Mikaela DesLauriers | 27 May 2024

Summary

• In a matter of ‘secret diplomacy’ on 16th November 2023, Rome and Tirana announced the signature of a Memorandum of Agreement (MoA) on the construction of detention centres in Albania for the arbitrary detainment of asylum seekers intercepted or rescued at sea by the Italian coast guard. 

• In line with Prime Minister Giorgia Meloni’s hardline approach to migration, the bilateral agreement seeks to legalise the automatic detention of asylum seekers and justify violations of the principle of non-refoulement, with the declared goal of deterring ‘illegal’ sea crossings. 

• On 24th January 2024, the Italian Chamber of Deputies approved the agreement's ratification, which was then passed in the Senate. Following suit, the Albanian  Constitutional Court approved the Albanian Parliament's ratification. 

Protection in the form of asylum has been the international norm in response to persecution-driven displacement since the 1950s. In recent years, as displaced individuals fled conflict-ridden regions in the Global South, destination countries in the Global North have developed policies aimed at externalising border controls and asylum processing. The signing of the 1985 Schengen Agreement removed internal borders within Europe, shifting the Member States to focus on regulating and safeguarding the Union’s external borders, often through externalisation agreements. Resulting in the proliferation of bilateral agreements that delegate border controls and international obligations to third countries to deter and prevent flows of “irregular” migrants.  

Human rights concerns have been unable to mitigate the salience of the bilateral externalisation agreements between the European Union (EU) and non-EU nations. Cloaked in secrecy, externalisation agreements focus on outsourcing destination countries’ burden-sharing responsibilities through economically incentivized border-controlling schemes. No stranger to externalising its borders, Rome has pursued externalisation agreements with Libya (2017),  Tunisia (2023), and now Albania (2023/2024). Unlike the previous agreements, which focused on indefinite containment, the Italy-Albania MOA pursues the extraterritorial processing of asylum claims with the stated aim of deterring maritime crossings. Italian jurisdiction and legal procedures will remain applicable to individuals taken to Albanian screening centres.

The approval of the Italy-Albania externalisation agreement carries significant implications. First, despite applying to a limited number of asylum seekers, compared to total arrivals in Italy, the MOA poses substantial financial costs for Italy, estimated at around EUR 100 million annually (USD 106 million). Geopolitically, there are concerns that international scrutiny from human rights organisations could lead to political tensions between Italy and Albania or the Balkans and Europe more broadly. Similar concerns arise regarding the legal uncertainties of the agreement and the increased burdens such ambiguities add to people fleeing persecution. Most critically, the agreement raises grave human rights concerns for many would-be refugees,  as highlighted by the Council of Europe Commissioner for Human Rights. These concerns include the fairness of asylum procedures, automatic detention without adequate judicial review,  and violations of the right to life. Awaiting the high likelihood of passage in the Albanian legislature, the MOA is set to remain in force for five years, with automatic renewal thereafter. Italian authorities have signalled that implementation is anticipated to commence in the second quarter of 2024. 

Forecast

• Short-term:  

  • The Italy-Albania MOA is highly likely to face scrutiny and legal challenges from non-government organisations and human rights groups. The Italian Court of Cassation is likely to render a decision on the unlawfulness of Law 50/2023 and automatic detention procedures in 2024. Domestically, it is likely to continue internal debates within Italy over the efficacy and morality of its current administration’s migration policies. Regionally, the MOA will likely be a point of contention for voters in the upcoming European Union elections, raising questions about human rights and EU integration and solidarity. 

• Medium-long term: 

  • Highly likely for people fleeing persecution to seek alternative and more dangerous crossing routes as legal migration channels close. Also, it is highly likely for illegal cross-border smuggling networks to boom as pushbacks turn into repeat customers, averaging  EUR 1,300 (USD 1,384) per migrant or between five to six billion euros annually (USD 5.3-6.4). The legal ambiguities and increased pushbacks will likely lead to increased violations of the international norms of asylum and the principle of non-refoulement. Depending on how the agreement is implemented and any legal challenges it faces, it is likely that the Italy-Albania MOA could set a precedent for future migration agreements between EU and non-EU countries.  Domestically, the MOA will divest upwards of EUR 600 million (USD 639 million) over five years from Italy’s domestic affairs to Albania. If the terms of the agreement are upheld, it is likely that Meloni will endorse Albania’s bid for the EU. 

• Long-term: 

  • Likely, the proliferation of externalisation MOAs increases legal scrutiny and the potential for the issue to be raised with the European Court of Human Rights. Unlikely that the United Nations Office of Legal Affairs will enact binding registration legislation of pending MOAs to avoid ‘secret diplomacy’ outside of EU laws. It is also likely the agreement will shape broader regional dynamics in the Balkans and  Mediterranean, affecting future migration or non-migration agreements among neighbouring countries and affecting regional stability.