed to be the

fulfilment of a policy of neo-refoulement” 10

.

1.2. Aims and objectives

6 Andrijasevic, R. (2009) “Deported: the right to asylum at EU’s external border of Italy and Libya”

International Migration, 48 (1) 7 Garlick, M. (2006) “The EU discussion on extraterritoriality”, International Journal of Refugee Law,

October 2006 8 Afeef, K.F. (2006) “The politics of Extraterritorial processing: Offshore Asylum Policies in Europe

and in the Pacific”, RSC Working Paper No. 36 9 ibid

10 Levy, C. (2010) “Refugees, Europe, camps/State of Exception: ‘Into the Zone’, the European Union

and Extraterritorial Processing of Migrants, Refugees, and Asylum-Seekers (Theories and Practice)”,

Refugee Survey Quarterly, 29 (1), p. 97

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The case study of the relationship between Italy and Libya has proven to

be one of the best existing examples upon which to construct an

investigation of the current status of the refugee regime in light of the

practice of extraterritoriality. Italy is in fact both a member of the

European Union and a signatory of the 1951 Convention and of its 1967

Protocol while Libya has, at now, not signed any of these documents,

thus representing a country where refugees do not enjoy any degree of

protection. In addiction, Italy, together with Spain, represents what is

defined as a ‘gateway country’ to Europe, one that due to its geographical

position has experienced very high levels of immigration and protracted

refugee situations 11

. Notwithstanding being part of the 1951 Convention,

since 2004 Italy has started to deport migrants from its southern island of

Lampedusa to Libya, and, after following bilateral treaties, to directly

prevent migrants from fleeing Libya through a programme that permits

Italian boats to patrol Libyan coasts 12

.

My research is aimed at investigating these practices. Without discarding

the reasons that led to the development of extraterritoriality - the

11

Kneebone, S. McDowell, C. and Morrell, G. (2006) “A Mediterranean Solution? Chances of

Success”, International Journal of Refugee Law, Vol. 18 (3-4) 12

After the refoulment practices have been stopped by critics, Italy has found a new loophole to return

migrants who have already left Libyan coasts through the so-called ‘push backs’ [Klepp, S. (2010b) “A

Contested Asylum System: The European Union between Refugee Protection and Border Control in

the Mediterranean Sea”, European Journal of Migration and Law, Vol. 121]. For a precise account of

this practice, refer to the Appendix of this research.

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importance of domestic political concerns, the securitization 13

of

migration 14

, the transformation of asylum from a legal to a political issue

and the very construction of the phenomenon of migration by Italian

policymakers 15

-, the following dissertation will argue that the practice of

externalisation endangers and weakens the refugee regime. The objective

of the subsequent investigation is to demonstrate how and why this

practice weakens the refugee regime, after having discovered whether the

expulsions from Italy to Libya can be defined as a form of externalisation

of asylum procedures or if, since Libya does not have any defined asylum

system nor any refugee protection scheme, it is instead the case of a

dangerous complete abolishment of the refugee regime 16

.

1.3. Methodology

The research approach that is most appropriate for the conduct of this

research is a qualitative analysis of books, academic journal articles,

official reports and NGOs’ papers.

13

According to the Copenhagen School, the process of “securitization” is intended as one through

which a securitizing actor, for example a government, constructs an already politicized issue as an

existential threat to a specific referent object and asserts that extraordinary measures- outside to normal

realm of the law- have to be adopted in order to face the threat. [Emmers, R. (2010) “Securitization” in

Collins, A. ed. (2010) Contemporary Security Studies, Oxford: OUP] 14

Hyndman, J. and Mountz, A. (2008) “Another Brick in the Wall? Neo-Refoulment and the

Externalization of Asylum by Australia and Europe”, Government and Opposition, Vol.43 (2). 15

See for an exhaustive account of the construction of the phenomenon of migration to Europe: De

Haas, H. (2008) “The Myth of Invasion: the inconvenient realities of African migration to Europe”,

Third World Quarterly, Vol. 29 (7) ; Geddes, A. (2008) “Il rombo dei cannoni? Immigration and the

centre-right in Italy”, Journal of European Public Policy, Vol. 15 (3) 16

Klepp, S. (2010b) ; Andrijasevic, R. (2009)

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I will draw on a number of books related to the subject, even though the

majority of the sources will consist of journal articles, for they appear to

be more updated especially in relation to EU legislations and practices.

As such, in terms of secondary sources, published books will be useful

insofar as they provide the more general theoretical framework and the

background on migration and on the refugee regime in which to insert the

specific case study that I am analyzing. On the contrary, with regards to

the case study of Italy and to the practice of extraterritoriality, academic

journals have provided to the researcher a wider range of updated data

and information on which to rely. Among the others, these key journals

have been looked through for material: International Journal of Refugee

Law, Journal of Refugee Studies, Government and Opposition and

European Journal of Migration and Law.

One of the strengths of this investigation is the diversity of the sources

that I am going to draw on in order to gain an objective and hopefully

unbiased perspective on the issue that will be covered: as such, besides

published books and journal articles, among the primary sources many

official EU documents will be cited, and a variety on NGOs’ papers

treating the issue of extraterritoriality and the relationship between Italy

and Libya will be mentioned, with Amnesty International and Human

Rights Watch being the organizations providing the majority of reports

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and documents. Moreover, these sources are advantageous insofar as they

will contribute to this dissertation with a unique overview of accounts of

refugees who have been subject themselves to the practice of

extraterritorial processing of asylum claims, mainly in Libya.

Obviously, as for the crucial role that the UNHCR plays in dealing with

refugees, the organization’s website will be looked at for relevant

material and updates throughout the completion of this research and a

number of UNHCR documents (evaluation reports, operational reviews

and suggestions to the Italian government) will be employed.

In general, UNHCR papers, similarly to NGOs papers, have the

advantage of being focused on more practical issues than academic

sources and of providing what could be called ‘the other side of the coin’

view on the reality of the day-to-day activity of the Italian government.

This will hopefully provide the researcher with a wider and more precise

viewpoint on the issue of extraterritorial processing of asylum requests

and, more in general, of the whole refugee regime.

1.4. Limitations

Throughout the investigation process a number of difficulties have arisen.

The analysis of the relationship between Italy and Libya has especially

proven hard as the availability of material on this North-African country

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is limited and the majority of the one available derives from NGOs, thus

risking to be biased. Moreover, the Arab Spring and the subsequent

revolution in Libya that resulted in the overthrow of Gaddafi’s regime,

besides having caused a sharp increase in the number of migrants and

asylum seekers reaching the Italian coasts 17

, led to a change of regime

which is expected to modify Libya’s legislation, also for what concerns

its migration regime. The post-conflict transition in the country is in fact

expected to open up new opportunities for Human Rights and for the role

of the law, but the overall political situation remains at the time of this

research still uncertain and unpredictable 18

; this investigation will hence

mainly refer to Libya as under Gaddafi’s regime.

2. Theoretical framework and literature review

The literature regarding the general issue in question - refugee protection

and the practice of extraterritoriality- is wide, even though, as for the

specific case of Italy, academic resources are not so easy to find. Thus, in

forming the theoretical framework of my investigation, the argument will

17

See Nascimbene, B. and Di Pascale, A. (2011) “The ‘Arab Spring’ and the Extraordinary Influx of

People who Arrived in Italy from North Africa”, European Journal of Migration and Law, Vol. 13;

according to the 2010-2011 SPRAR (Sitema di Protezione per I Richiedenti Asilo e I Rifugiati -

Protection System for Asylum Seekers and Refugees) Annual Report in the first semester of 2011 the

requests for international protection in Italy increased by 102% with respect to the same semester of the

previous year as a consequence of the unrests in North African countries [full report available at

http://www.serviziocentrale.it/file/server/file/Rapporto%20Annuale%20SPRAR%20-

%202010_2011.pdf] 18

UNHCR 2012 country operations profile – Libya, available at

http://www.unhcr.org/pages/49e485f36.html

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draw on a number of authors that deal with issues of migration, refugees

and with the EU migration and asylum regimes. As for the specific case

study on which my dissertation is built upon, my research has highlighted

a gap in the literature, which this analysis will try to cover.

A classical theoretical approach to refugee studies is that offered by

Alexander Betts: Betts provides a very helpful attempt to draw on IR

theory to understand the international politics of refugee protection.

Applying a classical version of neoliberal theory to the issue of refugee

protection, Betts maintains that the global refugee regime should be

understood as a global public good - one that possesses the qualities of

non-excludability and non-rivalry- and that it must be looked at within

the framework of either the classic prisoner dilemma or of a more

sophisticated version of it, the suasion game -in which the North-South

impasse that characterizes the regime is more evident 19

. According to the

model provided by the ‘suasion game’, differently than in the classic

prisoner dilemma, the actors involved in the process have diverse

interests and an asymmetrical power relation: the weakest actor –the

Southern states in this case- thus seems to have little choice but to

cooperate with its stronger counterpart as its bargaining power is

19

With the expression ‘North- South impasse’ Betts means the condition in which “Southern states

have had de facto responsibility for refugee protection, but Northern states have had little obligation or

incentive to share this responsibility” thus creating a deadlock in refugees’ protection (Betts, 2009:13)

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supposed to be limited 20

. Read through this lens, EU bilateral relations

with North African countries and bilateral agreements on the regulation

of migration appear to be the result of the heavy economic dependency of

these countries on Europe: however, as this research will demonstrate, the

model is far more complicated, as for even in this situation of ‘suasion

game’ the weakest actor does possess a strong bargaining power, for

migration is considered an hot topic in European countries’ political

agenda and for the ever growing importance of oil in European

economies 21

.

Hence, for the complexity of the topic covered, Betts’ very liberal

understanding of the refugee regime does not seem to offer the best

instruments on which to draw, especially for the specific case study that

this analysis is dealing with.

On the contrary, the Italian political philosopher Giorgio Agamben

provides a very critical and profoundly interesting approach to the issue.

Drawing on the thoughts of Michael Foucault, Carl Schmitt and Hannah

Arendt, Agamben represents the category of the refugee as the

disquieting element that “puts the originary fiction of modern sovereignty

20

ibid

21 Afeef, K.F. (2006)

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in crisis” 22

. The central importance that is ascribed to the figure of ‘the

refugee’, which is indeed considered to be the best symbolic

representation of the fiction upon which modern sovereignty is built 23

,

and to the structure of ‘the camp’, which ultimately destroys the classical

trinity of state/nation/territory that constitutes this very form of

sovereignty 24

, makes Agamben’s work of crucial importance for any

analysis of the refugee regime in general and for the Italian case study in

particular. Agamben’s view of the camp as ‘the state of exception’, an

area outside the normal juridical dimension, which creation is justified by

discourses about emergency derived from the very process of the

construction of the phenomenon of migration 25

, falls in line with the way

in which the “Centres for identification and expulsion” (CIEs) 26

are

understood in the literature by a number of authors. Andrijasevic for

example understands these centres as places where the illegality and

hence the condition of deportability of migrants is constructed, in a limbo

22

Agamben, G. (1998) Homo Sacer: Sovereign Power and Bare Life, Stanford: University Press, p.

131 23

See Agamben, G. (1995) “We refugees”, Symposium, No. 49 Vol.2 ; Owens, P. (2009) “Reclaiming

‘Bare Life’? Against Agamben on Refugees”, International Relations, Vol. 23(4) 24

Owens, P. (2009) 25

In this sense, it can be argued that Agamben’s understand the construction of migration as a process

of securitization, that implies that extraordinary measures outside the normal operational realm have to

be undertaken 26

The term refers to the centres in which migrants are held upon their arrival in Italy, for a limited

period of time during which their status is examined. These centres were before named CPTA:

temporary stay and assistance centres (Centri Permanenza Temporanea e Assistenza). It is worth

mentioning the very importance of the discourse in framing the issue of migration in Italy; while the

centres were before labelled as ‘ temporary stay and assistance’ centres, their name was subsequently

changed into ‘identification and expulsion’ centres, marking a clear change of perspective on the issue

of migration.

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which lies outside the juridical dimension of the Italian state 27

. Moreover,

Agamben’s idea of modern politics as ‘biopolitics’, a politics in which

‘bare life’ “takes centre stage in the states’ concerns and becomes its

terrestrial foundation” 28

, appears to be central to the analyses of a number

of other important authors 29

. Since refugees are understood in

international law as a category of citizens who do not enjoy protection

from their own government – this being the feature that really

distinguishes refugees from for example stateless persons or economic

migrants- the very notion of refugee is believed to derive from, on the

one hand, notions of universal human rights and, on the other, the norm

of state’s sovereignty, and to be representative of the tensions that exist

between these two norms.

The work of Catherine Dauvergne, even though it is focused on the more

general issue of migration and not particularly on the global refugee

regime, provides an interest insight on the phenomenon of the

construction of the illegality of migration:

“we are currently witnessing the ‘illegalization’ of migration. This is made up in part

of the increasing regulatory focus on extralegal migration, in part by the rhetoric and

27

Andrijasevic, R. (2009) 28

Agamben, G. (1995) 29

See Andrijasevic, R. (2010) “From Exception to Excess: Detention and Deportations across the

Mediterranean Space” in de Genova, N. and Peutz, N. (eds.) The Deportation Regime: Sovereignty,

Space, and the Freedom of Movement, Duke University Press ; Muller, B. (2004) “Globalization,

Security, Paradox: Towards a Refugee Biopolitics”, Refuge: Canada’s Periodical on Refugee, vol. 22

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hyperbole of constructing the accompanying moral panic, and in part by the

migration flows themselves. It is a potent mixture.” 30

Together with authors who focus on the Italian migration regime 31

,

Dauvergne’s work will be especially useful for a number of reasons: it

provides a precise account of the construction of the phenomenon of

migration in Western states and it empowers this investigation with an

accurate legal background. Moreover, this same legal framework will

prove very useful when analysing the legal status of refugees - who

according to Article 31 of the 1951 Convention should not be penalized

for entering a country illegally 32

- especially in light of recent changes in

Italian immigration law 33

.

The investigation which I am going to undertake will obviously deal also

with the European Union migration regime and asylum legislation:

among the others, the work of authors such as Levy, Garlick, Haddad,

30

Dauvergne, C. (2008) Making People Illegal: What Globalization Means for Migration and Law,

Cambridge: University Press, p. 2 31

Geddes, A. (2008) ; Carbone, M. and Coralluzzo, V. (2009) “The Politics of Italian Foreign Policy in

the Mediterranean”, Mediterranean Politics, Vol. 14 (3) ; Finotelli, C. and Sciortino, G. (2009) “The

Importance of Being Southern: The Making of Policies of Immigration Control in Italy”, European

Journal of Migration and Law, Vol. 11 32

UNHCR 1951 Convention, Article 31. - Refugees unlawfully in the country of refuge:

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on

refugees who, coming directly from a territory where their life or freedom was threatened in the sense

of article 1, enter or are present in their territory without authorization, provided they present

themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than

those which are necessary and such restrictions shall only be applied until their status in the country is

regularized or they obtain admission into another country. The Contracting States shall allow such

refugees a reasonable period and all the necessary facilities to obtain admission into another country. 33

I am here referring mainly to the legge Bossi-Fini (law n. 189/2002). For a precise account see

Finotelli, C. and Sciortino, G. (2009)

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Gil-Bazo and Moreno-Lax 34

will be looked through in order to create a

coherent and solid background on which to build my case study. Levy

(2010) provides an extremely useful and very updated historical

background of the discussion about extraterritoriality at the EU level, to

which Garlick (2006) piece is complementary for the in depth analysis of

both the harmonization process of migration policies within the EU and

of the external dimension of the EU migration regime, through which the

practice of extraterritoriality has to be read.

34

Levy, C. (2010); Garlick, M. (2006); Haddad, E. (2008) “The External Dimension of EU Refuge

Policy: a New Approach to Asylum?”, Government and Opposition, Vol. 43 (2) ; Gil-Bazo, M.T.

(2006) “The Practice of Mediterranean States in the context of European Union’s Justice and Home

Affairs External Dimension. The Safe Third Country Concept Revisited”, International Journal of

Refugee Law, Vol. 18 (3-4) ; Moreno-Lax, V. (2011) “Seeking Asylum in the Mediterranean: Against a

Fragmentary Reading of EU Member States’ Obligations Accruing at Sea”, International Journal of

Refugee Law, Vol. 23 (2)

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3. Chapter 1 – The refugee regime: introduction and general

considerations

As already mentioned in the introductory section of this paper, the

refugee regime is mainly built around the UNHCR ‘Convention and

Protocol Relating to the Status of Refugees’. This document, which

represents the most comprehensive codification of refugees’ rights at the

international level, entered into force on 22 April 1954 and was by hence

subjected to only one amendment, the 1967 Protocol, which conferred the

Convention universal coverage by removing its geographical and

temporal limit 35

. The refugee regime is commonly believed to be formed

of three main components: definitions, that are crucial to determine who

falls under the category of refugee and who does not; a body of law, that

at the international level is primarily constituted by the 1951 Convention;

and a series of implementing actors, among which the UNHCR and

sovereign states play a primary role. 36

It is worth here mentioning that, as Betts maintains, refugee protection is

not solely an issue of human rights and international law, but is instead

one that matters for international security as well, as a fully functional

35

UNHCR Convention and Protocol Relating to the Status of Refugees; in order to limit states’

obligation towards refugees, according to the 1951 Convention, the definition of refugee was to be

limited to those who became refugees as a consequence of events occurring before 1 January 1951 in

Europe. These limits where however amended by the 1967 New York Protocol (see

http://untreaty.un.org/cod/avl/ha/prsr/prsr.html for further clarifications) 36

Ferris, E.G. (1993) Beyond Borders – Refugees, Migrants and Human Rights in the post-Cold War

era, Geneva, WCC Publications

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system of refugees’ protection is believed to reduce the number of people

that, by falling outside the state system, could represent a potential source

of threat 37

. In this sense, looking at the very role of the UNHCR is helpful

for better understanding the political importance of the refugee regime:

the Office of the High Commissioner for Refugee was in fact established

in 1950 with a temporary mandate and as a mainly legal actor 38

, but over

time its mandate has consistently evolved and expanded to the extent that

the UNHCR is today largely considered as having transformed into a

more politicized humanitarian actor 39

.

3.1. The 1951 Convention

Being the only binding legal instrument at the international level to deal

with the problem of refugees – at the regional level, other important

binding legal instruments dealing with refugees are the 1969 African

Convention and the Dublin II Regulation (Council Regulation (EC) No

343/2003) -, the 1951 Geneva Convention and its 1967 Protocol are

mainly built around three norms: asylum, non-refoulment and burden

sharing. States who have ratified the Convention and the Protocol - 142 at

the time of this research- have committed to adopt a standard procedure

to determine whether a person is a refugee, and, once the refugee status

37

Betts, A. (2009) 38

ibid. 39

Phoung, C. (2005) “The Office of the United Nations High Commissioner for Refugees and

Internally Displaced Persons”, Refugees Surveys Quarterly, Vol. 24, No. 3; Betts, A. (2009)

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has been granted to that person, not to send him/her back to countries

where he/she could not enjoy protection from the state apparatus 40

. For

the purpose of this dissertation, among the most important features of the

1951 Convention are its Article 33 and Article 31, for the case study of

Italy and Libya will deal mainly with the norm of non-refoulment as

stated in Article 33 and will touch upon the issue of refugees unlawfully

entry the country of refugee as dealt with by Article 31 of the

Convention 41

. Crucially, the norm of non-refoulment is considered to be

today not only a feature of the 1951 Convention, but instead a norm that

is solidly grounded in customary law – meaning that it can be applied

also to states that are not part to the Convention- and, in this light, even

more importantly, one that applies to the action of states wherever they

are undertaken, also outside their sovereign territory and in the high

seas 42

. With regard to Article 31 43

, as it will be further explained in the

following chapter, the legally binding norm that prohibits states to punish

a refugee for entering the country of refugee in an unlawful manner is

indeed challenged by the recent phenomenon of the ‘illegalization of

migration’, as maintained by Dauvergne (2008). According to Dauvergne

40

Dauvergne, C. (2008); this constitute the norm of asylum that lays at the foundations of the refugee

regime 41

UNHCR Convention and Protocol Relating to the Status of Refugees, Art. 33 - Prohibition of

expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the

frontiers of territories where his life or freedom would be threatened on account of his race, religion,

nationality, membership of a particular social group or political opinion. 42

Goodwin-Gill, G.S. (2011) 43

See note 32

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we are in fact living through an era that is witnessing an increasing

‘illegalization’ of migration: while throughout the twentieth century

migration was in the process of being legalized, the current era, as a

consequence of globalizing forces and of the subsequent states’

perception of loss of control over the events that are occurring, is

witnessing a process through which migration, and hence people who

migrate, are ‘made illegal’ 44

. This phenomenon obviously has important

consequences also on the state of the refugee regime, for the construction

of the illegality of migration touches upon those who break migration law

by entering the country of destination in an illegal manner: even though,

as for Article 31, refugees should not be punished for entering the country

of refugee illegally, this norm is believed to be increasingly under attack

and hence the whole refugee regime to be weakened by this phenomenon.

3.2. The role of the UNHCR

Any analysis of the refugee regime would be incomplete if attention is

not devoted to the role of the UNHCR. Established as a subsidiary organ

of the United Nations General Assembly by Resolution 319 (IV) of the

United Nations General Assembly of December 1949, the UNHCR was

set up, initially with a temporarily limited mandate, to provide, on a non-

political and humanitarian basis, protection for refugees and to seek to

44

Dauvergne, C. (2008)

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find for them permanent solutions, and still remains today the only

organization at the international level with a specific mandate to protect

refugees.

The operational behaviour according to which Betts (2009) believes the

UNHCR to function is very interesting for it helps to analyse the refugee

regime not solely from a legal point of view but also from an IR one. As

already mentioned, Betts maintains that refugee protection is of crucial

importance also for issues of international security: in this sense, since

international cooperation is crucial for the very existence of the regime,

the UNHCR is believed to play a “cross-issue persuasion” role 45

. The role

of the agency is thus to persuade states that voluntary contributions to the

refugee regime are linked to other issues that states consider of vital

importance for their own interest, such as for example national security.

More generally, however, the UNHCR’s role is one of protecting

refugees at the global level, mainly through cooperation with and

coordination of national governments 46

. However, although the UNHCR

is to be a non-political protection agency, the supervisory role with which

45

In the case of cross-issue persuasion “ the interconnections make it possible for actor A (UNHCR)

to credibly argue that action by actor B (a state) in issue area X (refugee protection) will lead to a

payoff for actor B in relation to issue area Y (migration, security or development), because the

institutional framework makes actor B’s actions in issue area X conditional on another actor acting in

ways that lead to a payoff for actor B in relation to issue area Y”, Betts (2009:43) 46

For a precise account of the duties of the UNHCR see UNHCR, Statute of the Office of the United

Nations High Commissioner for Refugees, Article 8 available at http://www.unhcr.org/3b66c39e1.html

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it is charged 47

coupled with its financial and political dependence on

states make the agency deeply politicised and limited by its member

states’ concerns about sovereignty 48

.

The very active role that the UNHCR plays and the very coordination-

dependent nature of the refugee regime will help better understand the

issues raised by the practice of extraterritoriality especially in relation to

the European Union.

4. Chapter 2 – The management of migration and refugee policies -

the European Union and Italy: the importance of being Southern?

The following chapter will briefly deal with the construction and

management of migration and refugee policies at the levels of both the

European Union and of Italy. However, the analysis of the European

Union will mainly serve as a general framework within which to insert

the Italian case study and as such will not be treated in depth, for such an

exercise does not seem to fall within the scope of this paper.

4.1. The EU migration and refugee regime

47

The supervisory role implies a direct presence of the UNHCR in countries of asylum, for it is

believed that effective monitoring can be achieved only through such a direct massive presence;

however, this is believed to often lead the agency to work in a position of compromise, for it inevitably

has to defer to the interests of its host states [Glover, T. and Russell, S. (2001) “Overseeing the Refugee

Convention; Working Paper No. 7: Coordination with UNHCR and States”, University of Michigan]

48

Glover, T. and Russell, S. (2001)

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When approaching an analysis of the migration regime of the European

Union, it is worth mentioning that the very process of the construction of

the EU single market and the subsequent abolition of internal borders that

permitted the free movement of people and goods throughout EU

countries inevitably required the strengthening of external borders and a

general tightening of migration policies 49

. It must be here noted that the

general aim of the EU asylum policy is two-folded: it is in fact aimed, on

the one hand, at controlling spontaneous movements into the Union, and

on the other hand at the prevention of secondary movements within the

Union once asylum seekers have reached its borders 50

. In this light it is

argued that the ultimate goal of the EU asylum policy is one of sealing its

external boundaries 51

. In addition to this, it must be remembered that

states’ decision to further strengthen their migration regimes and to

intensify border controls is also due to growing public fears about

irregular migration and to the link between mass migration and situations

of perceived insecurity 52

: migration is hence believed to be accompanied

by a phenomenon of ‘moral panic’ that leads states to respond to it with

an impulse to control 53

. It is hence argued that the process of

49

I am here mainly referring to the so-called policy of “non entrée”,a policy aimed at preventing

asylum seekers from reaching their destination country and making an asylum claim [Levy, C. (2010);

Gil-Bazo, M.T. (2006) ; Kneebone, S., McDowell, C. and Morrell, G. (2006)]. 50

Levy. C. (2010) 51

Gil-Bazo, M.T. (2006) 52

I am here referring to the process of the securitization of migration (see note 13) 53

De Haas, H. (2008); Dauvergne, C. (2008)

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harmonization of European migration legislations has mainly been the

consequence of a will to ‘crack down’ on extralegal migration 54

.

With regard to the specific EU refugee regime, Levy (2010) stresses that,

as the post-II World War refugees’ emergency led to the 1951 Geneva

Convention that created the global refugee regime, the 1999 Kosovo

crisis could have acted as a catalyst for the creation of a specific

European refugee regime and for the improvement of the norm of burden-

sharing at the EU level 55

. It is in fact mainly in the light of the Kosovo

crisis and of the subsequent refugees’ emergency that it was firstly

understood that some sort of managed migration system was needed

within the European Union 56

. Hence, from 1999 the process of

harmonization of migration policies within the EU began; what are being

harmonized through this recent process are “approaches to asylum, illegal

migration and the return of third-country nationals” 57

with the

commitment to develop a Common European Asylum System (CEAS).

However, the creation of the CEAS is still a work in progress, “a process

marked by conflicting restrictionist and liberal tendencies” which is “left

in a limbo of intentional ambiguity 58

”.

54

Dauvergne, C. (2008) 55

ibid 56

Garlick, M. (2006) 57

Dauvergne, C. (2008:144) 58

Levy, C. (2010:108)

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Garlick (2006) stresses the importance of two recent moments in EU

legislation process regarding migration and asylum policies, the first

being the entry into force in 1999 of the Amsterdam Treaty, followed in

2003 by the Dublin II Regulation (Council Regulation (EC) No

343/2003). The significance of the Amsterdam Treaty lies, for the scope

of this paper, in having developed legally binding measures on EU

countries on the grant of protection in the event of mass influxes, on the

entitlements available to asylum seekers and on the criteria for the

qualification of a refugee 59

. Moreover, it was the Treaty of Amsterdam

that made issues of immigration and asylum of central concern for the EU

- for they were explicitly linked with issues of freedom, security and

justice - and subject to direct EU regulatory capacity 60

. Pursuing and

pushing further the same goal, the Dublin II Regulation main aim is to

“identify as quickly as possible the Member State responsible for

examining an asylum application, to establish reasonable time limits for

each of the phases of determining the Member State responsible, and to

prevent abuse of asylum procedures in the form of multiple

applications 61

”. However, this regulation presents a profound

controversy: because it is in fact a general aim of the EU migration policy

59

ibid 60

Dauvergne, C. (2008) 61

Dublin II Regulation, Council Regulation (EC) No. 343/2003 available at

http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_

immigration/l33153_en.htm

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to prevent secondary movements within the Union, under normal

conditions the Member State responsible for dealing with an asylum

claim is to be the state through which the asylum seeker first entered the

EU; moreover, the regulation also contains a mechanism for removal to

that same country in case the applicant finds himself in another Member

State without permission 62

. As it will be analysed for the case of Italy,

hence, it is believed that the geographical position of a state inevitably

plays a role in the burden of refugees it has to deal with.

4.2. Migration and refugee policies in Italy

To begin with, it is worth remembering what has already been mentioned

in the introductory section of this paper: Italy represents, together with

Spain, because of its strategic geographical position, what is seen as a

‘gateway country’ to Europe by people attempting to reach the European

Union from North African countries 63

. Moreover, with specific regard to

the Italian migration regime, it is generally assumed in the literature that

the EU Southern states have a weaker migration regime if compared to

62

I am here referring to Chapter V, Article 16 (1) of the Dublin II Regulation 63

Kneebone, S., McDowell, C. and Morrell, G. (2006)

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the Northern Member States, thus representing “the weak underbelly of

the EU control system 64

”.

Due to its geographical position hence Italy is allegedly experiencing

large influxes of migrants reaching its southern coasts 65

: as a consequence

of the Dublin II Regulation, of the weakness of the principle of burden-

sharing and of the approach employed by the EU with regard to its

Southern states 66

, it will be argued that Italy has seen the development of

extraterritorial processing as the only viable option to deal with the issue

of mass migration 67

. However, in order to better analyse the current

situation of the Italian migration and refugee regime two facts must be

mentioned: on the one hand, Italy was never really a country of

immigration and became one only in the late 1980s with the real upsurge

in entries only taking place through the following decade; on the other,

the majority of the migrants reaching Italy are moved by economic

motives, for Italy has not traditionally been a recipient country for

refugees 68

. For these reasons, notwithstanding the importance that is

64

Finotelli, C. and Sciortino, G. (2009:120); however, it must be noted that Italy has a stricter visa

policy than Germany and that evidence suggests that this distinction is more of an approximation than a

reality. 65

De Haas, H. (2008) 66

It is here suggested that the EU is employing a ‘symptom approach’ by focusing attention on its

Southern countries but not on the deeper roots of the issue of migration across the Mediterranean Sea

(idib.) 67

Whether extraterritoriality was really the only available option and whether Italy is currently

adopting extraterritorial practices will be further examined in the following chapters. 68

Finotelli, C. (2009) “The North-South Myth Revisited: a Comparison of the Italian and German

Migration Regimes”, West European Politics, Vol.35 (5); Geddes, A. (2008); Finotelli, C. and

Sciortino, G. (2009); however, it must be noted that the distinction between economic migrants and

refugees is increasingly blurred.

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ascribed to the figure of the refugee by the very Italian Constitution 69

,

Italy is today still lacking a nationally ratified asylum law and is deemed

to have a very weak reception system for refugees and asylum-seekers, to

the extent that it is believed that Italian policymakers approach the issue

of migration with an “emergency culture” 70

more than with an approach

based on the efficient role of the law. In this respect, it is worth looking at

the frequent regularisation processes that have taken place throughout the

past decades in Italy – Italy undertook five mass regularisations between

1986 and 2002-, which are seen as evidence of the ambiguity and

inefficiency of the state’s attitude towards migration 71

.

One of the most important moments in the recent Italian legislation

process to understand the country’s attitude towards immigration is the

2002 Bossi-Fini Law (Law No. 189 of 30 July 2002 72

), passed during the

Berlusconi II government 73

. The law is mainly characterized by an

attempt to tighten the length of the residence permit of the migrant to the

length of his/her employment contract, thus increasing the chances of

becoming irregular and of being expelled. This measure was

69

Article 10 of the Italian Constitution states that “a foreigner who is denied the effective exercise of

the democratic liberties guaranteed by the Italian Constitution in his or her own country has the right

of asylum in the territory of the Italian Republic, in accordance with the conditions established by the

law”, Costituzione della Repubblica Italiana, full text available in English at

http://immigrazioneoggi.it/pubblicazioni/dwnld/ci_vol006_en.pdf 70

Finotelli, C. (2009:886) 71

ibid 72

Legge Bossi-Fini (Law No. 189/2002) full text available at

http://www.interno.it/mininterno/export/sites/default/it/sezioni/servizi/legislazione/immigrazione/legisl

azione_424.html 73

Silvio Berlusconi has been Prime Minister of Italy for four times since the fall of the ‘First

Republic’ in the early 1990s: 1994-1995; 2001-2005; 2005-2006; 2008-2011

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accompanied by a ‘decreto sbarchi’ (sea landings-decree) that

empowered the patrol capacity of the Italian Navy so to decrease

unwanted inflows of migrants reaching the country by sea, the ultimate

goal of the law being that of reducing the volume of irregular migration

to Italy 74

. This law, which entered into force in 2005, has been highly

criticised by a wide number of NGOs and by the UNHCR itself for

having established accelerated asylum procedures that are believed to

have a negative impact on the quality of the protection granted to the

asylum seekers, and for having introduced detention as a norm rather than

as an exception 75

. The law in fact established ‘identification and

expulsions centres 76

’ (CIE) for the specific detention of asylum seekers,

which is mandatory if the asylum seeker presents a request after being

arrested for having entered, or attempted to enter, the country illegally 77

.

Moreover, from 2008 onwards, during the so-called ‘Berlusconi IV’,

migration came to be understood and portrayed by policymakers as an

issue mainly linked with matters of public order and security, in line with

a diffused European tendency to increasingly define irregular migration

74

Finotelli, C. and Sciortino, G. (2009); the attempt to de-legalize migration by linking it with the

possess of an employment contract is in line with what Dauvergne (2008) describes as the

‘illegalization of migration’. 75

Amnesty International (2005) “Temporary Stay- Permanent Rights” 76

See note 26 77

Andrijasevic, R. (2006b) “How to balance Rights and Responsibilities on Asylum at the EU’s

Southern Border of Italy and Libya”, COMPAS, University of Oxford; this practice appears as a breach

of Article 31 of the 1951 Convention

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as a security issue associated with international crime and terrorism 78

.

Hence, it has been a diffused trend among Italian policymakers to depict

migrants arriving by sea as economic migrants rather than as asylum

seekers and to inflate the numbers of people entering the country through

its Southern coasts so as to create a sense of invasion and panic among

the public which helps the government to put in place the ‘emergency

measures’ – and hence to create the necessary ‘state of exception’- that

are perceived as required to deal with a situation of crisis 79

.

5. Chapter 3 – Extraterritorial processing of asylum requests:

development of a contested practice

As already mentioned, the practice of extraterritoriality consists in an

attempt to de-territorialise the asylum system through the establishment

of centres for processing asylum requests outside the external borders of

the country which is the final destination of the asylum seeker, the main

aim of this practice being to reduce pressures at states’ immediate borders

and to augment the chances of limiting flows of unwanted migrants

before they reach states’ territories. What this paper is looking at, in the

78

Finotelli, C. and Sciortino, G. (2009); De Haas, H. (2008); this was mainly due to the presence in the

government coalition of the northern-based populist party “Lega Nord” led by Umberto Bossi, that

made anti-immigration rhetoric one of its characterising features, together with the principle of fiscal

federalism and with the need to render Northern Italy independent from the Southern regions. 79

Andrijasevic, R. (2009); Andrijasevic, R. (2010)

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case of the EU, is the outer dimension of its attempt to externalise asylum

requests, meaning the transfer of asylum requests and asylum seekers

from EU to non-EU Member States, as for the internal dimension of this

practice largely falls into the process of harmonization of EU asylum

policies and under the umbrella of burden-sharing.

Before analysing the development of extraterritoriality at the EU level,

and before dealing with the specific case study of the relationship

between Italy and Libya that the following chapter will cover, it is worth

mentioning what it is considered to be the most important moment in the

evolution of this practice, the adoption of the so-called ‘Pacific Solution’

by the Australian government in the aftermath of the 2001 Tampa events.

In August 2001 the Norwegian vessel Tampa rescued 433 asylum seekers

from an Indonesian ship, but Australian authorities refused permission to

enter their territory and the then Prime Minister, John Howard,

announced on 1 September 2001 that New Zealand and Nauru had agreed

to take charge of the asylum seekers and to process their asylum requests:

the ‘Pacific Solution’ came hence into existence 80

. In the aftermath of

these events, the Australian government began to aggressively prevent

boats that might possibly reach its homeland and passed a new law that

allowed the detention of unauthorized arrivals (with the creation of a sort

80

For a detailed account of the events that took place see Dauvergne, C. (2008); Hyndman, J. and

Mountz, A. (2008); Afeef, K.F. (2006)

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of Agamben’s ‘state of exception’ outside the normal legal framework in

which refugees could be kept) and permitted Australian officers to take

these migrants to ‘declared countries 81

’such as Nauru, Manus and Papua

New Guinea, with which the country entered into new extraterritorial

asylum arrangements and to whom detention and processing was

‘subcontracted’ 82

. However, Dauvergne (2008) recognizes that none of

these countries had an established system to address the asylum claims;

the ‘Pacific Solution’ and the adoption of extraterritoriality have therefore

led to a profound weakening of refugee law standards 83

. According to the

author, the ‘Pacific Solution’ offers three examples of departures from the

1951 Convention: refusing to allow the Tampa to land because of the

presence of asylum seekers on board represents itself a breach; the

transport of asylum seekers to Nauru and Papua New Guinea, countries

that are not fully part to the Convention, entails a risk of refoulment; and

finally, the Australian government has moved to modify the very

definition of refugee by limiting its interpretations of ‘persecution’ of ‘a

particular social group’ 84

.

Notwithstanding therefore the important consequences that the adoption

of extraterritoriality has had on the global refugee regime, the EU has

81

Afeef, K.F. (2006) 82

Hyndman, J. and Mountz, A. (2008) 83

Dauvergne, C. (2008) 84

ibid, p. 57-58

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nevertheless began a discussion around extraterritoriality that can be

traced back to the 1998 Austrian strategy paper and reached its apex in

2003 with the UK Government’s ‘New Vision’ paper 85

. Among the

broader geopolitical factors that contributed to development of such

policies, the literature highlights a number of important issues: the

perceived securitization of asylum, which rendered asylum a security

issue rather than one of protection for refugees under International Law,

coupled with a diffused sense of crisis and the growth of domestic

concerns about migration, certainly played a role in the development of

extraterritoriality 86

. Moreover, Afeef (2006) maintains that both the ‘non-

entrée regime’ that developed from the 1980s onwards and the

regionalization of asylum policies acted as catalysts for the perceived

urgency to adopt extraterritorial policies 87

.

In this context, it is believed that the European Union is currently

devising a whole set of arrangements aimed at shifting the responsibility

for asylum seekers to countries outside the EU, mainly located in the

North African region as for this region represents a major transit route

85

The ‘New Vision’ paper proposed the establishment of ‘Regional Processing Areas’ (RPAs) to be

located in the regions of origin of refugees flows and of ‘Transit Processing Centres’ (TPCs) to be

settled closer to EU’s border as places where asylum seekers were to submit their asylum claims and

await the result of their application [Betts, A. (2006) “Towards a Mediterranean Solution? Implications

for the Region of Origin”, International Journal of Refugee Law, Vol. 18 (3-4); Andrijasevic, R.

(2006b)]. The proposal was however rejected at the Thessaloniki European Council. 86

Haddad, E. (2008); Hyndman, J. and Mountz, A. (2008); Garlick, M. (2006) 87

With the term ‘regionalization policies’ the author means the whole set of policies aimed at seeking

to respond to refugees in their region of origin or transit, which represent a sort of containment strategy

to externalize tools of EU migration control [Afeef, K.F. (2006)]; see also Boswell, C. (2003) “The

‘external dimension’ of EU immigration and asylum policy”, International Affairs, Vol. 79 (3)

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into Europe 88

. This form of externalisation is characterised, according to

Boswell (2003), by two distinct features: on the one hand, the

externalisation to third countries of traditional tools of the EU migration

regime such as the strengthening of border control and the fight against

illegal entry; on the other, the EU approach is also marked by preventive

measures that are part of a larger approach to migration which includes

issues of development and of Human Rights 89

. The main concept that lies

at the foundation of these policies is the ‘Safe Third Country (STC)’

notion, the idea that responsibility for refugees can be shifted to third

countries as long as asylum seekers are accorded the same degree of

protection that would be granted by their original country of destination

and provided that the principle of non-refoulment be respected 90

.

As it will be further analysed for the case of Libya, this practice poses

serious legal and practical issues and has profound consequences on the

status of the global refugee regime.

6. Chapter 4 – Extraterritoriality in the context of Italy and Libya:

externalisation of asylum procedures or denial of asylum rights?

88

Garlick, M. (2006); Gil-Bazo, M. (2006) 89

Boswell, C. (2004); Garlick, M. (2006) 90

Francis, A. (2008) “Bringing Protection Home: Healing the Schism Between International

Obligations and National Safeguards Created by Extraterritorial Processing”, International Journal of

Refugee Law, Vol. 20 (2)

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Before proceeding with the analysis of extraterritoriality in the context of

the relationship between Italy and Libya, it is necessary to briefly look at

the position enjoyed by the North-African country in the context of its

relations with the EU. From 1992 to 2004 the EU imposed economic

sanctions and an arms embargo on the country led by the Colonel

Muanmar Gaddafi, but as soon as the embargo was lifted in 2004 a

process of cooperation on migration matters began and the country

received considerable attention from the European Union, although

official talks began only in October 2007 91

. As already mentioned,

however, it must be noted that Libya, while being part of the 1969 OAU

Refugee Convention and of the 1981 African Charter on Human and

People’s Rights, is not a signatory of the 1951 Convention and has no

national legislation to address matters of asylum and no operative asylum

mechanism, therefore not being able to grant refugees any form of

internationally recognised protection.

It is here worth mentioning that, unlike in the relation between Australia

and its Pacific neighbours, which could be described as a Betts’ ‘suasion

game’ situation where countries such as Nauru and Papua New Guinea

are really in the weakest position with respect to Australia and have

91

Human Rights Watch (2009) “Pushed Back, Pushed Around. Italy’s Forced Return of Boat Migrants

and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers”, available at

http://www.hrw.org/reports/2009/09/21/pushed-back-pushed-around-0; Afeef, K.F. (2006); Klepp, S.

(2010b).

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therefore to accept the strongest country’s proposals, in this context Libya

is believed to have a stronger bargaining power, for the EU believes it is

fundamental to obtain the country’s cooperation on what is largely

considered by European policymakers an ‘hot topic’, migration, and for

the country provides large amount of oil to European states, especially to

Italy 92

.

Italy has been, among the European countries, one of the most supportive

of the cooperation with Libya on migration matters, for it is the closest

state to Libya and is therefore subject to alleged mass influx of migrants

attempting to reach its coasts from the country, which is now widely

considered to be a transit country for people trying to get to Europe from

Sub-Saharan Africa 93

. This chapter will hence mainly deal with the

bilateral relationship between Italy and Libya and with the way in which

migration policies have been coordinated and managed through this

relationship.

Italian policymakers have promoted bilateral cooperation with Libya

since the late 1990s, with migration being the central component of any

agreement, despite growing criticisms from various NGOs mainly

concerned about Human Rights violations in Libya. The peak of this

92

Afeef, K.F. (2006) 93

Klepp, S. (2010a) “Italy and its Libyan Co-operation Programme – Pioneer of the European Union’s

Refugee Policy?” in Schuman, R. (ed) The Implications of Readmission and Enforced Return on Euro-

Mediterranean Relations and Beyond, Centre for Advanced Studies, European University Institute,

Florence

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cooperation has been reached under the presidencies of Silvio Berlusconi,

with significant bilateral agreements being signed in the 2003-2004

period regarding border guards training programmes, the construction of

detention centres and the funding of deportation schemes from Libya to

Sub-Saharan Africa 94

, and culminated on 30 August 2008 with the

signing of the ‘Trattato di Amicizia’ (Treaty of Friendship, Partnership

and Cooperation) in Benghazi 95

.

The present analysis is mainly looking at the events that took place

between 2003 and 2004, for it was in that period that at the EU level an

intense discussion on extraterritoriality was undertaken, mainly as a

consequence of the UK Government’s ‘New Vision’ proposal in February

2003 to establish refugee processing centres in North Africa. In this

context, the most important development of the relationship between Italy

and Libya dates back to the first week of October 2004, when, further to

the previous bilateral agreements that also included readmission

measures, more than a thousand ‘irregular’ migrants -1153- were

deported from Lampedusa to Libya between the 1 st and the 7

th October.

Overall, between 2004 and 2006 Italy has financed the return of over

94

Andrijasevic, R. (2009); Klepp, S. (2010a); Andrijasevic, R. (2006a) “Lampedusa in

Focus: Migrants caught between the Libyan Desert and the deep sea”, Feminist Review, Vol. 86; Italy

has been planning to finance the construction of four camps to detain migrants in Libya, however the

government has subsequently backtracked. 95

Significantly, the agreement was welcomed by the Italian Prime Minister as a guarantee of ‘more oil

and fewer migrants’ [Il Manifesto, 2008 as cited in Paoletti, E. (2011) “Power Relations and

International Migration: The Case of Italy and Libya”, Political Studies, Vol. 59]. However, regarding

migration policies, the treaty did not add much to the protocol signed in 2007 by the centre-left

government [Carbone, M. and Coralluzzo, V. (2009)]

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3,000 irregular third-country migrants to Libya, and the repatriation of

these undocumented migrants from Libya to third countries 96

. Italian

policymakers conceived and presented to the public these measures as

necessary to counter the ‘migrants emergency’ that was depicted to

happen at Lampedusa. However, although these expulsions could be read

through the lenses of extraterritoriality and although much attention has

been devoted to the collective expulsions mainly in terms of

externalisation of asylum, this reading presents a number of important

issues that are contingent on two main reasons.

On the one hand, as already mentioned, Libya lacks a refugee policy and

no form of protection can be granted to asylum seekers and refugees in

this North African country. As such, because externalisation presupposes

asylum seekers to be relocated in areas where they can be granted a

recognized form of protection, and because Libya cannot live up to

international standards of refugee protection, collective expulsions from

Italy to Libya should not be considered as a form of extraterritoriality.

Instead, it is suggested that this practice, as employed by the Italian

Government between 2004 and 2006, constitutes a ‘retraction’ 97

and an

‘abandonment’ 98

of the right to asylum as internationally recognised and

stated in the 1951 Convention rather than an externalisation of asylum

96

Paoletti, E. (2011) 97

Andrijasevic, R. (2006b: 19) 98

Klepp, S. (2010a: 86); Klepp, S. (2010b: 8)

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procedures. As a consequence, Italy has been highly criticised by a

variety of NGOs for another important reason: Italy is accused of not

having granted migrants the right to present their asylum claims and of

having classified them all as economic migrants and collectively expelled

them to Libya. In this sense, if people expelled to Libya were to be

asylum seekers rather than economic migrants as maintained by the

Italian authorities, and if the measure employed is to be considered a

‘collective expulsion’ rather than a ‘refusal of entry’ as Italy has defined

it 99

, this behaviour should be looked at as a clear breach of the norm of

non-refoulment, as it for example stated by the European Parliament in its

‘Resolution on Lampedusa’ of April 2005 and as expressed by the

UNHCR 100

.

The measures undertaken by the Italian authorities are hence believed to

have profoundly endangered the application of international refugee

standards and, as for the case of the ‘Pacific Solution’, which is thought

to have sparkled abuses of international refugee law throughout the

globe 101

, could have important and profound echoes.

99

Andrijasevic, R. (2009); Italy has justified its actions by invoking article 10 of the Law.189/2002

(the Bossi-Fini Law) and the procedures regarding the ‘refusal of entry’ (respingimento alla frontiera),

an administrative measure that is claimed to take place on a case-by-case basis 100

European Parliament, “Resolution on Lampedusa” available at

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2005-

0138+0+DOC+XML+V0//EN; see also Amnesty International (2005); UNHCR (2005) ‘Italy: UNHCR

deeply concerned about Lampedusa deportations of Libyans’ available at

http://www.unhcr.org/423ab71a4.html 101

Dauvergne, C. (2008)

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On the other hand, from a purely technical point of view, the literature

suggests that the term ‘extraterritoriality’ should not be adopted to

describe the co-management of migration policies between Italy and

Libya, for, instead of externalising and de-territorialising its borders’

control and hence diminishing its involvement in the tackling of

migration, Italy seems on the contrary to have merely expanded its

borders into Libya and to have become more involved in the management

of undocumented migration in Libya, therefore not obtaining the results

that should come with the adoption of extraterritorial policies 102

.

7. Conclusion

This paper has attempted to analyse the status of the global refugee

regime, especially in light of the recent development of the practice of

extraterritoriality. It has been maintained that this practice, which entails

an effort to de-territorialise the asylum system through the establishment

of centres to process asylum applications outside the sovereign territory

of the states that are the final destination of the asylum seekers, weakens,

endangers and profoundly jeopardise the status of the global refugee

regime and global standards of refugee protection.

The global refugee regime has already been weakened, in the last

decades, by two phenomena that have been analysed by this paper and

102

Paoletti, E. (2001)

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that can be said to have played a role in the development of the practice

of extraterritoriality: on the one hand, the growing securitization of

migration, which rendered migration and asylum matters of national

security rather than of international law and which linked issues of

migration to international crime and international terrorism, especially in

the aftermath of 9/11. This was followed, on the other hand, by an ever-

growing importance of domestic political concerns in the making of

national migration policies. Due to the securitization of migration hence,

a sort of ‘fear of the other’ developed in many Western countries and a

sense of ‘moral panic’ concerning migration spread throughout Europe.

This inevitably had profound repercussions on the making of migration

policies both at the EU level and nationally – in this sense, the Bossi-Fini

Law (Law No. 189/2002) has been analysed as a clear example of

legislation deriving from the sense of panic that accompanies migration

phenomenon to Europe- and obviously on the status of the refugee

regime, for, although it is true that the distinction between economic

migrants and asylum seekers is becoming increasingly blurred, countries

such as Italy have been charged, because of their national migration

regimes, with allegations of not making any distinction between irregular

migrants and refugees.

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In this context, the practice of extraterritoriality, whose main aim is that

of reducing pressures at states’ immediate borders and of augmenting the

chances of limiting flows of unwanted migrants before they reach states’

territories, which was firstly implemented by Australia in the aftermath of

the ‘Tampa’ events of 2001, has had a profound echo in Europe. The

‘collective expulsions’ that took place from Italy to Libya between 2004

and 2006 have been mainly read through the lenses of extraterritoriality,

but this research has suggested that the employment of the term in this

case is profoundly incorrect for the practice of extraterritoriality

presupposes asylum seekers to be relocated to countries where they can

enjoy the same degree of protection that would be granted them by the

state that moves them. However, as this paper has demonstrated, Libya

cannot live up to international standards of refugee protection, and has

indeed been highly condemned by a variety of NGOs for the inhumane

conditions in which migrants are held and kept. In this sense, therefore,

the analysis of the cooperation between Italy and Libya on matters of

migration has proven to be not an example of extraterritoriality, but a

much more dangerous retraction of the right to asylum.

As a consequence, it can be argued that the practice of extraterritoriality,

which presents a number of moral, legal and practical issues -as for

example its claimed incompatibility with the 1951 Convention and with

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Human Rights Law in general 103

-, if implemented, especially as a

consequence of the vagueness that still surrounds the practice, which

inevitably creates a number of loopholes 104

, it would permanently weaken

the global refugee regime.

Appendix

As already mentioned in the introduction of this research, after the

profound criticisms that Italy received as a consequence of its collective

expulsions to Libya between 2004 and 2006, the Italian Government

abandoned extraterritoriality and found a new loophole to manage

migration flows from Libya, namely the practice of the so called ‘push

backs’ (respingimenti), which involves the return of migrants who have

already left Libyan coasts but have not yet reached Italian soil 105

. From

May to September 2009 in fact, Italy unilaterally interdicted boat

migrants on the high seas and returned them to Libya, without granting

them the opportunity to seek international protection. These operations

were carried on in the high seas and were based on Berlusconi’s reading

that non-refoulment obligations do not apply aboard Italian vessels on the

high seas. However, this reading is profoundly incorrect, for the UNHCR

103

Smith, R.C. (2004); Garlick, M. (2006) 104

Garlick (2006) for example wonders under which rules or legal system would extraterritoriality be

conducted if extraterritorial processing were to be facilitated by the EU [Garlick, M. (2006] 105

Klepp, S. (2010b)

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has made it clear that the principle of non-refoulment applies to the action

of states wherever this state exercise jurisdiction, hence not only in

territorial waters but also in the high seas as long as the state has

jurisdiction, for example on Italian vessels 106

. Although a detailed

analysis of this practice falls outside the scope of this paper, it is worth

being mentioned for on 23 rd

of February 2012 the European Courts of

Human Rights (ECtHR) condemned Italy in the case of ‘Hirsi Jamaa and

Others v. Italy’ – regarding one of the first of the push backs of 2009 107

-

for having violated the European Convention on Human Rights (ECHR).

Italy has been held accountable for violating Articles 3 and Article 13

(dealing respectively with the prohibition of torture and inhuman

treatments and with the right to an efficient remedy) of the ECHR and

Article 4 of the Fourth Protocol of the Convention, which prohibits

collective expulsions. The importance of the sentence of the ECtHR,

which has been defined by Amnesty International as a ‘milestone’ for the

protection of Human Rights 108

, lies in the fact of having equalised, for the

106

HRW (2009); Pavan, M. (2011) “Can/Will Italy be held accountable for its ‘push back’ policy in

relation to international refugee, human rights and European Union law?”, LSE Migration Studies Unit

Working Paper No. 2011/2012 available at

http://www2.lse.ac.uk/government/research/resgroups/MSU/documents/workingPapers/WP_2011_12.p

df 107

The case regards 11 Somali citizens and 13 Eritrean citizens who were part of a group of 200

migrants intercepted in the high seas by Italian authorities and pushed back to Libya 108

See ‘Strasburgo, l’Italia condannata per I respingimenti’, Repubblica 2012

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45

first time, collective push backs on the high seas with collective

expulsions undertaken on national soil 109

.

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