On 2 February 2017, the Italian Prime Minister and the UN-backed Libyan government of National Accord signed a Memorandum of Understanding (MoU) (English text) on cooperation in development, combatting irregular migration, human trafficking and strengthening border security. The primary focus of the deal is to prevent migrants including refugees from reaching the territories of the European States through the provision of technical and financial assistance to the Libyan authorities and forms a part of the EU’s broader deterrence strategy.

 

The preamble of the Memorandum states that the parties are determined to work towards facing all the challenges pertaining to the “peace, security and stability within the two countries and in the Mediterranean region in general.” It reaffirms the independence and the territorial integrity of Libya and further submits that priority will be given to urgent solutions to irregular migration “through the provision of temporary hosting camps in Libya, under the exclusive control of the Libyan Interior Ministry, in anticipation of repatriation or voluntary return to the countries of origin.” In this vein, readmission agreements are envisaged to be negotiated with countries of origin to facilitate the return of migrants.

 

Under Article 1, Italy and Libya commit to revive their cooperation in the fields of security and irregular migration in reference to the past bilateral agreements concluded between themselves. In this regard, Italy agrees to finance and provide support to the developments programmes targeting the affected regions by irregular migration. It also commits to give technical and technological support to the Libyan authorities which are primarily responsible for fighting irregular migration.

 

Article 2 of the MoU further elaborates on the actions to be undertaken by the parties in the following areas: i) completion of the land border control system of south Libya, ii) financing of the reception centres already active in Libya with the funds from both Italy and the EU, iii) providing training to the Libyan personnel working in these centres with a view to increase their ability to address irregular migration, iv) proposing a wider and more complete Euro-African cooperation view to address the causes of irregular migration, v) supporting the international organisations operating in Libya with a particular focus on their efforts to return migrants back to their countries of origin, and vi) investing in development programmes, such as job creation initiatives, mainly in the affected regions. Article 5 of the memorandum stipulates that all these actions should be carried out “in respect of the international organisations and the human rights agreements of which the two countries are part of.”

 

In general, the memorandum is criticised for its generic language, the lack of transparency in regard to the type and scope of projects it supports and the origin of funds. Under Article 4, the Italian party not only commits to provide funding for the actions envisaged by the MoU, but also mentions the possible use of the EU budget in this respect. Nevertheless, maybe the most problematic aspect of the document is its ignorance of the deteriorating political and human rights situation in Libya. There is a clear lack of reference to the international human rights framework and the legal safeguards that would be applied to the migrants returned to Libya or prevented to depart the war-thorn country.

 

With this agreement, the EU and Italy aim to enhance the institutional and operational capacity of the Libyan authorities as well as to progressively disengage from the search and rescue operations taking place at sea with a view to circumvent the legal implications of the Hirsi judgement delivered by the ECtHR in 2012. By eliminating the direct physical contact between themselves and the individuals, the European and the Italian authorities believe that they can refrain from any legal responsibility that may arise from the human rights violations occurring in the context of or as a result of these measures. However, although the involvement of third countries in the migration control activities may diffuse the basis of extraterritorial jurisdiction to a certain degree and render its determination more complex, it does not however mean that the responsibility of the contributing actor can simply be shifted or deflected.

 

The actions of the Libyan coast guard, which has been systematically funded, trained and equipped by its Italian and the EU counterparts, may still engage the responsibility of the latter, along with the Libya’s responsibility. In this regard, a recourse can be made to Article 16 of the ILC Draft Article on Responsibility of States for Internationally Wrongful Acts and Article 14 of the ILC Draft Articles on the Responsibility of International Organisations. For these provisions to apply, the aid or assistance should “significantly” contribute to the commission of the wrongful act, and the supporting party should render this aid or assistance “with the knowledge of the internationally wrongful act.” Despite not being reflected in the final wording of Article 16 ARSIWA, the ILC’s Commentary also adds that the responsibility of the aiding State is not engaged unless “the relevant State intends, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct”. Finally, the articles require the existence of an international obligation by which both the aiding and the aided actor are bound.

 

Although a number of practical challenges, such as the absence of an international court which can assert jurisdiction over both Italy and Libya, or the multiplicity of actors that are suspected to be involved in human rights violations, may render the application of these articles difficult, it can nevertheless be said that in theory, the current cooperation model between Italy and Libya could trigger the legal responsibility for both parties. Italy, backed by the EU, not only has a clear knowledge of the circumstances prevailing in Libya under which serious human rights violations are being committed, but also enters into this kind of cooperation with the intention of facilitating the forcible returns of migrants to places where they are at risk of torture and inhuman or degrading treatment. Finally, as to the opposability criteria, the fact that Libya is not a signatory to the Refugee Convention, does not abstain the parties from respecting the principle of non-refoulement due to its customary international law nature.

 

In light of these deliberations, it can be concluded that the Memorandum, in its current format and scope adopts an unbalanced and legally questionable approach to the challenge of irregular migration from Libya. It clearly prioritises the prevention and deterrence of irregular migratory movements to Europe and assigns little (primarily symbolic) importance to addressing the root causes of the problem. Despite the fact that States have the inherent right to control their borders, the initiatives and measures towards this goal should not undermine the human rights of those individuals whose vulnerability is at high levels.