Migrating Unconstitutionally
Matilde Rocca
January 8, 2024

On 6 November 2023, Italy and Albania signed a Protocol aimed to strengthen their collaboration regarding maritime migration activities. Seemingly, the agreement was first discussed earlier this summer, when the respective Prime Ministers – Giorgia Meloni and Edi Rama – met while the Italian Prime Minister was supposedly vacationing in Albania. Reportedly, the protocol was not pre-announced, either to institutions of the European Union or to media outlets, as one would expect given so central an issue for the EU as that of migration. As soon as the text of the Protocol became available to the public, it immediately appeared vaguely worded, leaving doubts about its compliance with both national and international law.

In early December 2023, thirty Members of the Albanian Parliament submitted an application to the Constitutional Court asking to review the compatibility of the Protocol with the Constitution, pursuant to Article 131(1)(b). In particular, the Albanian MPs voiced concerns over issues related to territoriality and fundamental rights protection, as provided by the Protocol. The Constitutional Court ruled that the Protocol needed to be considered in further hearings, effectively suspending the international agreement between Italy and Albania. Whilst the final hearing of the chamber plenary is waited for January 2024, this post aims to foreground key problems arising from the text of the protocol and international legal provisions in relation to the two points raised by the Albanian MPs: territoriality and fundamental rights protection.

The Protocol, in a nutshell

Following the long-employed strategy of externalization of migration activities, Italy and Albania agreed to create two detention centres for migrants located close to the Albanian coastal city of Schengjin. These centres – or 'areas', as designated in the protocol – are expected to host up to 3000 maritime migrants rescued by Italian vessels in the Mediterranean Sea. Reportedly, the migrants to be kept in these centres do not include vulnerable individuals, such as children, pregnant women and others. It is unclear, however, how these groups are going to be separated and how far they will be treated differently from other migrants. Indeed, the text of the Protocol is silent on these crucial matters.

Within the said 'areas', Italy seeks to carry out border and return procedures, leaving migrants in detention 'for the time strictly necessary for it', within the maximum period allowed according to Italian legislation. (Articles 4.3 and 9.1) Within the facilities, the management and control of the 'areas' is reserved to Italian authorities and personnel; Italian law applies there. (Articles 3.1 and 6.3) Outside the centres, order is to be ensured by the Albanian authorities; Albanian law applies. (Articles 6.2, 6.3 and 6.6)

Territoriality - EU and beyond

With the agreement, Italy is seeking to carve out spaces where to exercise its jurisdiction in the territory of a non-EU country, reminiscent of the infamous Australian model of migration management activities, although, interestingly, different from the United Kingdom-Rwanda agreement. The text of the protocol, however, raises legitimate concerns over this initiative. Although Articles 3.1 and 4.2 reinstate the exercise of Italian jurisdiction within the designated 'areas', Article 7.8 also recognizes that 'Italian personnel shall be obliged to comply with the laws in force in the Republic of Albania and not to interfere in its internal affairs.' So, though according to the Protocol the 'areas' would be under Italian jurisdiction, Albanian law could still apply (at least to an extent).

Moreover, it is unclear how the distinction between the "perimeter outside" / "perimeter within" (in the original Italian text: "perimetro esterno" / "perimetro interno") control of the centres for security purposes to be exercised by Albanian/Italian authorities can be drawn in real life. What is more likely, one may surmise, is that the control exercised by both authorities and personnel will be blurred, leading to questions over which state has jurisdiction over the 'areas' effectively. Article 6.3 of the protocol provides that "[e]xceptionally, the authorities of the Albanian party may enter the facilities, informing the Italian responsible for the same, in case of fire or other serious and immediate danger that requires immediate intervention." This elusive wording of such provision leaves the issue of exercise of jurisdiction equally unsolved and question-begging.

Rights protection

Several human rights may be impacted by implementing the protocol and the processes related to the administrative detention of migrants it will lead to. These include, for instance, the prohibition of inhuman and degrading treatment; the right to seek asylum; the prohibition of arbitrary detention and numerous procedural rights all protected by the International Convention of Civil and Political Rights as well as the European Convention on Human Rights. Though the text of the protocol mentions health conditions within the 'areas' (Article 4) and reiterates the importance of a so-defined 'right to defence' (Article 9.2), a comprehensive delineation of how migrants shall be treated in the centres, in compliance with international human rights law, is wanting.

Two international human rights provisions are particularly salient for the purposes of the discussion here: the prohibition of collective expulsion of aliens and the prohibition of discrimination. In relation to the former, it will be relevant whether Italy's transfer of persons rescued from distress at sea to a non-EU country could amount to collective expulsion of aliens (see Čonka v. Belgium, Hirsi Jamaa and Others v. Italy, Sharifi and Others v. Italy and Greece, J.A. and Others v. Italy).

As to the prohibition of discrimination, it would appear that the only migrants to be detained in the 'areas' are not vulnerable individuals. If confirmed, this differentiation would bear practical and legal issues. Legally, a differentiated treatment of migrants could lead to a violation of the prohibition of discrimination. (see Carson and Others v. the United Kingdom). For, by definition, any and all persons found in distress at sea are in a state of vulnerability. Therefore, they would all require dignified treatment and be given the possibility to seek asylum once disembarked in a place of safety. The wording of the protocol, as it stands, raises serious doubts regarding the compliance of the protocol with these human rights standards which would provide a fundamental layer of protection to people seeking to cross the Mediterranean Sea in search for safety.

Last, considering that Albania is not (yet) an EU Member State, will EU law apply in the 'areas'? Article 2 of the agreement states that "[t]his Protocol aims at fostering bilateral cooperation between the Parties in the management of migration flows coming from third countries, in conformity to international and European Law." Applicability of EU law finds mention in Article 9.2, in relation to the migrants' exercise of the right to a fair hearing. Yet, the protocol is silent on how migrants can exercise their rights and procedural guarantee as provided by the EU Charter of Fundamental Rights.

Politics, propaganda and constitutional concerns

The political calculus behind the Italy-Albania Protocol is thinly veiled. Albania's Prime Minister Rama pledges to ease Italy's pressure to host migrants arriving on EU shores via sea routes. In return, Giorgia Meloni assures the Albanian counterpart that Italy will continue to put pressure on EU institutions to accept Albania within the community. Whether Italy has the power to make good on such promise (chances are, it does not) is another matter. What is put at stake by this newest political initiative are not only international legal obligations but also, at the national level, the constitutionality of the Protocol itself.

Italy and Albania are no strangers to migratory flows. The philosopher and scholar Lea Ypi has recently pointed to the moral and historical blindness of the Protocol as well as to the perplexing political stances of its two promoters. Indeed, she recounted how many Albanian citizens left their home country to reach Italian shores via the Adriatic Sea in the 1990s. Recalling her own experience as a migrant moving to Italy to pursue her studies and her mother and brother's escape from fire shots in Albania and seeking refuge in Rome, Ypi explains that after the fall of the Berlin wall in 1989, numerous and diverse migratory flows continued across the sea to escape poverty, violence and socio-economic turmoil affecting the Balkan region. Today, the two countries seem to have left aside the stories of suffering and harrowing journeys that many migrants embarked on (see Xhavara and Others v. Italy). Rather, Italy and Albania's domestic political concerns overshadow the experiences of human beings moving through the Mediterranean Sea.

What is next? The Constitutional Court's complete review of the protocol is now strongly sought after. If the Court rules that the Protocol is incompatible with the Albanian Constitution, the Law ratifying the international agreement will not pass, putting this propaganda-driven effort to an end. On the contrary, if the Court concludes that the Protocol does not undermine the Constitution, the Parliament will be legitimized to continue the ratification process. In any event, the preliminary rulings of the Constitutional Court substantiate the doubts over the compliance of this international agreement with national and international legal standards. In the meantime, one conclusion can be drawn: the politicization of migratory activities at the borders of the EU, dangerous efforts to externalize migratory flows and the de-humanization of third country nationals continue to jeopardize legal rules at both the international and national levels.