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5th Mar 2024

EU unclear on legality of Italy-Albania deal to offshore asylum

  • 'These facilities will initially be able to take in up to 3,000 people," said Italy's prime minister Giorgia Meloni (Photo: Italian government)
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EU asylum laws do not apply on vessels operating in international waters, the European Commission said on Tuesday (7 November) in response to questions on the legality of a fresh Italian deal to offshore asylum to Albania.

The reaction from the European Commission comes amid speculation over the legality of the Italian deal, given Rome's plan to disembark to non-EU Albania migrants rescued on the high sea in the Mediterranean.

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"There needs to be a differentiation between the situations where a vessel has entered, or not, the EU territorial water," said Anitta Hipper, a European Commission spokesperson.

"And depending on that, you will have the EU asylum or international law obligations," she added.

She also said all vessels sailing under the flag of an EU member state are bound by the national law of the member states, with the apparent exception of the EU asylum procedure regulation when sailing in international waters.

Anyone rescued must also be brought to a place of safety, in line with international law, she said.

The International International Maritime Organization (IMO), an UN body, was more direct.

"The jurisdiction of the ship is the flag state, regardless of where the ship is," said an IMO spokesperson, in an email.

The EU is also bound by the UN Convention on the Law of the Sea, known as UNCLOS.

The law sets out the clear duty of every ship master, spanning both government and private vessels, to rescue people in need.

An EU law, buried in a text of the EU sea borders regulation, also defines a place of safety as one where the lives of survivors are not threatened and where basic human needs can be met.

This poses additional questions on whether Albania fits such a description. It is also unclear on how EU asylum law can be enforced in a country that is not a member state.

The European Commission said it had been informed in advance of the proposal from Georgia Meloni's far-right government in Rome, but still needs further details before offering a wider assessment.

The deal would see the creation of two centres in northwest Albania, under Italian jurisdiction, with a plan to process up to 36,000 people annually.

Everyone rescued at sea by Italian boats, with the exception of women, vulnerable people, and children, would be sent to the two centres.

Meloni wants the facilities up and running by early next year, while at the same time throwing her weight behind efforts to have Albania join the European Union.

"Italy is Albania's first commercial partner and our trade is worth around 20 percent of Albanian GDP," she also noted.

But whatever the legal basis, the plan marks a broader push among EU states to process asylum claims outside the European Union.

Austria is mulling a similar proposal after signing a migration and security pact with the United Kingdom. And Germany's ruling Social Democrats (SPD) party appears increasingly open to the idea.

Ylva Johansson, the EU migration commission, has in the past spoken out against such deals.

"Sending asylum seekers more than 6,000km away and outsourcing asylum processes is not a humane and dignified migration policy," she said, of the currently-stalled UK plan to deport asylum seekers to Rwanda.

Regional disembarkation platforms

But such ideas and their various iterations have also been batted around the EU for years.

In 2018, an EU summit called for the creation of so-called regional disembarkation platforms to offload rescued migrants to North African states.

The platforms sought to resettle those in need of international protection, while sending others back to their home countries.

The European Parliament's legal service, at the time, endorsed the proposals.

They said EU law does not apply if the migrant is rescued in the territorial waters of an African coastal state.

But they also said that people rescued in EU territorial waters cannot then be sent to disembarkation platforms in an non-EU state.

The concepts, initially hatched by the International Organisation for Migration (IOM) and the UN refugee agency (UNHCR), were met with disdain by north African states, who viewed them as a veiled attempt by the EU to outsource its problem onto them.

An EU agreement with Tunisia over the summer to curb migration departures has been met with similar acrimony from president Kais Saied.

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