Dealing with Migrants in the Central Mediterranean Route: A Legal Analysis of Recent Bilateral Agreements Between Italy and Libya
| Author | Emanuele Sommario,Francesca Capone,Andrea Guttry |
| Date | 01 June 2018 |
| Published date | 01 June 2018 |
| DOI | http://doi.org/10.1111/imig.12401 |
Dealing with Migrants in the Central
Mediterranean Route: A Legal Analysis of
Recent Bilateral Agreements Between Italy
and Libya
Andrea de Guttry* , Francesca Capone* and Emanuele Sommario*
ABSTRACT
Dealing with the current flow of migrants flocking to the shores of southern European coun-
tries remains high on the international agenda. At the end of 2016, 276,957 migrants were
waiting in Libya to cross the sea. Many of them were subject to human rights violations and
abuses such as arbitrary detention, torture, unlawful killings, sexual exploitation and even slav-
ery (IOM, 2017). The international response has been, so far, insufficient and new ideas and
practices are urgently needed. After providing an overview of the legal framework and of the
efforts carried out by the relevant international and regional organizations, this article focuses
on recent treaties concluded between Italy and Libya, and argues that the new bilateral agree-
ments represent an example of how States are responding to this challenge in an attempt to
strike a balance between the need to strengthen the protection of migrants’rights and the
necessity to guarantee the security of national borders.
INTRODUCTION
During recent years, and especially since the fall of the Gaddafiregime in October 2011, a huge
number of migrants arrived in Libya in order to cross the Mediterranean Sea and enter Europe
(Massari, 2015; Colucello et al., 2016; Favilli, 2016). The civil war, still ongoing notwithstanding
the efforts of the UN and other actors to promote a political dialogue, and the weaknesses of the
peace agreements, such as that of Skhirat of 2015 –agreed and immediately thereafter rejected by
one of the parties –contributed, among other things, to the chaotic situation in the country (Henrik-
sen, 2016), which ultimately favoured the arrival and departure of irregular migrants. According to
IOM definitions, irregular migrations refers to movement “that takes place outside the regulatory
norms of the sending, transit and receiving countries”while the use of the term “illegal migration”
is restricted “to cases of smuggling of migrants and trafficking in persons”(https://www.iom.int/ke
y-migration-terms). This study focuses on irregular migrants: therefore, the term illegal migrants
will be used only when quoting official documents.
According to the Italian Ministry of Interior, in 2016 alone, 181.436 migrants arrived in Italy
(Italian Ministry of Interior, 2017) and 4,518 went missing while crossing the Mediterranean from
Libya to Europe (UNOHCHR, 2016). In the first six months of 2017 the number of migrants leav-
ing Libyan harbours increased by 36 per cent compared to the previous year and reached the peak
* Scuola Superiore Sant’Anna, Pisa
doi: 10.1111/imig.12401
©2017 The Authors
International Migration ©2017 IOM
International Migration Vol. 56 (3) 2018
ISS N 00 20- 7985 Published by John Wiley & Sons Ltd.
number of 71.978 (Italian Ministry of Interior, 2017). Almost all of them came from Sub-Saharan
Africa and, in more recent times, also from Eritrea, Sudan, Somalia and Syria. The trip from their
home-countries to the Libyan shores is extremely dangerous. According to a report released on 13
December 2016 by the UN Support Mission in Libya (UNSMIL) and by the UN Office of the High
Commissioner for Human Rights (UNOHCHR), while waiting in Libya to cross the Mediterranean,
the migrants:
suffer human rights violations and abuses in the course of their journeys. They are subjected to
arbitrary detention, torture, other ill-treatment, unlawful killings, sexual exploitation, and a host of
other human rights abuses. Migrants are also exploited as forced labor and suffer extortion by
smugglers, traffickers, as well as members of State institutions. Women migrants are the most
exposed, amidst numerous and consistent reports of rape and other sexual violence (UNOHCHR
2016).
The price of the transfer to the Italian coasts is high, and the local criminal bands managing the
“business”are making huge earnings. The most fortunate refugees will reach the Italian shores
(usually the island of Lampedusa which is the Italian territory closest to Libya) or will be rescued
by public, commercial or private ships navigating in the area, and transported to Italy. A significant
amount of the migrants reaching the Italian territory are unaccompanied minors who faced addi-
tional problems while travelling to Libya and then to Italy. Violence, sexual abuses, forced labour
under inhumane conditions, and illegal organs transplants are among the most reported crimes suf-
fered by these children. According to the Displacement Tracking Matrix of the International Orga-
nization for Migration (IOM) (IOM DTM Libya at www.globaldtm.info/libya) in August 2016
there were 276,957 migrants waiting in Libya to cross the sea. Until early 2016, most migrants
used Italy only as a transit point to reach final destinations more appealing to them (such as the
UK, France, Scandinavian Countries and Germany), but in more recent times, due to increased
inner-European border controls, the trend has changed and a high percentage of these migrants
remain in Italy where they often apply for refugee status (a status which Italian authorities grant to
less than five per cent of the applicants, after a time-consuming procedure).
On 19 September 2016 the United Nations General Assembly adopted a set of commitments to
enhance the protection of refugees and migrants, known as “The New York Declaration for Refu-
gees and Migrants”(UNGA, 2016). The document clearly reaffirms that all UN Member States
bear a shared responsibility:
to manage large movements of refugees and migrants in a humane, sensitive, compassionate and
people-cantered manner... through international cooperation, while recognizing that there are vary-
ing capacities and resources to respond to these movements. International cooperation and, in par-
ticular, cooperation among countries of origin or nationality, transit and destination, has never been
more important; “win-win”cooperation in this area has profound benefits for humanity.
Several initiatives have been undertaken by the international community to tackle the Libyan
migrant crisis, but results have been mixed until now. New ideas and practices need urgently to be
developed to deal in a more effective manner with this crisis. This contribution provides an analysis
of the measures that the relevant stakeholders have adopted so far to deal with the increasing num-
ber of migrants in the Central Mediterranean route and focuses specifically on a few recent treaties
between Italy and Libya. For a number of reasons that encompass geographic, historical, socio-eco-
nomic and legal factors, Italy has been identified as Libya’s most prominent counterpart and the
two countries have recently ratified an unprecedented set of bilateral treaties. After presenting an
overview of the past activities implemented at the international and regional level, this contribution
aims to identify and discuss the most innovative elements of the newly established agreements
between Italy and Libya and to ascertain whether they might represent a model for new
Dealing with Migrants in the Central Mediterranean Route 45
©2017 The Authors. International Migration ©2017 IOM
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