1. Introduction

On 3 February 2017, at the Informal Summit of the EU Heads of States or Governments chaired by the European Council President, Donald Tusk, the 28 European leaders discussed the “external dimension” of migration in relation to European external borders. The debate centred around issues such as the shared urgency, as has been expressed over the last years by several Mediterranean EU Member States, to deal with the massive inflows of third-country nationals through the Central Mediterranean Route. As a result of the meeting, the assembly adopted the Malta Declaration on the external aspects of migration (addressing the Central Mediterranean route), through which it reaffirmed the shared principles of the EU agenda on migration and the willingness to strengthen the external borders by supporting its external partners – Libya in this case – to deal with the management of the flows.

On the same occasion, Italy signed a mutual agreement with Libya, called the “Memorandum”, with the aim of combating irregular immigration and human trafficking, as well as re-enforcing the security of the Italian and Libyan borders.

This post focuses on the most critical points emerging from the Malta Declaration and the Italy – Libya agreement on Central Mediterranean route inflows, with the aim of highlighting the most recent and significant positions on the externalisation of border control as expressed by the European Union itself and by the Mediterranean Member States.

2. The relationship with external partners and the EU agenda

Since 2011, the European Union has faced a huge migratory inflow of third-country nationals (mainly) entering through its external borders in the Mediterranean. Facing the need to frame its migration policy, and also with the aim of supporting its Member States to manage a, sadly predictable, humanitarian crisis (especially in the case of Italy and Greece), the European Union set a European Agenda on Migration. This has been articulated in four pillars, corresponding to the principles and objectives of the institutions, which traditionally balance the necessity to create a harmonised Common European Asylum System and the protection of the EU’s external borders, in accordance with the national and supranational security paradigm. The four pillars could be summarised as follows: the creation of a common European asylum system based on harmonisation and fair sharing of responsibility among states; control at the external borders and the guarantee of supranational and national security; the fight against irregular and illegal immigration; and the provision of international protection to third-country nationals who are eligible to obtain it.

In this context, as part of the political aspects of the Agenda in line with the aim to reinforce its relationship with the “eastern periphery” of Europe, in March 2016 the EU drew up an agreement with the Republic of Turkey (the EU – Turkey statement). This introduced the so-called “one to one scheme” to resettle Syrians and to partially implement the protection of the external borders on the Greek and Western Balkans route.

The Malta Declaration of February 2017 seems to follow the EU’s tendency to engage its neighbouring partners in border control and in the sharing of responsibility relating to the management of the massive influx of migrants and the humanitarian issues that frequently arise as a consequence. After reaffirming the determination to act in full respect of human rights, international law, and European values, paragraph 2 underlines the significant decrease of arrivals, through the Eastern Mediterranean route and the Western Balkans, as a result of the EU – Turkey statement last March. Paragraphs 3 and 4 highlight the urgency to manage the Central Mediterranean route and recall the determination to significantly reduce the migratory flows along that route.

Since Libya is one of the main countries of departure through that route, the EU has determined that it would support the Libyan authorities and communities in the shared management of the flows departing from its coast. The Declaration includes, among its obligations for the EU, that of supporting IOM (International Organisation for Migration) and UNHCR (United Nation High Commissioner for Refugees) with the aim of arranging the most adequate reception facilities for migrants in Libya. However, the primary objective, seems to consist of reducing the pressure on Libya’s land borders (especially its southern borders) and continuing to reinforce the link with Libya in its operations on the coast.

In addition to this, while the High Representative (hereinafter HRVP) Federica Mogherini stated that migration issues should be the core matter at stake, it appears that the relationship between the EU and Libya is going to address objectives which go far beyond the management of the migration crisis and to seek the improvement of the EU relations with the African Union, as well as the attempt to play a key role in solving the political crisis in Libya. Moreover, while it would be unfair not to underline that the HRVP stressed the importance of increasing human rights protection standards as part of the training support offered by the EU to Libyan authorities, it is also noteworthy that the final remarks of the Malta Declaration contain the commitment to reinforce EU return capacities, albeit in compliance with international law principles.

In the absence of further details, specific reports and agendas, it is difficult, at the moment, to fully understand what the improvement of the EU’s return capacities, and the reinforcement of its external borders, would imply for the EU institutions, especially in relation to the Central Mediterranean Route. The only indications at the moment concern the EU’s refusal to apply a scheme similar to that of the EU – Turkey statement to the EU – Libya relationship program on migrants; at the same time, paragraph 6 (i) of the Malta Declaration, also states that the “EU welcomes and is ready to support Italy in its implementation of the memorandum of Understanding signed on 2 February 2017 by the Italian Prime Minister and the Chairman of the Presidential Council Al – Serraj”.

3. The Italy – Libya Memorandum

The Memorandum of Understanding signed on 2 February 2017 by the Italian Prime Minister and the Chairman of the Presidential Council Al – Serraj seems to act as a hybrid source of mutual obligations in the issue at hand. Normally this type of legal document aims to define principles which seek to protect mutual interests between two or more parties. Compared to other public international law instruments, particularly those which are binding in nature, Memoranda of Understanding guarantee a higher degree of flexibility in the definition and further modification of commitments. In the case of the Italy – Libya memorandum, its strength could probably be found in its political impact. In this sense, it aims to achieve cooperation with North African countries in the management of migration inflows and to combat illegal migration and human trafficking. It also seems to reinforce good institutional relations between the two countries by continuing to support the establishment of peace and democracy in Libya.

Apart from the extremely dense content of the agreement, which contains different issues and commitments between Italy and Libya, the Memorandum also suffers from a number of shortcomings and reflects the same vagueness of the Malta Declaration- which could be summarised as follows. While the idea of cooperation and mutual support between the parties emerges as the most important statement of the Memorandum, the text does not seem to be able to express clearly and in sufficient detail: the peculiarities of the temporary reception program for migrants in Libya; or the border and security control of the southern borders of Libya by its partner; or the type of support to be accorded to the African countries of origin in accordance with the idea of the “Euro–African cooperation” in order to eliminate the phenomenon of the “illegal immigration”.

Furthermore, probably one of the most serious issues concerns the fact that Libya has never signed the 1951 Geneva Convention relating to the Status of Refugees. The Refugee Convention was the first instrument to introduce a proper definition of the status of refugee. It bestowed a specific juridical condition upon individuals needing international protection. This has imposed a duty upon States parties to ensure a minimum standard of protection and guarantees dealing with the phenomenon of displaced and disenfranchised people worldwide since the aftermath of the Second World War.

All things considered, the Memorandum and the Malta Declaration, represent legal documents mainly focused on migration matters. The fact that Libya is not a State Party to the Refugee Convention raises some concerns about how this demanding agreement will be implemented in such a sensitive field of emergency and foreign policy.

4. The risk of the failure to plan: final remarks.

The Informal Summit in Malta and the adoption of a Memorandum of Understanding between Italy and Libya have raised some concerns about the EU’s management of migration through the use of its external partners at its periphery. This is especially because both its partners, Turkey and Libya, are currently facing serious political and social troubles. This means that they are not in a position to ensure the high standard of protection of individuals required by international human rights law and international refugee law.

The result is that the EU in primis, presumably under the pressure of its Mediterranean member states, is trying to delegate the management of a huge humanitarian crisis by appointing external partners and charging them with an important responsibility in the name of national and supranational security without providing for adequate individual guarantees.

Despite the fact that the urgency of the ongoing humanitarian crisis demands a prompt and adequate response in terms of management by the EU institutions (and Member States), it seems to be predictable that a short-sighted plan adopted today by one of the greatest current supranational institutions could risk creating an even worse and unmanageable new reality in the distant future. The hazardous plan to counterbalance an ongoing huge humanitarian crisis with almost blind agreements, dependent upon uncertain conditions, with external partners could result in unpredictable consequences. Borrowing Benjamin Franklin’s words, ‘if you fail to plan you plan to fail’.