The State of Libya signed a Memorandum of Understanding with the Italian Republic in Rome on February 2, 2017 (MOU) in order to ‘ensure the reduction of illegal migratory flows, the fight against human trafficking and fuel smuggling’.
The concerns stemming from the MOU include that it perpetuates violations of international law including the principle of non-refoulement, as was the case for deeming Turkey as a ‘safe third country’ pursuant to the earlier EU-Turkey Deal, signed in March 2016, and that it potentially promotes further non-entrée policies to deter asylum claimants and refugees from reaching the territories of European member states in the search for safety. This MOU and others like it demonstrate a sovereign State’s attempt to renegotiate its sovereignty through non-entrée policies which act to deter the asylum claimant or refugee from reaching safety. These are often disguised in the name of protecting the sovereign State’s citizens and for purposes of national security, but they ultimately violate international law principles including non-refoulement.
II. Content of the Libya-EU MOU
The preamble of the MOU states that the MOU was signed in order to maintain ‘peace, security and stability within the two countries and in the Mediterranean region in general’. Further, the preamble reiterates ‘principles of sovereignty, independence, territorial integrity and national unity for Libya’ and emphasizes the cooperation between Libya and Italy in order to combat ‘the issue of clandestine migrants crossing Libya to reach Europe by sea’. As will be shown, the concentration of the MOU on State sovereignty and in the protection of territorial integrity rather than on the protection of individuals seeking asylum raises serious issues with both Italy and Libya’s compliance with international law obligations including the non-refoulement principle.
III. An Overview of Non-Refoulement
Non-refoulement is a principle of international refugee law which prohibits sending asylum claimants and refugees back to a territory where their lives or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. Under international human rights law, this principle is expanded to prohibit asylum claimants and refugees from being sent back to places where they might face death or where there may be substantial grounds for believing that they may face a real risk of being subjected to torture or other cruel, inhuman or degrading treatment or punishment.
Under European Union (EU) law, refoulement is prohibited under Article 4 of the EU Charter of Fundamental Rights which prohibits torture and inhuman or degrading treatment or punishment, as well as under Article 38(1)(c) of the Asylum Procedures Directive, referring to non-refoulement safeguards relevant to ‘safe third countries’. Under the European Convention on Human Rights (ECHR), non-refoulement is prohibited as torture under Article 3. Further, judicial interpretation of the principle of non-refoulement in Hirsi Jamaa and Others v. Italy (Hirsi Jamaa) by the European Court of Human Rights (ECtHR) of Article 3 of the ECHR extended the reach of non-refoulement extraterritorially, so that where it can be demonstrated that a State exercises effective authority and control, through its agents, over the individual claimant in question, that State has jurisdiction and therefore corresponding responsibility where it is found in violation of international law.
Although the EU itself is not a signatory to the Refugee Convention, pursuant to Article 78 of the Treaty on the Functioning of the EU, EU asylum policies must comply with the Refugee Convention, which includes the principle of non-refoulement. Also, as a principle which is widely-regarded as international custom, and supported by opinio juris in the form of government statements as well as widespread and uniform State practice, the principle of non-refoulement also binds States that are not signatories to the Refugee Convention.
IV. Implications for Non-Refoulement and International Law Compliance
The MOU between Libya and Italy raises several serious concerns regarding both countries’ compliance with international human rights law norms including the principle of non-refoulement. First, the MOU permits Libya to violate the principle of non-refoulement through collective expulsion of asylum claimants and refugees, leading to heightened potential that these individuals may be sent back to territories where their life or freedom would be threatened. Second, the use of diplomatic assurance by Libya to Italy to accord asylum claimants and refugees with sufficient and proper access to both asylum procedures and to territory may not be adequate, leading to potential violation of the principle of non-refoulement. Third, the presumption of Libya, a country where asylum procedures are not properly in place, as a ‘safe third country’ creates a heightened risk of refoulement of asylum claimants with a legitimate ‘well-founded fear of persecution’.
Concerns have been raised by others that the MOU may permit Libya, although not a contracting party to the Refugee Convention, to violate the principle of non-refoulement through collective expulsion of asylum claimants and refugees. Collective expulsion of aliens is prohibited by Article 4 Protocol 4 of the ECHR and Article 19(1) of the EU Charter of Fundamental Rights, as well as relevant international human rights law such as Article 7(1) of the Draft Articles on Expulsion of Aliens of the International Law Commission. The ECtHR held in Hirsi Jamaa that neither the text of the ECHR nor the travaux préparatories of the Convention precluded the application of Article 4 Protocol 4 extraterritorially. In other words, Italy would be in violation of the provision through its pushback operations and the transfer of irregular migrants to Libya on the high seas. Hirsi Jamaa and other similar ECtHR case law demonstrate that non-refoulement would be breached indirectly where collective expulsion takes place without proper examination of asylum applications, heightening the chances of asylum claimants and refugees being sent back to territories where their life or freedom would be threatened.
Another concern relating to violating the principle of non-refoulement is the use of diplomatic assurance from Libya to Italy that the asylum claimants and refugees received will be accorded access to proper asylum procedures and to Libyan territory. According to the United Nations High Commissioner for Refugees (UNHCR) in its guidance note, any diplomatic assurances from Libya, whether or not Italy chooses to rely upon them, must be ‘assessed in light of [the host State’s] obligations under international and regional refugee and human rights law as well as customary international law’. The ECtHR held in Saadi v. United Kingdom that the sending State is required ‘to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time’. Reliance upon diplomatic assurances from Libya to Italy then, would violate non-refoulement where Italy knew or ought to have known of the deficient asylum system in place in Libya.
A third concern stems from the presumption that Libya is a ‘safe third country’ pursuant to Article 38(1)(c) of the Asylum Procedures Directive. A ‘safe third country’ presumption presupposes the ‘safe third country’, a non-EU country, as a safe destination for asylum claimants and refugees – locations where EU countries may send these individuals. The ‘safe third country’ presumption, however, has no basis in international law, as stated in a policy note written by the European Council on Refugees and Exiles (ECRE), a consortium of European nongovernmental organizations mandated to protect and advance the rights of asylum claimants and refugees. Presuming Libya to be a ‘safe third country’, while in reality, no proper asylum procedures are in place, would mean a heightened potential of asylum claimants with legitimate claims to be rejected, leading to increased risk of refoulement. Furthermore, although Libya is not an EU country and therefore is not bound by EU law, Libya is nonetheless bound by customary international law. As non-refoulement has been widely regarded as an international custom as aforementioned, Libya cannot escape its liabilities arising from breaches of the principle, notwithstanding its status as a non-EU country and a non-contracting party of the Refugee Convention.
V. Concluding Remarks: Future Direction for Non-Refoulement in the Region?
The MOU has raised serious concerns with regards to both Italy and Libya’s international law obligations including compliance with the principle of non-refoulement. The MOU seems to undermine calls from academics, the UNHCR, and nongovernmental organizations such as the ECRE for a more concerted effort on the part of European countries to protect the rights of asylum claimants and refugees in the region. While the future of non-refoulement protection in the region remains uncertain, more needs to be done in order to safeguard the rights and freedoms of vulnerable individuals – especially those who would risk their lives to make perilous journeys across the Mediterranean Sea in search of refuge.