Untitled to Claim to Ivorian Nationality

EVALUATION SCIENTIFIC COMMITTEE

EMILIO DE CAPITANI FREE (Fundamental Rights European Experts) Group, Bruxelles

MARIA CRISTINA ERCOLESSI University of Napoli “L’Orientale”

LUIGIA MELILLO UNESCO Chair in Bioethics, Italian Unit, Napoli

LUIGI MASCILLI MIGLIORINI University of Napoli “L’Orientale”

MIGRATIONS AND FUNDAMENTAL RIGHTS: THE WAY FORWARD

Edited by GIUSEPPE CATALDI – MICHELE CORLETO – MARIANNA PACE

Editoriale Scientifica Napoli

PROPRIETÀ LETTERARIA RISERVATA

INDEX

PREFACE 7

GIUSEPPE CATALDI, Migration in the Mediterranean Sea and protection of rights: some recent cases of Italian practice 9

MICHELE CORLETO, The responsibility of Italy in the effective prosecution against migrant smugglers and traffickers in the Mediterranean area 23

GIULIANA DORIA, Enforced disappearances and migration 41

ANGELA PACELLI, Khlaifia and others v. Italy: lights and shadows in the judgement of the Great Chamber of the European Court of the Human Rights 53

ANNA FAZZINI, “Are you really gay?”. Main criticalities in the protection of LGBT refugees within the European Union 67

ADELE DEL GUERCIO, Migration and fundamental rights. The case of Italy 81

MIGUEL MELLINO, La crise de l’antiracisme européen. L’Italie come observatoire de la nouvelle conjoncture politique européenne 115

LORENZO RICCIO, Foreigner and the condition of reciprocity 129

MARIANNA PACE, Human rights of migrants and refugees in the new international Agenda for sustainable development 139

VALERIA SAGGIOMO, The way forward is the civil society 169

ELISA FORNALÉ, Floating rights in times of environmental challenges 183

MARIANELLA PIRATTI, International migration and human rights in Africa: some main issues with particular reference to the ECOWAS space and Northern Africa 201 6 INDEX

VALERIA SAGGIOMO, Understanding migrants’ contribution to development. A case study from Somaliland 251

PREFACE

The publication of this volume concludes the experience of the “Jean Monnet Centre of Excellence on Migrants’ Rights in the Mediterranean”. Unfortunately, during the three years of existence of the Centre (2014 - 2017), the issue of the management of the migratory phenomenon in the Mediterranean has undergone a significant regression. The withdrawal of the Member States of the European Union as a result of the “sovereign” pressures has shown even more than in the past the lack not only of solidarity, but also, simply, of the necessary cooperation between these States. The “closure of ports” decided by the Italian Gov- ernment, at the expense of migrant lives, is its emblem. The main reason for this behaviour is well-known to legal scholars: since the country of first entry in the European Union is the one that must assume responsibility for processing the asylum applications of a migrant, and ultimately granting him/her a residence permit, welcoming boat people into one’s port turns out to be a much more exacting move than it would be otherwise (that is, absent the current Dublin regulation). This led the European Council, at the end of June 2018, to encourage the exploration of the notion of “regional disembarkation plat- forms”, with the aim of promoting “a truly shared regional responsibility on replying to the complex migration challenges” (as quoted in the non-paper stemming from the European Council meeting). The idea of burden-sharing and cooperation in the management of migratory crises, and the severance of the link between disembarkation and hospitality, is not new. However, the feasibility of such a model, or one akin to it, can be doubted, in consideration of how difficult it is to move away from the European status quo whenever migration issues are discussed. The European Union’s continued reliance on the Libyan authorities to “outsource” the management of migration in the Mediterranean has even aggravated the picture, in light of the unresolved issue of pacifica- tion in Libya. This final volume touches, on the one hand, on some specific issues not dealt with in previous publications, such as the protection of LGBT Refugees in the European Union (Fazzini), the Enforced disappearances and migration (Doria), the Condition of Reciprocity (Riccio). On the other hand, it broadens the analysis of the territories of departure (Africa in particular, see Piratti and Saggiomo’s papers) as well as the updating of issues already dealt with in previous publications of the Centre, such 8 PREFACE as smuggling and trafficking of migrants (Corleto), the challenges posed by the environmental crisis (Fornalé), the specific issues of application of the rules on the law of the sea (Cataldi), the protection of fundamental rights with reference to the “Italian case” (Del Guercio and Mellino), the role of civil society (Saggiomo’s second paper), the European Court of Human Rights judgments on Migrants (Pacelli), Migrations and Sus- tainable Development (Pace). We, at the Centre of Excellence, have tried, in our own small way, to do our part by trying to explore this phenomenon through our studies, the dissemination of our researches, the constant comparison between the different actors of the migratory phenomenon (Stakeholders, scholars, institutions), the in-depth information and training of young people. We would like to thank the European Commission’s Jean Monnet action for having allowed us to live this experience. We hope that we have contributed, albeit to a small extent, to directing the choices of those who, in the years to come, will have to act in this field and, above all, to assume responsibilities.

Giuseppe Cataldi Michele Corleto Marianna Pace MIGRATION IN THE MEDITERRANEAN SEA AND PROTECTION OF RIGHTS: SOME RECENT CASES OF ITALIAN PRACTICE Giuseppe Cataldi∗

SUMMARY: 1. Events involving the ships Aquarius, Lifeline, Maersk, Diciot- ti, Open Arms. – 2. The legal framework of the incidents. – 3. The concepts of “safe place” and “reasonable delay” and the requirements of protection of fundamental human rights. – 4. The question of “disembarkation”. – 5. Conclu- sions.

1. Events involving the ships Aquarius, Lifeline, Maersk, Diciotti, Open Arms

The new political winds that are blowing through Europe and Italy have recently caused the rejection from some Italian ports of ships (owned by non-governmental organizations - NGOs, as well as merchant ships and even Italian military ships) with on board migrants rescued at sea. They have been denied entry into internal waters and ports. Too often we hear that the current migration crisis is unprecedented, but some names of ships should remain in our collective memory: from the Bulgarian boat Struma with 767 Jewish refugees on board, which was blocked at the entrance of the Bosphorus during the winter of 1941 and then sunk by mistake by a Soviet torpedo, to the Norwegian ship Tampa, which in 2001 had collected at sea 438 Afghan asylum seekers but was banned by the Australian authorities from access to national ports for more than a week, generating a diplomatic crisis with Norway, until the situation was resolved thanks to the “outsourcing” of the management of the issue to the State of Nauru, which accepted asylum seekers in exchange for money. Incidentally, the latter is the so-called “Pa- cific Solution” (i.e., typical of the Pacific Ocean) that inspired the current Italian Minister of the Interior, by his own admission, to consider it as a “good practice” to be imitated. The situations that will be discussed involve a series of delicate legal

∗ Full Professor of International Law University of Naples “L’Orientale”; Chair Jean Monnet Network “MAPS – Migration and Asylum Policy Systems. Weaknesses, Short- comings and Reform Proposals”. 10 GIUSEPPE CATALDI issues, new and old at the same time: 1) the issue of flags of conven- ience; 2) the role of NGOs at sea; 3) the possibility for a coastal State to order a foreign ship to stop while on the high seas; 4) the hypotheses in which a coastal State may refuse the landing of people rescued at sea in its ports. I shall focus my remarks in particular on the latter point. We must start from a clear narrative of the facts.

(a) The Aquarius case On Sunday, June 10, 2018, the ship Aquarius, flying the Panamanian flag, belonging to the NGO “Doctors Without Borders”‘s fleet, with 629 migrants on board, including 123 unaccompanied minors, 11 children and 7 pregnant women, was refused entry into an Italian port. These people were rescued during six operations, under the coordination of the Italian Maritime Rescue Centre (IMRCC), in the light of the Hamburg Convention of 1979 (with which we will deal later). After transferring the rescued persons to the ship Aquarius, Italy denied access to the rescued persons and asked Malta (the nearest port to the operations) to accept the rescued persons. The Valletta Government immediately object- ed that the matter was not within its competence and that such a solution would not be possible. The activity of the ship Aquarius, as stated by a spokesman for the Maltese government, quoted by Malta Today, “took place in the Libyan search and rescue area (SAR) and was coordinated by the coordinating authority, the centre of Rome, and Malta therefore has no jurisdiction over this case”. The Aquarius, refused first by Italy, then by Malta, remained many hours halfway between the two countries (35 miles from Italy and 27 from Malta), in an area where the SAR of the two countries overlap. In the end, the Spanish government offered to welcome the ship and the immigrants in the port of Valencia, where the Aquarius arrived after six days of travel.

b) The Lifeline case Immediately after the case of the ship Aquarius, the Italian Govern- ment was the protagonist of a new confrontation with a ship belonging to an NGO, Lifeline, which deals with the rescue of migrants in the Mediterranean. On Thursday, June 21, 2018, the Dutch-flagged ship Lifeline, owned by a German NGO, rescued 224 migrants in imminent danger of shipwreck after leaving the Libyan coast in rubber dinghies. The Italian MIGRATION IN THE MEDITERRANEAN SEA AND PROTECTION OF RIGHTS 11

Government announced that it would not make its ports available, ex- plaining that Italy could not be the only country to host these ships. The seizure of the ship, which, it is recalled, was a foreign ship operating outside Italian jurisdiction, was also threatened, challenging the right of the German ship to a Dutch flag. The latter point is inconclusive, since it is for the flag State alone to challenge that right if necessary. As regards the possibility of disembarking rescued persons in Italy, it should be pointed out that NGOs assisting migrants are required to comply with the 1979 Hamburg Convention and other rules on rescue at sea, which stipulate that landings of persons rescued at sea must take place in the first ‘safe haven’ (Safety Place), which qualifies as such both for the health and personal safety guarantees offered, as well as for the protection of human rights. The Safety Place must be reached within a reasonable period of time, implying that the geographical proximity to the place where people in danger of shipwreck have been rescued is fundamental. In considering the above requirements, it should be borne in mind, with regard to the area where the rescue activities take place, that Tuni- sia is a relatively safe country, but is not equipped to meet the needs of migrants and, in the opinion of NGO operators, does not have comprehensive legislation on international protection; Malta is a very small state and already looks after the migrants it manages; Greece, France and Spain are too far from the Libyan coast, not to mention the Nether- lands, the flag state of the ship Lifeline. That is why the NGOs are transporting to Italy and only to Italy all the people who are being rescued close to Libya (in this case Lifeline reiterated that the rescue operation took place off the Libyan coast but in international waters, due to the uncertainty regarding the existence of a Libyan SAR area): the Ital- ian ports are simply the closest and safest. Obviously, this is one of the major problems to be solved: the burden of managing landings cannot be borne only by Italy, the European Union has a duty to take charge of an issue that falls within its competence and that necessarily affects all Member States. In the present case, in the end, the “political wrangling” between Italy and Malta (and between Italy and the European Union) ended with the acceptance by the Valletta Government of the landing of migrants in its territory, once it had obtained the guarantee that some other Member States (nine to be precise) would definitively receive the majority of these people.

12 GIUSEPPE CATALDI

(c) The Maersk case During the same period, the Danish container ship Maersk was given the go-ahead for the landing of migrants by the Ministry of the Interior after lengthy negotiations. It was the Italian coastguard who ordered the ship to rescue 113 people in danger on a rubber dinghy. Then, however, the ship remained in the harbour for three days, not far from the Sicilian coast and beaches, waiting for instructions before finally landing in Pozzallo. On this occasion, it became clear that the policy of obstructing the activities of NGOs, long undertaken by the Italian authorities, will weigh more and more heavily on merchant ships, forced to carry out search and rescue operations. In a statement of June 11, 2018, the Inter- national Chamber of Shipping of London (the World Shipowners’ As- sociation) pointed out not incidentally that “if the ships of NGOs are unable to disembark in Italian ports the people rescued in Italy, this will also have significant consequences for merchant ships (...), which will again have to participate in a significant number of rescue missions”. It is no coincidence, therefore, that precisely on the occasion of the Maersk affair, the Minister of the Interior expressed his hope that the Italian Coast Guard will no longer respond to the SOS launched by those in difficulty in the Libyan region.

d) The Diciotti case The Diciotti is an Italian Coast Guard ship, engaged, in mid-August 2018, in a rescue activity for 190 migrants in difficulty in the Maltese SAR region. After Malta’s refusal to take over the migrants, the Italian ship disembarked 13 people in need of emergency care in the port of Lampedusa, and then continued its journey towards Catania. But once they arrived, they were denied permission to take the migrants ashore (with a clear difference of opinion within the Italian Government between the Minister of Infrastructure and the Minister of the Interior), except for a few who were in urgent need of medical care. It was only five days after reaching the port of Catania that 137 migrants were allowed to disembark, where they were first identified and then transferred to the “hotspot” of Messina waiting for final settlement to locations willing to receive them. In this regard, we must note the singular circumstance of prohibiting an Italian military ship from docking in an Italian port, and the subsequent distribution of the migrants on this specific occasion: apart from Ireland, they were in fact housed by the CEI (Italian Bishops’ Conference), which is not a State, and therefore the persons rescued MIGRATION IN THE MEDITERRANEAN SEA AND PROTECTION OF RIGHTS 13 continued to have Italy as their only point of reference for the possible granting of refugee status, and in Albania, i.e. a country outside the Eu- ropean Union, with the result that the transfer was carried out outside the Dublin system, and therefore could not take place without the consent of the migrant. It should be noted that on January 23, 2019, the Court of Catania (Ministerial Offences Section) submitted to the Senate a request for authorization to proceed in court, pursuant to Article 96 of the Constitution, against the Minister of the Interior for the crime referred to in Article 605 of the Criminal Code (aggravated abduction). This is because the Minister, abusing his powers and in violation of international conventions, blocked the procedures to disembark migrants, forcing them to remain in critical physical and mental conditions for five days on board the ship Diciotti, moored in the port of Catania.

e) The Open Arms case In March 2018, a few months before the events briefly described above, the IMRCC in Rome reported that the Libyan coastguard was about to carry out an operation to rescue migrants in danger. However, while the Libyan units were on their way, the NGO ProActiva’s Open Arms ship, which was closest to the area in question, intervened and boarded the migrants after consultations between the ship’s manager and the NGO’s coordinator in Spain, the flag state. Once there, however, the Libyan coastguard demanded that all migrants on board the Open Arms be transferred to its ship, threatening to use force in the event of refusal. After moments of high tension, the Libyans, thanks also to the IMRCC radio intervention, allowed the Open Arms to resume navigation with its load of migrants on board. At this point, the Italian authorities informed Open Arms that it was not Italy but the Libyan State, which had coordinated the operations in question, or the flag State, therefore Spain, that was responsible for managing the landing in a “safe haven” for the migrants, suggesting that permission to disembark be requested from the Maltese authorities since the Mediterranean insular State was closest. This suggestion was not accepted by the NGO (apart from the rapid evacuation of two people in a serious state of health) as they believed it to be a useless attempt, given their previous experience with Maltese authorities refusing to receive migrants. However, in the end, authorization was granted for entry in the port of Pozzallo, where all the landing and identification operations took place. A request for confirmation of preventive seizure of the vessel, with 14 GIUSEPPE CATALDI simultaneous indictment of those responsible on board the Open Arms for the crime of aiding and abetting illegal immigration, was filed by the Public Prosecutor of Ragusa on April 7, 2018, motivated by the conduct of the ship that, ignoring the injunctions of the Libyan coast guard and therefore entering Italian waters illegally, had made it necessary, for security reasons, to berth in the port of Pozzallo. However, the Tribunal of Ragusa, Office of the Judge for Preliminary Investigations, by decree of 16 April 2018 rejected this request. In its very detailed decision, the Tri- bunal reconstructed the entire case, stating that, although the rescue at sea had not been carried out in a state of necessity, since it had taken place in the Libyan intervention zone, where Libyan authorities had assumed responsibility for the rescue, nevertheless, in order to assess the legitimacy of the actions of the Open Arms, “one cannot consider simply the problem of recovery of migrants at sea”. In fact, the judge observes that rescue operations are not limited to the recovery at sea of persons in danger, but must be completed and concluded with the landing in a safe place, and the place is safe only if it also ensures that the fundamental rights of the persons rescued are respected. From this perspective, on the basis of the available information, it emerges that Libya does not offer such guarantees to migrants (to all migrants, it is important to note that the judge, very rightly, does not distinguish between asylum seekers and so-called “economic” migrants in this case). Therefore, despite the conduct of the ship in blatant disobedience to the directives issued by the authorities in charge of coordinating relief in the Libyan and Maltese SAR areas, the conduct of those responsible for the Open Arms is justified in application of the exemption of the state of necessity.

2. The legal framework of the incidents

What lessons can we learn from these events? And, above all, how can we view these events within a legal framework? First of all, we must start from the consideration that when people in difficulty are rescued at sea, their qualification as “migrants” necessarily takes second place. That is why the rules laid down for such incidents apply first and foremost. First of all, art. 98 of the United Nations Convention on the Law of the Sea (UNCLOS, enforced in Italy by law no. 689 of 2 De- cember 1994), which codifies an ancient principle of customary law, providing that: “1. Every State shall require the master of a ship flying MIGRATION IN THE MEDITERRANEAN SEA AND PROTECTION OF RIGHTS 15 its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a col- lision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2. Eve- ry coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose”. It must be noted that no geographical indication or limitation is contained in this provision. More detailed are the provisions of the 1974 International Conven- tion for the Safety of Life at Sea (SOLAS), and the 1979 Hamburg Con- vention, already mentioned several times, on search and rescue at sea, which establishes the SAR (Search and Rescue) areas mentioned above. These two conventions were amended in 2004, after the Tampa affair, in particular by resolution (MSC No 167 of 20 May 2004) of the Maritime Safety Committee (IMO - International Maritime Organisation), entitled “Guidelines on the Treatment of Persons rescued at Sea”, to clarify that the government responsible for the SAR region in which the survivors are recovered is required to identify the safe place of landing and to provide it directly or to ensure that such a place is provided by another State. A safe place cannot be considered the rescuing vessel, except for a limited time. The first question which is evident in the cases examined is that Italy has a problem with Malta, since this State, despite having a SAR area of considerable size, does not recognise the validity of the guidelines just mentioned (which, by the way, are not compulsory though generally accepted) and, on the basis of the limits of its territory and the means at its disposal, disputes its competence to direct rescue operations in its SAR (unless Maltese flag vessels are engaged, which is very rare), which, moreover, overlaps in several places with the Italian one. The result is considerable uncertainty and ongoing accountability on the part of the Italian authorities. The issue of the Libyan SAR, the existence of which has not yet been fully established, is different but no less problematic. It was only on July 16 GIUSEPPE CATALDI

2018, that the IMO was notified of the existence of a coordinating authority for the Maritime Rescue Centre, without which it is obvious that the SAR cannot be considered effective. The fact that Libya still lacks an effective government to control the entire territory weighs on the issue. The primary subjects who must pay the consequences for the uncer- tainties mentioned above are the migrants whose fate is linked to the existence, on a case-by-case basis, of a State that is willing to monitor operations. Usually this state is Italy, but it has already been said that this is a burden that must necessarily be shared, at least within Europe. The obligation to provide assistance and relief, one of the oldest in the Law of the sea, requires that people in distress at sea be helped out of a spirit of solidarity and humanity, without discrimination based on the reason why the people rescued had undertaken their journey. The distinction that European States are trying to make between migrants and other persons in distress is a serious limit to the protection of human life at sea. It should not be forgotten that transit by sea presents far greater risks than transit by land. According to the “Missing Migrants Project” of the In- ternational Organization for Migration (IOM), of the 3,514 people who died worldwide in 2017 in an attempt to migrate, whose identity has been verified, as many as 2,510 lost their lives in the Mediterranean. It is a percentage that needs no comment.

3. The concepts of “safe place” and “reasonable delay” and the requirements of protection of fundamental human rights

Another key aspect is the issue of the closure of ports. This measure is not in itself excluded from the Law of the sea, since ports fall under the exclusive sovereignty of the State. There is no right of entry into a foreign port under international Law, since the port is located in internal waters, and unless an international agreement has been reached, the coastal State may choose whether or not to admit a foreign ship (unlike in the territorial sea, where all States enjoy the “right of innocent pas- sage”). Article 25 of UNCLOS then provides that the State may refuse entry if the ship violates national immigration regulations. However, any ship has the right to enter a port if it is itself in a situation of difficulty, or if the persons on board are in difficulty. In this case, the rule of “force majeure” or the “state of necessity”, already provided for and MIGRATION IN THE MEDITERRANEAN SEA AND PROTECTION OF RIGHTS 17 codified, moreover, by the 1923 Convention on the Regime of Sea Ports, applies. The refusal to accept a ship into a port constitutes in these cases a violation of the duty to safeguard human life at sea, unless a simple intervention (e.g. medical or mechanical repair) carried out on board can be sufficient to put an end to the state of necessity, without proceeding to the entry into the port. In the specific case of possible asylum seekers on board, when the ship is in internal waters and therefore under the jurisdiction of the coastal State, it must be the latter to verify, person by person, whether or not the requirements have been met, otherwise there will also be a violation of obligations under human rights standards, in particular the obligation of “non-refoulement” under the Geneva Convention of 1951 on refugees and the European Conven- tion on Human Rights (ECHR) as interpreted by the Court of Stras- bourg. This is the situation, for example, that applies with regard to the persons embarked on the vessel Diciotti.

4. The question of “disembarkation”

We now reach the point, following the rescue, of disembarkation. Here we must return to the concepts of “safety place” and “reasonable delay”. The State responsible for the SAR zone has an obligation to identify this location (an obligation which is not recognized as such only by Malta, as has been said), but the Law of the sea does not provide that such a place be necessarily on the territory of that State. It is clear that the rules of the two Conventions SOLAS and SAR, and the recommendations of the IMO, rely on cooperation between the State of the SAR area, the flag State of the ship providing the assistance, and possibly the State whose ports are closest to the area in which the intervention took place (“the coordination by a State of the relief action does not release the other States”, as expressed by the IMO in its recommendations). Un- fortunately, this cooperation is almost always lacking, as has been seen in the cases examined, and this is all the more serious because in most cases the States in question are united by the bond of common membership in the European Union! In the case of Aquarius, for example, Italy had the main responsibility, since the IMRCC in Rome had coordinated rescue activities at sea, and therefore, given the precariousness of the conditions of the people on board the week that elapsed from rescue to landing in the port of Valencia cannot be considered as a “reasonable 18 GIUSEPPE CATALDI delay”, and therefore certainly Italy has violated the Hamburg Conven- tion. However, neither the United Kingdom, the flag State, nor France, the national State of the majority of the crew members, nor the other States in the area, in particular those to which the obligation of ‘sincere cooperation’ laid down by European Union law applies, can be regarded as being relieved of all responsibility. In the case of Open Arms, the question of ‘safe place’ arose, however, with particular reference to the guarantees of protection of fundamental human rights. In our opinion, the decision of the Tribunal of Ra- gusa on this issue is absolutely correct. It is worth remembering that in 2012 Italy was condemned by the European Court of Human Rights in the Hirsi case because, after being rescued by an Italian military ship, a group of migrants drifting on several boats in difficulty had been taken back to Libya, the country they had left. This was in execution of an agreement between Italy and Libya. The Court stated that Italy had first violated Article 3 of the ECHR, on the prohibition of torture and degrading treatment, both because there was a risk of indirect refoulement (the Libyan authorities would most likely have proceeded to hand over these people to the countries of origin, where their safety was seriously threatened), and because there was evidence of torture and ill-treatment activities carried out directly by the Libyans. The rule on the prohibition of mass expulsions (art. 4 Prot. n. 4 of the ECHR) and art. 13, on the right to an effective remedy, were also violated, since no case by case assessment of the possible existence of the requirements for refugee status had been carried out and no possibility of challenging any negative decisions in this regard had been granted (European Court of Human Rights, Grand Chamber, Hirsi Jamaa and others v. Italy, 23 February 2012). The political situation in Libya, with detailed reports on the mis- treatment of migrants in Libyan detention centres provided by various sources, allow us to state with reasonable certainty that there are currently no “safe” ports in this country from the point of view of guarantees for the protection of human rights, and that there do not appear to be any significant improvements with respect to the situation considered by the European Court of Human Rights at the time of the Hirsi case. It should be noted that the ship Open Arms was also accused of vio- lating the “Code of conduct” adopted by the Italian Ministry of the Inte- rior in July 2017 and signed by several NGOs, including precisely Pro- Activa (on 8 August 2017). In particular, in the present case, the first of the commitments mentioned in the code of conduct is relevant, provid- MIGRATION IN THE MEDITERRANEAN SEA AND PROTECTION OF RIGHTS 19 ing for NGOs, “in accordance with relevant international law, a commitment not to enter Libyan territorial waters, except in situations of serious and imminent danger requiring immediate assistance, and not to hinder the activity of Search and Rescue (SAR) by the Libyan Coast Guard, in order not to hinder the possibility of intervention by the competent national authorities in their territorial waters, in accordance with international obligations”. A direct consequence of this is also the con- testation of the “commitment to cooperate with the IMRCC, executing its instructions and informing it in advance of any initiatives taken independently because they are considered necessary and urgent”. But what is the legal value of this Code of conduct? First of all it is clear that it does not have the force of law, since it was not issued by Parliament or in any other constitutionally provided equivalent form. Of course, this is not a private law contract either, given the nature of the contractors. It is likely that it could be given the value of an administrative act drawn up by the ministry and proposed for acceptance by sub- scription to NGOs. It follows, therefore, that its provisions must in any case yield to the need to apply superordinate rules such as those mentioned so far, from the Hamburg Convention to the ECHR, from UN- CLOS to SOLAS, all international conventions enforced in Italy by ordinary law. This is not to mention other possible principles that are also superior to ordinary law, which have constitutional value by virtue of the mechanism of adaptation provided for in art. 10, first paragraph, of the Constitution.

5. Conclusions

The events that have been summarily described also strongly confirm that the European Regulation (“Dublin III”) identifying the Member State responsible for examining an application for international protection (EU Regulation no. 604/2013) should be revised. This system, conceived without taking into account the size of migration flows in recent years, places too heavy a burden on Italy to examine the enormous number of applications for protection submitted. This is due to its geographical position and conformation, which necessarily leads it to be the natural point of entry for migrants from the African continent. It is therefore right that our country should push for a revision of the Dublin system, and insist on asking the European partners for a fairer distribu- 20 GIUSEPPE CATALDI tion of the efforts (logistical and economic) necessary to deal with the humanitarian emergencies intrinsic to migrations by sea. We have seen that, since there is almost always a lack of agreement, within a reasonable period of time, among the parties involved in rescue operations, and taking into account the needs of people in distress at sea, Italy must assume full responsibility. It should also be remembered that even in the framework of operations conducted under the aegis of the European Border and Coast Guard Agency (formerly and more commonly known as Frontex) responsible for controlling the external borders of the Union (operations Triton and Themis, in particular, see EU Regulation No 656/2014), in the majority of cases the port of reference is an Italian port. The revision of the “Dublin system”, in application of the principle of loyal cooperation between Member States established by the Europe- an Union, could finally lead both to overcoming this shameful human “ping-pong” being enacted at the expense and suffering of people in distress, and, consequently, to reducing the problem of the interpretation of the concept of “safe place” of landing, providing a necessary legal certainty even to NGOs, which provide an essential service otherwise necessarily borne by merchant ships, vessels of national navies, or the Eu- ropean coastguard and border control. The enactment of certain rules would also be a warning and a message to States such as Libya, which, while desiring to deal on an equal footing with the Union and its members, are having difficulties establishing rules and institutions as a country that respects democracy and human rights, and to other entities such as criminal organizations involved in the smuggling of migrants and that thrive precisely because of the legal uncertainty that prevails today.

BIBLIOGRAPHY

G. CATALDI, “Giurisdizione e intervento in alto mare su navi impegnate nel traffico di migranti”, Giurisprudenza italiana, 2015, p. 1498 ff.; G. CATALDI (ed.), A Mediterranean Perspective on Migrant Flows in The European Union: Protection of Rights, Intercultural Encounters and Integration Policies, Napoli, 2016; G. CATALDI, A. LIGUORI, M. PACE (eds.), Migration in the Mediterranean Area and the Challenges for ‘Hosting’ European Socities, Napoli, 2017; E. CUSUMANO, “The Non-governmental Provision of Search and Rescue in the Mediterranean MIGRATION IN THE MEDITERRANEAN SEA AND PROTECTION OF RIGHTS 21 and the Abdication of State Responsibility”, Cambridge Review of In- ternational Affairs, 2018, p. 53 ff.; A. DEL GUERCIO, La protezione dei richiedenti asilo nel diritto internazionale ed europeo, Napoli, 2017; F. DE VITTOR, “Immigrazione e asilo. Soccorso in mare e favoreggiamento dell’immigrazione irregolare: sequestro e dissequestro della nave Open Arms”, Diritti umani e diritto internazionale, 2018, p. 443 ff.; M. FINK, “Non-Governmental Organisations and Search and Rescue at Sea”, Ma- ritime Safety and Security Law Journal, 2018 (online); M. FINK, K. GOMBEER, “The Aquarius Incident: Navigating the Turbulent Waters of International Law”, EJIL: Talk!, 14 June 2018 (online); A. LIGUORI, “La Corte europea condanna l’Italia per i respingimenti verso la Libia del 2009: il caso Hirsi”, in Rivista di diritto internazionale, 2012, p. 415 ff.; V. MORENO-LAX, O. SHATZ, “Time to Investigate European Agents for Crimes against Migrants in Libya”, EJIL: Talk!, 29 March 2018 (online); I. PAPANICOLOPULU, “The Duty to Rescue at Sea, in Peacetime and in War: A General Overview”, International Review of the Red Cross, 2017, p. 491 ff.; V. PASSALACQUA, “The ‘Open Arms’ case: Re- conciling the notion of ‘place of safety’ with the human rights of migrants”, EJIL: Talk!, 21 May 2018 (online); M. RAMACCIOTTI, “Sulla utilità di un codice di condotta per le organizzazioni non governative impegnate in attività di Search and Rescue (SAR)”, Rivista di diritto internazionale, 2018, p. 213 ff.; A. SACCUCCI, “La giurisdizione esclusiva dello Stato della bandiera sulle imbarcazioni impegnate in operazioni di soccorso umanitario in alto mare: il caso della Iuventa”, Rivista di dirit- to internazionale, 2018, p. 223 ff.; E. TRAMONTANO, Organizzazioni non governative e ordinamento internazionale, Milano, 2013; S. TREVI- SANUT, Immigrazione irregolare via mare, diritto internazionale e dirit- to dell’Unione europea, Napoli, 2012; D. VITIELLO, “Il diritto di cercare asilo ai tempi dell’Aquarius”, SIDIBlog, 29 giugno 2018 (online).

THE RESPONSIBILITY OF ITALY IN THE EFFECTIVE PROSECUTION AGAINST MIGRANT SMUGGLERS AND TRAFFICKERS IN THE MEDITERRANEAN AREA Michele Corleto*

SUMMARY: 1. Introduction. – 2. Can the coastal State, in this case Italy, exercise coercive powers in maritime areas which are not under its sovereignty or jurisdiction? – 2.1. Article 110 of the United Nations Convention on the Law of the Sea. – 2.2. United Nations Convention against Transnational Organized Crime of 15 November 2000. – 3. Powers over ships and limitations to the use of force. – 4. Criminal offences and penalties imposed on traffickers under Ital- ian law. – 5. Effectiveness of the prosecution: interpretations by the Corte di Cassazione. – 6. Facilitating irregular immigration and providing assistance in international waters: what is the procedural status of migrants? – 7. Concluding remarks.

1. Introduction

The theme of this paper aims to dwell on the chain of migratory movements, the problems of human trafficking and smuggling of migrants to Italy and on the solutions in case law as developed by Italian Court. Every year thousands of irregular migrants, including asylum seekers and refugees, cross the Mediterranean Sea to enter Europe. The reasons for crossing the Mediterranean Sea are numerous: some migrants are fleeing conflict and persecution; others simply seek a better life in EU member state. Many of these are victims of migrant smuggling1 and

* Researcher in International Law, University Telematica Pegaso, Academic Coor- dinator of Jean Monnet Module on the Future of Criminal Cooperation in the Eu. 1 Smuggling is the facilitation, transportation, attempted transportation or illegal entry of a person across an international border, in violation of one or more countries laws, either clandestinely or through deception, such as the use of fraudulent documents. Mi- grant smuggling is a criminal commercial transaction between two willing parties, even if migrants are often unaware of their fate. They may in fact become victims of trafficking or other crimes. Article 3 (a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air (New York, 15 November 2000 in United Nations Treaty Series, vol. 2241, p. 507) supplementing the United Nations Convention against Transnational Or- ganized Crime, defines smuggling of migrants as: “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person 24 MICHELE CORLETO human trafficking:2 two different criminal phenomena, each having its own legal framework. Government instability and internal conflicts in many African countries favor smuggling because criminal organizations, can

into a State Party of which the person is not a national or a permanent resident”. See J. Gallagher, “Human rights and the new UN Protocols on Trafficking and Migrant Smug- gling: A Preliminary Analysis”, in Human rights quarterly, 2001, p. 975 ff.; S. Burra, “Protocols against trafficking in Persons and Smuggling of Migrants: Implications for Refugee Protection”, in ISIL Year Book of International Humanitarian and Refugee Law, 2003, p. 163 ff.; N. Ollus, Protocol against the Smuggling of Migrants by Land, Air and Sea, Supplementing the United Nations Convention against Transnational Or- ganized Crime: A Tool for Criminal Justice Personnel, Resource Material Series, 2004, p. 31 ff.; T. Obokata, “The Legal Framework Concerning the Smuggling of Migrants at Sea under the UN Protocol on the Smuggling of Migrants by Land, Sea and Air”, in R. Bernard, M. Valsamis (eds.), Extraterritorial Immigration Control: Legal Challenges, Leiden, 2010, p. 181 ff.; J. Coppens, Migrant Smuggling by Sea: Tackling Practical Problems by Applying a High-level Inter-agency Approach, Ocean Yearbook, 2013, p. 323 ff.; J. Gallagher, “Migrant Smuggling”, in N. Boister, R. Currie (eds.), Routledge Handbook of Transnational Criminal Law, New York, 2015, p. 187 ff. 2 Trafficking in persons can be compared to a modern day form of slavery. It involves the exploitation of people through force, coercion, threat and deception. It includes, moreover, human rights abuse such as debt bondage, deprivation of liberty, and lack of control over freedom and labor. Human trafficking is a crime that often assumes an international dimension, as it involves the crossing of borders. It is defined by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (New York, 15 November 2000 in United Nations Treaty Series, vol. 2237, p. 319), supplementing the United Nations Convention against Transnational Organized Crime. According to Article 3(a) of the mentioned Protocol, human trafficking is: “The recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of pay- ments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.” See J. Satvinder, “Human Trafficking, Asylum and the Problem of Protection”, in J. Sat- vinder (ed.), The Ashgate Companion to Migration Law, Theory and Policy, Farnham, 2013, p. 281 ff.; A. Balch, “Assessing the International Regime against Human Traffick- ing”, in L. Talani, S. Mcmahon (eds.), Handbook of the International Political Economy of Migration, Cheltenham, 2015, p. 98 ff.; T. Kyriazi, “Trafficking and Slavery : the Emerging European Legal Framework on Trafficking in Human Beings - Case-law of the European Court of Human Rights in Perspective”, in International Human Rights Law Review, 2015, p. 33 ff.; T. Obokata, “Human Trafficking”, in N. Boister, R. Currie (eds.), Routledge Handbook of Transnational Criminal Law, New York, 2015, p. 171 ff. THE RESPONSIBILITY OF ITALY IN THE EFFECTIVE PROSECUTION 25 manage migrants in their territories and make them victims of trafficking. Transnational criminal organizations control and profit from the entire chain of migratory movements, that is: from the departure, often from sub-Saharan countries, to transit through the desert, to the detention in “refugee centers” along the southern coast of the Mediterranean, to the embarkation on “mother” ships from which the immigrants are then transferred to small and most unsafe boats heading for the Europe- an coast, up to the “assistance” provided when they finally reach land and their ultimate chosen destination. The United Nations Security Council authorized strong measures to counter both phenomena. Acting under Chapter VII of the UN Charter, the Council in particular decided, by means of Resolution 2240 (2015), to authorize Member States to use all necessary means to repress migrant smuggling and human trafficking in full compliance with international human rights law. How did the system work before that enter into force the Mission EUNAVFOR MED-Sophia operation in 2015?3 A “mother ship” left the North African coast and, as soon as it reached the high seas, immigrants were transferred on life-boats or small boats that was usually in an extremely bad state. Most often, one of the immigrants, who is totally in- experienced, was entrusted to steering the vessel to the coast of the northern Mediterranean Sea. At this point the “mother ship” returned to the port from which it set sail. However, before doing so, it sent an S.O.S. to the nearest European port’s authorities. Usually this port was located in Italy. Police forces were forced to intervene for humanitarian reasons, thus making what is termed as an “SAR Intervention” (that is a Search and Rescue Intervention), in accordance with the International Convention on Maritime Search and Rescue (SAR) of the 27th of April 1979. I would also like to point out that the State obligation of intervening to save migrants life was restated, with particular reference to Italy, by the European Court of Human Rights, which provided a broad interpretation of the “non-refoulement principle”.

3 See Council of the European Union, EUNAVFOR Med: Council adopts a positive assessment on the conditions to move to the first step of phase 2 on the high seas, Press Release No. 643/15, 14 September 2015, available at: www.consilium.europa.eu/en/press/press-releases/2015/09/28-eunavfor (12/15). 26 MICHELE CORLETO

Over the last few years, various decisions4 of the Corte di Cassazio- ne have been taken concerning one of the important aspect of the management of the phenomenon of migration by sea: the prevention and suppression of crime. We are talking about both the aspects of the jurisdiction to adjudicate and of the force used with regard to the ship and the passengers on board, obviously in line with the relevant international regulations and the maritime spaces considered. The object of the decisions of the Corte di Cassazione has been the illegal conduct based on a unitary criminal design, taking place partly in spaces under Italian jurisdiction, partly on the high seas. In fact, criminal organizations have developed such an effective and cynical system to facilitate the transit of illegal immigrants into the sea, minimizing the risk of interception by port authorities of EU Member States. These decisions very clearly show that, from the criminal law5 point of view, the action of rescuers has to be considered as an “action of the intermediary actor”! As a result, the rescue is considered “not as an un- foreseeable event but one that is foreseeable, willful and provoked”, So, since the condition of necessity is due “to and provoked by traffickers”, the latter’s actions are “punishable in our State” albeit occurring in an extra-territorial context. Such actions are therefore subject to Italian jurisdiction even if the criminal activity is only minimally and partially linked to the Italian territory. Any direct contact between the coast and the boats in question via radio, telephone, or any electronic device is sufficient to pursue an individual action as an action committed in Italy6 or abroad.7

4 Cass. Pen, section I, 20 November 2001-8 January 2002, no. 325; Cass. Pen, section V, 9 July-20 October 2008, no. 39205; Cass. Pen, section I, 23 May 2014, no. 36052, Criminal proceedings against Harabi Hani Abdal Qadir Saad; Cass. Pen, section I, 27 March 2014, n. 14510, Criminal proceedings against Haji Hassan; Cass. Pen, section I, 23 January 2015, no. 3345, Criminal proceedings against Radouan Hai Ham- mouda. For a punctual description of the illicit conducts undertaken by migrant smugglers and human traffickers, see G. Cataldi, “Traffico dei migranti nel Mediterraneo”, in Giurisprudenza italiana, 2015, pp. 1498-1502; in particular, the author examines the decision of the Italian Supreme Court, Criminal proceedings against Radouan Hai Ham- mouda, No. 3345, 23 January 2015. See also Id., Italian Yearbook of International Law, 2014, p. 475 ff. 5 Art. 54 (3) of the Italian Criminal Code. 6 Art. 6 of the Italian Criminal Code. THE RESPONSIBILITY OF ITALY IN THE EFFECTIVE PROSECUTION 27

Most significant are the developments regarding coercive interventions on ships smuggling immigrants as shown by the evolution of the framework of international conventions. These decisions clearly attribute to the coastal States more possibilities of intervention. They constitute, as a consequence, a significant and increasing limitation of the principle of freedom on the high seas with the aim of protecting the common interests of the International Commu- nity as a whole.

2. Can the coastal State, in this case Italy, exercise coercive powers in maritime areas that are not under its sovereignty or jurisdiction?

2.1. Article 110 of the United Nations Convention on the Law of the Sea

Obviously, the problem does not concern ships flying national flags, but much rather those which are unidentified or fly a foreign flag. One must first refer to Article 110 of the United Nations Convention on the Law of the Sea (UNCLOS), which deals with the right to inspect ships on the high seas. Vessels are subject to the jurisdiction of their flag State, the exercise of which differs according to the maritime zone in which the vessel is sailing.8 Indeed, the relevant maritime zones include internal waters, territorial sea, contiguous zone (CZ) and exclusive economic zones (EEZ) once declared by the coastal State, and the high seas.9 As a ship sails away from a State’s coastline, the extent of jurisdiction shifts in favor of the State of the flag it flies, until it becomes exclusive on the high seas. Conversely, as the ship approaches a State’s coastline, the balance shifts in favor of the coastal State. UNCLOS establishes the current subdivision in maritime zones and codifies States’ jurisdiction, including the jurisdiction to enforce laws. Article 8 of the UNCLOS provides that a State’s full sovereignty and

7 Art. 7 of the Italian Criminal Code. 8 See H. Ringbom, Jurisdiction over Ships: post-UNCLOS Developments in the Law of the Sea, Leiden, 2015. 9 See S. Subedi, Land and Maritime Zones of Peace in International Law, Oxford, 1996; C. Symmons, The Maritime Zones of Islands in International Law, The Hague, 1979. 28 MICHELE CORLETO jurisdiction extends to its inland waters, which form part of its territory. States also have full sovereignty within their territorial waters, which may extend up to 12 nautical miles from the baselines (UNCLOS, Arti- cles 2-4).10 The coastal State maintains restrictions on entry and has the right to ‘intercept’ migrants at sea within the limits of their territorial waters or to prevent them from entering in the absence of mandatory documents. The coastal State may further exercise enforcement jurisdiction, such as taking immigration measures, within its CZ, which may not exceed 24 nautical miles from the baselines (UNCLOS, Article 33).11 In the EEZ, which can extend to a maximum of 200 nautical miles from the baselines (UNCLOS, Articles 55, 56 and 57), the coastal State has functional jurisdiction over the exploration and exploitation, conser- vation and management of natural resources.12 In immigration and trafficking matters, the legal regime of the high seas is applicable also to the EEZ of the coastal State. The high seas are free for all States and are reserved for peaceful purposes (UNCLOS, Ar- ticle 88).13 The State jurisdiction applies to vessels flying their respective flags (i.e. floating state jurisdiction). However, freedom of navigation must be exercised by all States with due regard for the interests of other States in the exercise of freedom of the high seas (UNCLOS, Article 87(2)). The principle of exclusive jurisdiction of the State of the flag being flown on the high seas impedes any interference with the navigation of foreign ships without the permission of their own flag State.14

10 T. Treves, “Coastal States Rights in the Maritime Areas under UNCLOS”, in Re- vista de Direito Internacional, 2015, p. 40 ff. 11 See K. Aquilina, “Territorial Sea and the Contiguous Zone”, in D. Attard, M. Fitzmaurice, N. Gutiérrez (eds.), The IMLI Manual on International Maritime Law, Ox- ford, 2014, p. 26 ff.; J. Noyes, “The Territorial Sea and Contiguous Zone”, in D. Roth- well, A. Elferink, K. Scott, T. Stephens (eds.), The Oxford Handbook of the Law ofthe Sea, The Hague, 2015, p. 91 ff. 12 See U. Leanza, M. Caracciolo, “The Exclusive Economic Zone”, in D. Attard, M. Fitzmaurice, N. Gutiérrez, The IMLI Manual, cit., p. 177 ff.; G. Andreone, “The Exclu- sive Economic Zone”, in D. Rothwell, A. Elferink, K. Scott, T. Stephens, TheOxford Handbook of the Law of the Sea, Oxford, 2015, p. 218 ff. 13 See D. Attard, P. Mallia, “The high seas”, in D. Attard, M. Fitzmaurice, N. Gutiérrez, The IMLI Manual, cit., p. 239 ff.; D. Guilfoyle, “The High Seas”, in D. Rothwell, A. Elferink, K. Scott, T. Stephens, The Oxford Handbook cit., p. 270 ff. 14 On the freedom of high seas principle, see B. Conforti, Il regime giuridico dei ma- ri, Napoli, 1957, p. 9 ff.; M. Giuliano, Lo sviluppo e gli aspetti attuali del diritto del ma- THE RESPONSIBILITY OF ITALY IN THE EFFECTIVE PROSECUTION 29

However, in exceptional circumstances regulated by Article 110 of the UNCLOS, the “right to visit” may be exercised by a State over foreign vessels suspected to be involved in certain illegal activities, namely piracy, slave trade, unauthorized broadcasting, unidentified sailing, de- ceptive nationality. With respect to the jurisdiction enforced by a State on a foreign vessel suspected of smuggling or trafficking on the high seas, the transportation of the persons involved is very often carried out using non-registered small vessels without any flag (i.e. stateless vessels). The “absence of nationality” seems to be the most relevant legal basis for intercepting vessels carrying migrants or involved in human trafficking. According to Article 110 (1, d) of the UNCLOS, a vessel without nationality may be boarded by any warship.

2.2. United Nations Convention against Transnational Organized Crime of the 15 November 2000

Much more specific and detailed is the United Nations Convention against Transnational Organized Crime and its Protocol n. 4, signed in Palermo on the 15th November 2000.15 According to the latter provisions, the boarding and inspection of a ship is always permitted, in the case of actions taken in order to combat the smuggling of migrants, when there is a suspicion that the ship is without nationality, whereas, in the case of a ship on the high seas flying the flag of a State other than the intervening State, the measures in question must be authorized. Whilst applying this principle, the above-mentioned decisions provide operational indications that may be summarized as follows. If there are grounds to connect the mother ship (or the “daughter” vessel) to accomplices operating in Italy (e.g. “local organizers”), the Italian jurisdiction or the exercise of coercive powers on the high seas has to be considered as legal. If there is no connection with Italy, the “daughter” vessel has to be in the contiguous zone. In this case, as the two vessels are linked, coercive powers may be exercised both with regards to the small vessel as well as the mother ship, even if the latter is in the course of navigation or waiting on the high seas. re, Valladolid, 1960, p. 25 ff.; D. Brown, The International Law of the Sea, vol. I, Al- dershot, 1994, p. 51 ff. 15 Protocol against the Smuggling of Migrants by Land, Sea and Air. 30 MICHELE CORLETO

In my opinion, in order to repress these crimes and protect human lives at sea, the rules governing the required connection with the coast should be granted a broader interpretation. It should also be pointed out that the techniques used to intercept the communication and the cooperation between States, make it possible to detect this connection even earlier. Secondly, in order to definitely discourage the techniques used by the smugglers of immigrants, I believe that it is absolutely necessary to allow coercive action, even if it is certain that the criminals have not been in contact with the coast. However, both the transfer of migrants on the high seas from the mother ship to the daughter ship and the route taken by the latter prove the existence of criminal intent. Even more so (but we do not consider this to be an essential requirement) if the larger ship has sent an SOS, thus activating search and rescue procedures. The decision of the Tribunale di Reggio Calabria (Sez. Gip – Gup), 28 July 2014, No. 223, Criminal proceedings against Hazer Elsahat Mohamed Elmokader and others was a good example of best practice. It rules that any coercive operation, implemented, from the very beginning, under the control of Frontex, may be considered as lawful even if performed on the high seas. It is the first decision that limits the principle of freedom on the high seas with the aim of protecting the common interests of the International Community as a whole.

3. Powers over ships and limitations to the use of force

While operating on the high seas, military units shall distinguish between flagged and stateless vessels. According to this distinction, in the first case, if the vessel suspected to be engaged in migrants smuggling and human trafficking is flying a flag, naval forces are authorized to inspect them but only provided that they have made efforts in good faith to obtain the consent of the vessel’s flag State.16 In the opposite and more frequent case and, therefore, if the ship sus-

16 See paragraph 7 of Resolution 2213 (2015), adopted by the Security Council at its 7420th meeting, on 27 March 2015, Doc. S/RES/2213 (2015); Resolution 2238 (2015), adopted by the Security Council at its 7520th meeting, on 10 September 2015, Doc. S/RES/2238 (2015), preamble. THE RESPONSIBILITY OF ITALY IN THE EFFECTIVE PROSECUTION 31 pected to be engaged in smuggling and trafficking is without nationality, pertinent States (and the EU agencies operating in the Mediterranean) are authorized to inspect them.17 In order to determine which State can exercise powers over ships found in the different areas whereby the sea is divided for the purposes of international law, the traditional approach of the international law of the sea on jurisdiction is applicable. On the high seas, ships are free to navigate and are subject to the exclusive jurisdiction of the State of their flag so that no claims of sovereignty by any State would be retained as valid.18 It may be considered that, according to these norms, the boarding of a foreign private ship can take place only in exceptional cases, and specifically, in the exceptional circumstances as specified in article 110 UNCLOS. Included in this list of exceptional circumstances is the reasonable ground for suspecting that a ship is without nationality.19 In this case, the use of force should be the last resort. The normal practice used to stop a ship at sea is first to give an audio or visual signal to stop, using internationally recognized signals. Where this does not succeed, various actions may be taken, including the firing of shots across the bows of the ship. The pursuing military vessel may, as a last resort, use force if the appropriate actions fail. Even then, an appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered. Firing without warning and creating danger to human life on board without proven necessity exceeds the legitimate use of force. International law requires that the use of force must be avoided as much as possible and, where unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. These principles have been followed over the years in maritime enforcement operations. The proportionality principle requires the enforcing State to balance the gravity of the offence with the value of human life. Migrants must be treated with human dignity and their rights must be fully respected in conformity with international law. In the event that the

17 See paragraph 5 of the Security Council Resolution 2213 (2015), cit. 18 See article 89 of the UNCLOS. 19 On the provisions of international law of the sea applicable to immigration in the different marine jurisdictional zones, see T. Scovazzi, “Human Rights and Immigration at Sea”, in R. Rubio-Marín (ed.), in Human Rights and Immigration, Oxford, 2014, p. 216. 32 MICHELE CORLETO use of force is necessary, planning operations must aim primarily to save persons smuggled or trafficked and secondly to arrest the smugglers or the traffickers. In this regard, principle n. 5 of the UN Basic Principles states that “Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; (b) Minimize damage and injury, as well as respect and preserve human life”.20

4. Criminal offences and penalties imposed on traffickers under Italian law

Provisions against criminal offences are not lacking in Italian legislation, and severe penalties are imposed on traffickers, thus making such provisions effective. First of all, the crime of aiding and abetting illegal immigration, provided for by Article 12 of the Consolidation Act on Immigration, is highlighted21 by reference to the treatment reserved for migrants. More- over, the conduct of the traffickers could also be aggravated by violence like beatings (Article 2 of the Consolidation Act on Immigration 581 c.p.), personal injury (art. 582 c.p.), insult (art. 594 c.p.), kidnapping (art. 605 c.p.), sexual violence (art. 609-bis), private violence (art. 610 c.p.) or threat (art. 612 c.p.). In the cases, unfortunately all too frequent, when the crossing ends tragically, the traffickers could also be charged with the crime of mali- cious (Article 428 of the Criminal Code) or culpable (Article 449 of the Criminal Code) shipwreck and that of culpable homicide (Article 589 of the Criminal Code) or death or injury as a consequence of another crime (Article 586 of the Criminal Code).

20 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, available at www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms. aspx. 21 This crime is sanctioned - in addition to harsh fines - with penalties that can reach up to thirty years of imprisonment in cases, far from rare, in which the acts aimed at illegally procuring entry into the territory of the State were carried out for profit and concerned five or more migrants whose lives, or personal safety, were put at risk during transport. THE RESPONSIBILITY OF ITALY IN THE EFFECTIVE PROSECUTION 33

The application of the Italian Criminal Code in the case of trafficking in persons, referred to in Article 601, is more difficult,22 since the trafficking of persons through the Mediterranean does not necessarily integrate all the constituent elements of this complex and articulated crime, some of which (such as the existence of the previous condition of sub- jection of migrants or, alternatively, of the particular specific intent required by the law) are in any case very difficult to prove. Similarly, although the smuggling of migrants is indisputably managed by very well-structured transnational criminal organizations, it is not always possible to attest the crime of criminal association, as per art. 416 of the Italian Criminal Code, to the smugglers arrested by the Italian authorities. In fact, the management of the “vessel” is often entrusted to people who are not part of the criminal organization; in many cases, they are migrants who lend themselves to this activity in exchange for a discount on the price of the crossing. On closer analyses, however, the main obstacle to the prosecution of traffickers is not as much the content of the Italian criminal regulations, as their spatial scope of application. With the implementation of D.L. 113/2018, concrete actions have been introduced to prohibit the rescue at sea or the landing of migrants, both by vessels of non-governmental organizations and by Italian and foreign military units. With the related measures of expulsion and detention of a formally administrative nature, no direct action is taken through criminal measures on the conduct attributable to migrants. The data could seem comforting if we do not take into account, in this framework, the absence of any measure to prevent and combat the phenomena of trafficking and smuggling of human beings; namely, one focused on the exploitation of the migrant and punishable under Article 601 of the Criminal Code; the other as a facilitation of illegal immigra-

22 The law punishes with imprisonment from eight to twenty years: whoever re- cruits, introduces into the territory of the State, transfers even outside it, transports, transfers authority over the person, hosts one or more persons who are [in conditions of slavery or servitude, as defined in Article 600 of the Criminal Code].The same conduct is carried out on one or more persons, by means of deception, violence, threats, abuse of authority or by taking advantage of a situation of vulnerability, physical or mental infe- riority or necessity, or by promising or giving money or other advantages to the person who has authority over them, in order to induce them or force them to work, sex or beg or in any case to perform illegal activities that involve exploitation or to undergo the removal of organs. 34 MICHELE CORLETO tion provided for in Article 12 of Legislative Decree no. 286/1998. The effort aimed at containing and discouraging the arrival of migrants in Italy is carried out ignoring the issue, already raised in the past, of criminal responsibility for refoulement on the high seas. Humanitarian protection is replaced by residence permits issued for “special cases”, with the intent to reduce administrative discretion and to define exceptional cases for granting of the so-called “special permits for temporary stays and hyper humanitarian needs” for certain categories of particularly vulnerable people, or for those who come from countries that are in a situation of “contingent and exceptional disaster”; or finally for persons deserving “acts of particular civil value”. Similarly, expulsion procedures are simplified and the maximum duration of detention for foreigners in detention centers for repatriation has significantly increased from 90 to 180 days. On the other hand, the revocation of the citizenship acquired by foreigners convicted definitively for a large number of crimes; extension of the catalogue of crimes which, in the event of a final conviction, entail the refusal or revocation of international protection (including serious and very serious personal injuries, theft and theft in the home in the aggravated hypothesis referred to in Article 625, paragraph 1, no. 3, of the Italian Criminal Code). The overall design of the measure is not only based on the logic of very strongly narrowing the hypothesis of legitimate residence in the territory, thus leading to the prospect of long-term criminal effects determined by the precariousness in which many foreign subjects will find themselves, but is also placed, according to a consistent number of observers - in conflict with the constitutional pre- cepts and with the international commitments undertaken by Italy in regard to the protection of fundamental rights and discipline in the status of the foreigner. It is important to note that nothing has been proposed in recent measures taken to combat the smuggling and trafficking of migrants, either in terms of concrete measures or legislative provisions.

5. Effectiveness of the prosecution: interpretations by the Corte di Cas- sazione

In the Italian inquisitorial system of law, the investigating magis- trate, particularly owing to the given territorial competence being that of the initial landing places (i.e. Sicily) of the human tide that moves to- THE RESPONSIBILITY OF ITALY IN THE EFFECTIVE PROSECUTION 35 wards the North, is entrusted to dedicate considerable attention to sanc- tioning the conduct of aiding and abetting illegal immigration. The analysis of jurisprudence shows how articulated strategies of contrast have been elaborated in time towards those who promote, organize and manage the smuggling of migrants on the high seas. Initially, the Italian judiciary had stopped short from action when faced with trafficking in migrants carried out entirely outside the 12 nautical miles that delimit Italian territorial waters. This absence of jurisdiction could be remedied only when a portion, even if minimal, of the crimes ascribed take place in the Italian territory; a circumstance that was usual when the agent was charged with complicity in the crime of illegal immigration carried out at least partially in Italy.23 This interpretation had, however, to deal with the change in the operating methods of the smuggling of migrants across the Mediterranean, whereby the perpetrators adopt precautions to prevent the application of Italian jurisdiction. Namely, that model of trafficking which consists in abandoning subjects in international waters in very bad conditions and in activating, if necessary, the Italian authorities with a request for help, assuming the “risk” of shipwreck but evading from criminal justice. The Public Prosecutor’s Office of Catania and other Sicilian judicial offices have opposed this factual situation with measures that have passed the scrutiny of the jurisprudence of legitimacy. As summarized in a recent ruling issued by the Corte di Cassazione in March 2018, which is a useful summary of previous jurisprudence, it was considered that even such conduct beyond the limits of Italian territorial waters or, according to an extended approach, the so-called contiguous area, could fall under Italian jurisdiction. Overcoming the principle that the crime of aiding and abetting illegal immigration provided for by Article 12 of Legislative Decree n. 286/1998, when committed in international waters, as a crime of attack, must be deemed to have been fully committed abroad, case law has conversely shown that it may be considered as having been committed on Italian territory.24 When “a request for assistance, received by the Italian authorities, has been launched from the smaller vessel or the mother ship, aimed at “provoking” the transport - and, in fact, the immigration - of the illegal migrants by the latter, has been attracted within the scope of the Italian criminal law”. The contributory function of such conduct may be applied to ensure

23 Cass. Pen., section I, 23 May 2014, no. 36054. 24 Cass. Pen., section I, 23 May 2014, no. 36054. 36 MICHELE CORLETO the introduction of illegal migrants into the territory of the State, which allows the originating of territorial attribution of the conduct, pursuant to Article 6 of the Criminal Code, and the relationship of the entire fact within the scope of Italian jurisdiction. The same theory, with regard to the crime of illegal entry into the territory of the State, of non-EU citizens, has been confirmed even in the hypothesis that migrants, coming from abroad on board 'mother' ships, are abandoned in international waters on boats unsuitable for reaching the Italian coast, in order to pro- voke the intervention of rescuers who will take them to Italian territory.25 In both cases, through resorting to the theory of the intermediary actor. Those who work on rescue boats are exempted from liability, on the assumption that they act within the framework of the state of necessity of art. 54, par. 3 of the Italian Criminal Code, as they are compelled by the creation of a situation of danger voluntarily determined by others, in order that those who lodge the request for rescue or abandonment on the high seas may then respond to the facts.

6. Facilitating irregular immigration and providing assistance in international waters: what is the procedural status of migrants?

A procedural profile concerns the way in which migrants, transported in so-called “journeys of hope”, must be heard. It explains the very important consequences of court trials for the crime of aiding illegal entry, whether as persons informed of prior facts, as witnesses after the occurrence, and also as suspects of a related crime, represented by the irregular entry fine provided for in Article. 10 bis Law Decree of 25 july 1998, no. 286. The decision of the judge (G.U.P.) of Trapani of November 9, 201626 is indicative in this regard; it is a decision of acquittal: the Court, in fact,

25 Cass. Pen., section I, 3 July 2018, no. 29832. 26 In April 2016, the Italian Coast Guard rescued at sea and took a wooden boat loaded with more than three hundred irregular migrants of different nationalities to the port of Trapani. From the first investigations and from the indications drawn from the hearing of some of the migrants transported, it turned out that a young Sudanese citizen had taken command of the boat, who had led her throughout the trip until the arrival of the rescuers. He was then charged with the crime of aiding and abetting irregular immigration, provided for and punished by art. 12 Law Decree of 25 July 1998, no. 286, in its aggravated form referred to in paragraphs 3, letter a), b), d), 3 bis and 3 ter, letter b). THE RESPONSIBILITY OF ITALY IN THE EFFECTIVE PROSECUTION 37 at the end of the investigation (on which amplius infra) has considered that there was “at least the serious and well-founded doubt” that the criminal conduct was carried out by the accused in a state of necessity, resulting from the particular manner in which the young man had been appointed in command of the ship, and focusing on the procedural form applicable to his case”. The ruling provides a reconstruction of events that confirms the recent evolution of the strategy adopted by criminal organisations to bring irregular migrants onto European soil. This strategy has been refined into a modus operandi that is much safer for traffickers and their resources and much more dangerous for migrants themselves. The journey is often divided into two parts; the first, whereby the migrants are transported on board mother ships, which are more robust and spacious; and the second when they are transhipped on smaller vessels, usually totally inadequate, to reach the shore, because they lack water, food, fuel and the main security tools. This they do with the sole purpose of provoking the conditions artfully legitimizing the rescue at sea and the subsequent return to European ports by rescuers that may be involved. In this way, and taking advantage of the rules of the law of the sea, traffickers reduce to a minimum the risk of being caught or of having their most valuable vessels seized, while at the same time not hesitating to jeopardise the lives of the passengers on board. The second profile of interest offered by the judgment is represented by the in-depth reconstruction of the current jurisprudential guidelines on the subject of the definition of the procedural form to be attributed to the transported migrant, once he must be heard, both during the investigation phase and before the judicial authority, on facts related to the smuggling of migrants: mere person informed about the facts/witness or investigated of the related crime referred to in art. 10 bis Law Decree of 25 July 1998, no. 286? This question is answered from the point of view of substantive law: the question then ensues as to whether the entry into the national territory of the irregular migrant who does not already reach the successful conclusion of the journey undertaken, but is instead the effect of the intervention of the emergency rescue measures could be considered as the commission of the crime referred to in art. 10 bis Law Decree of 25 July 1998, no. 286. The prevailing orientation in terms of legitimacy leads to the conduct of the migrant rescue worker in international waters and the subjects brought to Italy by the rescuers to an act that is not punishable because - 38 MICHELE CORLETO as already mentioned - the crime referred to in article 10 bis of the Law Decree of 25 July 1998, no. 286 is a criminal offence.27 This orientation, in conclusion, is based on the enhancement of a significant deviation of events from the causal course expected by foreigners when they travel to enter irregularly in a national territory. This entry becomes undesired, and much rather “forced”; and imposed by authority, to allow the rescue, or even for the completion of those “investigations” and those “other activities made necessary, including the institution of summary proceedings on evidence from persons informed about the facts because of their presence on board the boat”. Any wrongful conduct of the migrants would therefore have definitely been interrupted while on high seas, and therefore at a stage not applicable to “the threshold of culpability in relation to the assumption of crime under Art.10 bis of Law Decree of 25 July 1998, no. 286”. A different approach is prompted by jurisprudence on the crime of art. 12 Law Decree of 25 July 1998, no. 286 which recognizes the existence of Italian jurisdiction on the facilitation of irregular entry made through the causing of conditions for rescue in international waters, precisely on the basis of a unified reconstruction of the conduct of traffickers, who plan from the outset the pursuit of the criminal intent and the fulfilment of the obligation to transport contracted with migrants are achieved through the voluntary causa- tion of the state of danger. The jurisprudence has reconstructed this case in terms of mediated authority, stating that rescuers are immediate perpetrators of the crime of aiding and abetting (not punishable because forced by the need to save migrants in danger), but the traffickers are responsible for this crime, as intermediary perpetrators of the entire criminal conduct. If, therefore, the causal series of events that leads from the embarkation at the North African coasts to the landing on the European continent, must be considered as unique and without solutions of continuity such as to allow the conviction of the traffickers, then the intervention of the rescuers is not able to change the nature of the entry and therefore the distinction between illegal entry tout court and illegal “forced” entry loses relevance, as considered accomplished, and not only at-

27 Cass., 18 April 2016, no. 25215, stresses that it cannot be assumed, “on the other hand, with regard to [migrants] that the danger of life resulting from the rescue action that had led to their entry and stay for humanitarian reasons in the territory of the State had been provided for and artfully created by the same”. THE RESPONSIBILITY OF ITALY IN THE EFFECTIVE PROSECUTION 39 tempted, as regards to the crime referred to in article 10 Law Decree of 25 July 1998, no. 286. It is for this reason, therefore, that the Court, in adherence to this orientation, considered that it could not take into account the statements made by the three foreigners heard as mere witnesses in the evidentiary incident during the investigation phase, and - having heard again the only witness available, this time in assisted mode - based its decision solely on the results of the examination conducted thereby. In the light of the prevailing legal orientation that has emerged, it may be concluded that, on an objective level, the sanction referred to in Art. 10 bis is concentrated on the nature of the instantaneous conduct, consisting in “entering the territory of the State”, regardless of the manner in which this entry is made. On the subjective level, since the offence is a criminal offence, the subjective element can be either wilful misconduct or negli- gence. As for intent, it is presumed that the migrant is not aware of the re- pulsive way in which he will be brought to Italy and the extreme degree of danger which the traffickers will not hesitate to venture. Likewise, however, it is difficult to imagine that the migrant is completely unaware that serious danger exists. On the level of representation and voli- tion, therefore, it is reasonable to think that the migrant has predicted and allowed a situation of danger that becomes a necessary means for irregular entry. In any case, what may not be covered by fraud is certainly attributable to blame: it is clear, in fact, that the migrant who aims to reach the European coasts by makeshift means, and in one of the most frequented sea areas in the world, cannot be unaware of the high probability of being intercepted and forced into port. Therefore, even on a subjective level, the fact of irregular entry is attributable to either fraud or guilt, whether it is irregular entry or forced entry. Irregular forced entry is certainly an involuntary action,28 which alters the original plan of the migrant, which allows him to realize the typical fact as a crime of irregular entry.

28 Article 43 of the Criminal Code. 40 MICHELE CORLETO

6. Concluding remarks

As in the case of the fight against piracy, responsibility for punishing captured criminals cannot be borne by a single country. If the repression of the smuggling of migrants is really in the common interest of the Member States, the burden of prosecution must also be shared. Moreover, the violation of the external borders of the Union damages all the States belonging to the Schengen area and not only the States of “first entry” of migrants. Nor does it appear that the possible extension of the criminal jurisdiction of States, other than Italy, to crimes of smuggling migrants into the Mediterranean can be considered to be contrary to international law. It should also be borne in mind that the smuggling of migrants across the Mediterranean is not only a violation of the territorial sovereignty of the States of destination, but it also entails serious and systematic violations of the fundamental rights of migrants, who are also often people in need of international protection. From this point of view, the exercise of the punitive power of any European State over traffickers would seem to be further legitimized, in the light of the principle of defence, because it is aimed at safeguarding the values of civilization and respect for the human person on which the Union itself is based.29

29 Article 2 of the EU Treaty. ENFORCED DISAPPEARANCES AND MIGRATION Giuliana Doria*

SUMMARY: 1. Introduction. – 2. What is meant by enforced disappearances? – 3. Migration caused by enforced disappearances. – 4. Enforced disappearances during the migration journey. – 5. Which are the factors that can lead migrants to the risk of facing enforced disappearances? – 6. Conclusion.

1. Introduction

“We are witnessing in today’s world an unprecedented level of human mobility. More people than ever before live in a Country other than the one in which they were born. Migrants are present in all countries in the world”.1 We can read these words in the New York Declaration for Refugees and Migrants adopted by the UN General Assembly in 2016. Nowadays migration, in all its forms,2 is central in the public debate and has taken on an unprecedented scale. Many people are forced to move from their home to another place because of natural disaster or civil dis- turbance or seeking refuge from political, religious, or other forms of persecution. The 1951 Convention Relating On The Refugees Status3 was adopted with the hope that the problem of refugees would be a passing phenomenon,4 but recent events have demonstrated that this is not the case. Definitely all those who embark on the migration path become vulnerable and easy victims of human rights violations. Connected to this

* University of Naples “L’Orientale”. 1 UN doc. A/RES/71/1, General Assembly, New York Declaration for Refugees and Migrants, 3 October 2016, § 3. 2 With the general term of migrants, I refer both to refugees and asylum seekers, and to people who migrate for economic, climatic or other reasons. 3 The Convention Relating to the Status of Refugees (hereafter the 1951 Refugee Convention) is a United Nations multilateral treaty that defines who is a refugee. It was elaborated and signed in 1951 in Geneva and entered into force on 22 April 1989, 149 UNTS 137 (n. 2545). By March 2019, 145 were parties of the Convention. 4 Jerzy Sztucki, “The conclusion on the international Protection of refugees adopted by Executive Committee of the UNHCR Programme” International Journal of Refugee law, 1, 1989, pp. 285-286. 42 GIULIANA DORIA phenomenon are crimes of the utmost gravity such as human trafficking, torture or other inhuman treatment. Migrants can also be victims of enforced disappearances. The connection between these two issues, migration and enforced disappearance, has not been fully analysed. There is an interesting report5 on enforced disappearances in the context of migration by the Working Group of Enforced or Involuntary Disappear- ances (hereafter Working Group ED),6 published in 2017. This is, indeed, the first specific document on the issue. The phenomenon of enforced disappearances can be linked to migration in different ways: on the one hand it can be the reason for the decision to change country, on the other it can occur during the migration process itself. I will focus my attention mainly on this second hypothesis.

2. What is meant by enforced disappearances?

First and foremost, it seems appropriate to outline what is meant by enforced disappearances. The UN International Convention for the Pro- tection of All Persons from Enforced Disappearance7 considers enforced disappearance to be: “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or

5 UN doc. A/HRC/36/39/Add.2, General Assembly HRC, Report of the Working group on enforced or involuntary disappearances on enforced disappearances in the context of migration (hereafter Working Group ED 2017 Report), 28 July 2017 36th session of Human Rights Council. 6 The Working group of enforced or involuntary disappearances it was established by resolution 20 (XXXVI) of 29 February 1980 by the Commission on Human Rights, for a period of one year to examine questions relevant to enforced or involuntary disappearances of persons. Its mandate was renewed year after year. Resolution n. A/HRC/RES/36/6 adopted by the Human Rights Council in September 2017 renewed the mandate of the Working Group. Working Group's primary task is to assist families in determining the fate or whereabouts of their family members who are reportedly disappeared. 7 The Convention for the Protection of All Persons from Enforced Disappearance (hereafter the 2007 Convention) was adopted by the United Nations General Assembly on 20 December 2006 and opened for signature on 6 February 2007. It entered into force on 23 December 2010. Until now 98 states have signed the convention and 59 have ratified it. This human rights instrument of the United Nations is intended to prevent enforced disappearances.

ENFORCED DISAPPEARANCES AND MIGRATION 43 by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.8 This definition is based on the previous meanings found in the Pre- amble of the 1992 Declaration on the Protection of All Persons from En- forced Disappearance9 (hereafter 1992 Declaration) and in art. 2 of the 1994 Inter-American Convention on Forced Disappearance of Persons10 (hereafter 1994 Inter-American Convention). Therefore, it’s possible to identify 3 elements of enforced disappearances: a. Deprivation of liberty against the will of the person; b. Involvement of government officials, at least by acquiescence; c. Refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person. The consequences of these elements place such a person outside the protection of the law. This crime is characterized by lack of information regarding the person deprived of liberty. This absence of information affects family members, who are seeking the truth, and also society. The uncertainty and the deprivation of contact with the victim, creates serious family problems. Indeed, the word ‘victim’ refers not only to a disappeared person but also to “any individual who has suffered harm as the direct result of an enforced disappearance”.11 This broad definition of victim found in the 2007 Convention therefore includes both family members12 as well as human rights defenders and lawyers. Furthermore, State involvement is central. Government officials can play an active

8 Art. 2 of the 2007 Convention. 9 UN doc. A/RES/47/133 Declaration on the Protection of All Persons from En- forced Disappearance adopted by 92nd plenary meeting, 18 December 1992. 10 OAS doc. A-60, Inter-American Convention on The Forced Disappearance of Persons adopted in Belem Do Para, Brazil 6 September 1994. The Inter-American Con- vention on The Forced Disappearance of Persons is a regional treaty of the Organization of American States (OAS) intended to combat the forced disappearance of persons. To this day, the convention has been ratified by 15 states. 11 Art. 24 of the 2007 Convention. The 1992 Declaration provides for a right to repa- ration for victims in art. 19 both for a disappeared person and for his family members. 12 As early as 1978, Organization of American States (OAS) had highlighted that enforced disappearance “also affects the entire circle of family and friends who wait for months and sometimes years for some news of the victim’s fate”. Doc. OAS/Ser.L/V/II.43, Doc. 21 corr. 1, 20 april 1978 Annual report of the Inter-american commission on human rights, part II (Areas in which further steps are needed to give effect to the human rights set forth in the American Declaration of the rights and duties of man).

44 GIULIANA DORIA role in this crime or they can be acquiescent (even when they are not carrying out investigations). How can this crime be related to the phenomenon of migration? Cer- tainly it’s possible to consider migrants as victims exposed to situations of vulnerability; the Working Group ED associated it with children, women, human rights defenders, indigenous people and others.13 There is no international instrument, so far, that deals with enforced disappearances in relation to migration. As said, in 2017 the ED Working Group developed a specific report on this theme, highlighting that “States and international community as a whole do not seem to be giving the necessary attention to this issue”.14 Stressing the fact that there is no universally recognized definition of the concept of migrant, the Working Group proposes this solution: “any person who is outside a State of which he or she is citizen or national, or in the case of a stateless person, his or her State of birth or habitual residence”.15 The risk of facing enforced disappearance during the migration journey is high. The nature of enforced disappearances as a crime based on the lack of knowledge on the fate of the missing person and on the identity of those accountable, creates a state of impunity. This can therefore be used more to conceal the wrongdoing and to guarantee that the of- fender gets away with it. As a result, enforced disappearances can be connected to the migration phenomenon in two ways: the risk of enforced disappearances can be seen as the reason for a person’s decision to leave his home country, or migrants may be jeopardized by this heinous crime during their journey.

3. Migration caused by enforced disappearances

First of all, enforced disappearances can be a possible cause of mi-

13 UN doc. A/HRC/39/46, Report of the Working Group on Enforced or Involuntary disappearances, 30 July 2018, § 75. 14 Cit. Working Group ED 2017 Report, § Note by Secretariat. 15 Office of the United Nations High Commissioner for Human Rights (OHCHR), Recommended Principles and Guidelines on Human Rights at International Borders (Geneva, 2014), introduction, § 10. Available at www.ohchr.org/Documents/Issues /Migration/OHCHR_Recommended_Principles_Guidelines.pdf, and also E/CN.4/2000 /82, § 36.

ENFORCED DISAPPEARANCES AND MIGRATION 45 grations. The fear of becoming the victim of enforced disappearances may well be the reason behind some people’s decision to leave their home country and change their lives. Over the years this fear, along with the risk of being tortured or experiencing inhuman and degrading treatment or even death, has led many people to flee and leave everything behind, in order to find a better future for themselves and their families. Currently, the situation of widespread violence occurring in many areas of some Central American states (among these are Honduras, Gua- temala, El-Salvador) in recent years has led to a significant increase in the number of asylum seekers and refugees in other countries.16 The news of the ‘migrant caravan’ stopped at the Mexican border caused quite a stir all over the world.17 Those who flee from their country for this reason should have the possibility to apply for asylum or refugee status.18 In fact according to the definition of refugee in the 1951 Refu- gee Convention, the term shall apply to any person who has a: “well- founded fear of being persecuted”.19 There is no universally accepted definition of “persecution”; nevertheless, serious violations of human rights would also constitute a form of persecution. This argument is part of the well-established principle of non- refoulement,20 that it is mainly designed to protect each individual refu-

16 IACHR doc. OAS/Ser.L/V/II., Doc. 42/15, Situation of Human Rights in Hondu- ras, 31 December 2015, § 143. See also IACHR doc. OAS/Ser.L/V/II. Doc. 208/17, Sit- uation of Human Rights in Guatemala, 31 December 2017 §§ 233 - 241. 17 IACHR press release, IACHR expresses concern over the situation of the “Mi- grant Caravan” from Honduras and calls on the States of the region to adopt measures for their protection, 23 October 2018 http://www.oas.org/en/iachr/media_center /PReleases/2018/225.asp; BBC news, Migrant caravan: What is it and why is it matter?, 26 November 2018 https://www.bbc.com/news/world-latin-america-45951782. 18Art. 1 A (2) of the 1951 Refugee Convention. 19 UNHCR, Handbook And Guidelines On Procedures And Criteria For Determin- ing Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Sta- tus of Refugees, Geneva, December 2011 https://www.unhcr.org/publications/legal/ 3d58e13b4/handbook-procedures-criteria-determining-refugee-status-under-1951- convention.html. 20 See Sir Elihu Lauterpacht and Daniel Bethlehem, “The scope and content of the principle of non-refoulement”, UNHCR 20 June 2011 on https://www.unhcr.org /protection/globalconsult/3b33574d1/scope-content-principle-non-refoulement- opinion.html?query=non%20refoulement. See also Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd Edition), Oxford University Press, 2007, pp. 201-205.

46 GIULIANA DORIA gee or asylum-seeker from refoulement. The principle is applied as a component part of several international conventions;21 of which the Convention on enforced disappearances is definitely one. Art. 1622 ICPPED, likewise art. 8 of the 1992 Declaration, establishes the prohibition of non-refoulement in connection with the risk of being subjected to enforced disappearances.

4. Enforced disappearances during the migration journey

Contrary to the analysis of the previous paragraph, the crime of enforced disappearance can be related to a person, not as cause of the decision to leave, but during his/her long and perilous journey or also in the Country of destination. It can be said that from the moment a migrant leaves his Country, he becomes defenceless. While in transit, migrants can fall victim of many crimes, such as extortion, robbery and even torture or rapes.23 The dangerous routes24 that

21 Best known expression of the non-refoulement principle is in Article 33 of 1951 Refugees Convention; Article III(3) of the 1966 Asian-African Refugee Principles; Ar- ticle 7 of the 1966 International Covenant on Civil and Political Rights (ICCPR66), which provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, has been interpreted as containing an implied prohibition on refoulement; Article 3 of the 1967 Declaration on Territorial Asylum adopted unanimously by the UNGA as Resolution 2132 (XXII), 14 December 1967; Article 22(8) of the 1969 American Convention on Human Rights; Article II(3) of the 1969 OAU Refugee Convention; Art. 3 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Article 3 of the 1950 European Convention on Human Rights. 22 Art. 16 ICPPED: No State Party shall expel, return (‘refouler’), surrender or ex- tradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law. 23 IACHR doc. OEA/Ser.L/V/II. Doc. 208/17, Situation of Human Rights in Guate- mala, 31 December 2017. At § 235 it has said that “the Guatemalan State has seriously failed in its response to ensure these people and their family members access to justice and searches for missing and unidentified migrants”. 24 IOM, Migrant deaths and disappearances worldwide 2016 analysis, issue n. 8, 2016.

ENFORCED DISAPPEARANCES AND MIGRATION 47 migrants follow expose them to a greater risk of becoming victims of human rights violations, including enforced disappearances. Migrants can disappear for several reasons: political reasons, as a consequence of smuggling or trafficking, following arrest or detention, or even in the context of deportations and pushbacks. In the first case political opponents who flee for their own protection and security are pursued and captured in the country where they choose to seek refuge. This practice was widely used in South America in the 60s and 70s. In this regard we refer to the Condor Plan25 which envisaged the possibility of extraterritorial incursions into neighbouring countries that joined it (initially Argentina, Chile, Uruguay, Paraguay, Brazil and Bolivia, and later also Peru and Ecuador), allowing, through exchange of information, a large number of detentions and killings in Latin American countries. Many cases of disappearances as a consequence of smuggling or trafficking are carried out by non-state actors (such as traffickers or smugglers), who act with the direct or indirect involvement of State authorities, usually carried out by individual corrupt agents.26 Enforced disappearances are therefore not linked to specific State policies but to individual state actors.27 The strict definition of enforced disappearances involves nothing but governmental officials, directly or indirectly. Wrongdoings carried out by non-state actors28 are not included. It is not straightforward, therefore, to identify a state’s responsibility for disappearances related to smuggling or trafficking. It is necessary that the

25 Stella Calloni, Operazione Condor. Un patto criminale, 2010, pp. 10-20; Fracesca Lessa, “Justice Beyond Borders: The Operation Condor Trial and Accountability for Transnational Crimes in South America”, International Journal of Transitional Justice, vol.9, n. 3, 2015. 26 Corruption is very present in migrant trafficking and smuggling operations. See Europol, Migrant smuggling in EU, February 2016, p. 12. 27 Cit. Working Group ED 2017 Report §§ 34-35. 28 Notwithstanding mandate of the Working Group limits the investigations to the only disappearances perpetrate by state actors as it possible to read in UN doc. E/CN.4/2005/65, Question of enforced or involuntary disappearances Report of the Working Group on Enforced or Involuntary Disappearances - Annual report for 2004, 23 December 2004, § 11. Although the mandate of the Committee on enforced disappearances, similarly, is limited to the cases of disappearances committed directly or indirectly by state officials, on the other hand the 2007 Convention in art. 3 opens a window providing for obligation for the State of investigate acts of disappearances by non-state actors.

48 GIULIANA DORIA

State authorities be indirectly involved to be able to designate such missing persons as enforced disappearances, within the meaning of the 2007 Convention and 1992 Declaration. Enforced disappearances can occur when a migrant is in detention or going through a deportation process. In the case of migrants entering a Country without valid identity documents, he/she could be arrested according to the law of that country and be transferred, for example, to an administrative detention center. This can be used as an attempt to discourage irregular migration.29 The deprivation of liberty, greatly limiting the ability to exercise fundamental rights, should be a last resort; in fact the Working Group on arbitrary detention underlines that “irregular entry and stay in a country by migrants should not be treated as a criminal offence”.30 Over the years, cooperation policies have been pursued by European States with some Mediterranean countries (such as Libya) in an attempt to limit the problem of migrants and deaths in the Mediterranean. Several agreements have been signed both with the European Union31 and more specifically with Italy32 to establish a form of assistance to the Libyan Coast Guard to intercept migrant boats in the Mediterranean, even in international waters. This cooperation was established despite the concerns raised by NGOs for human rights in relation to the possibility of condemning migrants to arbitrary and indefinite detention or exposing them to torture, rape, enforced disappearance, forced labor, exploitation and extortion. The Oxfam executive director in Italy said: “The people we have spoken to are escaping war, persecution and poverty – and yet in Libya they encounter another hell. European governments have a duty to protect the human rights of all people, including migrants. Migrants crossing the

29 See E/CN.4/2005/85/Add.1, communications sent to the Government of Ma- laysia. 30 OHCHR News, Migrant detention must be “last resort”, UN rights group underlines in its Revised Deliberation on deprivation of liberty of migrants, Geneva, 26 Feb- ruary 2018 https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID= 22710&LangID=E. 31 Malta Declaration signed on 3 February 2017 by leaders of the European Un- ion in Malta. 32 Memorandum of Understanding Italy- Libya on development cooperation, illegal immigration, human trafficking, fuel smuggling and reinforcement of border security, was signed on 2 February 2017 between the Italian Prime Minister Gentiloni and Fayez al-Serraj, Head of the UN-backed Libyan Government of National Accord.

ENFORCED DISAPPEARANCES AND MIGRATION 49 sea to escape Libya should never be stopped and returned back to the serious danger there”.33 Migrants intercepted by the Libyan Coast Guard, are sent to detention centers. The lack of a human rights compliant registration system in detention centers in Libya does not allow families to reunite, and they are therefore unable to find their relatives. Detention centers facilitate the disappearing of persons with impunity.34 Violation of human rights in these centers can be increased by the lack of transparency and the difficulty in finding data and documents. Usually, there is no formal registration and no access to lawyers and legal advice or translators.35 Governments should guarantee the fundamental rights of anyone taken into custody and provide detention conditions matching international standards. Unacceptable situations regarding violations of fundamental rights in administrative detention centers obviously do not occur only in Libya, but also in other countries.36 The migration crisis and the need to safeguard the state from the entry of terrorists within the territory mean that centers are being used to try to control irregular immigration.

5. Which are the factors that can lead migrants to the risk of facing enforced disappearances?

Consequently, which factors cause migrants to become victims of enforced disappearances? The existence of various elements can lead migrants to face the risk of enforced disappearances during their journey, six of these factors have been identified: a) Conflict and violence; b) so-

33 Oxfam international, One year on from Libya migration deal, people still in captivity and suffering abuses, 1 February 2018, Roberto Barbieri, Oxfam Italy’s executive director https://www.oxfam.org/en/pressroom/pressreleases/2018-02-01/one-year-libya- migration-deal-people-still-captivity-and. 34 OHCHR, UN Support Mission in Libya, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya, 20 December 2018 p. 40-41. 35 As happened in Russia that those detained or arrested have no access to lawyers or legal counsel. See HRW, Human Rights WatchRussia: Mass Detention of Mi- grants, August 8, 2013 https://www.hrw.org/news/2013/08/08/russia-mass-detention- migrants. 36 ECtHR, Khlaifia and Others v. Italy 15 December 2016 (Grand Chamber) and ECtHR, J.R. and Others v. Greece (no. 22696/16) 25 January 2018.

50 GIULIANA DORIA cioeconomic factors; c) impunity; d) discrimination; e) State migratory and counter-terrorism policies; f) lack of statistical data.37 As I’ve already underlined, the migration journey leaves people more vulnerable to human rights violations. I consider the lack of statistical data and the absence of transparency in migration procedures as the most problematic factors. The need for reliable data and prompt investigations into the fate of migrants could help the fight against these crimes.38 Perpetrators are rarely identified and brought to justice and it is for this reason that investigations are essential. Migrants often disappear, sometimes intentionally – to avoid being arrested or pushed-back to their countries – or for other involuntary causes such as being arrested and detained in migration centers without proper registration, human trafficking or enforced disappearances. Sadly, the number of missing persons is to be correlated also with the problem of migrant deaths during sea crossing and during their journey, and the difficulties in identifying their bodies. Consequently, it is difficult to distinguish between one or the other situation and thus the data are not consistent with the real numbers of missing migrants. It is important to stress that due to the transnational nature of the crime, families don’t know precisely which Country they are in, hence

37 Cit. Working Group ED 2017 Report §§ 46-56 and Bernard Duhaime and André- anne Thibault, “Protection of migrants from enforced disappearance: a human rights perspective”, in International Review of the Red Cross, 2017, 99(2), p. 575. 38 Mexico is trying to improve the system for registering migrants and the system for searching for missing persons. To fight enforced disappearances, it has been established a Committee, i.e. Comité Nacional Ciudadano del Sistema Nacional de Búsqueda de Personas whose legal basis can be found in the Ley General en Materia de Desapari- ción Forzada de Personas. Mexican State also created a special Criminal Investigation Unit for migrants to the Office of the Attorney General of the Republic which operated on the basis of the General Act on Enforced Disappearance of Persons. The two bodies should work together. During the fifteenth session of the Committee on enforced disappearance (CED) a member of the same Committee, Ms. Galvis Patiño, pushed Mexican delegation for the next step which is to connect the migrant database used by the Office of the Attorney General to databases used in Central American countries, in order to improve migrant searches. UN doc. CED/C/SR.264, CED Fifteenth session, Follow-up dialogue on additional information submitted by States parties (continued) - Information received from Mexico on follow-up to the concluding observations (continued), Sum- mary record of the 265th meeting, Held at the Palais Wilson, Geneva, on Friday, 9 No- vember 2018, Chair Ms. Janina § 19 https://tbinternet.ohchr.org/_layouts /treatybodyexternal/Download.aspx?symbolno=CED%2fC% 2fSR.264&Lang =en.

ENFORCED DISAPPEARANCES AND MIGRATION 51 they don’t know where to turn to ask for information about their loved ones and report any missing relatives. This makes it difficult for families to request information and to urge authorities to pursue investigations. Moreover, the difficulties that migrants encounter because of differences in language, custom and culture, as well as the economic and social factors and obstacles for return to their States of origin of undocu- mented persons or those in an irregular situation, as well as cultural prejudices, perpetuate the situation of vulnerability, making it difficult to integrate into society.39 In addition, the gradually more rigid counter-terrorism and migratory policies of States focused on dissuasion, have led to a situation that ex- poses migrants to heightened risks of becoming victims of human rights violations, including enforced disappearances.

6. Conclusion

Enforced disappearance is today one of the most heinous crimes. Not only do the missing persons suffer but also their families. The pursuit of truth and the fate of missing persons is a tough fight. Statistics suggest that there is an increase in this hateful crime within a context as delicate as that of migration. Migrants are in a state of great vulnerability, exposed to serious dangers and violations of human rights, and as they often travel without documents, it is difficult to identify them, and for their families to participate in investigations. In cases of enforced disappearances of migrants, cooperation between States is essential, as occurs in cases of transnational crime. In the context of migration, this type of offence must not be underestimated as the absence of migration policies of the various countries and the dangerous journeys ahead lead migrants to find themselves jeopardized and defenceless. States have different obligations deriving from the Convention (for those states that have ratified it) and in a less stringent way from the Declaration, both documents that the States should respect in order to avoid incurring any responsibility. In order to prevent and put a stop to acts of enforced disappearances of migrants in their territory, States

39 UN, General Assembly, Resolution A/RES/54/166 on “Protection of Migrants” of February 24, 2000, Preamble, para. Fifth, cited in Juridical Condition and Rights of Un- documented Migrants, supra note 82, § 114.

52 GIULIANA DORIA have a responsibility to adopt effective legislative, administrative and judicial measures.40 States should also not expel, return (réfouler) or ex- tradite a migrant to another State, if there are substantial grounds to believe that she/he would be in danger of enforced disappearance.41 Gen- erally, the ED Working Group and the CED, in the fulfillment of their mandate and the recognized ‘right to know the truth’ of relatives and society as a whole, stressed the importance of making the necessary efforts to search for and locate her/him immediately, taking into account that investigation is necessary for the identification of the perpetrators. The Working Group recommended States to gather, compile and systematize all information in relation to all individuals who are missing in, or trans- iting through, their countries. This information should also be systemat- ically shared with bordering countries as well as with relevant international and/or regional organizations, and therefore it is necessary to in- tensify cooperation with other Countries in the areas of identification, search, data collection, prevention, investigation and prosecution.42

40 Article 3 of the 1992 Declaration. UN doc. A/HRC/33/51, Report of the Working Group on Enforced or Involuntary Disappearances, 28 July 2016, § 71 and cit. Working Group ED 2017 Report §§ 58- 66. 41 Article 8 (1) of the 1992 Declaration and article 16 of the 2007 International Con- vention. 42 Cit. Working Group ED 2017 Report §§ 80-86.

KHLAIFIA AND OTHERS V. ITALY: LIGHTS AND SHADOWS IN THE JUDGEMENT OF THE GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS Angela Pacelli*

SUMMARY: 1. Introduction. – 2. The facts underlying the judgement. – 3. The judgement of the European Court of Human Rights. – 4. Final remarks.

1. Introduction

On 15 December 2016, the Grand Chamber of the European Court of Human Rights issued its final judgement on the Khlaifia and others v. Italy case.1 The facts concern three Tunisian nationals who had lodged an application with the Court claiming the violation of ECHR, for their detention in the Early Reception and Aid Centre (CPSA) of Lampedusa and in two ships moored in Palermo harbour, as well as their following removal to Tunisia. With reference to the verdict of the Chamber dated 1 September 2015,2 the Grand Chamber confirmed the violation of art. 5 § 1, § 2, and § 4 of ECHR (right to liberty of person), but it excluded the infringement of art. 3 of ECHR (prohibition of inhuman or degrading treatment) and of art. 4, Protocol no. 4 (prohibition of collective expulsion of aliens). The violation of art. 13 (right to an effective remedy) was only recognized in relation to art. 3 of ECHR. The importance of the Grand Chamber’s judgement and conclusions will be long discussed. On one hand, it will influence the methods to manage the future migrant crises of European border countries, on the other it may launch a debate on the functioning of reception systems and the new Hotspots3 approach, which risks affecting on a systematic basis the fundamental rights of thousands of migrants seeking shelter and protection in Italy.

* PhD student in International Studies at University of Naples “L’Orientale”. 1 European Court of Human Rights, judgement of 15 December 2016, no. 16483/12, Khlaifia and others v. Italy [GC]. 2 European Court of Human Rights, judgement of 1 September 2015, no. 16483/12, Khlaifia and others v. Italy. 3 European Commission, European Agenda on migration, available at http://eur- lex.europa.eu/legalcontent/IT /TXT/PDF/?uri=CELEX:52015DC0240&rid=1. 54 ANGELA PACELLI

2. The facts underlying the judgement

The facts at issue date back to 2011, in the context of numerous arrivals of migrants in the island of Lampedusa following the disorders that took place in Northern Africa during the so-called “Arab Spring”. The applicants, three Tunisian nationals, reached the Italian shores after being intercepted by the Italian coastguard, which transferred them to the CSPA of Contrada Imbriacola where authorities gave them first aid and proceeded with their identification. After a revolt and an arson attack in the reception centre, the applicants were transferred to the sport complex of Lampedusa and then to the airport of Palermo. Here, they were held for a few days in two ships, the Vincent and the Audace, moored in the harbour of the city, pending their removal, which occurred in Sep- tember 2011, in accordance with the agreement dated 5 April 2011 with Tunisia. In 2012, the applicants referred the matter to the European Court of Human Rights lodging complaints about violation of art. 5, § 1, letter f) ECHR for having been illicitly held in the CPSA of Lampedusa and in the ships harboured in Palermo, underlining the absence of ground for the abovementioned detention as well as the lack of judicial control on the lawfulness thereof, in breach of art. 5, § 2, and art. 5, § 4 of ECHR. The applicants also claimed that they were subjected to inhuman and degrading treatment pursuant to art. 3 ECHR as for the conditions in which they had been held in the reception facilities, where they were held in an overcrowded and dirty area and were obliged to sleep on the floor because of the shortage of available beds. They had to eat their meals outside, sitting on the ground, under the constant surveillance of police, which made any contact with the outside world impossible.4 The applicants also claimed the violation of art. 4, Protocol 4 ECHR, which prohibits collective expulsions, since they had been expelled without a personal interview or proper consideration of their individual situation5. Lastly, they also claimed a violation of art.13 ECHR, taken together with the abovementioned articles, since they had had no effective remedy under the Italian law.

4 Khlaifia and others v. Italy [GC], paragraph 13 et seq. 5 Ivi, paragraph 214. KHLAIFIA AND OTHERS V. ITALY 55

3. The judgement of the European Court of Human Rights

The Grand Chamber unanimously found that Italy violated art. 5, § 1, letter f), art 5, § 2, and art. 5, § 4, in line with the Chamber’s previous judgement of 2015. Art. 5, § 1 of ECHR states that everyone has the right to liberty and security and no one should be deprived of it save in the cases and procedures provided for by Law. The Court valued whether or not the de- tainment in the CPSA of Lampedusa could have a legal basis in the Ital- ian law. Article 14 of the Consolidated text of provisions governing immigration and the status of aliens,6 however, states that the commissioner may transfer the alien to an Identification and Expulsion Centre (CIE) “for the time strictly necessary”, when it is not possible to carry out expulsion immediately by accompanying to the border or removal. The other cases that legitimize detention include those referable to the need to give aid to the alien or carry out additional ascertainment as for his identity, to acquire travel documents, or due to the unavailability of means of transport.7 Since the Government itself8 observed that the case did not satisfy the requirements provided for by Art. 14 of the Consoli- dated Text for the transfer to CIEs, the Court found that such provision could not legitimize the applicants’ detention and following deprivation of liberty in the CPSA. Even the bilateral agreement of 2011 between Italy and Tunisia cannot represent a legal basis: first of all, it was not made public, preventing the parties concerned from foreseeing the consequences of its application. Moreover, the press release published by the Italian Ministry of the Interior solely referred to simplified procedures to return Tunisian nationals, and not to detention cases too.9 With regard to this, it is worthwhile mentioning the report of the Senate Spe-

6 Legislative decree no.286 of 25 July 1998 “Consolidated text of provisions governing immigration and the status of aliens”, art.14. 7 The clause was replaced by Law 2 August 2011, no.129, amended and converted into law from the Law-decree 23 June 2011, no.89, art.3, p.1, lett. d, Urgent provisions to implement Directive 2004/38/EC on the right of citizens of the Union to move freely and the transposition of Directive 2008/115/EC for returning illegally staying third- country nationals. 8 Khlaifia and others v. Italy [GC], cit., paragraph 81 et seq. 9 Ivi, paragraph 102-103. See also http://www1.interno.gov.it/mininterno/export/ sites/default/it/sezioni/sala_stampa/notizie/immigrazione/000073_2011_04_06_accordo _Italia-Tunisia.html 56 ANGELA PACELLI cial Commission,10 which reiterated that the presence of migrants in the CPSA of Lampedusa lasted for relatively long time in the absence of specific regulations on the legal status of the aliens housed, as underlined by the reports of international organisations11 and NGOs12 operating in the sector. Therefore, the Court found a violation of art. 5, § 1, since the deprivation of personal liberty, both in the CPSA and on board of the ships, had a considerable duration, and the applicants were not provided with the safeguards of those who were held in CIEs. The Grand Chamber reiterated that the CPSA are facilities designed to provide first aid and assistance to migrants, and have nothing to do with CIEs. The absence of an unambiguous legal basis and the possibility to hold migrants without specific regulations, judicial or administrative measures legitimizing this detention, does not comply with the ratio of art. 5, §1 of ECHR, which guarantees the right to liberty and prohibits any form of arbitrary detention even in emergency situations like the one that Italy had to face at the time of the facts under consideration. As for the violation of art. 5 § 2, which states that “everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him”, the Court underlined that the “information as to the legal basis for the migrant’s deprivation of liberty”13 in this case was clearly missing. Even the expulsion decrees did not mention the reasons for the applicants’ detention, and in any case, the delayed notification thereof to the applicants did not meet the requirement of “prompt” information. It is worthwhile underlining that part of the judgement, in line with the previous judgement of 2015, concerning the violation of art. 5, § 4 of ECHR, which states that everyone who is deprived of personal liberty is entitled to apply to a court to quickly verify the lawfulness of the de-

10 Senate Special Commission, Rapporto sullo stato dei diritti umani negli istituti penitenziari e nei centri d’accoglienza e trattenimento per i migranti in Italia, link: https://www.senato.it/documenti/repository/commissioni/dirittiumani16/Rapporto_carceri712 .pdf. 11 See the report of the ad hoc sub-committee of the Parliamentary Assembly of the Council of Europe, http://assembly.coe.int/CommitteeDocs/2011/amahlarg03_REV2_ 2011.pdf. 12 See the Amnesty International report in the judgement Khlaifia and others v. Italy, cit., paragraph 50. 13 Khlaifia and others v. Italy [GC], cit., par. 118. KHLAIFIA AND OTHERS V. ITALY 57 tention measure applied. With regard to this, the Court of Strasbourg recalls its consistent case-law stating that, where detainees had not been informed of the reasons for their deprivation of liberty, the concerned parties’ right to appeal is “deprived of all effective substance”. In the light of the above, pursuant to art. 5 § 2, the failure to notify the legal reasons for detention would prevent the applicants from taking proceedings to verify the compliance with the procedures and lawfulness of their deprivation of liberty.14 As already observed, “the Grand Cham- ber’s decision is relevant on various levels”,15 because, regardless of the Tunisian applicants’ situation, reiterates the fundamental principles that shed some light on the functioning of the abovementioned hotspots, in which illegal procedures and treatments often jeopardize the migrants’ basic rights, such as proper and unambiguous information. For what concerns the complaint for inhuman and degrading treatments that migrants were subjected to in the CPSA, the Grand Chamber took into consideration, according to its previous case law within the scope of art. 3 ECHR, some elements such as the level of severity of ill- treatment,16 the protection of vulnerable persons,17 the conditions of detention, and the overcrowding issue.18 In examining the merits, the Court devoted special attention to the duration of detention, considering the applicants’ personal conditions and the overcrowding level, as well as the humanitarian emergency that the Government had to face at the time of the facts at issue. It is specifi-

14 Ivi, par. 125-135. 15 See F. Ferri, Detenzione in centri di accoglienza, un commento sulla sentenza Khlaifia vs Italia, available at https://www.asgi.it/allontamento-espulsione/detenzione- centro-accoglienza-sentenza-khlaifia-italia/. 16 Khlaifia and others v. Italy [GC], par. 159-160. See on the subject the European Court of Human Rights, judgement of 13 December 2012, no. 39630/09, El-Masri v. the former Yugoslav Republic of Macedonia [GC], par.195; European Court of Human Rights, judgement of 17 July 2014, appeals no. 32541/08 and 43441/08, Svinarenko and Slyadnev v. Russia [GC], par. 113. 17 Ivi, par. 161-162. See also the reference of European Court of Human Rights, judgement of 12 October 2006, no. 13178/03, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, par. 53. 18 Ivi, par. 163-167; see on the subject European Court of Human Rights, judgement of 15 July 2002, no. 47095/99, Kalachnikov v. Russia, par. 102; European Court of Hu- man Rights, judgement of 18 January 2005, no. 41035/98, Kehayov v. Bulgaria, par. 64; European Court of Human Rights, judgement of 20 October 2016, no. 7334/13, Mursič v. Croatia [GC], par. 104. 58 ANGELA PACELLI cally this “general context” – that the first commentators defined as “reality check”19 – the new element that the Grand Chamber takes into account. After the so-called “Arab Spring”, the Italian coasts registered numerous arrivals by boat, following which the Government declared the state of humanitarian emergency on the island of Lampedusa and appealed for solidarity from the European Union to cope with such a situation. In confirmation of these exceptional circumstances, the Court mentioned the report of the ad hoc sub-committee of the Parliamentary Assembly of the Council of Europe20 (PACE), confirming that 2011 saw an enormous increase in migration flows. What is more, the arson attack at the CPSA, the migrants’ revolt and the disorders with local population exacerbated the existing difficulties and further weighed on Italian authorities. With regard to this, the Court underlined that “while the constraints inherent in such a crisis cannot, in themselves, be used to justify a breach of Article 3”, it is appropriate to examine the facts of the case considering the “general context”.21 The Court analysed the applicants’ complaints as for the violation of art. 3 ECHR for the reception conditions in the CPSA of Contrada Im- briacola, bearing in mind the abovementioned PACE report, which considered that the facility met the minimum reception requirements (underlining, however, that the centre was ill-suited to stays of several days).22 As to the applicants’ specific complaint about the overcrowding conditions (a circumstance contested by the Government), the Court affirms that it cannot determine the precise number of persons being held there at the material time. However, even assuming that the applicants’ indications are correct, their situation cannot be compared to that of individuals detained in a prison: migrants could move around freely within the facility and communicate with the outside world, representatives of humanitarian organisations and even their lawyers. The applicants did not apply for international protection and they did not belong to the category of vulnerable persons that needed special treatments.23 Due to the fire, detention was particularly short. In the light of the above, the Court

19 Cf. D. Venturi, The Grand Chamber’s Ruling in Khlaifia and others v. Italy: One Step Forward, One Step Back?, Strasbourg Observers, 12 January 2017. 20 Cf. report of the ad hoc sub-committee of the Parliamentary Assembly of the Council of Europe, already mentioned in footnote 9. 21 Khlaifia and others v. Italy [GC], cit., par. 178-185. 22 Ivi, par. 190. 23 Ivi, par.197. KHLAIFIA AND OTHERS V. ITALY 59 has found no violation of article 3 of ECHR, taking distance from the previous verdict of the second section. As for the applicants’ detention on the ships Vincent and Audace, “it might be assumed that the general context has strengthened this valua- tion”.24 The Grand Chamber did not take distance from the judgement of 1 September 2015, based on the absence of evidence supporting the applicants’ arguments25 and, therefore, the impossibility to establish if “the accommodation conditions on the ships reached the minimum level of severity required for treatment to fall within Article 3 of the Conven- tion”.26 The judgement offers an opportunity to make some remarks. As mentioned above, on one hand the Court reiterated the importance of art. 3 as an absolute right, underlining that the treatments that are inflict- ed without the intention of humiliating the victim, due to the objective difficulties related to the migrant crisis, cannot exempt the States from their obligations arising from art. 3 of ECHR. On the other hand, however, the Court adds that the case at issue must be analysed taking into account the “general context”: this parameter is crucial because the applicants’ treatment conditions “stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time”.27 As already mentioned, “it seems that the ‘general context’ in this case has acted … as a balancing factor to evaluate the level of severity of the treatment at issue”.28 Since migrants did not belong to vulnerable categories, are not asylum-seekers, do not suffer from particular diseases, in conjunction with the applicants’ short-term detention in the CPSA and the extraordinary situation of emergency, the situation does not reach the minimum threshold of severity provided for in art. 3.29 The importance given to the general context and the situation of extreme difficulty of Italian authorities emerges also by Judge Raimondi’s

24 Cit. A. Saccucci, “I “ripensamenti” della Corte europea sul caso Khlaifia: il divieto di trattamenti inumani e degradanti e il divieto di espulsioni collettive “alla pro- va” delle situazioni di emergenza migratoria, in Rivista di Diritto Internazionale, 2017, in the process of being published. 25 Khlaifia and others v. Italy [GC], par. 206-209. 26 Ivi, par. 210. 27 Khlaifia and others v. Italy, cit., par. 185. 28 See A. Saccucci, op. cit. p. 557 29 Ibidem. 60 ANGELA PACELLI concurring opinion, annexed to the judgement,30 who fully shared the Grand Chamber’s analysis (changing his position expressed in his previous verdict before the Court). However, the repeatedly mentioned “general context” cannot become a new factor for States to justify the extent of the obligations arising from art. 3, nor can the difficulty to deal with the migrant crisis become a parameter to assess whether the minimum level of severity has been reached or not.31 Art. 3 belongs to that “hard core” of Convention, which each acceding country must guarantee to all persons under their jurisdiction.32 This is an absolute right that admits no exception, pursuant to art. 15 of the same Convention. Therefore, even if the Court believes that “it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose”,33 the difficult migrant crisis should not affect the assessment of the levels of protection arising from art. 3. Another controversial issue is the Court’s answer to the applicants’ complaint as for art. 4, Protocol 4, due to the identical refusal-of-entry orders implemented without analysing their personal situation through an individual interview.34 Even though the three Tunisian nationals admitted that they had been identified upon their arrival in the Lampedusa CPSA and by the Tunisian Consul before being expelled, they also claimed that, during the first phase, the authorities involved merely registered their identities and took their fingerprints, without any individual interview and without any interpreter being present. However, according to the Court, during the identification phase, that is, when their finger-

30 Khlaifia and others v. Italy [GC], cfr concurring opinion of Judge Raimondi, par. 5-8. 31 See on the subject A. Saccucci, op. cit., p. 558; ADDO, GRIEF, “Does Article 3 of the European Convention on Human Right Enshrine Absolute Right?”, in European Journal of In. Law, 1998, p. 517 et seq. 32 Cf. European Court of Human Rights, 29 April 2002, appeal no. 2346/02, Pretty v. United Kingdom, par. 49; European Court of Human Rights, 9 November 2006, Luluyev v. Russia, par. 76; European Court of Human Rights, 28 February 2008, appeal no. 37201/06, Saadi v. Italy. 33 Khlaifia and others v. Italy [GC], cit., par. 185. 34 On the subject Cf. A. SACCUCCI, op. cit., p.559 et seq.; see also S. Zirulia and S. Peers, A Template for Protecting Human Rights during the “Refugee Crisis”? Immigra- tion Detention and the Expulsion of Migrants in a recent ECHR Grand Chambers Rul- ing, EU Law Analysis, 5 January 2017, http://eulawanalysis.blogspot.it/2017/01/a- template-for-protecting-human-rights.html. KHLAIFIA AND OTHERS V. ITALY 61 prints were recorded or during their confinement in the centre, they could have notified the personnel (there were in fact several “social operators”) of any reasons why they should not be returned. In this regard, the Grand Chamber affirms that art. 4 of Protocol 4 does not guarantee “the right to an individual interview in all circumstances”,35 adding that “the relatively simple and standardised nature of the refusal-of-entry orders could be explained by the fact that the applicants did not have any valid travel documents and had not alleged either that they feared ill- treatment in the event of their return or that there were any other legal impediments to their expulsion”. Therefore, the Court concludes that the applicants, as for the double identification by Italian authorities in the Lampedusa CPSA and by the Tunisian consul, could have given their reasons why they should not be returned. Other seventy-two migrants in the Contrada Imbriacola centre, for instance, had expressed their wish to apply for asylum, thus halting their return and resulting in their transfer to other reception centres. The Court also claimed that the Italian authorities would have not remained unreceptive if the applicants had submitted legitimate impediments to their removal. For the Grand Chamber, therefore, it is sufficient that each alien has a “genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State”,36 whilst the right to an individual interview is not guaranteed in all circumstances. As a consequence, the Court “took a decisive step back from its previous case-law”,37 its judgement dated 1st September 2015,38 and the previous cases, when it clearly affirmed that “le but de l’article 4 est d’éviter que les États puissent éloigner un certain nombre d’étrangers sans examiner leur situation personnelle et, par conséquent, sans leur permettre d’exposer leurs arguments s’opposant à la mesure prise par l’autorité compétente”,39 judging an order as lawful only when the re-

35 Khlaifia and others v. Italy [GC], cit., par. 248. 36 Khlaifia and others v. Italy [GC], cit. par. 248. The italic is added. 37 Cf. A. Saccucci, op. cit, p. 560. 38 Khlaifia and others v. Italy, cit. par. 153-158. 39 European Court of Human Rights, judgement of 21 October 2014, appeal no. 16643/09, Sharifi and others v. Italy and Greece, cit. par. 210; see also European Court of Human Rights, judgement of 23 February 2012, appeal no. 27765/09, Hirsi Jamaa and others v. Italy. 62 ANGELA PACELLI turn measure is taken “following, and on the basis of, a reasonable and objective examination of the particular case of each individual alien of the group”.40 However, as observed by Judge Serghides in his dissenting opinion, “the procedural obligation under Article 4 of Protocol No. 4 is mandatory, giving no discretion to the States not to exercise it”.41 He also adds that “even supposing that Article 4 of Protocol No. 4 were to guarantee, apart from a procedural right, also a substantive right, imposing corre- spondingly on the national authorities both a procedural and a substantive obligation, a failure to fulfil the procedural obligation would suffice to violate Article 4 of Protocol No. 4”.42 Also in this case the Court’s judgement was influenced by the “general context”, and the migrant crisis seems to counterbalance the safeguard of fundamental rights once again. If in other judgements the “general context at the real time” was a crucial aspect to take into account to guarantee a more rigorous procedure and a careful examination of the individual’s positions,43 in Khlaifia case it becomes an aspect justifying the Italian authorities’ decisions, resulting in an expulsion with standardized measures based on the migrants’ identification, without any individual examination guaranteeing the “genuine and effective possibility of submitting arguments against expulsion”.44 Then the Court examined the complaint related to art. 13 of ECHR, taken together with both art. 3 and art. 4 of Prot. no. 4. Once assessed the lack of an effective remedy to report the reception conditions in the Lampedusa CPSA and on the ships against the refusal- of-entry orders, the Court found a violation of art. 13 taken together with art. 3. As for the violation of art. 13 taken together with art. 4 of the Pro-

40 European Court of Human Rights, judgement of 3 July 2014, appeal no. 13255/07, Georgia v. Russia(I), par. 167; European Court of Human Rights, judgement of 7 April 2009, appeal no. 45302/05, Ghulami v. France; European Court of Human Rights, judgement of 5 February 2002, appeal no. 51564/99, Čonka v. Belgium, par. 59; European Court of Human Rights, judgement of 20 September 2007, appeal no. 45223/05, Sultani v. France, par. 81. The italic is added. 41 Cit. Khlaifia and others v. Italy [GC], partly dissenting opinion of Judge Serghides par. 20. 42 Ivi, par. 23. 43 See cf. Georgia v. Russia(I) par. 171 and Čonka v. Belgium. 44 Cf. A. I. Matonti, op. cit., p. 529 et seq.; A. Saccucci, op. cit., p. 263. KHLAIFIA AND OTHERS V. ITALY 63 tocol, the Court merely acknowledged the existence of a domestic remedy (the appeal before the Justice of Peace against the refusal-of- entry order),45 assessing if no suspensive effect of the refusal-of-entry order of such remedy may entail a violation of art. 13 taken together with art. 4 of protocol 4.46 Even in this case, through a revirement of its previous case-law,47 the Grand Chamber states that the suspensive effect of the measure does not apply to all of the cases of collective expulsions, but only if the concerned individual faces a violation of Articles 2 and 3 of ECHR. The Court believes that “where, as in the present case, an applicant does not allege that he or she faces violations of Articles 2 or 3 of the Convention in the destination country, removal from the territory of the respondent State will not expose him or her to harm of a potentially irreversible nature”.48 Consequently, the lack of suspensive effect does not entail a violation of art. 13 taken together with art. 4 of Protocol 4. It is worthwhile mentioning the point of view of the abovementioned Judge Serghides, who does not agree with the reasoning of the majority. Recalling, among others, the De Souza Ribeiro v. France judgement,49 he believes that as the procedural obligation referred to in art. 4 of Pro- tocol no. 4 is mandatory, then also the obligation under art. 13 taken together with art. 4 of Protocol 4 has the same value. If art. 13 did not entail the suspensive effect of a removal order pursuant to art. 4 of Proto- col 4 “it would not serve to ensure the mandatory nature of the procedural obligation of Article 4 of Protocol No. 4, or the principle of effectiveness of the Convention provisions”.50

45 Khlaifia and others v. Italy [GC], par. 272 et seq. 46 See cf. A. Giliberto, La pronuncia della Grande Camera della Corte EDU sui trattenimenti (e i conseguenti respingimenti) di Lampedusa del 2011, available at http://www.penalecontemporaneo.it/d/5123-la-pronuncia-della-grande-camera-della- corte-edu-sui-trattenimenti-e-i-conseguenti-respingimenti-di. 47 European Court of Human Rights, De Souza Ribeiro v. France [GC], judgement of 12 December 2012, appeal no. 22689/07. 48 Khlaifia and others v. Italy, cit., par. 277. 49 Cf. De Souza Ribeiro v. France, par. 82, Čonka v. Belgium, par. 81- 83, and Hirsi Jamaa and others v. Italy, par. 206 et seq. 50 See Khlaifia and others v. Italy [GC], cit. partly dissenting opinion of Judge Serghides par. 75. 64 ANGELA PACELLI

4. Final remarks

As we have seen, the Grand Chamber’s judgement offers many interesting points of consideration. The judgement seems to downsize the protection provided by the European Convention in case of collective removals, as well as the absolute rights, which must be respected with no exception, even in situations of emergency.51 In the light of the Khlaifia judgement, we may infer that the situation of “extreme difficulty” that Italy had to face played a considerable role in reducing the scope of articles 3 and 4 of Protocol 4, as comprehensively described. As for art. 3, even though the Court reiterated the absolute importance of granting adequate detention conditions even in a situation of migrant emergency, it also states that it would be wrong to examine the facts without considering the general context in which those facts arose. With regard to this, the emergency factor becomes a further element in assessing the violation under consideration, since the difficult living conditions endured by the applicants were caused by extraordinary organisational problems and the strong migrant pressure that Italy had to face.52 However, the situation of emergency cannot reduce the scope of art. 3 and the relevant safeguarding requirements for the State. Moreover, the situation of emergency cannot justify inhuman treatments, classifying them as mere “difficulties” in order to not reach the minimum levels of severity necessary to apply art. 3. Likewise, the Grand Chamber’s approach towards art. 4 of Protocol 4 and the procedural obligations stemming from it denotes a reduction in the safeguarding standards that the Court of Strasbourg has been guaranteeing so far. Once again, the particular migrant emergency risks becoming a dangerous shield that Govern- ments can use to waive their obligations arising from the European Convention. On the contrary, it seems crucial to mention the part of the judgement concerning the violation of art. 5, § 1, § 2 and § 4, in which the Court of Strasbourg emphasises the right to personal liberty and con- demns any arbitrary deprivation of liberty: these are principles that ad-

51 Cf. A. Saccucci, op. cit.; see also D. Venturi, op. cit.; F. Cancellaro, op.cit.; S. Zirulia and S. Peers, op.cit.. 52 Khlaifia and others v. Italy, see concurring opinion of Judge Raimondi. KHLAIFIA AND OTHERS V. ITALY 65 mit no exception, even in the migrant crisis that Italy was facing.53 The judgement of the Court shifts the focus on the management methods in reception centres and the new Hotspots method,54 set forth by the Euro- pean Agenda on migration of 13 May 2015, and that Italy adopted through the Roadmap 2015 drafted by the Ministry of Interior,55 in order to assist those Countries that, being in boundary areas, have to help and accommodate massive migrant flows. In the light of the examination at issue, it is even clearer that the existing legislation to manage these “crisis points” is not exhaustive. A first step in this direction was taken by the Decree Law dated 17 February 2017.56 Nevertheless, as already observed, the abovementioned decree does not accurately regulate the modalities and timing of the detention measures that may be applied for those migrants who refuse to follow the procedures of identification or recording of fingerprints, not complying with the ratio of art. 5 of ECHR.

53 See comment L. Masera, “Il “caso Lampedusa”: una violazione sistemica del diritto alla libertà personale”, in Diritti umani e diritto int., 2014 p. 83 et seq. 54 The Italian Government adopted Hotpots through the Legislative Decree no. 142 of 18 August 2015. Implementation of Directive 2013/33/EU laying down standards for the reception of applicants for international protection, as well as Directive 2013/32/EU, on common procedures for granting and withdrawing international protection available at http://www.gazzettaufficiale.it/eli/id/2015/09/15/15G00158/sg; 55 See Roadmap Italiana, Ministry of the Interior, dated 28 September 2015, available at https://www.asgi.it/wp-content/uploads/2015/11/Roadmap-2015.pdf. 56 Law 13 April 2017, no. 46 Conversion into law, with amendments, of Decree Law no. 13 of 17 February 2017, laying down urgent provisions for the acceleration of proceedings as regards international protection and to tackle illegal immigration, available at http://www.gazzettaufficiale.it/atto/stampa/serie_generale/originario; Standard operating procedures (SOP) applicable to ITALIAN HOTSPOTS http://www.meltingpot .org/IMG/pdf/hotspots_sops_-_versione_italiana.pdf.

“ARE YOU ACTUALLY GAY?” MAIN CRITICALITIES IN THE PROTECTION OF LGBT REFUGEES WITHIN THE EUROPEAN UNION Anna Fazzini*

SUMMARY: 1. Introduction. – 2. The protection of LGBT refugees: the international and European framework. – 3. Analysis of the major differences and criticalities in the European State-sponsored practices. – 4. The issue of credibility: establishing the LGBT identity among stereotypes and practices that affect human dignity. – 5. Conclusions.

1. Introduction

An increasingly significant number of those who seek international protection within the European Union are forced to flee due to persecution based on their sexual orientation or gender identity.1 According to the latest annual report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA),2 issued in May 2017, despite a general improvement of human rights, there are still too many countries in the world where lesbian, gay, bisexual and transgender people (LGBT) continue to be subjected to strong discrimination in every field, to both physical and psychological violence and to forms of “institutionalized” persecution, especially with reference to those States where same-sex relations are considered a criminal offence. If, according to updated data, there are about 70 countries, especially Asian and African States, where homosexuality is considered a criminal offence and where

* PhD student in International Studies at University of Naples “L’Orientale”. 1 Sexual orientation can be defined as “the ability of a person to experience a deep emotional and sexual attraction and to have intimate relations with people of different gender, of the same gender or of more than one gender”; gender identity can be defined as “the intimate and individual experience, for each person, of one’s gender, which may or may not correspond to the sex assigned to their birth, and which includes the perception of one’s own body and other manifestations of gender, including the way of dressing, talking and acting”, see ICJ, The Principles of Yogyakarta -Principles on the application of international human rights law in relation to sexual orientation and gender identity, Geneva, 2007, Preamble. 2 THE INTERNATIONAL LESBIAN, GAY, BISEXUAL, TRANS AND INTER- SEX ASSOCIATION (ILGA), State-Sponsored Homophobia, http://ilga.org/downloads/ 2017/ILGA_State_Sponsored_Homophobia_2017_WEB.pdf (7/18). 68 ANNA FAZZINI measures including fines, imprisonment and torture are implemented (in 13 of these countries the death penalty is applied), quite a few problems may be found also in Western countries. Indeed, in the European Union, even if there are differences among States, a climate of homo-lesbo- transphobia3 is still perceived, along with inadequate legal safeguards, forms of discrimination in the labour, social and health dimension, episodes of violence, abuse and aggression. The Organization for Refuge, Asylum & Migration (ORAM), an official partner of the UNHCR which focuses exclusively on those refugees who are considered the most vulnerable, including the LGBT refugees, believes that nowadays lesbian, gay, bisexual, transgender and intersex people are among the most persecuted individuals in the world. LGBT people also live in an extremely vulnerable condition since “the scant survival mechanisms normally available to other refugees are often closed off to them” because they are “doubly marginalized, as forced migrants and sexual minorities”.4 The double vulnerability of LGBT refugees, however, “collides” with the European asylum system which is inadequate to provide effective protection of their rights and to answer their specific needs. In addition, this is a neglected phenomenon, since the national authorities do not collect any data and, as noted in a report5 issued in 2017 by the Eu- ropean Union Agency for Fundamental Rights, there are no official statistics nor documentation about the applications for international protection for SOGI (sexual orientation and gender identity) reasons. As a result, only partial and thus misleading estimates can be accessed. Therefore, the aim of this article is to highlight the main critical aspects of the protection of LGBT refugees within the European Union, particularly as far as the absence of a specific legislation is concerned.

3 What is meant for homophobia, lesbophobia, transphobia is a vast set of hostile attitudes and behaviors in reference to people who identify or are perceived as gay, lesbian, bisexual, transgender. The ensemble includes forms of antipathy, contempt and prejudice, as well as forms of violence (verbal and otherwise) and, in the case of institutions, discriminatory laws and policies, see ORAM, Sexual orientation, gender Identity and gender expression: essential terminology for the humanitarian sector, http://oramrefugee.org/wp-content/uploads/2016/04/Glossary-PDF.pdf (7/18) 4 ORAM, Sexual & gender minorities, http://oramrefugee.org/sexual-and-gender- minorities/(7/18) 5 EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS (FRA), Current migration situation in the EU: Lesbian, gay, bisexual, transgender and intersex asylum seekers http://fra.europa.eu/en/publication/2017/march-monthly-migration-focus-lgbti (7/18) “ARE YOU ACTUALLY GAY?” 69

Moreover, as proven by the Fleeing Homophobia6 report, two key issues will be addressed: 1) the significant differences in the way each European State examines the SOGI-based asylum applications, because they conform to divergent interpretations of the Community law, thus ensuring that the aim of having the CEAS regulations harmonised continues to be disregarded; 2) the reporting of state practices which appear to be below the international and European standards on human rights and refugee rights, because they are based on discriminatory and stereotyped logic, which are an integral part of the operating methods adopted for the recognition of the international protection status, and because they sometimes imply the use of controversial and illegitimate methods, which are detrimental to human dignity and infringe fundamental human rights.

2. The protection of LGBT refugees: the international and European framework

As is widely known, the 1951 Geneva Convention on the Status of Refugees does not explicitly provide for sexual orientation and gender identity among the grounds that would warrant the well-founded fear of being persecuted. Currently, the main international treaties dealing with human rights do not explicitly provide for these two concepts, as it was considered that the non-discrimination clauses based on “every other condition” should also refer to sexual orientation and gender identity, thus guaranteeing the implicit protection of the LGBTs’ human rights. These two concepts were expressly codified only in 2006 in the Yogya- karta Principles, which were issued in Geneva back in 2007.7 Similarly, since the ‘90s a change in the interpretation of the concept of “belonging to a particular social group” as a reason for persecution (listed in Article 1 letter. a. 2 of the 1951 Geneva Convention) has be-

6 Sabine Jansen e Thomas Spijkerboer, Fleeing Homophobia, Asylum Claims Relat- ed to Sexual Orientation and Gender Identity in Europe, Netherlands and VU University of Amsterdam, Amsterdam, 2011 7 The principles of Yogyakarta, although not binding, represent the first attempt to give a united expression to the international human rights law of LGBT people, hitherto implicitly guaranteed by the main treaties on the subject, but never explicitly foreseen, see Carmelo Danisi, Tutela dei diritti umani, non discriminazione e orientamento sessuale, Editoriale Scientifica, Naples, 2015, p. 68 ss. 70 ANNA FAZZINI come possible. Such an evolution allowed the inclusion of the concepts of sexual orientation and gender identity among the pre-conditions for recognizing the refugee status. Indeed, the requirement of “belonging to a particular social group” has been understood in an increasingly broader context, providing a definition of refugee which is more consistent with the spirit and purpose of the Convention itself. As the UNHCR clarifies, it is necessary to read this expression in the light of the constant transformations affecting both human groups within societies and the international regulations concerning human rights, since there is no precise list of groups that can be included in the definition of “particular social group”.8 In order to clarify the actual meaning of “social group” according to the Convention, two prevailing interpretative approaches have been adopted within the common law systems: 1) the “protected characteristics” approach, according to which a group that is “united by an immutable characteristic or by a characteristic which is so important for human dignity that a person should not be forced to give up”9 falls within the definition of “particular social group”; 2) the social perception approach, according to which a group that “shares a common characteristic which makes it recognizable or distinguishable from the rest of society”10 falls within the definition of “particular social group”. Civil law systems also referred to the same approaches but focused more on deciding whether the risk of persecution was real rather than on elaborating the criteria to identify the “particular social group”. The UNHCR, according to which the two approaches must necessarily be integrated, also provided a unitary definition of “social group”: “a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights”.11

8 See UNHCR, Guidelines on international protection: “membership of a particular social group” within the context of Article 1A (2) of the 1951 Convention and / or its 1967 Protocol relating to the Status of Refugees http://www.refworld.org/docid /3d36f23f4.html (7/18). 9 Ibid., p. 3. 10 Ibidem. 11 Ibidem. “ARE YOU ACTUALLY GAY?” 71

According to both approaches it was possible to include LGBT people in the definition of “particular social group”, since sexual orientation and gender identity are characteristics “correctly attributable to the reason for belonging to a specific social group”,12 as well as “characteristics of such fundamental importance for human dignity that a person should not be forced to give them up”.13 The Common European Asylum System was not exempt from this kind of development; therefore, it explicitly provides for international protection status to be accorded on the basis of sexual orientation and gender identity (Art. 10 of the Qualification Directive). However, there is no specific legislation regarding the protection of LGBT refugees, leaving the interpretation of aspects relevant to recognition of international protection status for SOGI reasons to the discretion of the member States. With respect to these aspects, which mainly concern the well-founded fear of persecution, the main existing guidelines are those developed by the UNHCR. However, as attested by examination of the European national case-laws, they have only been partially implemented. Recently, even the Court of Justice of the European Union was called upon to comment on the interpretation of some relevant aspects, which did not fail to raise doubts. An overview of the major discrepancies found within the interpretative approaches of the member States is provided below.

3. Analysis of the major differences and criticalities in the European State-sponsored practices

The aforementioned Fleeing Homophobia report produced a detailed analysis of European state practices, by collecting data from academic and governmental bodies, advocacy groups for LGBT refugees, associations operating in the field and from NGOs. The complex amount of cases that were analyzed identified the main differences among the interpretative approaches that characterize national case-laws and pointed out that there are no common standards in the application of European legislation concerning the right of asylum.

12 UNHCR, Guidelines on international protection n. 9, p. 20 http://www.refworld.org/cgi- bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=52d8f87b4 (7/18). 13 Ibidem. 72 ANNA FAZZINI

Apart from the peculiarities relating to the theme of reception and its problems, the report focuses primarily on those aspects that are relevant to recognition of the status of international protection. Two aspects concerning verification of the well-founded fear of persecution, on which the Court of Justice of the European Union expressed a view in the judgment X., Y., Z.,14 deserve to be analyzed: the issue of the criminalization of homosexuality and the so-called “requirement of discretion”. The first aspect refers to whether or not to consider the criminal legislation according to which homosexuality is a criminal offence in the asylum seekers’ home countries as a form of persecution relevant to the purpose of recognizing refugee status. In fact, it was found that in most member States it is necessary to prove that the laws criminalizing homosexuality are effectively applied in the home country in order to have the refugee status recognized. This requirement is reflected in the jurisprudence of the European Court of Human Rights (ECHR) which, since the '90s, has often regarded the appeals of LGBT applicants as inadmissible on the basis of the lack of proof that the penal code was de facto applied.15 However, these practices considerably differ from the UNHCR indications which, instead, advise to consider the provisions criminalizing homosexuality as persecutory regardless of their application. This is because the mere fact that they exist leads to a highly discriminatory climate and to the proliferation of abuse and acts of violence, not to mention the fact that persecution is often carried out through illegal detentions and ill-treatment perpetrated by the police without formal court proceedings.16 The issue remains controversial, since in the above judgement the Court of Justice also stated that the mere existence of a legislation criminalizing homosexuality is not so serious as to be considered persecution, unless it is effectively enforced by the home country in question. This was stated in spite of directive 2004/83/CE, on whose interpretation the Court was called upon to express its view, which contemplates among the acts of persecution

14 CJEU, judgment issued on 7th of November 2013, X, Y. and Z v Minister Voor Immigratieen Asiel. 15 See, among others, ECHR, judgment of 10/02/1990, n. 16106/90, Z.B.v United Kingdom; judgment of 12/20/2004, n. 2035/04, I.I.N v the Netherlands; judgment of 06/22/2004, n. 17341/03, F. v. United Kingdom. 16 UNHCR, Guidelines on international protection n ° 9, cit., p. 13 ss. “ARE YOU ACTUALLY GAY?” 73

“judicial actions or disproportionate or discriminatory penal sanctions” (art. 9 paragraph 2 letter c) and “legislative, administrative, police and/or judicial measures, that are discriminatory by their nature or that are implemented in a discriminatory manner” (art. 9 paragraph 2 letter b), thus not referring to the actual application of the penal code.17 In relation to this subject, Italy can be considered a case of good practice. In fact, it is documented that the Italian courts do not verify the possible applicability of the legislative provisions that criminalize homosexuality because they consider their mere existence as a valid element for the recognition of the refugee status. With respect to the other controversial aspect, the so-called “requirement of discretion”, reference is made to the general trend of denying the refugee status because it is thought that the person can hide his/her sexual orientation or gender identity in order to avoid persecution. Again, the practices are discordant. The case of France, for example, is peculiar since the opposite of the requirement of discretion is requested (it is called: non-discretion), that is to say: having publicly dis- closed one’s own sexual orientation in the home country is considered to be a positive element for recognizing the refugee status. This practice is justified on the basis of a questionable interpretation of the concept of social perception, which is used to prove membership within the “particular social group” under the 1951 Geneva Convention. According to the French line of thinking, in fact, since the “particular social group” is perceived as different from society on the basis of certain common characteristics, a person who does not openly manifest his/her sexual orientation or gender identity cannot be perceived as different and therefore cannot be identified as belonging to that particular group. Such a practice is questionable because the approach of social perception is theorized in reference to the group and not to the individual. It is the group that is perceived as different from the rest of society and, for this reason, represents a vulnerable category, whereas the individual, in this case the LGBT person, belongs to the group in any case, whether he/she came out or lived his/her sexuality secretly. Sweden can be considered a case of good practice. The country re- jects the point of discretion, but at the same time it tries to understand whether the asylum seekers, once back in their own country, would want to hide their identity for personal reasons or because of social pres-

17 Adele Del Guercio, La protezione dei richiedenti asilo nel diritto internazionale ed europeo, Editoriale Scientifica, Naples, 2016, pp. 331 ss. 74 ANNA FAZZINI sures. In the latter case, not the former, fear of persecution would be ascertained. However, even Swedish practices do not completely comply with the UNHCR’s indications according to which the claim of secrecy represents a violation of human rights because sexual orientation and gender identity are essential characteristics for human identity: even if you wanted to hide your sexuality for personal reasons this would not exclude the risk of persecution, which should be the main element to be ascertained. It will be interesting to analyze the effects that the aforementioned CJEU’s judgment will produce in the legal systems of the States, since it is fully in line with the UNHCR's indications regarding the issue of discretion. Actually, it states that it is not legitimate to expect asylum seekers to hide their homosexuality in order to avoid persecution because this is “contrary to the recognition of such a fundamental characteristic for one’s identity that the people concerned should not be forced to re- nounce it”.18 This position also significantly departs from the jurisprudence of the ECHR which applied the requirement of discretion quite openly in a number of cases.19 Finally, it might be useful to mention other controversial aspects that emerged from the analysis of the European state practices. With reference to persecution by non-governmental actors,20 it was noted that several member States require proof that the asylum seeker had asked the State authorities for protection even if the State itself is among those that criminalize homosexual relations. This differs from the UNHCR’s indications that once again advice taking into account the particular situation of LGBT people: it is unlikely that they require protection from the state authorities which are supposed to persecute them by law. The High Commissioner for Refugees hopes to have the specific nature of the LGBT refugees’ experience taken into account also with respect to the option of internal protection. This implies rejection of the application for international protection on the grounds that the applicant

18 CJEU, X,Y,Z v. MinisterVoorImmigratie en Asiel, cit., paragraph 70-71. 19 For more information about the position of the two Courts on the matter see Thomas Spijkerboer, “Gender, Sexuality, Asylum and European Human Rights”, Law and Critique, Vol. 29, Issue 2, 2018. 20 According to art. 6 of the Qualification Directive the persecution by non-state actors is ascertained for the purpose of recognizing the status of international protection if it can be proved that the State or the parties and organizations that control the State do not want or can not offer protection. “ARE YOU ACTUALLY GAY?” 75 can move to another area of the State considered to be more secure (as provided for by art. 8 of the Qualification Directive). That area must be assessed on the basis of precise and up-to-date COI (country of origin information) coming from relevant sources. In this regard, UNHCR recommends to carefully assess the possibility of internal protection for LGBT refugees, since it is unlikely that a homo-transphobic climate does not extend to the whole country, even to those areas that are considered “safe”, especially if such a climate is legitimized by criminal law. Furthermore, with respect to the acquisition of accurate and up-to-date COI, some States tend to consider the lack of official data on the status of LGBT people as proof that they are not persecuted. These States do not consider that LGBT people are often subject to silent acts of violence which are not reported: it is therefore important to find other sources of information, such as the testimonies of the persons involved and NGOs’ reports.

4. The issue of credibility: establishing the LGBT identity among stereotypes and practices that affect human dignity

The issue of assessing the credibility of asylum seekers, which by now implies verification of their sexual orientation and gender identity for recognition of the refugee status, is among the most controversial aspects. It raised a lot of criticism, starting from the implementation of scien- tifically ineffective tests that included illegitimate practices and were in use in the Czech Republic until 2009. These tests were intended to ascertain the sexual orientation of asylum seekers by assessing their physical reactions when presented with pornographic material. Apart from these widely reported facts, there are widespread practices that involve medical examinations and psychological tests to ascertain sexual identity, and interviews and assessments of asylum applications that are largely driven by stereotypes, prejudices and clichés about LGBT people. The Fleeing Homophobia report “catalogued” most of the stereotypes used in the examination of SOGI-based asylum applications. For example, many people believe that LGBT people are “something less” than the heteronormative role model; hence the prejudices according to which gay men are not “real men” (as they do not possess the characteristics that are usually attributed to the “typical” male represen- 76 ANNA FAZZINI tation), necessarily effeminate, they do not dress in a manly manner and do not do military service. Similarly, lesbian women are considered to be necessarily masculine, they do not get married and do not have children. Accordingly, if the asylum seekers do not comply with such a representation, they are not deemed credible. According to other prejudices, LGBT people are expected to move in the “gay” circles of their country of origin and to know famous compat- riots who have come out. Above all, sexual orientation is believed to correspond more than anything else to a conduct which can be verified by means of explicit questions on sexual acts. It is not considered as expression of the human emotional-affective dimension, with the consequence that evasive answers given during the interrogations inevitably compromise the reliability of the asylum applicant. Clearly, there is a total lack of preparation on SOGI themes, but also lack of “an accurate, nuanced understanding of the complexities of human behavior in general and of human sexuality in particular”.21 Moreover, there is a total lack of intersectional skills that are necessary in order to take into account the many other aspects that intersect with human sexuality. Human sexuality is expressed in ways, forms, attitudes, languages that vary depending on the uniqueness of the person and identity characteristics, such as ethnicity, religion, culture, geographical origin, etc. Therefore, the sole Western categories related to sexuality and SOGI issues are totally inadequate to understand the experience of LGBT refugees (consider just the fact that the “LGBT” definition may not be recognized or even understood, as it is a completely Western construct).22 With regard to these aspects, the CJEU judgment, A., B., C.23 issued on 2nd of December 2014 must be cited. This judgment concerned the interpretation of art. 4, Directive 2004/83, as well as art. 3 and 7 of the Charter of Fundamental Rights of the European Union. It stated that the procedures for assessing the asylum application cannot include examinations aimed at “demonstrating” homosexuality or the assumption, as

21 ORAM, Testing Sexual Orientation: A Scientific and Legal Analysis of Plethys- mography in Asylum and Refugee Status Proceedings, p. 9 http://oramrefugee.org/wp- content/uploads/2016/04/oram-phallometry-paper-2010-12-15.pdf (7/18) 22 Nina Held, What does a genuine lesbian/gay relationship look like in the eyes of asylum decision makers? https://discoversociety.org/2017/05/02/what-does-a-genuine- lesbiangay-relationship-look-like-in-the-eyes-of-asylum-decision-makers/ (7/18) 23 CJEU, judgment issued on 2nd of December 2014, A, B and C v Staatssecretaris van Veiligheiden Justitie. “ARE YOU ACTUALLY GAY?” 77 evidence, of video recordings containing intimate acts. Moreover, it cannot be based on stereotypical notions about homosexual people or detailed interrogations concerning sexual practices, because this violates human dignity and the private and family life of the applicant. The Court also states that it is unlawful to consider asylum seekers not to be credible only because they had revealed their sexual orientation at a later time and said that this was a reason for persecution. Although art. 4 par 1 of Directive 2004/83 states that it is necessary to present all the elements motivating the application for international protection as soon as possible, we must take into account the individual situation, the personal circumstances and therefore, in this case, the sensitivity of the issues relating to the intimate aspects of one's life, which the applicant may be reluctant to disclose.24 In addition, the recent judgment F.25 of January 25th 2018, in which the Court of Luxembourg comments on the interpretation of art. 4 of the new Qualification Directive (2011/95), states that the competent authorities cannot make psychological assessments aimed at verifying the veracity of the declared sexual orientation through projective tests, also configuring this conduct as a disproportionate interference with the private life of persons. Apart from the illegitimacy of such practices, it must be said that they are totally ineffective. First of all, the ascertainment of one’s sexual orientation and gender identity is an artificial and tricky operation by its very nature. Sexual orientation and gender identity are defined by processes of self- identification, hence they cannot be identified from the outside without causing dysfunctional consequences. The use of medical and psychiatric examinations,26 which are highly invasive and may be justified only if they have a legitimate purpose (i.e. if they became necessary according to the law to “serve a specific pur-

24 The issue of the “subsequent revelation” is another aspect on which States adopt different interpretations. The possibility that an asylum seeker may later induce his own sexual orientation as a reason for persecution is generally negatively evaluated for the purpose of recognizing the refugee status, for further information see Jansen and Spijkerboer, Fleeing Homophobia, cit., p. 67 ss. 25 CJEU, judgment issued on 25th of January 2018, F. v Bevándorlásiés Állampol- gársági Hivatal. 26 In this regard, it should be recalled that the Principle 18 of the Yogyakarta Princi- ples states that no one can be forced to undergo any form of test, medical or psychological examination because of their sexual orientation or gender identity. 78 ANNA FAZZINI pose [...] in a democratic society”,27 that is to say, if they are proportion- ate), is useful to ascertain the traumas and ill-treatment suffered by asylum seekers, not to ascertain their sexual orientation and gender identity, since these are not a clinical problem. The action of determining one’s sexual orientation and gender identity also implies that the authorities must identify certain characteristics in the asylum seeker on the basis of which they can establish his/her sexual identity, as if there existed a kind of reference paradigm defining the characteristics and behaviour of LGBT people. However, since such a paradigm does not exist, because sexual orientation and gender identity are human characteristics that have been subject to a violent categoriza- tion process within Western culture, the only available model for the authorities appears to be the stereotypical representation of LGBT people. The use of many stereotypes and clichés, as briefly mentioned before, points out that it is necessary to develop a model to assess the credibility of the applicant and of asylum application in general, which does not focus on an assessment of sexual orientation and of gender identity. Such a model should focus instead on the overall assessment of the consistency of the applicant’s personal story, as indicated by UNHCR, and on appropriate and specific guidelines for conducting interviews and on interrogating methods. Therefore, it is necessary and essential to train the authorities responsible for examining asylum applications on the SOGI themes and issues and to provide them with the appropriate expertise to interview LGBT applicants.

5. Conclusions

As it has been briefly explained, it is clear that a greater and more effective protection of LGBT refugees can only be achieved through a technical, but also cultural, reform of the European asylum system. It is essential to harmonize the legislation in this matter and to lay down specific and detailed provisions on the basis of which state approaches and practices can be standardized. At this time, asking for international protection for SOGI reasons can have very different outcomes depending on the member State examining the application. The aim of achieving a common asylum policy as pursued by the European Union, and as envisaged by art. 78 TFEU, remains clearly disregarded.

27 Jansen and Spijkerboer, Fleeing Homophobia, cit., p. 52. “ARE YOU ACTUALLY GAY?” 79

Nonetheless, a reform that takes into account only these elements would not be sufficient considering the problems that have been encoun- tered. These problems pertain to a sort of systemic ignorance regarding SOGI issues. Ignorance is “systemic” because it does not concern individual or sporadic deficiencies, but has more profound, structural deficiencies, which are at the basis of the European asylum system itself and, ultimately, at the basis of Western culture. It is paradoxical that the only practice concerning the examination of SOGI-based asylum applications which is common and valid for all the member States seems to be the “logic of prejudice” against LGBT people. This logic follows the same stereotyping processes and uses the same clichés in recognizing the status of international protection. The problem, therefore, pertains to the very foundations of the West- ern culture, whose moral, social and juridical norms have historically been structured around a paradigm that could be defined as “the heteronormativity assumption”. Heteronormativity is the belief that "there is a correct sexual orientation, the heterosexual one; there is a coincidence between biological sex and gender; there is a natural and necessary complementarity between men and women".28 The discriminating and stereotyping processes deriving from this assumption are continually re- produced within every context devoid of awareness and training. They provide the only categories, the heteronormative ones, through which the various human experiences are understood, thus being deprived of value, voice and possibility of self-representation.29 In a context as delicate as that of asylum, these processes are incapable of guaranteeing the effective protection of LGBT people’s human rights and are indeed in their direct violation. A cultural reform of the asylum system can be achieved only by “filling” systemic ignorance with an equally systemic knowledge. The proposal is to introduce the so-called “lgbt cultural competence”,30 that is to

28 Alexander Schuster, “L’abbandono del dualismo eteronormativo della famiglia”, in Alexander Schuster (ed.), Omogenitorialità, filiazione, orientamento sessuale e dirit- to, Mimesis Editions, Milan-Udine, 2011, p. 35. 29 Reading every human experience starting from the assumption (and therefore from the reference categories) of heteronormativity creates all the prejudices according to which LGBT people are “something less” than the “dominant” representation, see above. 30 See Nicole La Violette, “Overcoming Problems with Sexual Minority Refugee Claims: Is LGBT Cultural Competency Training the Solution?”, in Thomas Spijkerboer (ed.), Fleeing homophobia: sexual orientation, gender identity and asylum, Routledge, New York, 2013, pp. 189 – 216. 80 ANNA FAZZINI say a permanent and specific training on issues related to sexual orientation and gender identity. The “lgbt cultural competence” must provide the authorities responsible for examining the SOGI-based application with awareness, knowledge and skills. Awareness, as the training must start from the acquisition of tools capable of deconstructing and broadening the consideration of stereotypes and dominant schemes borrowed from one’s own culture since they often operate in ways of which people are not quite aware. Knowledge, because one must learn the LGBT themes and the intersectional competences. Skills, because, thanks to awareness and knowledge, one can acquire the right expertise to interview and relate to LGBT refugees. However, the limits (in terms of resources and time) that such a training could encounter in its practical implementation are also evident.31 The authorities responsible for examining the asylum application are generally overloaded with work. They have limited possibilities to access training and they must cover different aspects, not only the very specific SOGI themes. Moreover, there are criticalities deriving from the current European context, which is wholly directed towards anti- migratory solutions: countries seem to be more interested in reducing the number of refugees than in expanding their access to international protection. As a consequence, the fairness of the refugee detection systems and the correct application of the very definition of “refugee” are threatened by reforms that have a negative impact on asylum seekers, such as those aimed at speeding up the decision-making process, at setting procedural obstacles, at reducing the levels of appeal, at increasing the detention of refugees, etc. In such a restrictive climate, the specific issues regarding the protection of LGBT applicants are added to the broader ones regarding the refugee community. This highlights the urgent need for an effective right to asylum that is able to protect the most vulnerable among the vulnerable. For them, it is important to reiterate the need to work on the development of a common guidance, which may take into account specific guidelines on the examination of SOGI-based asylum applications, in order to eliminate the discretion of the States, the stereotypes, clichés and harmful practices that violate human rights and the rights of refugee, as well as the regulatory gaps from the methods and practices applied.

31 Ibidem. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY Adele Del Guercio*

SUMMARY: 1. Introduction: the space for human rights in contemporary European societies. – 2. European Union policy on migration and asylum. – 3. Law No. 132/2018: criticism of the adoption procedure. – 3.1. Law No. 132/2018: the abrogation of humanitarian protection. – 3.2. The new residence permits introduced by Law No. 132/2018. – 3.3. The reform of the national reception system for applicants for international protection. – 3.4. A new problematic exclusion clause. – 3.5. The introduction in the national legal order of the principles of “Safe Countries of Origin” and of “Internal Flight Alternative”. – 3.6. The detention of asylum seekers. – 3.7. Harder conditions to access Italian citizenship. – 4. Conclusion.

“In a racist society it is not enough to be non-racist. We must be anti-racist” (Angela Y. Davis)

1. Introduction: the space for human rights in contemporary European societies

It is not easy to speak about fundamental rights at a time when sovereignism is being revived, and xenophobic and racist governments are asserting themselves, bringing with them hard-nosed security policies on immigration and asylum. Europe is a privileged observation space of the aforementioned dynamics; take for instance the policies enacted by Hungarian President Viktor Orbán,1 which have led the European Commission to start an infringement procedure,2 the restoration of border controls by Austria, France, Germany, Denmark,

* Researcher in International Law at University of Naples “L’Orientale”. 1 Committee for the Prevention of Torture, Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 18.09.2018. 2 European Commission, Migration: Commission steps up infringement against Hungary concerning its asylum law, 7 December 2017, https://www.refworld.org/ docid/5a5376864.html. 82 ADELE DEL GUERCIO

Sweden and Norway,3 and the rejection of migrants by Spanish authorities at the borders of Ceuta and Melilla.4 Italy is no exception and, indeed, undoubtedly constitutes at this moment in history one of the worst examples of the failure to comply with national and international human rights obligations. In recent years, Italian governments (center-left, first, followed by the right) have been characterized by rather blameworthy political choices. In 2017, Italy resumed its cooperation with Libya,5 a country that is territorially divided and controlled by various armed militias in conflict,6 and with respect to which there is great perplexity as to whether it can be considered a subject of international law. The cooperation between Italy and Libya was immediately condemned by the United Nations7 and the Council of Europe,8 which denounced the torture, abuse and violence suffered by migrants in Libyan detention centers,9 bearing in mind moreover that, in many cases, State authorities

3 https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/ reintroduction-border-control. 4 Amnesty International, España: Nueve ONG piden al gobierno que ponga fin a las “devoluciones en caliente”, 17 December 2018. See the judgment of 3.10.2017 of the European Court of Human Rights, N.D. e N.T. v. Spain, applications No. 8675/15 e 8697/15, and the decision of 22.2.2019 of the Human Rights Committee, D.D. v. Spain, App. No. 4/2016. 5 On the argument see A. Liguori, “The 2017 Italia-Libya Memorandum and its consequences”, in G. Cataldi, A. Liguori, M. Pace (eds.), Migration In The Mediterranean Area And The Challenges For “Hosting” European Society, Editoriale Scientifica, Napoli, 2018, p. 215 ff., http://www.jmcemigrants.eu/jmce/wp- content/uploads/2018/02/II-VOLUME_Migration-and-hosting-european-society.pdf; A. Palm, The Italy-Libya Memorandum of Understanding: The baseline of a policy approach aimed at closing all doors to Europe?, 2.10.2017, http://eumigrationlawblog. eu/the-italy-libya-memorandum-of-understanding-the-baseline-of-a-policy-approach- aimed-at-closing-all-doors-to-europe/; M. Tazzioli, “Rethinking Migration And Autonomy From Within The “Crises””, in Völkerrechtsblog, 23.10.2017, https://voelkerrechtsblog.org/rethinking-containment-through-the-eu-libya-migration-deal/. 6 United Nations Support Mission in Libya. Office of the High Commissioner for Human Rights, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya, 18.12.2018. 7 http://www.un.org/en/sc/documents/sgreports/2017.shtml; http://undocs.org/S/ 2017/466. 8 https://rm.coe.int/letter-to-the-minister-of-interior-of-italy-regarding-government- s-res/168075baea. 9 UNSMIL, OHCHR, “Detained And Dehumanised” Report On Human Rights Abuses Against Migrants In Libya, 13.12.2016, https://www.ohchr.org/Documents/ Countries/LY/DetainedAndDehumanised_en.pdf. See also the Thirteenth Report Of The MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 83 and human traffickers coincide.10 The Italian cooperation with Libya also entailed the legitimization of the Libyan coastguard, which was delegated with search and rescue activities previously implemented by Italian naval units. This resulted in the return of migrants to the Libyan coasts, episodes of violence, and shipwrecks. It is no coincidence that 2018 saw more than 2,000 people lose their lives at sea. To the above facts we must also add the closure of ports by the Italian government11 and the criminalization of NGOs,12 which, alone in recent years, have ensured the implementation of international rules on search and rescue in the Mediterranean sea. Another critical element of Italian policy is the restriction of the rights of asylum seekers, in particular of the right of appeal, was the effect of the adoption of Law No. 46/2017 (the so-called “Minniti decree”).13 This law changed the Italian asylum procedure, so that the asylum seeker to whom the Territorial Commission and the judge of first instance have denied international protection cannot apply to the

Prosecutor Of The International Criminal Court To The United Nations Security Council Pursuant To UNSCR 1970 (2011), 2017, https://www.icc-cpi.int/ iccdocs/otp/otp-rep-unsc-lib-05-2017-ENG.pdf; the judgment of the Corte di Assise of Milan, 10.10.2017, http://questionegiustizia.it/articolo/il-caso-matammud-un-modello- terrifico-di-gestione-dei-centri-d-accoglimento-profughi-in-libia_25-09-2018.php; and the Human Rights Watch World Report 2017, 12.12.2018. 10 Amnesty International, Libya’s Dark Web of Collusion. Abuses Against Europe- Bound Refugees And Migrants, 2017; Limes, Milizie, guardia costiera e trafficanti: come collaborano i gestori della nuova tratta degli schiavi, 7.12.2017, http://www.limesonline.com/cartaceo/milizie-guardia-costiera-e-trafficanti-come- collaborano-i-gestori-della -nuova-tratta-degli-schiavi?prv=true. 11 De Sena, F. De Vittor, La “minaccia” italiana di “bloccare” gli sbarchi di migranti e il diritto internazionale, in SIDIBlog, 1.07.2017, http://www.sidiblog.org /2017/07/01/la-minaccia-italiana-di-bloccare-gli-sbarchi-di-migranti-e-il-diritto- internazionale/#comment-4621. 12 ASGI, Position Paper On The Proposed “Code Of Conduct For NGOs Involved In Migrants’ Rescue At Sea”, 24.07.2017, https://www.asgi.it/wp- content/uploads/2017/07/Draft-ASGI-Position-Paper_Final_EN.pdf; G. Cataldi, “Migranti nel Mediterraneo e tutela dei diritti. Alcuni recenti casi della prassi italiana”, in Quaderni di economia sociale, 2018, 2, p. 33-38; F. De Vittor, “Soccorso in mare e favoreggiamento dell’immigrazione irregolare: sequestro e dissequestro della nave Open Arms”, Diritti umani e diritto internazionale, 2, 2018, p. 443 ff. 13 Law 13 April 2017, No. 46, “Disposizioni urgenti per l’accelerazione dei procedimenti in materia di protezione internazionale, nonché per il contrasto dell’immigrazione illegale”. 84 ADELE DEL GUERCIO court of second instance.14 The effect is that, while an Italian citizen has the right to appeal to the judge of second instance to challenge even the most petty forfeit, asylum seekers do not have the analogous right to exercise a fundamental right enshrined by the Constitution (the right of asylum, Art. 10). This is a serious form of discrimination. Furthermore, the court of first instance can decide on the application for international protection without even listening to the asylum seeker but only by viewing the video recording produced during the hearing before the Territorial Commission. In this framework, already disastrous in itself, there emerged another problematic legal intervention, Decree-law No. 113/2018, converted into Law No. 132/2018,15 which immediately aroused criticism from the United Nations,16 the Council of Europe,17 sectors of institutions,18 jurists,19 intellectuals20 and civil society.21 Moreover, some Italian

14 Asylum seekers retain the right to apply to the Corte di Cassazione, which however does not rule on the merits of the case. 15 Law 1 December 2018, No. 132, “Conversione in legge, con modificazioni, del decreto-legge 4 ottobre 2018, n. 113, recante disposizioni urgenti in materia di protezione internazionale e immigrazione, sicurezza pubblica, nonché misure per la funzionalità del Ministero dell’interno e l’organizzazione e il funzionamento dell’Agenzia nazionale per l’amministrazione e la destinazione dei beni sequestrati e confiscati alla criminalità organizzata. Delega al Governo in materia di riordino dei ruoli e delle carriere del personale delle Forze di Polizia e delle Forze Armate”. 16 UN Human Rights Council, Legal changes and climate of hatred threaten migrants’ rights in Italy, say UN experts, 21.11.2018. 17 https://www.infomigrants.net/en/post/13382/council-of-europe-italian-security- decree-a-step-backwards. 18 CSM, Parere ai sensi dell’Art. 10 L. 24.3.1958, n. 195, sul decreto legge 113 del 4 ottobre 2018 recante: “Disposizioni urgenti in materia di protezione internazionale e immigrazione, pubblica sicurezza, nonché misure per la funzionalità del Ministero dell’Interno e l’organizzazione e il funzionamento dell’Agenzia nazionale per l’amministrazione e la destinazione dei beni sequestrati e confiscati alla criminalità organizzata” (Delibera consiliare del 21 novembre 2018), https://www.csm.it/documents/21768/92150/parere+decreto+sicurezza+%28delibera+21 +nove mbre+2018%29/b80ecce0-0d61-e4b4-183c-9e20b48aac55. See the speech of the President of the Italian Corte di Cassazione, 25.01.2019, http://questionegiustizia. it/doc/requisitoria_proc_gen_cass.pdf. 19 ASGI, Manifeste illegittimità costituzionali delle nuove norme concernenti permessi di soggiorno per esigenze umanitarie, protezione internazionale, immigrazione e cittadinanza previste dal decreto-legge 4 ottobre 2018, n. 113, 15.10.2018; C. Padula, Quale sorte per il permesso di soggiorno umanitario dopo il dl 113/2018?, 21.12.2018, http://www.asgi.it/. 20 See the appeal of Gustavo Zagrebelsky, Tomaso Montanari, Sandra Bonsanti, MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 85

Regions have challenged the Law in the Constitutional Court because of its unconstitutionality.22 However, there was no censure by the European Union and this circumstance, to tell the truth, was unsurprising, given that since 2001, as a consequence of the emergence of the terrorist threat, and more markedly in recent years, in relation to the so called “refugee crisis”, the migration management policies adopted at supranational level are increasingly marked by stigmatization of the migrant – seen as a threat to public order or, at the very least, as an impostor moved by the desire to abuse the European asylum system.23 Among the concrete measures taken as a result of this are, as we have seen, the containment of arrivals, including through repressive measures, and the prevention of departures from countries of origin. This paper proposes to verify the compatibility of Law No. 132/2018 with fundamental human rights to which Italy is bound by virtue of the Constitution, as well as international and European law. The analysis will focus exclusively on some of the problematic profiles concerning international protection, immigration and citizenship (Title I, Articles 1- 14), although it should be noted that the Law, renamed the “security law”, includes various measures, among these the detention for up to 10 years of persons who occupy land and housing (in the case of groups of at least five people) and those blocking roads and tracks, the provision of equipping urban police with electric impulse weapons (TASER), and the extension of the hypothesis of urban DASPO.24 In this regard, we take note of the fact that the Executive’s decision to intervene with the same legal instrument on issues of an extremely heterogeneous nature, in a repressive function that limits civil liberties and fundamental rights,

Lorenza Carlassare, Paul Ginsborg, Francesco Pallante, Valentina Pazé, Elisabetta Rubini, Salvatore Settis and Nadia Urbinati in Libertà e giustizia. See also CIR, Approvazione c.d. decreto sicurezza un grave passo indietro per il diritto d’asilo, Comunicato stampa del 28.11.2018; Giuristi democratici, Decreto Legge “Sicurezza”, dopo un pessimo testo emendamenti ancora peggiori? No, grazie!, 31.10.2018. 21 Many events took place throughout Italy to protest against the security decree. Among these we want to refer to the protest held in Rome on November 10, identified by hashtag #indivisible, organized by associations and movements, with tens of thousands of people marching through the streets of the capital. 22 Emilia Romagna, Toscana and Umbria, but others have declared they will do the same. 23 I Atak and J. C. Simenon (The criminalization of Migration, McGill-Queen’s University Press, Montreal, 2018) speaks of “crimmigration”. 24 Urban DASPO is a measure that prevents a person from accessing to the territory of a city. 86 ADELE DEL GUERCIO does not appear to be coincidental nor does it respond to the real needs of society, with the risk of strengthening and spreading a climate of fear and social unease.25

2. European Union policy on migration and asylum

Before analyzing the subject of the investigation, we consider it appropriate to reconstruct the European political and normative framework in which Italian immigration and asylum policy is inserted. The European Union has relied on the “refugee crisis” for the adoption of measures explicitly aimed at blocking people in countries of origin and transit and preventing arrivals in the territory of the Member States, without paying any attention to those people’s rights. The “compact” has become the main instrument of the European strategy defined since the adoption of the Agenda on migration in 2015. 26 These are agreements (not real international agreements of a mandatory legal nature) to be stipulated with countries identified as privileged partners, which are delegated not only with the operations of border control and fight against the criminal organizations dedicated to the traffic of human beings, but also with the reception of people in transit to Europe, notwithstanding the difficulties these countries face in adequately equipping themselves with efficient asylum systems, given their situations of poverty, political instability and exposure to attacks by terrorist groups. This is not a new strategy, since it is the basis of the well-known processes of Rabat27 and Khartoum,28 and of the Valletta Summit.29 The partners are assisted in order to strengthen border controls, monitor the movement of people, combat human traffickers, and readmit their repatriated citizens. The priority is to ensure that asylum seekers remain as close as possible to their country of origin, avoiding dangerous

25 See L. Pepino, “Le nuove norme su immigrazione e sicurezza: punire i poveri”, Questione giustizia, 12.12.2018, www.questionegiustizia.it. 26 European Commission, Communication From The Commission To The European Parliament, The Council, The European Economic And Social Committee And The Committee Of The Regions. A European Agenda On Migration, COM(2015) 240 final, 13.05.2015. 27 https://www.rabat-process.org/en/about/rabat-process/333-rabat-process. 28 https://www.khartoumprocess.net/. 29 https://www.consilium.europa.eu/it/meetings/international-summit/2015/11/11-12/. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 87 journeys. Although the European Union has established an ad hoc fund, the Emergency Trust Fund for Africa,30 it has been shown that the sums allocated are not destined, as they should be, to projects that combat poverty in local communities, but rather to carrying out repatriations and controlling frontiers, in this manner negatively affecting development processes and creating distortions and corruption in local dynamics.31 It is emblematic and deeply worrying that the reference model of cooperation with third countries, in the context of the new partnership framework launched by the European Union in 2016,32 should be identified in the notorious EU-Turkey Declaration of 18 March 2016.33 As is well known, the Declaration was intended to prevent entry into Greece, making Turkey the guardian of the eastern migration route. To this end, it was established that for every “bad” Syrian citizen repatriated to Turkey – bad because he or she entered Greece illegally – a “good” Syrian citizen would be transferred to Greek territory and given access to the asylum procedure. The EU-Turkey Declaration therefore determines a clear and illegal discrimination between asylum seekers, since only Syrian citizens can participate in the so-called “1:1 mechanism” and thus aspire to reach European territory and see their application for international protection examined according to EU law on asylum. Asylum seekers of other nationalities are instead destined to remain in Turkey. This is in violation of the 1951 Geneva Convention, which, in Article 3, prohibits any differentiated treatment between asylum seekers. In the international refugee protection regime any person has the right to apply for international protection and to have it examined on an individual basis, without discrimination of any kind. In fact, refugee status is a

30 https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european- agenda-migration/2017120 7_eu_emergency_trust_fund_for_africa_en.pdf. 31 http://www.concorditalia.org/wp-content/uploads/2017/11/rapporto-completo-EUTF.pdf. 32 European Commission, Communication on establishing a new Partnership Framework with third countries under the European Agenda on Migration, COM (2016)385 final of 7.6.2016. 33 https://www.consilium.europa.eu/it/press/press-releases/2016/03/18/eu-turkey- statement/. On the EU-Turkey Statement see the report of Oxfam, The reality of the EU- Turkey Statement, 17.03.2017, https://www-cdn.oxfam.org/s3fs-public/bn-eu-turkey- statement-migration-170317-en.pdf; M. Marchegiani, L. Marotti, “L’accordo tra l’Unione europea e la Turchia per la gestione dei flussi migratori: cronaca di una morte annunciata?”, in Diritto immigrazione e cittadinanza, 1-2/2016, pp. 59-82. 88 ADELE DEL GUERCIO subjective right, linked to the reasons for persecution referred to in art. 1A of the Geneva Convention. Moreover, even the European Court of Human Rights has consistently reiterated that State authorities must always guarantee an individual and rigorous examination of the circumstances emerging from the case, if a State hopes to avoid a violation of the ECHR. The EU-Turkey Declaration therefore institutionalizes a form of impermissible discrimination in the light of international obligations to which all EU Member States are bound. Among other things, it should be noted that Turkey maintains the geographical reservation to the Geneva Convention; consequently, only European citizens can aspire to refugee status. Following the conclusion of the agreement with the EU, the Turkish government modified its internal legislation so as to allow only Syrian refugees access to a temporary form of refuge, which also allows access to work. No legislative intervention, on the other hand, concerned asylum seekers of other nationalities, who, therefore, do not have any possibility of obtaining asylum in Turkey and are repatriated, rejected at the borders or held in detention centers for migrants in conditions of irregularity. This is of deep concern, if we consider that the eastern route is used by people fleeing from Afghanistan and Iraq, or from countries in which there is a situation of generalized violence that would give the right to the recognition of a form of protection in Europe. Moreover, Human Rights Watch has denounced that the Syrian citizens themselves are more and more often blocked at the border and sent back to their country,34 and even when they are able to obtain protection they are subjected to forms of serious labor exploitation.35 The cooperation with Turkey in the fight against “irregular immigration” has been well financed by the European Union: according to data in the latest Commission report, by May 2018 two billion euros had been paid to the aforementioned country, with another 3 billion were allocated. The funding should cover the expenses for the reception of Syrian refugees in Turkish territory, in particular for the subsidy to be distributed to them and for the implementation of interventions aimed at guaranteeing the right to

34 https://www.theguardian.com/global-development/2018/oct/16/syrian-refugees- deported-from-turkey-back-to-wa r?CMP=share_btn_tw. 35 Human Rights Watch, World Report 2019, available at: https://www.hrw.org/world-report/2019/country-chapters/turkey#331939. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 89 education and medical care.36 In truth, the situation of asylum seekers in Turkey is deeply alarming.37 The securitization of EU policies also emerges from the redefinition of the competences and powers of the new European Border and Coast Guard (EBCG),38 which replaces FRONTEX, without distorting its original mission of controlling the borders and carrying out return operations of citizens of third countries in conditions of irregularity. The power of the new EBCG to cooperate with third countries by launching joint operations and deploying personnel is also strengthened. The FRONTEX reform also moves clearly in the direction of outsourcing migration management. Once again, therefore, little attention is paid to search and rescue competences: the priority of the EU continues to be the security of borders, not people’s safety.39 It should also be noted with regret that, despite the humanitarian rhetoric of the Agenda on Migration and of the documents subsequently adopted by the European Commission, a strategy for opening legal access routes to Europe,40 which is the only effective instrument for combatting human trafficking organizations, has not been defined. This possibility is left to Member States and private parties, but not defined in a common European framework, although both visa and asylum policy are competences shared between the EU and Member States.

36 https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/ european- agenda-migration/20180314_annex-2-progress-report-european-agenda-migration_en.pdf. 37 O. Ulusoy, H. Battjes, Situation of Readmitted Migrants and Refugees from Greece to Turkey under the EU-Turkey Statement, VU Migration Law Series No 15, 2017, reperibile al link https://rechten.vu.nl/en/Images/UlusoyBattjes_Migration _Law_Series_No_15_tcm248-861076.pdf. See also Human Rights Watch, EU: Don’t Send Syrians Back to Turkey: Lack of Jobs, School, Health Care Spurs Poverty, Exploitation, 2016, https://www.hrw.org/news/2016/06/20/eu-dont-send-syrians-back- turkey. 38 Regulation (EU) 2016/1624 of the European Parliament and of The Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC. 39 F. Crépeau, Regional Study: Management of the External Borders of the European Union and Its Impact on the Human Rights of Migrants, 2013, Geneva, Office of the United Nations High Commissioner for Human Rights. 40 See the document of the European Parliament, K. Luyten-S. González Díaz (eds.), Legal Migartion to the EU, March 2019, http://www.europarl.europa.eu/RegData /etudes/BRIE/2019/635559/EPRS_BRI(2019)635559_EN.pdf. 90 ADELE DEL GUERCIO

Undoubtedly, in fact, as long as the visa policy remains restrictive and the EU and Member States lack a policy of legal entry into European countries, not only for asylum seekers but also for those who move for work reasons or other reasons, criminal organizations will continue to make money from people who, whether by choice or by coercion, leave their countries to reach Europe. The resettlement policy itself, although conceived in very modest terms, has been implemented with difficulty. Meanwhile, the scarce cooperation shown by the Member States in the relocation of asylum seekers from Italy and Greece shows that the crisis is primarily a crisis of solidarity, not only towards people coming from other countries, but also among States involved in the process of building a common membership. Emblematic, in this sense, is also the stalemate in which the reform of the common European asylum system finds itself: it started in 201641 and not yet concluded. This is due to the obstructionism of some Member States, particularly those of the Visegrad group (Poland, the Czech Republic, Slovakia and Hungary), although they are not alone. The most critical element of the package of measures presented by the European Commission is the reform of the Dublin regulation.42 One of the proposals, supported by the European Parliament, would overcome the criterion of first entry, which in recent years has produced disproportionate pressure on the Italian and Greek asylum systems, and to redistribute applicants between Member States in a balanced way.43 However, the European Parliament’s proposal was not approved by the Council and at the time of writing there are no developments in this regard.

3. Law No. 132/2018: criticism of the adoption procedure

Decree-law No. 113/2018 was adopted on October 5 and then converted into Law No. 132/2018. This was adopted by the Italian Senate (Senato),

41 European Commission, Communication From The Commission To The European Parliament And The Council Towards A Reform Of The Common European Asylum System And Enhancing Legal Avenues To Europe, COM(2016) 197 final, 6.04.2016. 42 Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. 43 http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/586639/EPRS_BRI% 282016%29586639_EN.pdf. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 91 with changes to the original text, on November 7, and subsequently by the Italian Chamber of Representatives (Camera) on November 27, without further intervention. In both cases, the Executive endorsed it, thus speeding up the process of approval, but preventing any discussion in Parliament.44 Law No. 132/2018 has been in force since December 4. This analysis will begin by looking at the questionable choice of the Executive to intervene, as we said, on extremely heterogeneous subjects (immigration, international protection, citizenship, public security, the fight against corruption and organized crime, administrative organization of national authorities and local public security) with a decree law, an instrument that, pursuant to Art. 77 of the Constitution and the guidelines of the Constitutional Court,45 should be reserved for cases of extraordinary necessity and urgency. This choice is justified – according to the Executive – by necessity and the urgency “to provide measures to identify the cases in which special temporary residence permits for humanitarian needs are issued, as well as to guarantee the effective implementation of the deportation measures” and to adopt rules on the revocation of the status of international protection as a result of the establishment of the commission of serious offenses and rules suitable to avoid instrumental recourse to the international protection, to rationalize the use of the system of protection for beneficiaries of international protection and for unaccompanied minors, as well as provisions aimed at ensuring the proper conduct of the procedures for granting and recognizing citizenship (Introduction). It is disputable whether we are faced with the stringent conditions imposed by the Constitution to decree a case of urgency,46 also taking into account the heterogeneity of the rules contained in the decree, which do not respond to a unitary purpose of intrinsic coherence, unless the exercise of subjective rights, such as the right to asylum, is an issue connected with the maintenance of public order and the security of the country.47

44 The text of Decree-Law No. 113/2018 is available at the link http://www.gazzettaufficiale.it/eli/id/2018/10/04/8G 00140/sg. On the critical aspects of the adoption procedure see G. Azzariti, “A proposito della nuova normativa in materia di migrazioni: le incostituzionalità non discusse”, Questione Giustizia, 18.01.2019, www.questionegiustizia.it. 45 Among others, Constitutional Court, judgement of 17-24 October 1996, No. 360 46 See Art. 15, co. 3, of the Law No. 400/1988 and the judgment of the Constitutional Court No. 22/2012. 47 See G. Azzariti, cit.; R. Nevola, La decretazione d’urgenza nella giurisprudenza 92 ADELE DEL GUERCIO

From the outset, therefore, it is possible to recognize the unconstitutionality of the measure under examination, given the choice of using the instrument of the decree law, the absence of urgent situations, the substantial heterogeneity of the subjects dealt with by the decree law, and the vagueness of the motivations to justify adoption of the decree.48

3.1. Law No. 132/2018: the abrogation of humanitarian protection

Considering the contents of Law No. 132/2018 (converting decree- law No. 113/2018) in greater detail, the first element to underline is that it affects the national protection system for asylum seekers, first by abolishing humanitarian protection and, consequently, the residence permit for humanitarian reasons, then by introducing four new residence permits for “special cases” into the Italian regulatory framework and confirming three existing ones (renamed as permits for “special cases”). Humanitarian residence permits were governed by Art. 5, co. 6, of the national law on immigration (Testo unico sull’immigrazione),49 which, together with refugee status and subsidiary protection, implemented the right to asylum referred to in Art. 10, co. 3, of the Italian Constitution. This article states: “a foreigner who is prevented in his country from the effective exercise of democratic freedoms guaranteed by the Italian Constitution has the right to asylum in the territory of the Republic, according to the conditions established by law”.50 Prior to the adoption of law-decree No. 113/2018, the Italian Territorial Commissions for the examination of applications for international protection could grant applicants the status of refugee, where there is a risk of persecution in the applicant’s State of origin, for

costituzionale, September 2017, https://www.cortecostituzionale.it/documenti/convegni _seminari/STU_304_Decretazione_urgenza.pdf. 48 For a more detailed examination of the profiles of unconstitutionality of the decree-law No. 113/2018 see the opinion of the CSM VI Commission, the Minister of Justice on the security law decree, cit., and the documents of ASGI, Manifeste illegittimità costituzionali, cit., and C. Padula, Quale sorte per il permesso di soggiorno umanitario, cit. See also N. Tomeo, “I presupposti costituzionali per l’approvazione del decreto legge n. 113/2018”, Immigrazione.it, No. 323, 1 November 2018. 49 Testo unico on immigration. Legislative decree, 25/07/1998 n° 286. 50 On the right of asylum granted by the Italian Constitution see M. Benvenuti, “La forma dell’acqua. Il diritto di asilo costituzionale tra attuazione, applicazione e attualità”, Questione giustizia, 2, 2018. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 93 reasons of race, religion, nationality, belonging to a specific social group or political opinions. Alternatively, if it was not possible to recognize the status of refugee but, in light of the personal situation of the applicant and that of the country of destination, the Territorial Commission considered that the applicant was in danger of suffering serious harm (capital punishment, torture and inhuman and degrading treatment and punishment, a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict), the Territorial Commission could grant subsidiary protection.51 Article 32, co. 3, of Legislative Decree No. 25/2008 then stated that “in cases where the Territorial Commission doesn’t admit the application for international protection and believes that there may be serious humanitarian reasons, it will forward the application to the Questore for the granting of a residence permit pursuant to Article 5, co. 6, of the legislative decree 25 July 1998, n. 286”. The aforementioned provision linked the issue of the residence permit for humanitarian reasons to serious motivations, in particular of a humanitarian nature or resulting from Constitutional or international obligations of the Italian State. The Italian Court of Cassation specified that “the legal situation of the foreigner that applies for the issue of permission for humanitarian reasons has a consistency of subjective right, to be counted among fundamental human rights”,52 and that the competent body to decide on the release should be the Territorial Commission, not the Questore.53 The Constitutional right to asylum was therefore implemented through three forms of protection: refugee status, subsidiary protection and humanitarian protection. The latter, in case law,54 was used to protect people in heterogeneous situations of vulnerability, not rigidly typified and not part of the international protection framework. It was used to regularize, inter alia, the legal situation of victims of torture, violence and rape when they were in Libya or during the migration process, of single women with children, of persons whose application for international protection was pending and that had completed a

51 Art. 23, legislative decree No. 251/2007. 52 Corte di Cassazione, order No. 19393/2009 and judgment No. 4455/2018. 53 Corte di Cassazione, order No. 19393/2009. 54 Corte di Cassazione, order No. 10686/2012; order No. 12270/2013 and order No. 26887/2013. 94 ADELE DEL GUERCIO process of integration, of ill persons, or even of persons that in case of return in their country of origin would have found themselves in conditions of extreme poverty.55 Therefore, humanitarian protection was “a residual form of protection that completes the overall system governing the international protection of foreigners in Italy”.56 The residence permit for humanitarian reasons lasted two years and involved the recognition of many of the rights associated with international protection, as well as the convertibility to residence permits for work reasons and family reunification. The normative framework preceding the adoption of decree-law No. 113/2018, illustrated above, was completed with permits “for special protection” for victims of trafficking (Article 18 of Testo unico on immigration), “for victims of domestic violence” (Article 18 bis) and for victims “of particular labor exploitation” (Article 22, paragraph 12- quater), not abolished by the aforementioned decree-law. The need to intervene on humanitarian protection was justified, according to the Explanatory Report of decree-law No. 113/2018,57 by referring to the instrumental use of international protection by Territorial Commissions and by the judges. The residence permit for humanitarian reasons, in fact, introduced by Law No. 40/1998 as a form of complementary and residual protection, to be used in situations of exceptional and temporary gravity, became in practice “the most widely recognized form of protection in the national system”, according to the Executive, because of a legal definition with uncertain contours and of an “excessively extensive” interpretation, that would be proved by the “anomalous disproportion” between the rates of recognition of

55 See the circular of the National Commission for the right of asylum (Commissione nazionale per il diritto d’asilo) No. 3716/2015. On the residence permit for humanitarian protection, see M. Acierno, “La protezione umanitaria nel sistema dei diritti umani”, Questione giustizia, 2, 2018; M. Benvenuti, “Il dito e la luna. La protezione delle esigenze di carattere umanitario degli stranieri prima e dopo il decreto Salvini”, in Diritto immigrazione e cittadinanza, 1, 2019; G. Cataldi, “La distinzione tra rifugiato e migrante economico: una dicotomia da superare?”, in G. Nesi (ed.), Migrazioni e diritto internazionale: verso il superamento dell’emergenza?, Editoriale Scientifica, Napoli, 2018, pp. 585-601; C. Favilli, “La protezione umanitaria per motivi di integrazione sociale. Prime riflessioni a margine della sentenza della Corte di cassazione n 445/2018”, Questione giustizia, 1, 2018; N. Zorzella, “La protezione umanitaria nel sistema giuridico italiano”, Diritto immigrazione e cittadinanza, 1, 2018. 56 Corte di Cassazione, judgment No. 4455/2018. 57 https://www.adnkronos.com/r/Pub/AdnKronos/Assets/PDF/Decreto_SAlvini_migranti _scheda.pdf. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 95 international protection and recognition of humanitarian protection.58 The Executive therefore seems to find the cause of the aforementioned disproportion in what, in truth, is rather the consequence of an extremely restrictive visa policy and of the absence of legal entry channels; of the malfunctioning of the old Territorial Commissions prior to the reform, composed of unskilled personnel not inclined to the recognition of international protection even where the requisites established by law existed; as well as of the rigidity of the conditions attached to refugee status and subsidiary protection. It is not a coincidence that twenty of the twenty-eight Member States of the European Union have introduced complementary or charitable forms of protection in their legal system,59 a possibility also admitted by EU law, as confirmed by the Court of Justice.60

3.2. The new residence permits introduced by Law No. 132/2018

Decree-Law No. 113/2018, in force since October 5, then converted into Law No. 132/2018, abrogates the residence permit for humanitarian reasons, provides for new types of residence permits and renames others that previously contained the words “humanitarian reasons”.61 First of all, there is the residence permit “for special protection”, with an annual duration; it is renewable but not convertible into other types of residence permits. The Territorial Commission transmits the documents to the Questore for the issue of this type of residence permit when he hasn’t accepted the application for international protection but there is a risk of persecution pursuant to Art. 19, co. 1, or the risk of torture pursuant to Art. 19, co. 1.1, of the Legislative Decree No. 286/98 in the case of expulsion of the asylum seekers.

58 Ibidem. In this regard, please refer to the data published by the Ministry of the Interior on the recognition of forms of protection to asylum seekers. It also highlights the high rate of recognition of protection (international or national ones) by judges, which would amount to around 50% of the appeals presented. See http://www.libertaciviliimmigrazio ne.dlci.interno.gov.it/it/documentazione/statistica/i- numeri-dellasilo. 59 EASO, The Annual Report on the Situation of Asylum in the European Union, 2016. 60 EU Court of Justice, joined cases C-57/09 e C-101/09, Germany v. B. e D., judgment of 9.11.2010. 61 Art. 1, Law No. 132/2018. On this issue see ASGI, Le principali novità sui permessi di soggiorno introdotte dal decreto legge n. 113/2018, 31.10.2018, www.asgi.it. 96 ADELE DEL GUERCIO

With regard to these types of residence permit, there is a certain perplexity, since, even at first glance, it is clear that the circumstances contemplated are similar to those that lead to recognition of refugee status or subsidiary protection, and there is a conceivable risk that the Territorial Commissions, which are influenced by the central government’s political orientations, may choose not to issue international protection and opt for a residence permit that guarantees fewer rights for the individual. Nevertheless, some authors have highlighted the potential of this type of residence permit, which is substantially similar to the abrogated one, and which would guarantee protection to persons in situations not covered by the regulation on international protection.62 Law No. 132/2018 then provides for a residence permit “for medical treatment”,63 issued by the Questore to the foreigner who is in a “particularly serious” health condition, assessed by suitable documentation from a hospital or a doctor affiliated with the national health system (Sistema sanitario nazionale, S.S.N). This is a different case from the one provided for by Art. 36 of the Testo Unico on immigration, which allows entry into the Italian territory of a third- country citizen who needs medical treatment. The residence permit “for medical treatment” has a duration equal to the time attested by the health certification, but not exceeding one year, and is renewable. The law does not specify whether it allows work or is convertible. In addition to the residence permit for medical treatment, the new law introduces a residence permit “for disasters”,64 issued, again by the Questore, to foreigners who would return to a country in which there is a situation of exceptional calamity – not defined by law – which makes return in safe conditions impossible.65 Finally, we must mention the permit “for acts of particular civic value”,66 to be issued, upon authorization of the Minister of the Interior, as proposed by the Prefetto, to foreigners who have exposed themselves

62 M. Benvenuti, “Il dito e la luna”, cit., p. 30 ff.; A Marasacchia, “La protezione speciale sostituisce il permesso per motivi umanitari”, in Guida al diritto, 2018, p. 24. 63 Art. 19, co. 2, lett. d-bis, Legislative Decree No. 286/98, introduced by law-decree No. 113/2018. 64 Art. 20 bis, Legislative Decree No. 286/98, introduced by law-decree No. 113/2018. 65 On the argument see E. Fornalé in this book. 66 Art. 42 bis, Legislative Decree No. 286/98, introduced by Law-Decree No. 113/2018. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 97 to a real risk to save people in imminent and serious danger, to prevent or diminish the damage of a serious public or private disaster, to restore public order, to participate in the arrest of criminals, to contribute to the progress of science or generally for the good of humanity, or to honor the name and prestige of Italy. A critical note regarding the new residence permits concerns the precariousness of the legal status, both with regard to the duration of the residence permit issued (six months for the permit for disasters, one year extendable in other cases), and with regard to the non-convertibility of some of these in other types, in particular to residence permits for work reasons. The shorter duration also affects the exercise of other rights, such as access, on equal terms with citizens, to social assistance benefits (when the residence permit lasts less than one year) and to public housing (in the case of a residence permit with a duration of less than 2 years). Furthermore, the new law limits the right of the beneficiaries of the new types of residence permits to healthcare (this also having constitutional coverage in Article 32), as it does not provide for automatic enrollment in the national health service, but only for access to urgent and essential medical care.67 It is clear therefore that the legislation introduced by the new law limits the exercise of rights that are guaranteed by the Constitution, determining a different treatment for similar situations previously protected under the umbrella of humanitarian protection.68 Moreover, the competent body to issue the authorization to stay is no longer the Territorial Commission; the decision is instead left to the discretion of the Questore and the Prefetto. If the intentions declared by the Executive were to reorganize and rationalize the Italian asylum system, giving greater certainty to the applicable law,69 de facto the reform splits humanitarian protection into a multiplicity of legal status categories, each with its own regulation, without however covering the heterogeneous circumstances that fell under humanitarian protection before the approval of the law under examination.

67 Article 35 of Legislative Decree No. 286/1998. On this topic see ASGI, Manifeste illegittimità costituzionali, cit., p. 14. 68 Regarding the temporal application of the new law, see the judgment of the Italian Corte di Cassazione of 19.02.2019, No. 4890. 69 Dossier, Decreto-legge immigrazione e sicurezza pubblica. Con gli emendamenti approvati dalla Commissione Affari costituzionali in sede referente. Dossier per l’Assemblea. D.L. 113/2018 - A.S. n. 840, November 2018. 98 ADELE DEL GUERCIO

Furthermore, we want to point out that the most favorable regulation provided by the new law refers to those persons who perform acts of civic value. This choice is in line with a discursive rhetoric – which was already echoed in Law No. 46/2017 with reference to activities of unpaid social work that asylum seekers have to perform in favor of the Municipalities that host them70 – according to which the foreign citizen must merit the residence permit, in a compensatory logic71 that isn’t compatible with the exercise of fundamental rights such as the right to asylum and the right not to be rejected to a country where one’s life would be at risk. Returning to the examination of Law No. 132/2018, fortunately it does not prejudice the granting of some types of residence permits for special cases. In this regard, we wish to highlight that these types of residence permits meet the need to offer prompt protection to the victims of crimes like human trafficking, domestic violence and labor exploitation, but which must not prevent, where the conditions are met, the recognition of international protection. In general, the new regulation introduced by Law No. 132/2018 does not have as broad a scope as the residence permit for humanitarian reasons pursuant to Art. 5 co. 5 Testo Unico on immigration, which, as we have said, allowed full implementation of Article 10 of the Constitution and of international obligations. Therefore, we are faced with a manifest constitutional illegitimacy since the Italian legal system does not allow for the possibility of reducing the scope of the forms of protection already provided for by law, where they implement Constitutional or international obligations.72 However, as has been pointed out, the new provisions must be given a constitutionally oriented interpretation;73 so, where the foreigner’s humanitarian needs have a constitutional or international juridical base, they must continue to receive protection, through old and new tools of Italian law, including the right to asylum enshrined in the Constitution at Art. 10.74 In any case, the Corte di Cassazione75 specified that the applications for international protection submitted by 5 October 2018 should be

70 Law 13 April 2017, No. 46. 71 See C. Marchetti, “I diritti: né privilegi, né meriti”, Gli asini, 57, 2018, pp. 9-13. 72 ASGI, Manifeste illegittimità costituzionali, cit., p. 7; Opinion of CSM, cit. 73 M. Benvenuti, “Il dito e la luna”, cit., p. 19. 74 Ibidem, p. 27 ff. 75 Corte di Cassazione, judgment No. 4890/2019. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 99 examined according to the previous legislation, therefore the Territorial Commissions can issue a two-year renewable and convertible residence permit. Nevertheless, the percentages of recognition of humanitarian protection have decrease significantly.76

3.3. The reform of the national reception system for applicants for international protection

In addition to the precariousness deriving from the abolition of humanitarian protection, which, according to an initial estimation, will condemn about 60,000 people to a condition of irregularity in the next two years,77 we have to consider the precariousness deriving from the reform of the reception system of asylum seekers.78 Law No. 132/2018 does not allow applicants for international protection to receive accommodation within the SPRAR (System of Protection for Asylum Seekers and Refugees), renamed “System for holders of international protection and unaccompanied minors” (SIPROIMI), which is reserved only for beneficiaries of international protection, unaccompanied minors (even if they aren’t asylum seekers)79 and beneficiaries of some residence permits for special cases (for reasons of health, domestic violence, violence and hard exploitation, labor exploitation, natural disaster, civic value) if they do not already receive accommodation in the protection systems dedicated to them. The new law does not provide reception for beneficiaries of special protection permits. The applicants for international protection, on the other hand, can find accommodation exclusively in the Centers of First Reception (CPA), in Reception Centers for asylum seekers (CARA) and in Extraordinary Reception Centers (CAS),80 a system with serious failures in terms of the quality of the services offered, the training of staff, the adequacy of the facilities (in most cases overcrowded, in remote areas and distant from transportation), and support in the asylum procedures. Moreover, there have been many episodes of speculation by private

76 http://www.libertaciviliimmigrazione.dlci.interno.gov.it/sites/default/files/allegati/ febbraio_2019__0.pdf. 77 https://openmigration.org/analisi/approvato-il-decreto-sicurezza-migliaia-di-stranieri- rischiano-di-diventare-irrego lari/. 78 Art. 12 of Law No. 132/2018. 79 See the document of Ministry of Interior of 3.01.2019. 80 See the press release of the central office of the SPRAR, Operatività SPRAR, Decreto legge n. 113/2018, 24.10.2018. 100 ADELE DEL GUERCIO companies – and in some cases by criminal organizations – without any profile compatible with the social activities implemented in the centers.81 In addition to shocking cases that have led the judges to start investigations and close some centers, there are known cases of CASs managed by private companies that, until a few months before this was written, produced refrigerators, or by hoteliers affected by the economic crisis, who responded to the call of the Prefecture, offering services far below required standards – already minimal – established by national regulation with regard to the extraordinary reception system. Law No. 132/2018 dismantles the SPRAR, a system characterized by the provision of an “integrated reception”82 and the attention placed on the process of self-autonomy and social inclusion of the person, made possible by the small size of the reception facilities and by the high degree of specialization of the legal and social operators. The involvement of the local authorities, which entrusted the implementation of the services to third sector entities with consolidated and proven experience in the asylum sector, guaranteed high quality standards of reception and transparency in the management of the public funds. These features made SPRAR a good practice, studied and taken as a model by other European countries.83 In reality, the process of dismantling had already begun with Law No. 142/2015,84 which institutionalized the reception of asylum seekers in extraordinary centers (above all hotels) opened during the so-called “North Africa Emergency”. However, the law at issue specified at least that the accommodation of asylum seekers in the CASs was to be temporary and exceptional. Despite the law, this type of accommodation over time became the norm, as demonstrated by the data of Ministry of the Interior, according

81 On the critical aspects of the system of extraordinary reception, please refer to the site www.lasciateCIEntrare.it and to the report of In Migrazione, Straordinaria accoglienza, 2017. See also F.V. Virzì, “L’accoglienza dei richiedenti protezione internazionale: un’indagine sulle procedure di gara”, Diritto immigrazione e cittadinanza, 2, 2017, www.dirittoimmigrazionecittadinanza.it. 82 That goes well beyond the mere provision of accommodation, but includes orientation measures, legal and social assistance as well as the development of personalised programmes for the social-economic integration of individuals. 83 See the report Atlante SPRAR 2017, www.sprar.it. 84 Legislative decree 18 August 2015, No. 142, “Attuazione della direttiva 2013/33/UE recante norme relative all’accoglienza dei richiedenti protezione internazionale, nonché della direttiva 2013/32/UE, recante procedure comuni ai fini del riconoscimento e della revoca dello status di protezione internazionale”. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 101 to which 80% of those who are currently hosted in Italy are in the extraordinary reception system. Law No. 132/2018, restricting the possibility of accommodation in the ordinary system, goes so far as to deny a dignified reception to applicants for international protection, in this manner denying them de facto any possibility of social inclusion. The reception standards guaranteed within the extraordinary system appear to be far below those, already minimal, established by Directive 2013/33/EU,85 especially when dealing with persons falling within the so-called “vulnerable groups” (minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, people suffering from serious illness or mental disorders, or those who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence), in favor of which the directive provides for specific support services (for example, psychological assistance). In this regard, it is important to point out that the Court of Justice has reiterated one of the principles on which the directive is based, namely that reception measures must guarantee a dignified level of life, adequate health and livelihood of the person.86 There is strong doubt that the reception standards of the CAS, as illustrated in numerous reports made public in recent years and as can be deduced from the tenders of the Ministry of the Interior,87 are compatible with the instructions of the Court of Justice and the European Court on Human Rights, according to whom asylum seekers are persons who are “particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously”,88 even more so when they are unaccompanied minors or people in psychological distress.

85 Directive 2013/33/EU of the European Parliament and Council, of 26 June 2013, laying down standards for the reception of applicants for international protection. 86 EU Court of Justice, case C-79/13, Saciri, judgment of 27.02.2014. 87 http://www.interno.gov.it/it/amministrazione-trasparente/bandi-gara-e-contratti/schema- capitolato-gara-appalto-fornitura-beni-e-servizi-relativo-alla-gestione-e-funzionamento- dei-centri-prima-accoglienza. The tender established for example that the availability of a psychologist in a facility that can accommodate from 50 to 150 people is of 16 hours per week, which means little more than 6 minutes in a week for asylum seeker. 88 European Court of Human Rights, M.S.S. v. Belgium and Greece, application no. 30696/09, judgment of the Grand Chamber of 21 January 2011, para. 232. On the concept of “vulnerability” see F. Ippolito, S. Iglesias Sanchez, Protecting Vulnerable Groups. The European Human Rights Framework, Hart Publishing, Oxford, 2015. 102 ADELE DEL GUERCIO

Even the choice to reserve social inclusion projects (for example access to training projects) exclusively to beneficiaries of international protection and special permits and to unaccompanied minors interferes with the social inclusion of asylum seekers. As no social inclusion measures are provided for these, they will find themselves in a situation of social marginality, with the consequence of being more exposed to exploitation by employers and to episodes of racism and violence, such as have often been recorded in the last few months in Italy.89 Furthermore, the situation of the beneficiaries of humanitarian protection seems particularly problematic. Until now they have received accommodation in the SPRAR as well as support measures at the conclusion of the reception period, for example in the search for housing. However, since Law No. 132/2018 came into force, several Prefectures90 have already informed CAS Directors of the cessation of services for beneficiaries of humanitarian protection, who, although in conditions of vulnerability, have been left to fend for themselves on the street. This appears even more questionable when vulnerable people are involved, such as pregnant women or women with children, victims of human trafficking and minors. It is clear that the measures contained in the law we are discussing give little attention to the vulnerability of the individual. If, in fact, the consequences of Law No. 132/2018 will be felt in general by asylum seekers and beneficiaries of humanitarian protection, nevertheless it cannot be said that its effects will be felt in particular by vulnerable persons.

3.4. A new problematic exclusion clause

The abrogation of humanitarian protection and the reform of the reception system for asylum seekers are not the only critical aspects of Law No. 132/2018. Although there is not space here to examine the entire text of the Law in detail, a reference is obligatory, also in view of the precariousness produced by the new measures regarding the personal and legal status of people, to the new cases of denial of international protection related to criminal proceedings, disproportionate with respect to the exclusion clauses from refugee status provided for by the Geneva Convention. The European Union Court of Justice, while confirming that it is not possible to accord refugee status to those persons guilty of the

89 LUNARIA, Un’estate all’insegna del razzismo, October 2018. 90 Among others the Prefectures of Potenza, Crotone, Cosenza. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 103 crimes listed under Art. 12 para. 2 of Directive 2011/95/EU, has nevertheless specified that a prior individual examination must be carried out that takes into account both the subjective and objective elements, in order to verify whether the application of the exclusion clause is legitimate or not.91 In particular, the competent authorities must assess “the role actually played by the asylum seeker in carrying out the acts contested, his position within the organization, the degree of knowledge of the activities of the organization, and any pressures or other factors capable of influencing his behavior”.92 In any case, it should be noted that the aforementioned directive provides as grounds for exclusion from international protection – in addition to the assumptions already covered by the 1951 Geneva Convention (international crimes and acts contrary to the purposes and principles of the United Nations) – only for the commission of “particularly cruel acts” that integrate the hypothesis of “serious crimes of common law” (the emphasis is ours), in the case of refugee status, or of “serious crimes”, in the case of subsidiary protection. It is doubtful whether violence or threats directed at a public official, theft aggravated by the use of arms or narcotics or domestic burglary constitute a danger to the security of the State or can be considered as particularly cruel acts. Rather, as it emerges from the dossier that accompanies the normative act under examination,93 these are criminal hypotheses “that cause social alarm”, and that therefore can easily be the object of repressive and propagandistic exploitation. Moreover, in some cases it is established that the appeal against the refusal of international protection has no suspensive effect, and this is particularly serious, since, besides compressing the right of defense, which is one of the fundamental principles of both the Italian94 and European Union95 legal systems, it could expose the person to the risk of suffering harmful treatment in the event of immediate removal from the territory.

91 EU Court of Justice, Germany v. B. e D., cit, para. 96. 92 Ivi, para. 97. 93 Dossier, Decreto-legge immigrazione e sicurezza pubblica, cit., p. 4. 94 Art. 24 of the Constitution. 95 Art. 13 ECHR and Art. 47 of the Charter of Fundamental Rights of the European Union. 104 ADELE DEL GUERCIO

3.5. The introduction in the national legal order of the principles of “Safe Countries of Origin” and of “Internal Flight Alternative”

The notion of “safe country of origin” is an instrument used in international practice to expedite review of applications for international protection, placing the burden of proof on the asylum seeker and in most cases refusing protection. The existence of a list of “safe countries of origin” and the possibility of transferring an asylum seeker to a different region of the country of origin, although admitted by European law, aren’t accompanied by the guarantees provided by directive 2013/32/EU96 and the case law on immigration adopted by the Court of Strasbourg. With respect to the first hypothesis, Law No. 132/2018 establishes that the application for international protection presented by an applicant coming from one of the countries included in the list of “safe countries of origin” must be declared manifestly unfounded and processed in an expedited manner. The list of safe countries of origin will be drafted and updated by the Ministry of Foreign Affairs, in consultation with the Ministries of the Interior and Justice, on the basis of information provided by the National Asylum Commission and by EASO, UNHCR and the Council of Europe. Nevertheless, Directive 2013/32/EU specifies, in Annex I, that a country can be defined as being of safe origin when it is governed by a democratic regime, is not characterized “in general and in a stable manner” by situations of persecution, torture or generalized violence, respects the rights – among others, the principle of non-refoulement – contemplated by the 1951 Geneva Convention, the ECHR, the Covenant on Civil and Political Rights and the UN Convention against Torture, and provides for internal remedies against the violation of these rights. It is disputable whether these cumulative criteria established by the Annex are sufficient to guarantee “effective protection” to a person, as required by the case law of the Court of Strasbourg. Moreover, as has been noted, an analysis limited to political factors, which disregards legal or social factors, can lead to a country being considered safe for the member of a specific minority persecuted in that country, such as LGBT+ persons in Senegal or women in countries like Nigeria.97

96 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast). 97 A. Acosta Sanchez, “The notion of ‘Safe Country’ v. Prima Facie Presumption of MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 105

The hypothesis of the list of safe countries of origin is in clear contrast with the case law of the European Court on Human Rights, according to whom it is not sufficient that a State ratifies human rights treaties for it to be considered safe98 and that an examination of the individual case must always be carried out in order to establish whether the destination country is safe for that specific individual.99 Moreover, the above hypothesis is incompatible with Art. 3 of the 1951 Geneva Convention on the recognition of refugee status, which expressly prohibits differentiated treatments of asylum seekers based on the country of origin. Any refugee, regardless of citizenship, has the right to have his or her application for international protection examined and not be dismissed before the examination has taken place.100 To demonstrate how controversial the notion of “safe country of origin” is, we want to point out that the lists of safe countries of origin adopted differ from Member State to Member State: Albania is considered a safe country of origin in 8 Member States of 12 who have adopted a list; Kosovo in 6 of 12; Serbia in 9 of 12; the United States in 4 of 12.101 An emblematic example is Turkey, designated as a safe country by only one Member State, but included by the European Commission in the European list of safe countries of origin (not yet adopted);102 Turkey is the country with which the European Union concluded the contested statement in 2016 that we discussed previously. It is important to note that national judicial authorities have

Entitlement to International Protection”, Diritti umani e diritto internazionale, 3, 2018, pp. 511-522, p. 513. 98 European Court of Human Rights [Grand Chamber], Saadi v. Italy, app. No. 37201/06, judgment of 28.2.2008. 99 European Court of Human Rights [Grand Chamber], Hirsi et. al. v. Italy, app. No. 27765/09, judgment of 23.2.2012. 100 See ECRE, Safe countries of origin: a safe concept?, September 2015, www.ecre.org. 101 https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/ european-agenda-migration/background-information/docs/2_eu_safe_countries_of_ origin_it.pdf. 102 European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, and amending Directive 2013/32/EU, COM(2015)452 final of 9.9.2015. 106 ADELE DEL GUERCIO sometimes disagreed with a political decision designating a third country as safe.103 Similarly, the rates of recognition of international protection of asylum seekers from the same third country vary considerably: for example, between January and September 2015, the rates of recognition of asylum seekers from Afghanistan ranged from almost 100% in Italy to 5.8% in Bulgaria.104 On the other hand, it should be kept in mind that the European Commission itself justified the need to transform the 2011/95/EU directive into a regulation (process still underway) because of the different rates of recognition of international protection, as well as of the incongruity in the type of protection granted (refugee status or subsidiary protection), depending on the Member State in which the applicant submits the application.105 Moreover, according to the UNHCR, a country of origin cannot be considered safe if a significant number of habitual citizens or residents apply for international protection in another State.106 How can this position be reconciled with the designation of Albania and Turkey as safe countries of origin by some EU Member States, taking into account the large percentage of citizens of these countries seeking asylum in Europe? From what has been said, it is understandable that it is not easy to determine in concrete whether a country of origin is safe or not in all circumstances for all individuals coming from a specific country. Similarly, if it is possible, on the basis of both the ECHR and directive 2013/32/UE, to transfer an applicant to a safe region of the country of origin, this transfer must be subject to a number of conditions: the person must be able to move and stay in conditions of safety in the specified region, without taking risks with respect to the

103 See M. A. Acosta Sanchez, cit., p. 514. 104 European Commission, Proposal for a Regulation Of The European Parliament And Of The Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, COM(2016)466 final of 13.07.2016, p. 4. 105 Ibidem. 106 UNHCR, UNHCR’s proposals in light of the EU response to the refugee crisis and the EU package of 9 September 2015, 10.09.2015. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 107 values protected by Art. 3 ECHR.107 According to the UNHCR guidelines, therefore, the person should be able to resume a relatively normal life, which should at least lead to access to the labor market, the health system and stable living conditions.108 In both cases a rigorous examination of the personal situation of the applicant should be guaranteed. It seems to us that also in this light Law No. 132/2018 presents obvious critical aspects. For example, in the case of applicability of the hypothesis of origin from a safe country, the law provides that the applicant must demonstrate the existence of “serious reasons” that prevent him from considering it as safe. This provision causes the inversion of the burden of proof, in contrast with the general principle that provides for a burden shared between the State and the applicant.109 Furthermore, still regarding the case of an applicant coming from a safe country of origin, the Law established that the application will be considered manifestly unfounded, meaning that it will be treated with an accelerated procedure, with the effect of limiting procedural guarantees and making the right to protection less effective. Moreover, if generally the decision rejecting the application for international protection must be justified in fact and in law, in the present case it is sufficient that the applicant has not shown that there are serious reasons to believe that the country is unsafe in its specific situation. In terms of failure to comply with the procedural guarantees and the principle of non-refoulement, the new law is extremely problematic, given that it contemplates a series of provisions, such as the non- suspension of the removal of those who submit a repeated asylum application, and the extension of the hypothesis of non-suspension of the expulsion procedure pending an appeal on the decisions of the territorial commissions, a new cause of inadmissibility of the application. Even though this is not the place for a thorough examination, we must point out that in Law No. 132/2018 the numerous hypotheses in which accelerated procedures for examining the application are admitted are problematic, such as, for example, when the

107 European Court of Human Rights, Salah Sheekh c. Paesi Bassi, app. No. 1948/04, judgment of 23.05.2007. 108 UNHCR, Guidelines on International Protection: ‘Internal Flight or Relocation Alternative within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the status of refugees, 2003. 109 See the document of the Consiglio italiano per i rifugiati (CIR), Nota legale sul Disegno di Legge - A.S. N. 840/2018: problematiche e limiti, 8.11.2018, p. 1. 108 ADELE DEL GUERCIO person presents an application at the border after trying to circumvent the controls, with the risk that he will not benefit from a careful evaluation of the circumstances that emerge in the case in point and that he will be repatriated in disregard of the dangers he would face.

3.6. The detention of asylum seekers

Particularly detrimental to individual rights are the extension from 90 to 180 days of detention in the Centers for Detention and Repatriation (Centri di permanenza per il rimpatrio – CPR) for migrants without a residence permit and the introduction of the new hypothesis of detention of the applicant for international protection to determine their identity or citizenship for a period of up to 210 days (an initial 30 in CPAs or hotspots,110 plus 180 in CPR if identification is not possible). Although this hypothesis of detention is expressly permitted by Art. 8 of Directive 2013/33/EU, we know, however, that both the Court of Justice of the European Union111 and the European Court of Human Rights112 have established severe conditions for the deprivation of liberty of asylum seekers, persons who, we point out, have not committed any crime and with regard to whom the use of the detention instrument seems debatable at the very least. Furthermore, it should be noted that the lack of identity and travel documents is a typical and

110 As underlined by the National Guarantor of the rights of persons detained or deprived of liberty, no primary rule fully regulates hotspots, whose discipline remains entrusted into communications from the European Commission, circulars of the Ministry of the Interior and documents such as the Standard Operating Procedures (SOP), which cannot be considered suitable for regulating a measure that limits a fundamental right (personal freedom of an individual). See Opinion of the National Guarantor of the rights of persons detained or deprived of personal liberty on the Decree-Law of 4 October 2018, n. 113 entitled: “Disposizioni urgenti in materia di protezione internazionale e immigrazione, sicurezza pubblica, nonché misure per la funzionalità del Ministero dell’interno e l’organizzazione e il funzionamento dell’agenzia nazionale per l’amministrazione e la destinazione dei beni sequestrati e confiscati alla criminalità organizzata”, 10.10.2018, p. 9. The decree law states only that detention to verify the identity and citizenship of the asylum seeker takes place in the hotspot. On the legal nature of the hotspot see M. Benvenuti, “Gli hotspot come chimera. Una prima fenomenologia dei punti di crisi alla luce del diritto costituzionale”, Diritto immigrazione e cittadinanza, 2, 2018. 111 Among others, EU Court of Justice, case C -601/15, J. N. c. Staatssecretaris van Veiligheid en Justitie, judgment of 15.02.2016. 112 AIDA, The detention of asylum seekers in Europe Constructed on shaky ground?, 2017; FRA, Guidance on detention of asylum seekers and migrants, 2017. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 109 fairly general condition for those seeking international protection, since it is possible that the person is persecuted by the authorities of his own State of citizenship and has not been able to obtain the documents, or that he has lost them during the journey. In this regard, it is imperative to reiterate that one of the fundamental principles enshrined in the 1951 Geneva Convention is Art. 31, which states that an asylum seeker cannot be penalized for having entered illegally in the State territory. On the provisions concerning detention of decree-law No. 113/2018, converted into Law No. 132/2018, the National Guarantor of the rights of persons detained or deprived of personal liberty considered that both the hypothesis of detention of asylum seekers and the possibility of detaining migrants to be repatriated for an exceptionally long period of time, “in suitable structures in the availability of the Public Security Authority” or even at the border,113 are very problematic. These places arouse perplexity, in his opinion, “in terms of their structural inadequacy or their complete indeterminacy with the consequent objective impossibility of the National Guarantor to exercise its power and duty of access, visit and control”. Moreover, the Guarantor has recognized the risk of a general use of detention, in violation of the principles of necessity, proportionality and recourse only as a measure of last resort. In this regard we want to recall that, if it is true that Art. 8 of the “reception” directive admits the deprivation of liberty to verify the identity and citizenship of the applicant for international protection, nevertheless articles 8 and 9 of the same directive subordinate it to certain conditions: a rigorous and case-by-case examination of necessity and proportionality;114 the requirement that less coercive measures have been taken into consideration prior to the adoption of a detention measure; the shortest possible duration; and the respect of human dignity. Furthermore, a judicial review of the detention system must be guaranteed at regular intervals. In fact, among the reasons for concern for the Guarantor there is precisely the failure to define an instrument of appeal by migrants to submit complaints about the conditions of detention, which has led the Court of Strasbourg to condemn Italy in the Khlaifia case115 for violation of Art. 13 (right to an effective remedy) in conjunction with Art. 3 ECHR.116

113 Parere del garante nazionale dei diritti delle persone detenute, cit. 114 EU Court of Justice, case C -601/15, J. N., cit. 115 European Court of Human Rights [Grand Chamber], Khlaifia and Others v. Italy, app. No. 16483/12, judgment of 15.12.2016. 116 Parere del garante nazionale dei diritti delle persone detenute, cit., p. 14. 110 ADELE DEL GUERCIO

3.7. Harder conditions to access Italian citizenship

Finally, we want to point out that law No. 132/2018 modifies the discipline regarding Italian citizenship, extending the time of acquisition by marriage and providing for the revocation of this in the event of a definitive conviction for crimes committed related to terrorism or subversion, thus leading to discrimination among citizens, in violation of Art. 3 of the Constitution. Moreover, this choice goes against the obligations deriving from the Convention on the reduction of statelessness of 1961, of which Italy is a Contracting State,117 in particular of its Art. 8, under which “a Contracting State will not deprive a person of his or her citizenship, if such deprivation would make such a person stateless”, and of Art. 9, which prohibits depriving a person of citizenship for racial, ethnic, religious or political reasons. We believe that a provision such as the one introduced by the law in question leads to discrimination on an ethnic or racial basis, since the revocation of citizenship applies only to foreigners who have acquired it and not to citizens by birth.

4. Conclusion

At the conclusion of an analysis that inevitably can only be partial, it is important to underline that Law No. 132/2018, based in essence on the association between immigration and security, cannot be seen as an isolated element with respect to the normative actions that have taken place in Italy in the last twenty years, and which have always been characterized, with different gradations, and regardless of the political color of governments, by the thematization of the migratory matter in terms of urgency and emergency.118 Law No. 132/2018 should not be seen as an isolated element in the context of the discursive rhetoric and the policies of the current government, which, since the election campaign, has identified its priority in managing migration, in a security function. It is also important to recall, in this regard, actions such as the

117 Adopted on 30.08.1961, in force since 13.12.1975. 118 On this argument see M. Colucci, Storia dell’immigrazione straniera in Italia. Dal 1945 ai giorni nostri, Carocci, Roma, 2018; C. Marchetti, A. Molteni, “La ragione securitaria”, in V. Borghi, O. de Leonardis, G. Procacci (eds.), La ragione politica. 2. I discorsi delle politiche, Liguori, Napoli, pp. 47-82; N. Tomeo, cit. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 111 declared closure of ports to the disembarkation of migrants rescued at sea and the criminalization of NGOs carrying out search and rescue activities in the Mediterranean and of civil society actors that practice solidarity and the good reception of asylum seekers. Furthermore, we refer to the discursive practice of some institutional representatives, which is characterized by its strong racist content towards non-citizens and has been the object of reproach even by the UN High Commissioner for Human Rights, who said it would not be specious to link the episodes of discrimination and violence against migrants and Roma people registered in Italy in recent months to hate speech by State representatives.119 We assume that the security law-decree, later converted into Law No. 132/2018, can be easily viewed as a form of “institutional racism”, understood as that set of policies, norms and administrative practices that perpetuate, reinforce or produce the inequality and social malaise of disadvantaged minorities.120 It is no coincidence that the expression “institutional racism” was coined by two members of the American Black Panthers, a movement that fought the regime of discrimination and oppression of the black minority in the United States. Today in Italy we are not only witnessing a markedly discriminatory discursive practice by representatives of the institutions, but, with the adoption and conversion into law of the security decree, we are facing, in some ways, the institutionalization of racist practices through law, denying essential rights on the basis of nationality (ergo, ethnicity), and which, by not carrying out a careful examination of the application for protection, rejecting applicants and sending them to unsafe countries, designate persons as either first or second class citizens. These provisions cannot fail to produce inequality and social malaise, as well as marginality and vulnerability to racist attacks and exploitation. Thousands of people, finding themselves without a defined legal status and without material resources to sustain themselves, will become precarious. Ultimately, the effect will be the strengthening of an emergency climate around a social phenomenon – immigration – which is not in itself something particularly out of the usual. Moreover, these are measures that are not justified by “necessity and urgency”, if one takes into account the sharp decline in disembarkation in 2018121 – due, among other reasons, to the

119 Legal changes and climate of hatred, cit. 120 C. Bartoli, Razzisti per legge. L’Italia che discrimina, Laterza, Roma, 2012. 121 According to data published by the Ministry of the Interior, in 2018 23,009 people 112 ADELE DEL GUERCIO ambiguous agreements signed by Italy with Libya and the closure of Italian ports – and the low rates of recognition of international protection registered in Italy in recent years. The provisions contained in Law No. 132/2018 should therefore be seen as a litmus test of the global policies of the current government, whose priorities undoubtedly fall under the management of migration, but not from the point of view of intervening where the need is most felt, for example with the creation of legal entry channels, the revitalization of channels for migrant workers, the downsizing of the extraordinary reception system, or even improving the standards of protection in favor of vulnerable people. Moreover, it should be emphasized that the normative intervention we are discussing will not only make the lives of migrants more precarious, but places potentially anyone – even Italian citizens – in a condition of marginality, which may be punishable in the event of occupation of buildings or, for example, begging, defined by the law as “harassment”. It is clear that the instrument to combat poverty is not to be found in social housing and income support policies, but in criminal repression measures. In this political security perspective, therefore, decree-law No. 113/2018, converted into Law No. 132/2018, was presented, by the same representatives of the government and the political forces that support it, as a “security decree”. It should be noted in this regard that the interpretation of the themes of immigration and asylum from a security perspective has been the leitmotiv of Italian politics since at least 2002, year of the adoption of Law No. 189 (“Legge Bossi-Fini”). The securitization of immigration and asylum was then particularly critical in the years 2008-2009, when the “Security Package” was adopted, which has required a marked intervention by the Constitutional Court to remedy its serious illegality profile.122 Decree-law No. 113/2018 is therefore a decree of insecurity, which undermines the Italian asylum system and generates fear and social alarm. In light of the above reflections, we hope that the Italian Constitutional Court and supranational supervisory bodies will intervene promptly to correct the Law’s incompatibility with fundamental rights. arrived in Italy, compared with 117,042 in 2017 and 172,708 in 2016. See http://www.interno.gov.it/sites/default/files/cruscotto_statistico_giornaliero_29-11-2018.pdf. 122 See the articles published in the review Diritto immigrazione e cittadinanza, 4, 2009, and A. Esposito, L. Melillo, A distanza d’offesa, A Est dell’Equatore, Napoli, 2010. MIGRATION AND FUNDAMENTAL RIGHTS. THE CASE OF ITALY 113

It is essential to remember in this historical moment that human rights either belong to everyone or belong to no one.

LA CRISE DE L’ANTIRACISME EUROPEEN L’ITALIE COME OBSERVATOIRE DE LA NOUVELLE CONJONCTURE POLITIQUE EUROPEENNE* Miguel Mellino∗∗

RESUME: 1. Racisme à l’italienne. – 2. L’Italie : un observatoire de la nouvelle conjoncture politique européenne. – 3. La crise de l’antiracisme européen. – 4. Repenser le racisme et l’antiracisme

1. Racisme à l’italienne

L’actuelle amplification du phénomène de la violence raciste et des luttes antiracistes en Italie donne vie à une dialectique qui est devenue évidente depuis l’arrivée au pouvoir d’une coalition qui se déclare ouvertement souverainiste et xénophobe. Pour expliquer cette dialectique, deux éléments de contexte doivent être rappelés : l’accroissement du racisme dans ses expressions les plus violentes – institutionnelles ou non – qui a favorisé la victoire électorale du gouvernement actuel et la suc- cession d’agressions et de faits racistes qui se déroulent sur le fond de la « crise des réfugiés » en lien avec le conflit syrien à partir de l’été 2015. Dans cette série de faits exprimant la montée des actes racistes, rap- pelons en 2016, l’homicide du Nigérien Emmanuel Chidi Nnamdi à Fermo et celui de l’ouvrier égyptien Abd El Salam Ahmed El Danf à Plaisance alors qu’il participait à un piquet de grève; en 2017, la mort de la demandeuse d’asile ivoirienne Sandrine Bakayoko dans les toilettes du « centre d’accueil » de Conetta et le suicide du Gambien Pateh Sa- bally dans les eaux du Grand Canal de Venise non secouru par les tou- ristes et les passants ; la violente expulsion des migrants de la Place de l’Indépendance à Rome ; en 2018, la mort de la Nigérienne Becky Moses à la suite de l’incendie des baraquements du ghetto de Rosarno. Cette vague de violences racistes, loin d’être contenue ou réprimée, s’est au contraire accentuée, comme le démontrent des faits plus récents : à Macerata, en février 2018, des sympathisants néo-fascistes de Forza Nuova et de Casa Pound, deux forces politiques d’extrême droite, ont

* Traduction de Tatiana Taburno. ∗∗ Researcher in Cultural Antropology at University of Naples « L’Orientale ». Chercheur en anthropologie culturelle à l’Université de Naples « L’Orientale ». 116 MIGUEL MELLINO fusillé six migrants « noirs » en les blessant grièvement ; en mars 2018, à Florence un retraité a tiré sans aucune raison sur Idy Diene, une com- merçante ambulante sénégalaise ; en juin 2018, Soumaila Sacko, un activiste malien engagé dans la lutte contre le système d’exploitation esclavagiste a été tué dans les campagnes calabraises. L’ensemble de ces morts violentes traduisent le changement qui s’opère dans le racisme en Italie et elles en disent probablement beau- coup plus sur les spectres qui agitent l’Europe en crise. Ces meurtres ont en partie été anticipés par l’affirmation de mouvements xénophobes qui les ont transformés en un instrument de consensus et de jonction nationale populaire. Par ailleurs, au cours des trois dernières années, ils ont fait l’objet d’une construction narrative politico-médiatique et d’une gestion institutionnelle tant de la part de l’Union européenne que du gouvernement italien précédent. C’est dans ce contexte qu’il faut situer la prise de position brutale de l’actuel gouvernement italien à l’encontre des migrants et des migrations. Le programme Immigration zéro (inspiré du célèbre No way du gouvernement australien), l’interdiction de porter secours aux migrants en mer ayant pour conséquence la criminalisation des ONG, l’approbation du décret sur la sécurite, l’opposition farouche à tout des- sein de loi favorisant le droit du sol (jus soli), l’abstention lors de la signature du Pacte mondial pour des migrations porté par l’Organisation des Nations unies, constituent un assemblage de mesures qui expriment les choix brutaux des forces politiques actuellement au pouvoir. Elles ont préféré sciemment s’appuyer sur les émotions qui traversent la so- ciété italienne depuis longtemps pour accéder au pouvoir et donner une nouvelle orientation à la politique à travers ce que je qualifierais de « pacte raciste de citoyenneté », offert à une partie des citoyens au détri- ment des autres. De ce fait, sans minimiser les responsabilités du gouvernement actuel dans la « racialisation de la crise migratoire », ce serait une grave erreur de le considérer comme l’unique responsable de ce qui se déroule en Italie à propos des migrations et du racisme.

2. L’Italie : un observatoire de la nouvelle conjoncture politique euro- péenne

Si l’on regarde l’affrontement entre le gouvernement italien et l’Union européenne à travers le prisme des migrations et du racisme,

LA CRISE DE L’ANTIRACISME EUROPEEN 117 l’Italie peut être considérée comme un observatoire privilégié de la conjoncture politique européenne portée par de nouvelles formations politiques. Mon postulat est que le scénario transalpin nous renseigne sur la grammaire politique des « mouvements souverainistes » revendiquant un retour à une gestion nationale du territoire afin de se distinguer avec éclat de la dimension supranationale des institutions de l’Union euro- péenne. Cette renationalisation de la souveraineté territoriale est constitutive de ce que je propose d’appeler la « crise de l’hégémonie ». L’affirmation du souverainisme en Europe, à la suite du triomphe de Donald Trump aux États-Unis, est un des symptômes de la « crise du consensus Maastricht-Schengen », c’est-à-dire de l’épuisement du mo- dèle ordolibéral de gouvernance (notamment au niveau de la politique institutionnelle) promu par l’Union européenne au cours de ces vingt- cinq dernières années et sur lequel repose la construction de l’Union européenne. Cette « crise de l’hégémonie » débute en 2008 en raison des conséquences économiques du krach financier le plus important des dernières décennies qui a secoué l’équilibre institutionnel interne de l’Union européenne. La dureté des politiques d’austérité, l’action fiscale, les mesures déflationnistes couplées à la prolongation de la stagna- tion économique et à l’accroissement des conflits sociaux ont produit de fortes tensions entre certaines formations (notamment des catégories sociales et des régions moins liées au capital financier) et les institutions de l’Union européenne. Le coup de grâce au « consensus de Schengen » a été porté par la « crise des réfugiés » en 2015 avec l’émergence de redoutables mouvements de résistance qui ont fait exploser le management européen de la gestion des frontières mis en place au cours de ces vingt dernières années. Ce n’est donc pas un hasard si l’émergence du mouvement souverainiste comme alternative à la politique menée par l’Union européenne arrive dans le prolongement de la « crise des réfu- giés ». Crise économique et crise du régime migratoire ont marqué la fin du consensus ordolibéral de gouvernance européenne. Et encore une fois, le cas italien est à ce propos symptomatique. Depuis 2015, l’ordolibéralisme et le souverainisme se sont définis comme deux projets permettant de « gouverner la crise ». Toutefois, au- delà des différences réelles et importantes, ces deux programmes politiques ne sont pas étrangers l’un à l’autre. Mon objectif n’est donc pas de discuter les contrastes existants entre les deux formations, mais plutôt d’analyser les solutions politiques qu’ils proposent pour résoudre la crise et rétablir l’ordre européen. En effet, malgré les rhétoriques diver-

118 MIGUEL MELLINO gentes, caractérisées par deux types d’autoritarisme (l’un économico- fiscal, l’autre xénophobe) l’ordolibéralisme et le souverainisme présen- tent un air de famille. Ce qui les rapproche, voire les entremêle, est plus important que ce qui les différencie. Dans les deux cas, le dispositif hégémonique du gouvernement porte sur un « nouveau pacte de citoyenneté » avec des milieux sociaux éco- nomiquement actifs et avec les classes populaires autochtones (blanches). Ce projet politique se fonde sur le contrôle toujours plus répressif de la population non européenne, notamment pour la partie qui peut potentiellement constituer une force de travail active sur le marché de l’emploi. La distribution sociale du « consensus » et de la « coercition » s’opère en fonction d’une persistante ligne de couleur. L’ordolibéralisme et le souverainisme sont deux solutions racistes à la crise qui puisent leur force politique et culturelle dans l’histoire coloniale et postcoloniale européenne, dans la fusion historique entre capitalisme et colonialisme (Hansen et Stepputat, 2005; Harvey, 2003 et 2005) et dans la construction matérielle de l’Europe de Maastricht. De ce fait, il est difficile et politiquement inutile de considérer l’émergence du souverainisme en Europe comme étant externe au discours néo-ordolibéral européen. La construction narrative à la base de l’idéologie souverainiste se propose de restaurer un ordre économique, patriarcal et racial – considéré comme perdu – et de renouer avec le lien social du passé qui s’inscrivait dans la communauté et la tradition natio- nales et qui aurait été compromis par l’instabilité financière globale ainsi que par l’establishment politique national, et en particulier celui européen. Comme le montre le cas italien, le mouvement souverainiste traduit ce « despotisme financier global » en une chaîne de significa- tions perverse qui se révèle être profitable pour les marchés électoraux des sociétés européennes postcoloniales. Il offre une décodification des effets déstabilisants du capitalisme financier global à travers une équa- tion élaborée au niveau du discours sur la série synthétique suivante : Union européenne / flux migratoires / criminalité / perte des postes de travail pour les autochtones. Regardons le souverainisme européen au travers du prisme de la race, du racisme et des migrations, trois points à prendre en considéra- tion. En premier lieu, le souverainisme constitue désormais le pilastre d’un nouveau dispositif sécuritaire du contrôle social. Son énonciation politique représente une radicalisation de certaines tendances déjà ins- crites dans le racisme institutionnel et structurel promu par le régime

LA CRISE DE L’ANTIRACISME EUROPEEN 119 migratoire européen et qui ont constitué la base pour l’élaboration du dispositif néo-ordolibéral de production des territoires et des peuples. En deuxième lieu, les faits qui se déroulent depuis quelques mois en Italie démontrent que dans la gestion des migrations et des frontières en situation de post-crise il n’existe aucune césure significative entre les politiques de l’Union européenne et les propos du souverainisme. Cette convergence est confirmée par le fait que l’Union européenne ne s’est pas opposée au décret Sécurité voté par le gouvernement italien. En troisième lieu, la politique de celui-ci se base sur une gestion raciste de la crise migratoire pour relancer le système productif national à l’intérieur d’un modèle d’accumulation néo-libéral valorisant l’identité, la propriété, la sécurité et la mise en concurrence. Le programme du gouvernement italien met en avant de petits correctifs en matière d’autonomie fiscale afin d’alléger les impositions émanant des politiques européennes, mais surtout certaines spécificités qui devraient défendre la « catégorie nationale » qui constitue une partie de son élec- torat. De ce fait, il repose sur la promesse d’une politique qui, sélective et policière, produit l’exclusion au nom du statut de citoyen. Le souverainisme populiste européen reproduit la structure des émo- tions collectives utilisant ses insurmontables limites historiques : une conception blanche qui exclue et racialise le peuple. Ces limites s’enracinent dans l’histoire coloniale et impériale des États-nations mo- dernes européens, dans la colonialité constitutive de la notion politico- culturelle du peuple produite disséminée dans les institutions, et dans le tissu colonial de leurs principales technologies du pouvoir et de l’assujettissement.

3. La crise de l’antiracisme européen

En Italie, la crise a activé une politisation du racisme suivie d’une racialisation de la sphère politique et des questions sociales. Néanmoins, il apparaît évident que les pratiques et les politiques antiracistes, même celles qui semblent être les plus radicales, se trouvent dans une impasse. Et cela malgré les mobilisations métropolitaines antiracistes importantes (comme celle de Macerata, Florence, Milan et Rome) et les luttes des migrants pour revendiquer divers droits sociaux (logement, travail, na- tionalité, etc.) qui ont eu lieu au cours des derniers mois. C’est une constatation essentielle sur laquelle il faut réfléchir. Et, en-

120 MIGUEL MELLINO core une fois, l’Italie peut constituer un point d’observation paradigma- tique : l’analyse sur les limites de l’antiracisme italien peut être élargie à d’autres contextes discursifs antiracistes européens. Il me semble que dans ses expressions dominantes, l’antiracisme italien continue à se présenter sous des formes « éthico-morales » plutôt que politiques. J’entends souligner que l’antiracisme dominant n’est pas en mesure de se reformuler dans une conjoncture politique inédite s’il ne parvient pas à dépasser une vision critique de l’antiracisme de type « idéologico- culturel » (Fassin, 2017; Fassin et Fassin, 2012). Les conditions de vie de presque six millions d’immigrés résidant en Italie avec un permis de séjour régulier et l’expérience vécue par les secondes et les troisièmes générations révèlent l’existence d’une « racialisation » croissante aux niveaux économique et social. Or, l’antiracisme italien continue de lut- ter contre le racisme comme s’il dépendait exclusivement d’une sorte d’« identitarisme culturel », c’est-à-dire d’une simple manipulation idéologique centrée sur un ensemble de représentations fausses, reliées à la discrimination, aux stigmatisations et à l’infériorisation. En Italie, l’antiracisme est évoqué comme un moyen fondamental pour la recomposition politique seulement lorsque l’on entend distinguer les discours et les pratiques racistes des mouvements ouvertement xéno- phobes. L’antiracisme est ainsi mobilisé d’une manière autoréférentielle rapporté à un universalisme abstrait républicain et tant celui de gauche que de droite est incapable de rendre visible dans la sphère publique le fait que le racisme est un phénomène « historique » et « structurel » des sociétés européennes. Un des acquis épistémologiques les plus impor- tants des études consacrées au racisme – des études classiques comme celles de Du Bois (1935), Fanon (1956) jusqu’aux plus récentes comme Hall (2015), Gilroy (1987), Roediger (2010), Goldberg (2015) et Taylor (2016) – est qu’il ne constitue pas un phénomène monolithique et iden- tique partout. Il se métamorphose constamment et est remodelé selon les contextes géohistoriques et les luttes antiracistes. Néanmoins, l’analyse de l’antiracisme dominante en Italie se réfère toujours à des textes des années 1980 et 1990, comme ceux de Taguieff (1988) et Wievorka (1991) ou encore à Race, nation et classe de Balibar et Wallerstein (1988). Ces ouvrages ont eu le mérite de souligner l’importance du « racisme différentialiste » ou du « néo-racisme » promu par ceux qui à cette époque constituaient les mouvements s’opposant aux politiques migratoires européennes, parmi lesquels la Ligue lombarde qui est actuellement au gouvernement.

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Toutefois, une des limites de ce modèle interprétatif est d’adopter l’antisémitisme nazi comme idéaltype du racisme moderne. Comme le souligne Balibar (2007), le migrant est le nom de la race, mais cette affirmation, certes importante, risque de réduire le racisme contempo- rain à un acte symbolique discriminatoire exercé à l’encontre de certains groupes. Cette posture produit une invisibilisation de la dimension historique et matérielle du phénomène qui est articulée sur des dispositifs hiérarchisant (la racialisation) tous les citoyens, et de la colonialité, c’est-à-dire des conséquences du colonialisme sur la longue durée, con- séquence du rapport historique de l’Europe avec les autres colonisés. Si nous voulons parler de racialisation, il faut considérer qu’elle ne peut pas être vue comme étant fausse et subjective, rapportée aux seules re- présentations privées ou à la simple sphère du « travail migrant ». Il s’agit d’un phénomène qui traverse toute la population et dont les effets se matérialisent dans les différentes formations sociales à travers la distribution des hiérarchies et des privilèges. De mon point de vue, la racialisation ne concerne donc pas qu’une partie de la société, les autres racisés. Ce phénomène permet de com- prendre les effets matériels de l’intersection du capital avec les discours occidentaux produits sur la race, tant sur les espaces et les structures que sur les corps et les subjectivités. En conséquence, pour l’analyser il est nécessaire de considérer l’effet que la racialisation engendre sur le tissu social par une multiplicité de discours et de pratiques, institutionnels ou non, orientant la construction et la représentation hiérarchiques des dif- férences (« physiques » et « culturels », « réelles » et « imaginaires ») entre les groupes et les sujets ainsi que la manière de discipliner les rapports matériaux et intersubjectifs. En d’autres termes, le concept de racialisation, saturé de l’héritage colonial et impérial de la notion de «race», semble plus apte que d’autres concepts plus neutres (par exemple celui d’ethnicisation) pour décrire de façon efficace les processus d’essentialisation, d’infériorisation et de ségrégation économique et culturelle, qui traduisent la violence matérielle et symbolique à laquelle sont actuellement soumis dans l’espace italien et européen les sujets appartenant à certains groupes (Mellino, 2012). Le problème est qu’au niveau théorique l’analyse du racisme continue à se référer à la tradition du marxisme blanc européen sans utiliser l’enseignement de la tradition certainement plus riche et articulée des Black Studies et de la pensée radicale afro-américaine et afro- caribéenne (Gilroy, 1987 ; Mbembe, 2003 ; Roediger, 2010 ; Taylor,

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2016). Ce n’est pas un hasard si en Italie des expressions comme « racisme structurel », « racisme institutionnel » ou « ségrégation sociale » ne sont pas utilisées ni placées au cœur du débat antiraciste dominant. Celui-ci reste centré sur le principe de la solidarité et de l’identification politique (souvent paternaliste et victimisant) avec la cause des groupes et des sujets racisés plutôt que sur une pratique interprétative permettant la compréhension de la composition symbolique et matérielle des formations sociales contemporaines. C’est une faiblesse théorique double- ment paradoxale. Tandis que le racisme se montre comme un dispositif de plus en plus au centre des processus de hiérarchisation constitutifs du néo-libéralisme, l’antiracisme – tout comme la gestion de la « crise migratoire » – apparaît comme un élément « accessoire » (Fanon, 1956) ou pour ainsi dire « externe » au programme politique et théorique porté par des sujets politiques non racistes. De plus, le débat critique sur les migrations est dominé par des paroles clefs comme « frontières », « intégration », « réfugiés » (Marchetti et Pinelli, 2016 ; Campesi, 2015 ; Mezzadra et Neilson, 2014) laissant un espace contingent et résiduel à la réflexion sur le rôle du racisme et de l’antiracisme dans l’actuelle construction tant de l’Italie que de l’Europe. De ce fait, l’antiracisme non seulement arrive toujours en dernier dans le débat, mais il est souvent confiné au « sous-sol » de la lutte politique, dans un espace marginal et destiné à reconquérir une centralité temporaire – surtout de type morale – lorsque le cycle de violence réex- plose dans des actes ou des discours. Et pour autant, une bonne partie des populations européennes (migrantes, post-migrantes, secondes géné- rations, réfugiées, etc.) vit le racisme au quotidien comme un des dispositifs primaires de leur prolétarisation, d’inclusion différentielle et d’exclusion. Autrement dit, pour la majorité des Européens il est plutôt évident qu’en Europe la « production de la population » est historiquement articulée avec un dispositif racialisant de gouvernance qui prend ses origines dans le passé colonial et dans l’entremêlement entre capitalisme et colonialisme. Toutefois, en Europe nous n’arrivons pas à le concevoir comme étant quelque chose qui structure tant les conditions matérielles de la vie que les identités culturelles. C’est à partir de ces dernières considérations qu’il est nécessaire de repenser notre antiracisme pour l’avenir.

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4. Repenser le racisme et l’antiracisme

En Italie, le débat sur les migrations (et le racisme) reste souvent en- fermé au sein de l’ordre dominant du discours, à savoir presque exclusivement focalisé sur les arrivées et les morts en mer, sur la violence des frontières et les manquements dudit système d’accueil. Afin d’en sortir, il nous semble nécessaire de mettre l’accent sur le racisme en tant que technologie institutionnelle de production de territoires et de populations européennes, nous inscrivant ce faisant dans le sillage de Foucault dans son ouvrage Il faut défendre la société (1997). De mon point de vue, une concentration excessive de la pratique théorique et politique antiraciste sur ces questions risque de rejeter davantage le racisme dans les terrains (et les espaces) de l’urgence et de l’exception. En Italie, malheureuse- ment, le débat sur le racisme et les migrations demeure toujours enfermé à l’intérieur de ce cercle vicieux. Je propose donc dans un premier temps de désigner la race comme un dispositif historiquement actif dans la production de diverses populations italiennes et ce depuis la naissance de la nation moderne (Curcio, Mellino 2012). Comme le montre une grande partie de la tradition des Black Studies, le racisme se situe à l’intérieur (et non à l’extérieur) de la rationalité gouvernementale capitaliste même, tout comme il se situe à l’intérieur de la culture moderne européenne: il ne pout donc plus être pensé comme quelque chose d’externe, d’irrationnel, de résiduel, d’exceptionnel au regard de l’ontologie productive des sociétés postcoloniales contemporaines. Historiquement, le racisme a fonctionné comme un dispositif d’« accumulation par dépossession » (Harvey 2005, 2006). Il peut être intéressant de reprendre ici, en guise de conclusion, une définition bien connue de la géographe afro-américaine Ruth W. Gilmore, selon laquelle « [...] le racisme est la production et l’exploitation, légitimées d’une manière ou d’une autre par l’État, de différents degrés de "vulnérabilité à la mort prématurée" entre les différents groupes sociaux, dans le do- maine de géographies politiques distinctes mais néanmoins étroitement interconnectées. » (Gilmore 2011, p. 36) En rapprochant les perspectives de M. Foucault et R. W. Gilmore avec quelques suggestions provenant d’écrits comme Nécropolitique (2003) et Critique de la raison nègre (2013) de A. Mbembe, j’aimerais suggérer que nous reconceptualisions le racisme comme un dispositif gouvernemental au sein duquel la mise au travail de la vie, la production

124 MIGUEL MELLINO de liberté, de concurrence et d’auto-entreprenariat d’une partie de la population est non seulement intrinsèquement liée mais semble totale- ment dépendante de la ségrégation, de la terreur, de la soumission à une discipline, de l’infériorisation, de l’exploitation servile, de l’incarcération et de la mort (physique et sociale) d’une autre partie de la population. Le racisme, la violence raciste policière et institutionnelle, le sécuritarisme, la militarisation des territoires et des frontières, la logique de reproduction des camps (Agier 2014), le développement dudit « État pénal ou punitif néolibéral » (Wacquant 2006 ; Gilmore 2011 ; Alexan- der 2012 ; Davis 2015), ainsi que la ségrégation urbaine (social/culturelle) ne sont pas simplement une « limite souveraine » de la « gouvernementalité néolibérale » actuelle mais des dispositifs au cœur même de cette technologie de pouvoir. Le racisme fonctionne donc comme une sorte de charnière entre l’inclusion biopolitique d’une partie de la population et l’exclusion nécropolitique d’une autre : et cette ré- partition inégale de consensus et de coercition - cette hiérarchie de la citoyenneté - est produite et reproduite par l’économie politique néolibé- rale comme condition minimale de productivité (de production de va- leur) du tissu social tout entier. Ces suggestions me semblent pouvoir représenter un fondement théorique et pratique valable pour repenser une repolitisation de l’antiracisme plus appropriée à la conjoncture politique actuelle.

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Goldberg D. T. (2015), Are we all post-racial yet?, London, Polity Press. Grappi G. (2016) Logistica, Roma, Ediesse. Hall S. (2015) Cultura, razza, potere, Verona, Ombre corte. Hansen T. B. – Stepputat F. (2005), Sovereign Bodies. Citizens, Mi- grants and States in the Postcolonial World, Princeton, Princeton Uni- versity Press. Harvey D. (2005), A Brief History of Neoliberalism, Oxford, Oxford University Press. Harvey D. (2003), The New Imperialism, Oxford, Oxford University Press. Marchetti Ch. - Pinelli B. (2016), Confini d’Europa. Modelli di controllo e inclusioni formali, Milano, Edizioni libreria Cortina di Milano. Maroufi M., (2017), Precarious Integration: Labour Market Policies for Refugees or Refugee Policies for the German Labour Market?, Re- fugee Revue. Special Focus Labour, 3, pp. 15-33. Mbembe A. (2003), Necropolitics, Public Culture, 15 (1), pp. 11-40. Mellino M. (2012), Cittadinanze postcoloniali. Appartenenze, razza e razzismo in Europa e in Italia, Roma, Carocci, Mezzadra S. et Neilson B. (2014), Confini e frontiere: la moltiplica- zione del lavoro nel mondo globale, Bologna, Il Mulino ; Border as Method, or the Multiplication of Labour, Durham, Duke University Press, 2013. Neocleous M. and Kastrinou M. (2016), The EU Hotspot. Police war againstthe migrant, Radical Philosophy, 200, pp. 3-9. Papadopoulos D. – Stephenson N. – Tsianos V. (2008), Escape Routes: Control and Subversion in the 21st Century, London, Pluto Press. Roediger David R. (2010) How Race survived US History: From Settlement and Slavery to the Obama Phenomenon, London, Verso. Saitta P. (2015), Resistenze. Pratiche e margini del conflitto nel quo- tidiano, Verona, Ombre Corte. Taguieff P-A. (1990), La force du préjugé : Essai sur le racisme et ses doubles, Paris, Gallimard. Taylor K-Y. (2016), From #Blacklivesmatter to Black Liberation, Chicago, Haymarket Books. Tazzioli M. (2016), Biopolitica attraverso la mobilità nel governo militare-umanitario delle migrazioni, in Marchetti Ch. - Pinelli B., Con- fini d’Europa. Modelli di controllo e inclusioni formali, Milano, Edizio- ni libreria Cortina di Milano, pp. 37-62.

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FOREIGNERS AND THE CONDITION OF RECIPROCITY Lorenzo Riccio*

SUMMARY: 1. Legal Status of Foreigners. – 2. Condition of Reciprocity - purpose. – 3. Different kinds of Reciprocity. – 4. Internal limits to the Condi- tion of Reciprocity. – 5. External limits to the Condition of Reciprocity. – 6. Conclusions.

1. Legal Status of Foreigners

In this collection of essays we deal with the phenomenon of migration from different points of view, among others: migratory movements in Africa, the European Union’s response to the Mediterranean crisis, the necessary revision of treaties on migration. It is not possible to discuss the peculiar issues concerning the entrance of the foreigner, the right to family unity and the protection of minors, work relations with foreigners, access for foreigners to profes- sions in Italy and access to mortgages, social housing, or the wide subject of compulsory civil liability insurance. We will therefore shift our attention to the possibilities for a foreigner to carry out transactions in Italy. Italian domestic civil law does not recognize the figure of migrant, but only the foreigner to whom it grants certain powers and rights. Re- garding civil and patrimonial rights, it is important to understand when and under which conditions a foreigner can sign a valid agreement or contract in Italy. When a foreigner is involved in a patrimonial transaction, a set of rules, known under the name of the legal status of foreigners, must be applied. These rules define the limits, now quite broad, according to which foreign nationals may enter into legal transactions in Italy. The legal status of foreigners in Italy finds its primary and fundamental regulation in the Italian Constitution, which states, according to art. 10, that the legal status of a foreigner is governed by laws compliant with international rules and treaties. Before the advent of the Italian Constitution, a foreigner could only

* PhD student in International Studies at University of Naples “L’Orientale”. 130 LORENZO RICCIO carry out patrimonial transactions in Italy on condition of reciprocity, defined by article 16 of the “General provisions on the law” contained in Royal Decree n. 262 of 16 March 1942 which states1: “The foreigner is entitled to the civil rights attributed to citizens on a condition of reciprocity excepting for the provisions contained in special laws. This provision also applies to foreign legal persons”. This meant that citizens of foreign countries could sign valid con- tracts in Italy only if the condition of reciprocity existed, thus a foreigner could take legal steps in Italy only if an Italian citizen was entitled to take those same legal steps in the State of the foreigner. Nowadays however, the Italian Constitution has eliminated the condition of reciprocity. In particular, Article 10 of the Constitution states that: “The Italian legal system conforms to the generally recognised rules of international law. The legal status of foreigners is regulated by law in conformity with international provisions and treaties”. Conse- quently, when referring to reciprocity we must take into account that its space in our legal system is now very restricted. With reference to these restrictions, in which circumstances does the condition of reciprocity still apply and what is its purpose?

2. Condition of Reciprocity - purpose

More than half a century after their publication, the sphere of application of these rules is still controversial, due to the problems that arose with the increase of migration and the effects of globalization.2

1 Article 16: “Lo straniero è ammesso a godere dei diritti civili attribuiti al cittadino a condizione di reciprocità e salve le disposizioni contenute in leggi speciali. Questa disposizione vale anche per le persone giuridiche straniere” 2 For a short list of Authors who dealt with this argument from a private international perspective: R. Quadri, La sudditanza nel diritto internazionale, Cedam, Padova, 1936; A.P. Sereni, Diritto internazionale, II, sez. I, Giuffrè, Milano, 1958, 706 ss.; M. Tamburini, Trattamento dello straniero e buona fede nel diritto internazionale generale, Cedam, Padova, 1984; B. Nascimbene, L’individuo e la tutela internazionale dei diritti umani, in S. M. Carbone, R. Luzzatto, A. Santa Maria, Istituzioni di diritto internazionale, 4a ed., Giappichelli, Torino, 2011, 425 ss., A. Giardina, Dell’applicazione delle legge in generale (art. 16), in Comm. c.c. Scialoja-Branca, Zanichelli, Bologna-Roma, 1978, pp. 1-42; M. Panebianco, Commento all’art. 16 disp. prel., in P. Perlingieri, Codice civile annotato con la dottrina e la giurisprudenza, Giappichelli, Torino, I, 1982, 282 ss.; F. Capotorti, Incidenza della condizione di straniero sui diritti dell’uomo internazional- mente protetti, in Studi in onore di Giuseppe Sperduti, Giuffrè, Milano, 1984, 460 ss.; P. FOREIGNERS AND THE CONDITION OF RECIPROCITY 131

It should be pointed out immediately that the notion of “foreigner” has completely changed in our legal system, since various categories of “non-Italians”, such as citizens of countries belonging to the European Union, and citizens who are not members of EU countries, have gradually been included in the broad status of foreigner. These comprise persons who are in possession of an Italian regular residence permit, so-called legally residents, and others who are not legally resident, although present on Italian territory. Moreover we have multi-citizens, a category that includes nationals of states that have signed specific agreements with the EU. We must also take into consideration stateless persons and refugees. Regarding the former, article 19 L. 218/1995, which regulates the Italian system of private international law, establishes that, in the case of dual citizenship, one of which is Italian, the latter prevails. As citizens of third-countries that have concluded specific agreements with the EU, the Agreement on the European Economic Area co- vers citizens of Norway, Iceland, Liechtenstein, Switzerland and the Republic of San Marino. For stateless persons and refugees the condition of reciprocity is suspended in favour of appropriate international agreements that establish the rules on a case by case basis. The purpose of the rule in question is now surpassed. It was initially intended as a sort of “retaliation” instrument against acts of foreign States’ citizens, in order to promote the protection of the rights and interests of Italians abroad.3 Nowadays the rights of Italian citizens in the world are no longer protected by an instrument of retaliation but through stronger cooperation between states.

Mengozzi, La condizione di reciprocità e il d.i.pr., in Riv. dir. internaz. priv. proc., 1994, 485 ss.; G. Laurini, Il principio di reciprocità e la riforma del diritto internazionale privato, in Riv. dir. internaz. priv. proc., 1997, 87; C. Favilli, B. Nascimbene, Stra- niero (tutela internazionale), in Dizionario di diritto pubblico, VI, Giuffrè, Milano, 2006, 5800 ss.; F. Galgano, F. Marrella, Diritto e prassi del commercio internazionale, Cedam, Padova, 2010, 408 ss.; G. Baralis, La condizione di reciprocità, in M. Ieva, La condizione di reciprocità. La riforma del sistema italiano di diritto internazionale priva- to. Aspetti di interesse notarile, Giuffrè, Milano, 2001, 30 ss. 3 Among the jurisprudence Cass., 29.1.1976, n. 270, in Riv. dir. internaz. priv. proc., 1976, 561 and different Authors as R. Quadri, Cittadinanza, in Noviss. Dig. it., III, Giappichelli, Torino, 1959, 322 ss.; C. Focarelli, La reciprocità nel trattamento degli stranieri in Italia come forma di ritorsione o rappresaglia, in Riv. dir. internaz., 1989, 825-865 132 LORENZO RICCIO

However, although the purpose of the condition of reciprocity is now surpassed, it is still valid within our legal system and must be viewed in connection with all other Italian immigration rules, with private international law, with the Constitution and with the laws of the European Union and international laws in order to understand its limits and sphere of application.

3. Different kinds of Reciprocity

First of all the international law doctrine distinguishes, in a general way, three types of reciprocity: diplomatic, legislative and factual or substantial.4 Diplomatic reciprocity equates foreigners with citizens. The condition of “foreigner” was regulated, case-by-case, by specific intergovernmental agreements. In the past, this included those governed by special consular agreements or trade and navigation treaties, contracted between Italy and other states. More recently, the practice has been directed towards particular inter-state agreements, according to which contracting parties grant rights to the respective citizens if the condition of reciprocity is respected. This applies, for example, to bilateral investment treaties and, even though to a lesser extent, to those against double taxation. Legislative reciprocity implies the presence of legislative provisions in the foreign state’s domestic law giving Italian citizens the same rights that foreigners invoke in the Italian state. Factual or substantial reciprocity implies that, regardless of the formal data (international agreement or foreign legislative provisions), the foreign legal system allows Italian citizens to enjoy the same rights that the foreigner intends to benefit from. Research cannot be limited solely to the foreign state legislation but must be conducted taking into account its entire order; conversely, to deny the existence of reciprocity it is not enough to note the lack in the foreign legislation of the legal institution invoked in Italy. The condition of reciprocity may occur with respect to the same rights (c.d. reciprocity point by point) or with respect to equivalent rights, through an overall assessment (reciprocity in the broad sense).5

4 U. Leanza, Considerazioni critiche sulla portata e l’efficacia dell’art. 16 delle disposizioni preliminari al codice civile, in Riv. dir. int. priv. proc., 1997, 87. 5 G. Biscottini, Il principio di reciprocità, in Riv. dir. internaz., 1967, 50. FOREIGNERS AND THE CONDITION OF RECIPROCITY 133

Despite some jurisprudential oscillations, the Italian legal order seems to be based on the model of factual (or substantial) reciprocity with reference to the criterion of reciprocity in a broad sense. This assumption also seems to be confirmed by a ruling of the Italian Supreme Court which concluded in favour of the irrelevance of the recognition in the foreign State to which the foreigner belongs. Accord- ing to the Italian Corte di Cassazione, recognition (in an international sense) by the Italian Republic of the foreign State to which the foreigner belongs, as well as the type of diplomatic relations that exists between the two States, does not affect the applicability of the condition of reciprocity which remains anchored to an evaluation of the foreign system and to the manner in which Italian citizens in that State are treated.6 Therefore, the condition of reciprocity, when applicable, must be verified from a dual perspective: first of all the State to which the foreigner belongs, has to recognize in its own laws, in a general and abstract way, a right corresponding to that which the foreigner intends to exercise in Italy; and that State, must not discriminate against the Italian citizen in exercising that right.

4. Internal limits to the Condition of Reciprocity

According to article 10 of our Constitution, the legal status of foreigners is regulated by the law in conformity with international provisions and treaties; but it must also be coordinated with the internal provisions of Italian law. The condition of reciprocity, which is part of the legal status of the foreigner must also be coordinated with art. 2 of the Constitution, according to which: “The Republic recognises and guarantees inviolable human rights, both for the individual and within social groups where the individual’s personality is expressed, and it requires the fulfilment of the imperative duties of political, economic and social solidarity”. Article 2 expresses the Italian State’s solemn acknowledgement of inviolable human rights and the fundamental principle according to which individual rights have precedence over sovereign power.

6 A. Malintoppi, Noterelle (poco giuridiche) in tema di rilevanza in Italia di atti di Stati non riconosciuti, in Riv. dir. internaz., 1973, 742 e A. Giardina, Dell’applicazione della legge in generale (art. 16), cit., 1-38. 134 LORENZO RICCIO

This means that the condition of reciprocity is not applicable when the fundamental rights of foreigners are involved. In Article 2 of the Constitution it is possible to recognize not a top- down approach, in which rights are given by the Italian State to Italian citizens and foreigners, but a bottom-up philosophy. Article 2 recognises fundamental rights in the sense that it accepts them as something that already exists: rights are not created by the State, but exist regardless of the State. Thus, according to the Constitution, and specifically Article 13 and following, the inviolable rights of the foreigner as a human being will always be protected, regardless of the requirements of reciprocity7. These rights include civil, family, and social rights as well as several forms of political consultative participation by foreign citizens lawfully residing in Italy, for example: Article 13 of the Const. on personal freedom; Article 14 on the inviolability of home; Article 15 on freedom and confidentiality of correspondence; Article 19 on religious freedom; Ar- ticle 21 on freedom of expression; Article 27 on criminal responsibility and Article 24 on jurisdictional protection.8 To these rights must be added the right to health, as per art. 32 of the Const. which is also enforceable for the benefit of foreigners whose own State does not guarantee a similar right to Italian citizens, as well as the right to life and so on.9 For the same reasons, the Corte di Cassazione has recognized that compensation for the wrongful imprisonment of a foreign citizen is not linked to the demonstration of reciprocity, since the source of this right is related to the methods of exercising the jurisdictional function of a State rather than relations between private individuals.10 All foreign citizens benefit from the protection of fundamental human rights provided by domestic regulations, international conventions in force and principles of international law globally recognised.11 In conclusion, the Constitutional recognition of the inviolable rights of man does not imply an automatic assimilation of the foreigner into

7 Cass., 7.5.2009, n. 10504, in Riv. dir. internaz. priv. proc., 2010, pp. 777. 8 Cass., 10.2.1993, n. 1681, in Riv. dir. internaz. priv. proc., 1994, pp. 560. 9 F. Galgano, Trattato di diritto civile, Cedam, Padova, 2014, pp. 334 ss. 10 C. Cost., 23.11.1967, n. 120; T. Ballarino, Diritto internazionale privato, Cedam, Padova, 2016, p. 297. 11 M. Giuliano, Lo straniero nel diritto internazionale, in Comunità internaz., 1981, 329 e Consiglio Di Stato, sez. I, 15.6.1994, n. 626, in Foro amm., 1995, pp. 2298. FOREIGNERS AND THE CONDITION OF RECIPROCITY 135 the juridical patrimony of the Italian citizen, but strongly limits the application of the condition of reciprocity. This means that, according to the Italian Constitution and domestic law, the condition of reciprocity is still applicable when the right invoked by the foreigner is not a fundamental one and is not regulated by international treaties or internal law.

5. External limits to the Condition of Reciprocity

As stated, coordination with European Union and inter-state law provisions affects the foreigner's economic activity in Italy. Internation- al treaties are of course highly important with reference to this matter, as is Italy’s membership in the European Union. Regarding EU law, it is clear that the condition of reciprocity cannot be invoked against citizens of European Union member states, in application of articles 18, 19, 49, 56 and 63 TFEU, norms that have definitively sanctioned every prohibition of discrimination, especially regarding reciprocity.12 In addition to European citizenship, the principles relating to the free movement of persons, and the establishment and provision of services, are in contradiction with that rule and therefore prevail over the latter. The recent reformulation of art. 6 TEU, through the Lisbon Treaty, referred to the Charter of Fundamental Rights of the European Union, so that there can no longer be any doubt regarding the non-application of the condition of reciprocity in respect of EU citizens. This means that citizens of EU Member States in Italy enjoy the fundamental freedoms provided by the European legal system, which are free movement of capital, free movement of goods, freedom to establish economic activities in Italy and to provide services in Italy and the free movement of workers. Moreover art. 21 TEU prohibits any discrimination based on the citizenship of another member state of the EU and art. 17 of the Charter of Fundamental Rights of the European Union establishes that: “Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions,

12 G. Strozzi, Diritto dell’Unione europea. Parte speciale, Giappichelli, Torino, 2017, pp. 64 ss. 136 LORENZO RICCIO except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. Intellectual property shall be protected”. This rule is also established in art. 1 of the Additional Protocol to the European Convention for the Protection of Human Rights and Funda- mental Freedoms (ECHR), which provides, among other things, at art. 14, a general principle of non-discrimination based on the nationality. Regarding the limits deriving from inter-state agreements in force for Italy, there is no doubt that they prevail over the condition of reciprocity. Consequently, it is necessary to verify whether the State of which the foreigner is a citizen has concluded an international agreement on civil rights with Italy. If such an agreement is in force, it will therefore prevail, according to Article 10 of the Const., and therefore, the condition of reciprocity is waived by the corresponding rules of the inter-state agreement.13 This is the case of the citizens of the States with whom is in force a bilateral agreement on the protection of investments or other categories of international agreements such as, for example treaties of friendship, trade or navigation. This verification is facilitated by the Ministry of Foreign Affairs on whose website there is current update in real time of the “verification of the condition of reciprocity [...] regarding real estate purchases and incorporation and/or corporate participation”. Moreover, as already mentioned, the condition of reciprocity does not affect stateless persons and refugees. The condition of reciprocity is also surpassed by Article 7 of the New York Convention, enforced in Italy by l. 306/1962, when the stateless person has regularly resided on Italian territory for at least three years. The same applies to refugees, thanks to art. 7, § 2 of the Geneva Convention, enforced in Italy with l. 722/1954, if they prove that they have regularly resided in Italy for at least three years. Finally, it should be noted that further restrictions could be of international origin, reconnecting to the imposition of international or EU sanctions.

13 M. Giuliano, F. Pocar, T. Treves, R. Clerici, P. De Cesari, F. Trombetta Panigadi, Codice delle convenzioni di diritto internazionale e processuale, Giuffrè, Milano, 1999 FOREIGNERS AND THE CONDITION OF RECIPROCITY 137

This occurs when the notary in Italy, who most often applies the condition of reciprocity, drafts acts regarding the provision of economic resources to natural or legal persons included in the so-called blacklists, or lists of alleged terrorists adopted within the EU, on the recommendation of the United Nations Security Council.14 Therefore, even an act to which the condition of reciprocity applies will be subject to verification regarding the absence of further restrictive measures of an imperative nature, of national, international or EU origin.

6. Conclusions

In conclusion, the condition of reciprocity has now lost almost all its power and effectiveness in our legal system. It can still be applied, according to article 10 of the Constitution, to non EU citizens from States that do not have a treaty in force with Italy; to foreign legal companies and to matters such as the purchase of real estate in Italy or the establishment of companies and other legal entities in our country, when there is no international treaty regarding that issue. Last but not least, the condition of reciprocity should not be verified with respect to the enjoyment and exercise of fundamental rights that both the Constitution and the international treaties in force for Italy, recognize to every person at all times. Its field of application has undergone much downsizing by constitutional norms, by the recent rules on immigration and treatment of foreigners, by the law of the European Union and by the multilateral and bilateral treaties in force in Italy.

14 M. Lugato, Sono le sanzioni individuali del Consiglio di Sicurezza incompatibili con le garanzie procedurali?, in Riv. dir. internaz., 2010, 309 ss.

HUMAN RIGHTS OF MIGRANTS AND REFUGEES IN THE NEW INTERNATIONAL AGENDA FOR SUSTAINABLE DEVELOPMENT Marianna Pace*

SUMMARY: 1. Introduction: about migration and sustainable development. – 2. A human rights-based approach to migration in the new international agenda for sustainable development (2030 Agenda). – 2.1. The protection of the right to health of migrants. – 2.2. Promoting gender equality. – 2.3. The protection of child migrants. – 2.4. Migration, environment and climate change. – 3. The New Agenda: a different approach between migrants and refugees. – 4. The implementation of Agenda: Quis custodiet ipsos custodes? – 5. Final remarks.

1. Introduction: about migration and sustainable development

In the last few years, the migratory phenomenon has increasingly been associated to concepts such as “crisis” or “emergency” as if it were an exceptional phenomenon. However, while data do not show the existence an emergency, the recent migration flows have shown, on the contrary, the gaps and weaknesses of national and international legal systems in dealing with humanitarian emergencies that have occurred especially in the Mediterranean. This in particular both with regards to the inclusion of migrants and the recognition of their basic human rights, and with regards to the promotion of international solidarity and to the removal of the causes that are at the origin of the need to emigrate. The awareness of pointing out a global political perspective to approach migration and asylum-seekers phenomenon, avoid finding systemic and long-term way to face demographic, politic- and socioeconomic causes, is an issue of the utmost importance. In particular, as regards issues here concerned, in the international law of development the watertight-division approach of the past decades led to the establishment of development agendas in which migration was not regarded as a whole, migrants were not regarded as potential actors of development, but rather as a social and economic emergency to be solved. When dealing with migrants as potential actors of devel-

* Postdoctoral Research Fellow in International Law at University of Naples “L’Orientale”. 140 MARIANNA PACE opment issue, we refer to the existing relationships between migration and development, which can be summarized in two main questions: how development affect migration? And, vice versa, how does migration affect development? Theoretical and practical answers have been investigated in development studies since the 1960s but, however, a real interest on these issues has only increased in the last 20 years in parallel with the raise of the awareness on the causes and of the drivers of migration and of the important function of remittances as financial source for receiving countries (comparable in size to the official development aid from the ‘developed’ to the ‘developing’ countries). The growing of the attention to relationships between migration and development, has been also encouraged by the increasing development of private initiatives and bottom-up approaches from local communities and stakeholders as di- versified and non-governmental development funding. Since the 1960s, the absence of references to these issues characterized UN development Programmes. In the same vein, as regards as the interrelationship between development, peace and security, it is not adequately reflected in the MDGs, despite the significative contribution of the United Nations Development Programme (UNDP) to the development of the concepts of Human Security and Human Development since the second half of the 1990s.1 Likewise, in the Millennium Declaration adopted in 2000, the so- called Millennium Development Goals (MDGs), little consideration was given to migration and migrants, thus demonstrating the distances that existed in acknowledging the dynamics of dialogue between migration and development.2 In the last 15 years, this dialogue has increased due to the promotion efforts made by the United Nations High Level Dia- logue Migration and Development (HLDMD) in 2006 and 2013 and by

1 A. Sen, “Development as Freedom”, Oxford University Press, 1999; S. Jahan, “Evolution of The Human Development Index”, in Handbook Of Human Development, Oxford University Press, 2002; D. Hulme, “The Millennium Development Goals (Mdgs): A Short History Of The World’s Biggest Promise”, Bwpi Working Paper, 2009, available at: Http://Ssrn.Com/Abstract=1544271; Liesl Riddle, “Diaspora Engagement and the Sustainable Development Goals”, pp. 1-23, Gervais Appave, Neha Sinha (ed.), Migration in the Agenda 2030, International Organization for Migration Publications, 2017. 2 G. Rodriguez, “Migración y Objetivos de Desarrollo del Milenio”, in Revista in- terdisciplinar da mobilidade humana, 2010, available at: Http://Www.Csem.Org.Br/ Remhu/Index.Php/Remhu/Article/View/96/88; See also International Organization for Migration (IOM), Diaspora and development, available at Https://Diaspora.Iom.Int/. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 141 the Global Forum on Migration and Development (GFMD)3. The Post- 2015 Development Agenda adopted by UN General Assembly in Sep- tember 2015, on the contrary, does not consider human mobility as background context for development, or even worse, as a by-product of the lack of development, but on the contrary innovates by recognizing the “positive contribution of migrants for inclusive growth” and the “multi-dimensional reality” of migration. The Agenda has, consequently, acknowledged the importance of migrants and refugees as a vulnerable category and has recognized that they are addressees of specific human rights, highlighting, in the same time, the pre-eminence of an economic-centered perspective to those phenomena. Accordingly, migration issues have been incorporated in several Goals and targets of SDGs, and in particular in a specific target on “facilitating orderly, safe, regular and responsible migration and mobility of people” attached to Goal 10 on reducing inequalities. In addition, Goal 8 on decent work and economic development encompasses the condition of migrant workers. Also, the same Goal 8 includes target (8.7) concerning the phenomenon of trafficking, which is defined the “modern day slavery”, urging for its abolition. Migration is also relevant for Goals and targets concerning the sustainable cities and resilience in respect to environment and climate change. The aim of this contribution is to draw attention, in the first place, to the dimensions of the migratory experience that are encompassed by the Sustainable Development Goals (SDGs) and, in the second place, to offer practical suggestions as to how these aspects of migration can be addressed effectively during the implementation process as well as to propose measures for a more human rights-based implementation.

2. A human rights-based approach to migration in the new international agenda for sustainable development (2030 Agenda)

The adoption of the SDGs and the related 2030 Agenda for Sustaina- ble Development (Agenda or 2030 Agenda) with UN General Assembly Resolution 70/1 of 25 September 2015 was an historical moment.4 The

3 The Global Forum on Migration and Development which is a global, non-binding multilateral forum that has convened yearly since 2006 and which in 2015 endorsed a GFMD Business Mechanism, see: https://gfmd.org/. 4 United Nations General Assembly, Transforming Our World: The 2030 Agenda 142 MARIANNA PACE

SDGs were adopted after a long, complex and participatory negotiation process launched by the Rio+20 Conference in 2012, and setting the global development agenda for the period 2016-2030, aimed at pursuing the macro-objective of sustainable development. The SDGs are characterized by the ambitious objective of “transforming our world”, are grounded upon the experience gained with the MDGs, which were adopted in 2000 by the General Assembly of the United Nations as the world’s development agenda for the period 2000-2015. However, there are significant differences between the SDGs and their predecessors, the MDGs. First, the MDGs were developed at a technocratic level, while little relevance was attributed to a human rights approach to development due to marginal involvement of human rights defenders in the drafting phase of the MDGs. Secondly, there is a marked increase of the number of objectives and related targets. The MDGs, in fact, were divided into 8 objectives and 21 targets. The 2030 Agenda consists of 17 Goals, 169 targets and innumerable indicators to track at national, regional and global level, and distinct by theme with the purpose of eliminating extreme poverty and ensuring sustainable development. As far as the SDGs are concerned, the pursuit of the macro-objective of sustainable development should be inspired by the 2030 Agenda and must be declined in the national context of the individual countries, which are called upon to adopt and implement specific strategies and national plans in implementation of the Agenda itself, with the full in-

For Sustainable Development, Resolution A/RES/70/1 of 25 september 2015; in general on 2030 Agenda and SDGs see, M. Montini, F. Volpe, “Sustainable Development Goals: ‘Molto Rumore Per Nulla?’”, in Rivista giuridica dell’ambiente, 2015, pp. 489- 496; Inga T. Winkler, Carmel Williams, “The Sustainable Development Goals and human rights: a critical early review”, in The International Journal of Human Rights, 8/2017, pp. 1023-1028; William Easterly, “The Sdgs Should Stand For Senseless, Dreamy, Garbled”, in Foreign Policy, September 28, 2015, available at: Http://ForeignpolicyCom/2015/09 /28/The-Sdgs-Areutopian-And-Worthless-Mdgs- Development-Rise-Of-The-Rest/; Massimiliano Montini, “L’interazione tra gli Sdgs ed il principio dello sviluppo sostenibile per l’attuazione del diritto internazionale Dell’ambiente”, in Federalismi.it, 9/2019, pp. 1-21; Rakhyun E. Kim, “The Nexus between International Law and the Sustainable Development Goals”, in Review of Euro- pean Community & International Environmental Law, 2016, pp. 15-26; Malcolm Lang- ford, “Lost in transformation? The Politics of the Sustainable Development Goals”, in Ethics & International Affairs, 2016, pp. 167-76; Graham Long, “The idea of universali- ty in the Sustainable Development Goals’, in Ethics & International Affairs, 2015, pp. 203-22; Maria Ferrara, “La Corte di giustizia dell’Unione europea e lo ‘strano caso’ dei Principi di Yogyakarta”, in Diritti umani e diritto internazionale, 1/2019, pp. 175-196. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 143 volvement of all relevant stakeholders. The adoption of the SDGs, in sum, should be regarded as an opportunity to rethink and revise the policies, regulations and governance models adopted both at the international level and at the national level in individual countries, with a view to promoting sustainable development alongside its three dimensions: the economic one, the social one and the environmental one.5 The new international Agenda for sustainable development deals with two kinds of interrelated challenges: both general and universal challenges. As far as general challenges are concerned, Agenda’s Goals are multiple and deal with a wide range of interconnected issues such as poverty, hunger, health and deprivation, the absence of violence, access to education, physical, mental and social welfare, access to drinking water and sanitation, better hygiene and food, safe human habitats and af- fordable, reliable and sustainable energy.6 As far as universal challenges are concerned, firstly the very same SDGs constitute a universal challenge as they require intense and tangible cooperation from all the international community (the so-called Global Alliance for Sustainable De- velopment) and the adoption of measures by all stakeholders (States, In- ternational Organizations, civil society, corporations, and so on). This awareness has its roots in the Declaration “The future we want”, adopted in 2012 by the United Nations General Assembly, calling «for renewed and strengthened global partnership to implement sustainable development». Universal challenge means, moreover, that new Agenda should move away from the stereotyped north-south approach, based on the developed-developing countries logic, to one that involves and em- powers all countries, with the same extent, as actors of Sustainable De- velopment and, hence, of the Agenda. The measures to be taken to achieve the SDGs also mean a qualitative transformation of international society’s functions, as well as integrated, indivisible and coordinated policies. A preliminary issue to be addressed is to ascertain the legal value of the SDGs. In short, the basic question is: are SDGs rules and principles of some legal relevance, or are they mere statements of political value (without any legal relevance)? Well, generally soft-law refers to non-

5 N. Kanie, F. Biermann, Governing through goals: Sustainable Development Goals as governance innovation, The MIT Press, Cambridge, Massachusetts, 2017. 6 United Nations General Assembly, Transforming Our World: The 2030 Agenda For Sustainable Development, cit. 144 MARIANNA PACE binding principles and rules that cannot be sanctioned for non- compliance, but that have a certain degree of legal force.7 From this perspective, soft law is not quite positive international law, but somehow aspiring thereto or at least thought to influence legal interpretation8: and in this sense, sanctions in case of non-compliance are more political and social than legal.9 This also applies in relation to SDGs and to human rights issues connected to SDGs, since all the involved stakeholders may consider principles and provisions contained in such instrument as involving a hard legal value, and thus behave in accordance with such principles. This could mean to establishing expectations of compliance both at international and domestic level and even more likely to have positive effects coming from such compliant behavior. Summing up, recognizing some legal relevance to the SDGs, in the form of soft law, at the very least, is entirely legitimate especially with regard to the human rights approach incorporated in the elaboration of the agenda and despite the vague and mainly political content of most of the objectives and targets.10 Turning to its content, the 2030 Agenda for sustainable development

7 Stephanie Lagoutte, and others (eds.), “Introduction”, in Tracing the roles of soft law in human rights, Oxford University Press 2016, p. 222. 8 Ibid. 9 Ibid. 10 See more in general on these considerations: D. French, “The Global Goals: For- malism Foregone, Contested Legality And “Re-Imaginings Of International Law”, in Ethiopian Yearbook Of International Law, 2017, pp. 164-165; A. Persson, N. Weitz, M. Nilsson, “Follow-up and review of the Sustainable Development Goals: alignment vs. Internalization”, in Review of European, Comparative & International Environmental Law (RECIEL), 2016, pp. 59-60; R. E. Kim, “The nexus between international law and the Sustainable Development Goals”, in Review of European, Comparative & Interna- tional Environmental Law (RECIEL), 2016, pp. 16; W. Scholtz, M. Barnard, “The environment and the Sustainable Development Goals: ‘We are on a road to nowhere’”, in D. French, L. J. Kotzé, Sustainable Development Goals. Law, theory and implementation, op. cit., pp. 227-230; S. Fukuda-Parr, D. Hulme, “International norm dynamics and the ‘end of poverty’: understanding the Millennium Development Goals”, in Global Gov- ernance, 2011, pp. 17-36; M. Finnemore, K. Sikkink, “International norm dynamics and political change”, in International Organization, 1998, pp. 887-917; O. Spijkers, “The cross-fertilization between the Sustainable Development Goals and international water law”, in Review of European, Comparative & International Environmental Law (RECIEL), 2016, pp. 39; P. Lode, P. Schonberger, P. Toussant, “Clean air for all by 2030? Air quality in the 2030 Agenda and in international law”, in Review of European, Comparative & International Environmental Law (RECIEL), 2016, pp. 27. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 145 highlights people, the planet and prosperity;11 Goals and targets aim at build pacific, just and inclusive societies that create the conditions for economic, sustainable, inclusive and sustained growth. According to the UN General Assembly, it is a long journey towards human dignity, in which no-one should be left behind as Goals and target are strictly related to the effective enjoyment of human rights.12 As it has been observed, the new Agenda encompasses a new and improved approach towards international human rights law: “an approach that is not based as much on the human rights/State obligation dialectic, but on promoting national and international policies that facilitate a context for human rights to exist and not as much on classical legal techniques, but rather on promoting a certain line of action by governments and the international community. (…) it therefore constitutes a supplement rather than an alternative. We trust that it will not dilute what has already been achieved from a legal perspective. In other words, a State that progress- es in the indicators, but does not meet its international obligations in human rights can use the situation”.13 With specific regard to the human rights-based approach to migration in the international agenda of sustainable development, it must be recalled that migration was not included in the 2000 MDGs framework probably because of a certain amount of skepticism on the contribution of migration to development. Hence, it was considered only to deplore acts of discrimination, racism and intolerance targeting migrants. However, this approach has been challenged by the Report of the United Nations Sys- tem Task Force on the Post-2015 Development Agenda (Realizing the Future We Want for All), which, by acknowledging migration as one of the core enablers of development and called for fair rules to manage migration, established that “we will cooperate internationally to ensure safe, orderly and regular migration involving full respect for human rights and the humane treatment of migrants regardless of migration status, of refugees and of displaced persons”.14 The New York Declaration for Refu-

11 Ibid. 12 Paloma Durán y Lalaguna, Cástor Miguel Díaz Barrado, Carlos R. Fernández Liesa, International society and Sustainable Development Goals, Thomson Reuters, 2016. 13 Carlos R. Fernández Liesa, “Sustainable development in international law: general issues”, in Paloma Durán y Lalaguna, Cástor Miguel Díaz Barrado, Carlos R. Fer- nández Liesa, International society and Sustainable Development Goals, Thomson Reu- ters, 2016, pp. 73-98. 14 United Nations General Assembly, Transforming Our World: The 2030 Agenda For Sustainable Development, cit., paragraph 29. 146 MARIANNA PACE gees and Migrants adopted at the UN General Assembly Summit on Ad- dressing Large Movements of Refugees and Migrants, held on 19 Sep- tember 2016,15 at the start of the Seventieth session of UN General As- sembly, is the starting point for the adoption of two Global Compact on refugees and migrants approved at the Marrakech Conference of 10-11 December 2018.16 These instruments afford to the international community an unprecedented opportunity to demonstrate the political will needed to achieve the ambitious commitments of the SDGs. Migrants and migration are mentioned explicitly in a number of the targets under several Goals. For example, the situation of migrant workers is mentioned in Goal 8, on economic growth and decent work; trafficking in persons is mentioned in Goal 16, on peaceful societies, and in certain targets; migration status is mentioned specifically as a factor for disaggregation during the follow-up and review processes called for under Goal 17. Target 10.7, under Goal 10, concerning the reduction of inequalities both within and among nations, is the cornerstone for migration issues in 2030 Agenda. This Goal fixes the commitment for States to facilitate “orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies”.17 Furthermore, SDGs Declaration, by recognizing the positive contribution of migrants to inclusive growth and development, calls for the empowerment of vulnerable groups, including refugees, internally displaced persons and migrants and access for all to lifelong learning opportunities. It highlights the impact of humanitarian crises and forced displacement of people on development and fixes an explicit commitment to the eradication of forced labour and migrant trafficking. The international migration community is now faced with the challenge of implementing the SDG Goals and targets, including the difficult selection and definition of indicators to measure progress. This will be a long and complex process requiring the cooperation of all stakeholders at the national, regional and global levels.

15 United Nations General Assembly, New York Declaration for Refugees and Mi- grants, Resolution of 3 October 2016, UN Doc. A/RES/71/1. 16 The text is available at: https://refugeesmigrants.un.org/sites/default/files/180713 _agreed_outcome_global_compact_for_migration.pdf. 17 International Organization for Migration, International dialogue on migration. Follow-up and review of migration in the sustainable development goals, International Organization for Migration Publications, 2017. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 147

In the light of the abovementioned observations, the change that has been made in the negotiation of the SDGs and 2030 Agenda is plainly clear. The creation, in the Rio+20 Declaration, of an Open-ended Work- ing Group in which States, experts and interest groups participated18 has made possible the broadening of the debate on the need to maintain a holistic and human rights-based approach, and has highlighted the importance of ensuring that the Goals should be achieved especially among the most vulnerable groups such as migrants and refugees. It is worth to note, also, how the awareness for a comprehensive approach to migration management in the context of poverty reduction and the need to integrate organically migration issues into development and economic cooperation policies had been already considered since the final report of the United Nations Millennium Project 200519. This awareness finds its recognition in the Report “The Road to Dignity by 2030” of UN Secretary General Ban Ki Moon20, presented on the mar- gins of the SDGs negotiation work in the framework of the Open Work- ing Group. The Report refers to migrants, refugees and all displaced persons not only from a displacement prevention perspective but defines them as vulnerable groups that have to be particularly protected by the new development agenda,21 it also calls for the respect of their human rights and underlines their particular role in the implementation of the agenda.22 In this respect, the Resolution “Transforming our World”23, after more than two years of negotiation, can be considered a generally positive achievement, due to its inclusion of the different dimensions of development. However, some critical gaps, firstly the difference in treatment that refugees and migrants experience within the framework of the SDGs and 2030 Agenda, there exist.

18 United Nations General Assembly, Transforming Our World: The 2030 Agenda For Sustainable Development, cit., paragraph 248. 19 Proyecto del Milenio de las Naciones Unidas, Invirtiendo en el desarrollo: un plan práctico para conseguir los objetivos de desarrollo del milenio. Panorama, 2005, avaliable at: www.Unmillenniumproject.Org/Documents/Overviewspanlo wres.pdf. 20 United Nations General Assembly, El camino hacia la dignidad para 2030: aca- bar con la pobreza y transformar vidas protegiendo el planeta, informe de síntesis del Secretario General sobre la Agenda de desarrollo sostenible después de 2015, 4 De- cember 2014, A/69/700. 21 Ibid, paragraph 51 Y 68. 22 Ibid, paragraph 72 Y 117. 23 United Nations General Assembly, Transforming Our World: The 2030 Agenda For Sustainable Development, cit. 148 MARIANNA PACE

Actually, it must be underlined that the incorporation of the new Goals into the international system for the protection of human rights, mentioned since 2013 by the Secretary General in his report “A dignified life for all”,24 has not been fully realized. Here, the 2030 Agenda lacks of explicit mention to human rights law, and this applies both to the formulation of the objectives and to the definition of indicators for monitoring and accountability. According to the Declaration preceding the Goals, international migration is defined, in particular, as “a multidimensional reality of great relevance to the development of countries of origin, transit and destination that requires coherent and comprehensive responses”. Furthermore, the international community is urged to respect the human rights of migrants, “regardless of their migratory status”, as well as those of refugees and displaced persons.25 Also, and under a broader perspective, particularly significative is the inclusion of migrants, refugees and internally displaced persons among the most vulnerable categories, with the consequence that they have to be addressed accordingly in the implementation of all objectives. In particular, many of the Goals of the SDGs point to the creation in the countries of origin of an economic and social environment more favourable to the human development of their inhabitants, attempting to address the systemic causes of the phenomenon as requested by civil society in its Stockholm Agenda of 2014.26 However, references to people who choose to embark on or have already embarked on the path of migration, whatever their motivation, remain scanty. In target 8.8, for example, States commit themselves to protect and promote a safe working environment for all workers, including migrant workers and in particular migrant women. Even though this gender approach affords added value, it should be noted that this Goal does not establish a time-limit for its achievement, limiting itself to a programmatic declaration in compliance with international standards

24 United Nations General Assembly, Una vida digna para todos: acelerar el logro de los Objetivos del Milenio y promover la Agenda de Naciones Unidas para del desarrollo después de 2015, informe del Secretario General, 26 July 2013, A/68/202. 25 Ibid, paragraph 28. 26 MADE (Migration and Development Civil Society Network), La “Agenda de Estocolmo” de la Sociedad Civil. Objetivos relacionados con la migración en las Agen- das de Desarrollo nacionales y globales post-2015. Un llamado a la acción: Migración y objetivos de desarrollo sostenible, available at: http://www.un.org/en/development/ desa/population/migration/events/coordination/13/documents/backgrounddocs/MADE_ Migration_and_Post-2015_SDG_Framework_Spanish.pdf. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 149

(without further specification). In contrast, target 10.c, i.e. one of the targets relating to the means of implementation of target 10 “Reduce inequality within and between countries”, sets out a commitment to reduce the transaction costs of migrants’ remittances to below 3% by 2030.27 This difference seems to suggest that, despite the recognition of migrants as natural and important actors for the realization of sustainable development, as well as a disadvantaged category, the approach of SDGs still does not attach the necessary weight to the human rights implications of migrations. Indeed, the very same fact that references to main international legal instruments in this field area, such as the Inter- national Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and Conventions Nos. 97 and 143 of the International Labour Organization, are lacking, is open to criticism. In the same way, it has to be highly criticized the absence of clear commitments to establish legal and effective channels for migration and family reunification over a certain period of time, with the aim of limiting illegal trafficking of human beings and the violations of the fundamental rights, and in the first place the right to life, that migrants may suffer during the transit. In order to stimulate proactive reflection on migrations and on the management of flows of people in the 2030 Agenda, some issues attain- ing to the area of human security and strictly connected to human rights deserve to be analysed, and this in order to verify the “resilience” of the new agenda on migration. In particular, such issues include: the right to health; the principle of gender equality; the protection of children migrants; the relationship between environment, climate change and migration.

2.1. The protection of the right to health of migrants

The 2030 Agenda includes a specific Goal on health (SDG 3) and also a specific target on migration (10.7) with the aim of reducing inequalities. These provisions offer opportunities, and challenges, in respect to the promotion of the health of migrants. It is recognized, indeed, that safe, dignified and regular migration is linked to equitable access to health services: migrants may enjoy an improved health status through access to income-generating opportunities, better housing, im-

27 Gaia Tascioni, “Migrantes y refugiados en la agenda de desarrollo 2030”, in Wor- king Papers “El Tiempo de los Derechos”, 2016. 150 MARIANNA PACE proved nutrition and a higher standard of health care and security. How- ever, migrants encounter barriers in accessing to health-care services due to restrictive policies, discrimination, and a lack of migration- sensitive health systems and conducive policies across sectors. There are groups that are exposed to very specific health risks: i.e. irregular migrants and low-skilled workers, particularly women and youth in precarious employment settings, who are often invisible in health and social protection systems. Achieving universal health coverage will require bringing these groups out of the shadows to protect their right to health and ensure their access and inclusion to equitable health services.28 It follows that States are challenged to integrate the health needs of migrants into national plans, policies and strategies.29 Realizing a better promotion of migrants’ health through the SDGs also requires reflecting at what has already been achieved. First of all, the right to health and access to health services for all in an indiscriminate manner is guaranteed by main international human rights instruments. In effect, the right to the enjoyment of the highest attainable standard of physical and mental health, to give it its full name, is not new. At international level, it was first articulated in the 1946 Constitution of the World Health Organization (WHO), whose preamble defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. The preamble further states that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” The 1948 Universal Declaration of Human Rights also mentioned health as part of the right to an adequate standard of living (art. 25). The right to health was again recognized as a human right in the 1966 International Covenant on Economic, Social and Cultural Rights. Since then, other international human rights treaties have recognized or referred to the right to health or to elements of it, such as the right to medical care. In recent years, increasing attention has been paid to the right to the highest attainable standard of health, for instance by human rights treaty monitoring bodies, by WHO and by the Commission on Human Rights (now replaced by the Human Rights Council), which in 2002 created the

28 Eliana Barragan, Poonam Dhavan, Julia Puebla Fortier, Davide Mosca, Jacqueline Weekers, Kolitha Prabhash Wickramage, “Migration and health in the Sustainable De- velopment Goals”, in Gervais Appave, Neha Sinha (ed.), Migration in the Agenda 2030, International Organization for Migration Publications, 2017, pp. 39-57. 29 Ibid. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 151 mandate of Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health. These initiatives have helped clarify the nature of the right to health and how it can be achieved. The right to health is relevant to all States: every State has ratified at least one international human rights treaty recognizing the right to health. More- over, States have committed themselves to protecting this right through international declarations, domestic legislation and policies, and at international conferences. In 2008, Member States of the World Health Organization (hence- forth WHO) adopted a resolution on the health of migrants (WHA 61.17) that paved the way for the 2010 Global Consultation on Migrant Health in Madrid. Co-organized by the International Organization for Migration (IOM), WHO and the Government of Spain, the consultation defined an operational framework to guide Member States and stakeholders in implementing the WHO resolution. The framework reaffirmed the need to take a rights-based, equity-driven, multisectoral approach through four priority areas for action: monitoring of migrants’ health; policy and legal framework; migrant-sensitive health systems; and partnerships, networks and multi-country frameworks. More recently, at the 106th IOM Council in November 2015, a Highlevel Panel on Migration, Human Mobility and Global Health offered recommendations to advance the unfinished migrant health agenda for all.30 Migra- tion health issues were also raised during the UN Summit for Refugees and Migrants in September 2016,31 during the WHO Executive Board in January 2017,32 and during the Second Global Consultation on Migrant Health in Sri Lanka in February 2017.33 The latter offered a platform for

30 International Organization for Migration, Advancing The Unfinished Agenda Of Migrant Health For The Benefit Of All, 106th Session Of IOM Council, 18 September 2015, available at: https://governingbodies.iom.int/system/files/en/ co uncil/106/c-106- inf-15-migration-health.pdf. 31 United Nations General Assembly, New York Declaration for refugees and Migrants, 13 September 2016, available at: www.un.org/ga/search/view_doc.asp?symbol=a/71/l.1. 32 World Health Organization, Outcome of the informal drafting Group on promoting the health of refugees and migrants, Draft Decision proposed by Argentina, Croatia, Ecuador, Greece, Haiti, Italy, Luxembourg, Mexico, Portugal, Switzerland, Thailand And Turkey (Executive Board Eb140/Conf./3rev.2), 2017, available at: http://apps.who.int/gb/ebwha/pdf_files/eb140/b140_conf3rev2-en.pdf. 33 International Organization for Migration, Second Global consultation on migrant health: resetting the Agenda, 21–23 February 2017, Colombo, Sri Lanka, available at: www.iom.int/migration-health/second-global-consultation. 152 MARIANNA PACE multisectoral dialogue and political engagement, particularly through the endorsement of the Colombo Statement,34 to ensure the mainstreaming of the migration health agenda and a coordinated response to future governing bodies and international development processes. The UN 2030 Agenda for Sustainable Development builds on these efforts and provides a general framework for addressing the health of migrants, based upon the necessity of joint actions from national and international actors who have to work together to integrate health needs of migrants into national plans, policies and strategies across sectors. In respect to the health-specific targets, Goal 3 deserves to be mentioned together with its cornerstone target 3.8 which calls for universal health coverage and de- mands the inclusion of migrants, irrespective of their legal residence status, under the national health coverage schemes, with dedicated financial mechanisms. Any failure in this respect would be in contrast with global health, and public health principles, ethics and universal health coverage Goals. Other migrant health issues are also contained in other sectoral Goals and targets related to aspects of migration, from housing to the impact of disasters to labour rights. In particular, housing conditions (under SDG 11.1) have relevant health implications for migrants. In effect, housing conditions of migrant workers are often deplorable: whether they work on migrant farms, in factories or on construction sites, they are under the risk of poor environmental conditions and inadequate facilities. From this perspective, targets 8.7 and 8.8 call for “decent work”35 and address the need to protect labour rights, promote safe and

34 International Organization for Migration, Colombo Statement, High-Level Meet- ing of the 2nd Global consultation on migrant health, 23 February 2017, available at: www.iom.int/sites/default/files/our_work/dmm/migration-health/colombo%20statement %2023feb2017%20final.pdf 35 The Committee on Economic, Social and Cultural Rights (CESCR) in Article 6 of CESCR General Comment 18 specifies that the right to work means the right to “decent work” and it defines decent work as “work that respects the fundamental rights of the human person as well as the rights of workers in terms of conditions of work safety and remuneration”. The goals of full employment and decent work for all are central purposes of both the United Nations and the ILO, and most countries are members of both organizations. Both Organizations have established multiple mechanisms for technical assistance, monitoring, and accountability for advancing decent work for all, among the other, key to the development of international norms for “decent work” is the ILO De- cent Work Agenda, a soft law initiative adopted in 1999 and the above mentioned UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 18: The Right to Work (Art. 6 of the Covenant), 6 February 2006, E/C.12/GC/18, available at: https://www.refworld.org/docid/4415453b4.html, drawing on ILO Conventions. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 153 secure working environments, and eradicate forced working arrangements, child labour and trafficking. The concept of “decent work” is especially relevant to migrants, who are often working in dirty, dangerous and demeaning jobs, do not have occupational health protections, and may be easily exploited.36 Few national development plans currently address migration health, and those that do tend to focus on immigration control, irregular migration and human trafficking. SDG target 10.7 on orderly and safe migration requires that the health of migrants be promoted and protected throughout the migration process through improved policy coordination among multiple sectors that impact on the health of migrants, as well as application of rights-based approaches to ensure equitable access to health services for all migrants respecting international standards of care.

2.2. Promoting gender equality

Women and girls still suffer disproportionately from discriminatory practices and violence worldwide and Goal 5 is aimed exactly at dealing with this global challenge by achieving gender equality and women’s empowerment. Its indicators, in particular, outline clear targets pertaining to specific gender-related challenges (5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.A, 5.B and 5.C) and translate the general Goal into a series of actionable objectives to achieve migration governance as defined by the Interna- tional Organization for Migration’s Migration Governance Framework, by fulfilling the rights and maximizing the socioeconomic well-being of all migrants and society.37 The ‘feminization’ of migration is an issue that has emerged only recently with the increase in the number and percentage of women migrating independently. Current policy dialogue, such as the negotiations of the Global Compact for Safe, Orderly and Regular Migration, offers new fora to discuss these structural trends and

36 Occupational risks are common in mining, construction, manufacturing and agriculture, including inadequate training, lack of protective gear, and exposure to toxic agents and conditions. 37 Targets are complemented by a set of indicators allowing for progress to be moni- tored: i.e. Target 5.4 aims to promote and value unpaid domestic work through policies related to infrastructure, social protection and public services while promoting shared responsibility within households; indicator 5.1.1, for instance, measures whether legal frameworks exist that promote and monitor equality and non-discrimination on the basis of sex, while indicator 5.4.1 measures the proportion of time spent carrying out unpaid domestic work disaggregated by sex, age and location. 154 MARIANNA PACE facilitate the achievement of the SDGs, including Goal 5.38 They are meant to build evidence-based systems and gender-sensitive policies in order to respond the specific challenges that affect women and girls, with particular emphasis on discriminatory practices influencing decision-making and the ability to migrate and to determine how to empower women and girls through migration.39 Addressing the challenges of

38 See, among the others, United Nations General Assembly, Investigation into sexual exploitation of refugees by aid workers in West Africa, Resolution 57/306 of 15 April 2003, and Secretary-General’s Bulletin, Special measures for protection from sexual exploitation and sexual abuse, St/Sgb/2003/13 of 9 October 2003. 39 Ludvik Girard, “Achieving gender equality through migration governance: opportunities and solutions in support of the sustainable development agenda”, in Gervais Appave, Neha Sinha (ed.), Migration in the Agenda 2030, International Organization for Migration Publications, 2017, pp. 59-69; see also: M. Couldrey, T. Morris (eds.), “Spe- cial feature on gender and displacement”, in Forced migration review, published by the Refugee Studies Centre in association with the Norwegian Refugee Council/Global IDP Project 9 December 2000; Katharine M. Donato, Donna Gabaccia, Gender and international migration: from the slavery era to the global age, New York, Russell Sage Foun- dation, 2015; F. Du Pasquier, “Gender diversity dynamics in humanitarian negotiations: the international committee of the red cross as a case study on the frontlines of armed conflicts”, in Humanitarian negotiation working paper, 2016; G. Ferrant, and others, The role of discriminatory social institutions in female south-south migration, Organiza- tion for Economic Co-operation and Development, Development Centre, 2014; Interna- tional Organization for Migration, Taking action against violence against women and discrimination affecting migrant women and girls, Infosheet IOM, 2013 available at: http://publications.iom.int/system/files/pdf/violence_against_women_infosheet2013.pdf; International Organization for Migration, Migration governance framework: the essential elements for facilitating orderly, safe, regular and responsible migration and mobility of people through planned and well-managed migration policies, 2015, available from: https://governingbodies.iom.int/system/files/en/ council/106/c-106-40-migration- governance-framework.pdf; International Organization for Migration and Organization for Economic Co-operation and Development, Harnessing knowledge on the migration of highly skilled women, 2014, available at: https://publications.iom.int/system/files/ pdf/iom_oecd_gender.pdf; S. F. Martin, Women and migration. Paper presented at the consultative meeting on migration and mobility and how this movement affects women, Malmö, Sweden, 2-4 December 2003; Organization for Economic Cooperation and De- velopment, Gender equality and women’s rights in the post-2015 agenda: foundation for sustainable development, OECD and Post-2015 reflections series, element 3, paper 1, 2014; Organization for Economic Cooperation and Development, Strengthening national statistical systems to monitor global goals, OECD and post-2015 reflections series, element 5, paper 1; I. Omelaniuk, Gender, poverty reduction and migration, World Bank, 2005; B. Sijapati, Women’s labour migration from Asia and the pacific: opportunities and challenges, International Organization for Migration and Migration Policy Institute, Issue in brief no. 12, 2016, available at: http://publications.iom.int/system/files HUMAN RIGHTS OF MIGRANTS AND REFUGEES 155 gender inequality in the context of migration requires the acknowledgement of the degree of violence that migrant women and girls experience. Gender-based violence affecting women and girls, such as domestic violence, forced marriage, female genital mutilation, sexual violence may also impact migrant women and young girls along migration routes, and current data indicate, indeed, that women and girls are also under a disproportionate risk to be subjected to trafficking and discriminatory practices against domestic workers.40 Discrimination may undermine their ability to freely and independently determine whether they want to migrate or not. This may also depend, for instance, by national law, in which domestic rules may impose constraints on women, by the establishment for instance of their duty to respect wishes of male relatives. Other reasons include the lack of access to education, impeding young girls to complete their education process, with the consequence that they may become dependent on male relatives or acquaintances and forced to delegate to them important choices concerning their own life. Of course, the scope of these challenges cannot be underestimated if Goal 5 is to be achieved: in effect, the traditional perception of female migration as a by-product of male migration is fundamentally incompatible with the idea of gender equality and puts the identification of women’s rights violations at risk. Like- wise, it undermines the awareness of how gender-specific discrimina- tions can directly trigger pull and push factors.41 Goal 5 and the entire Sustainable Development Agenda framework, along with the IOM Mi- gration Governance Framework,42 aspire to deal with such a challenge by relying on evidence-based policy, rights-based approaches and partnerships. Specifically, migration governance can contribute to achieve gender equality and women and girls’ empowerment through the sys-

/pdf/mpi_issue12.pdf; United Nations Economic and Social Council, Report of the inter- agency and expert group on sustainable development goal indicators, 2016, e/cn.3/2016/2/rev.1. 40 Girard Ludvik, “Achieving gender equality through migration governance: opportunities and solutions in support of the Sustainable Development Agenda”, in Gervais Appave, Neha Sinha (ed.), Migration in the Agenda 2030, International Organization for Migration Publications, 2017, pp. 59-69. 41 Ibid. 42 International Organization for Migration’s Migration Governance Framework aims at facilitating orderly, safe, regular and responsible migration and mobility of people through planned and well-managed migration policies, see https://gfmd.org/files/ documents/presentation_gfmd_iom_migof.pdf 156 MARIANNA PACE tematic incorporation of gender data to measure vulnerabilities and support empowerment strategies. This requires accurate monitoring of the indicators defined by the Sustainable Development Agenda to develop gender-sensitive policies.43

2.3. The protection of child migrants

For statistical purposes, the United Nations defines youth as “those persons between the ages of 15 and 24 years, without prejudice to other definitions by Member States”.44 Based on the UN definition of youth, the assumption would be that only persons under the age of 15 are children. However, the United Nations Convention on the Rights of the Child (CRC) defines a child as a “human being below the age of 18.” This definition was used so that the Convention can provide protection and rights to as broad an age-group as possible, but from a data perspective, it leads to an overlap since persons between the ages of 15 and 18 years are counted as both children and youth. According to statistical data available by United Nations Department of Economic and Social Affairs, the estimated number of people aged 19 or under living in a country other than the one where they were born rose from 28.7 million in 1990 to 36 million in 2017. In 2017, child migrants (aged 19 years and under) accounted for 13.9 per cent of the total migrant population and 5.7 per cent of the total population (of all ages). The estimated number of young migrants (aged 15 to 24) also rose from 22.4 million in 1990 to 27.9 million in 2017. In 2017, young migrants accounted for 10.8 per cent of the total migrant population and 4.7 per cent of the total population (of all ages).45 While international human rights law affords to children both rights and safeguards, the majority of States, even when they have ratified international instruments, have not fully implemented such rights and often neglect child migrants as distinct rights holders when adopting migration laws and policies. It is, therefore, of utmost importance to address such gaps in international child migrant protection by enforcing the SDGs and relevant targets connected to the overall well-being of

43 Ibid. 44 See: http://www.unesco.org/new/en/social-and-human-sciences/themes/youth/ youth-definition/. 45 See: https://migrationdataportal.org/themes/child-and-young-migrants. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 157 child migrants.46 Child migrants may be accompanied by their parents or guardians, by other adults (separated children) or alone (unaccompanied children). The 1989 United Nations Convention on the Rights of the Child (CRC) defines separated children as those who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. These may, therefore, include children accompanied by other adult family members. Unaccompanied children, as defined by the CRC, are those who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so. The SDGs try to address several of the issues concerning child migrants through multiple migration-specific and child-specific targets. In this field area, indeed, SDGs’ targets underline the importance of reducing the number of children living in poverty (1.2) and improving the quality of and access to education and vocational training for all chil-

46 Gina Starfield, “Children and migration in the Sustainable Development Goals”, in Gervais Appave, Neha Sinha (ed.), Migration in the Agenda 2030, International Or- ganization for Migration Publications, 2017, pp. 129-141; See also among the others: Asylum Information Database (Aida), “Detriment of the doubt: age assessment of unaccompanied asylum-seeking children”, in Aida Legal Briefing, no. 5, 2015; J. Bhabha, Child migration and human rights in a global age, Princeton University Press, New Jer- sey, 2014; D. Corlett, and others, Captured childhood. International detention coalition, Melbourne, 2012, available at: http://Idcoalition.Org/Wp-Content/Uploads/2012/03/ Captured-Childhood-Final-June-2012.pdf; European Asylum Support Office (Easo), Age assessment practice in Europe, Easo, Brussels, 2013; International Organization For Migration, Counter trafficking and assistance to vulnerable migrants: annual report of activities 2011, IOM, Geneva, 2012, available at: www.iom.int/files/live/sites/iom/ files/what-we-do/docs/annual_report_2011_counter_trafficking.pdf; International Or- ganization For Migration, Children and unsafe migration in Europe: data and policy, understanding the evidence base, Global Migration Data Analysis Centre (Gmdac), Data Briefing Issue no. 5, 2016, available at: https://publications.iom.int/system/ files/gmdac_data_briefing_series_issue5.pdf; International Organization For Migration and Unicef, Migration of children to Europe, IOM and UNICEF Data Brief, 2015, available at: www.iom.int/sites/default/files/press_release/file/iom-unicef-data-brief- refugee-and-migrant-crisis-in-europe-30.11. 15.pdf; A. Levinson, Unaccompanied immigrant children: a growing phenomenon with few easy solutions, Migration Policy In- stitute, 24 January 2011, available at: www.migrationpolicy.org/article/ unaccompa- niedimmigrant-children-growing-phenomenon-few-easy-solutions; G. Noll, “Junk Sci- ence? Four arguments against the radiological age assessment of unaccompanied minors seeking asylum”, in International Journal of Refugee Law, 2016, pp. 234-250; United Nations High Commissioner for Refugees, Global trends: forced displacement in 2015, Unhcr, Geneva, 2016; Unicef, Uprooted: the growing crisis for refugee and migrant children, Unicef, New York, 2016. 158 MARIANNA PACE dren (4A, 4.2 and 4.5), which in turn are means of improving living standards for children all over the world. Such programmes help to mit- igate the aforementioned adverse psychological effects associated to migrations and to integration into a host society. Targets promoting human rights and access to justice for all (16.3) also call for programmes addressing issues of abuse, detention and denial of basic services that child migrants face upon arrival in many host countries. Targets aimed at reducing death of new-borns (3.2), eliminating violence against girls (5.2), eradicating human trafficking and child labour (8.7) and, most no- tably, ending abuse, exploitation, trafficking and all forms of violence against children (16.2), envisage greater protection and safety for child migrants along migratory routes. The implementation of policies aimed at enacting abovementioned targets should also contribute to reduce criminal activities, exploitation, abuse and child mortality occurring along migratory routes, in transit and within host countries. Mitigating the adversity faced by child migrants and providing for their care and safety at all stages of migration is crucial in order to adopt international and national policies for managing child migration in their “best interests”.

2.4. Migration, environment and climate change

While the most evident reference to migration in the 2030 Agenda for Sustainable Development may be found in Target 10.7, several other SDGs underpin cross-cutting issues addressing migration, environment and climate change.47 Environmental issues are cross-cutting concerns

47 See, first of all the contribution of Elisa Fornalé in this book, and among the others: Soumyadeep Banerjee, Arabinda Mishra, “Migration and environmental change in the Sustainable Development Goals”, in Gervais Appave, Neha Sinha (ed.), Migration in the Agenda 2030, International Organization for Migration Publications, 2017, pp. 101-120; D. Ionesco, “Cop21 Paris Agreement: a stepping stone for climate migrants, in International Organization for Migration Weblog, 23 December 2015, available at: https://weblog.iom.int/cop21-parisagreement-stepping-stone-climate-migrants; D. Io- nesco, M.T. Chazalnoel, “Migration as an adaptation strategy to climate change”, in In- ternational Organization for Migration Weblog, 30 November 2015, available at: https://weblog.iom.int/migration-adaptation-strategy-climate-change; D. Ionesco, D. Mokhnacheva, F. Gemenne, Atlas of environmental migration, Routledge, London, 2016 available at: www.environmentalmigration.iom.int/atlas-environmentalmigration; International Dialogue on Migration, Follow-up and review of migration in the Sustain- able Development Goals, IOM, Geneva, 2017, available at: https://publications.iom.int/fr/system/files/pdf/rb26_en.pdf; Internal Displacement Mon- HUMAN RIGHTS OF MIGRANTS AND REFUGEES 159 which are incorporated in all 17 Goals that urge for a drastic acceleration of environmental sustainability and climate change mainstreaming into all areas of life, including migration policies and programmes.48 In 2016, the International Organization for Migration (IOM) devoted its International Dialogue on Migration (IDM)49 to a full review of migration in the 2030 Agenda for Sustainable Development and emphasized the cross-cutting nature of migration and its many interlinkages with development, environment, climate change and disaster risk reduction (DRR).50 From this perspective, SDGs reinforce other important international frameworks developed in recent years, such as the Sendai Framework for Disaster Risk Reduction, the Addis Ababa Action Agenda on Financing for Development, the SAMOA Pathway Docu- itoring Centre, Global estimates 2014: people displaced by disasters, Geneva, 2014, available at: www.internal-displacement.org/publications/2014/ global-estimates-2014- people-displaced-bydisasters2016; Internal Displacement Monitoring Centre, Global Report on Internal Displacement, Geneva, 2016, available at: www.internal- displacement.org/assets/publications/2016/2016-global-report-internal-displacement- idmc.pdf; Intergovernmental Panel on Climate Change, Climate change 2014: impacts, adaptation, and vulnerability. Contribution of working group II to the fifth assessment Report of the intergovernmental panel on climate change, Cambridge University Press, Cambridge, 2014, available at: www.ipcc.ch/report/ar5/wg2/; United Nations Environ- mental Programme, The environmental dimension of the SDGs, available at: http://web.unep.org/unea/environmental-dimension-sdgs. 48 See the following reports available at: https://unfccc.int/resource/docs/2015 /cop21/eng/l09r01.pdf; https://weblog.iom.int/cop21-paris-agreement-stepping-stone-climate- migrants; http://refugeesmigrants.un.org/declaration; https://environmentalmigration.iom.int/un- summit-refugees-and-migrants; www.fmreview.org/sites/fmr/files/fmrdownloads/en/fmrpdfs /fmr33/fmr33.pdf; www.iom.int/migration-disaster-risk-reduction-and-resilience; http: //publications.iom.int/system/files/pdf/mecc_outlook.pdf; https://weblog.iom.int/migration- adaptation-strategy-climate-change; www.iom.int/files/live/sites/iom/files/what-we-do/docs/ iom-drr-compendium-2013.pdf; www.iom.int/solarlanterns. 49 The two International Dialogue on Migration (IDM) workshops were organised by International Organization for Migration and bracketed the UN General Assembly Summit on Addressing Large Movements of Refugees and Migrants, held on 19 Sep- tember 2016. The purpose of the IDM, consistent with the mandate in IOM’s constitution, is to provide a Forum for member States and observers to identify and discuss major issues and challenges in the field of international migration, to contribute to a better understanding of migration and to strengthen cooperation on migration issues between Governments and with other actors. 50 See https://publications.iom.int/fr/system/files/pdf/rb26_en.pdf and Eva Mach, “Implementation of the migration, environment and climate change related commitments of the 2030 Agenda”, in Gervais Appave, Neha Sinha (ed.), Migration in the Agenda 2030, International Organization for Migration Publications, 2017, pp. 23-33. 160 MARIANNA PACE ment51, the Paris Agreement under the United Nations Framework Con- vention on Climate Change (UNFCCC) and, finally, as far as the subject-matter of this contribution is concerned, the Global Compact on migrants and refugees. Accordingly, while various data suggest that migration both internal and cross-border is expected to escalate given the impacts of climate change on livelihoods, the SDGs urge States to put in place several actions in order to address environmental migration: ending poverty by building resilience of vulnerable populations to extreme events under Goal 1; achieving food security and promoting sustainable agriculture and strengthening capacity for adaptation to environmental changes under Goal 2; reducing the number of people suffering from water scarcity under Goal 6; promoting the implementation of planned and well-managed migration policies under Goal 10; reducing the number of deaths and people affected by disasters through effective DRR practices and strengthening development planning for resilient cities and settlements under Goal 11; and building adaptive capacity against climate change and integrating climate change measures in policies under Goal 13. From this side SDGs include specific recommendations for States when designing policies in this field area. In the first place, they have to acknowledge that the sustainable development path is posed at risk by current environmental and climate changes, both at global level and at local level. Hence, they should assess the impact of such processes when designing migration governance frameworks and migration management programmes and activities. In the second place, States should recognize the contribution of migrants and the role played by migration processes for achieving sustainable development: migration indeed can reduce vulnerability to environmental hazards and lessen the impact of crises on development through well-designed migration schemes, remittances and relocation. In the third place, States should explore and support avenues for releasing the positive contribution of migration to development with a focus on building resilience and supporting adaptation and mitigation. In the fourth place, States should design policy framework applicable to those most vulnerable persons, which are normally unable to make use of migration as an adaptation strategy, in line with the commitment to “leave no one behind”. In the fifth place, States

51 The States Accelerated Modalities of Action (SAMOA), is the outcome document of the Third International Conference of Small Island Developing States held in Sep- tember 2014. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 161 should include environmental issues, including climate migration, in national development planning and incorporate proactive response measures, accordingly. Finally, States should ensure that migration management and governance might contribute to the implementation of the environment-related SDG Goals and design projects with positive environmental and mitigation benefits. The future of migration governance will depend on how the existing cross-cutting intergovernmental agreements such as the 2015 Paris Agreement on Climate Change, the 2030 Agenda for Sustainable De- velopment, the 2015 Addis Ababa Action Agenda and the 2015 Sendai Framework for Disaster Risk Reduction will be operationalized in a truly sustainable and coordinated manner. The impact of the SDGs will depend on how successfully they are mainstreamed across different policy areas and the extent to which these efforts are coordinated. From this perspective, Goal 17 on global partnerships is apt to play a pivotal role in building bridges and harmonizing international and national plans for sustainable development beyond 2030.52

3. The New Agenda: a different approach between migrants and refugees

While SDGs and 2030 Agenda disclose an almost balanced approach with respect to the role of migrants, the same may not be said for the refugees category, whose position is much more critical. References to this group, indeed, can only be found in two of the introductory paragraphs to the Goals. In particular, on the one hand, the Declaration stresses that the security and enjoyment of human rights held by refugees shall be guaranteed (para. 29); on the other hand, it addresses the issue of the resilience of host communities, particularly in developing countries. This last point is extremely relevant if one considers that according to the UN High Commissioner for Refugees (UNHCR) the 86% of forcibly displaced persons are in developing countries.53 However,

52 Eva Mach, “Implementation of the migration, environment and climate change related commitments of the 2030 Agenda”, cit.; Soumyadeep Banerjee, Arabinda Mishra, “Migration and environmental change in the Sustainable Development Goals”, in Ger- vais Appave, Neha Sinha (ed.), Migration in the Agenda 2030, International Organiza- tion for Migration Publications, 2017, pp. 101-120. 53 United Nations High Commissioner for Refugees (UNHCR), Tendencias globales. Desplazamiento forzado en 2015, 2016, available at: http://www.acnur.org/t3/fileadmin/documentos/publicaciones/2016/106 27.pdf. 162 MARIANNA PACE any Goal or target sets forth the redistribution of the economic, social and demographic burdens between developing and developed countries, nor the modalities according to which implement the international cooperation necessary to build the resilience of host communities.54 Among the few direct references to the refugee dimension, it is necessary to focus the attention on Goal 16 which “promote peaceful and inclusive societies for sustainable development, facilitate access to justice for all and build effective and inclusive accountable institutions at all levels”. Ten of its targets aim at the achievement of the Goal and two are specifically destined to indicate modalities of implementation. However only two of these targets have a fixed time frame for their achievement, i.e. the Goals 16.4 and 16.9. Goal 16, included in the Agenda after a heated debate during the intergovernmental negotiations, sets out a series of objectives that address the causes of the refugee problem: the reduction of violence, in particular against women and children, and of all kinds of violations of individual security, the promotion of the rule of law and the protection of human rights, the reduction of corruption and the illicit flow of arms and capital. However, concrete and effective realization of Goal 16 objectives is greatly weakened by its broad definition: it does not include in particular percentages and in- termediate temporary Goals; it also encompasses vague and only generally-framed definitions such as “significantly reduce” or “considerably” (target 16.1, 16.4, 16.5), which afford to this Goal programmatic rather than an operational, character. Also, it is extremely interesting to highlights the circumstance that the term “peace” appears exclusively in the text of the objective, while none of the Goals highlight measures to combat the major threats to peace that are at the origin of the refugee problem. Moreover, 2030 Agenda omits in dealing with the terrorist threat, and this in spite of the many recent resolutions adopted by the UN Security Council in last years.55 Only reference to this problem may be found in target 16.a,

54 Gaia Tascioni, “Migrantes y refugiados en la agenda de desarrollo 2030”, in Wor- king Papers “El Tiempo de los Derechos”, 2016. 55 Ibid. See, in particular Resolution 2253 (2015), should invite States to adopt an integrated approach in the fight against terrorism in which development, security and the rule of law human rights were the main axes. In particular, both with regard to the financing of terrorist groups, and with regard to the financing of terrorist groups, as well as with regard to the financing of terrorist groups in relation to other aspects, the Security Council has already intervened several times ex Chapter VII of the UN Charter, see, among the others, Security Council Resolution n. 2199 (2015), 2161 (2014), 2178 (2014). HUMAN RIGHTS OF MIGRANTS AND REFUGEES 163 which by referring to the necessity to “Strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime” addresses the implementation at national level of measures for fighting against terrorism. In conclusion, while the inclusion in the SDGs of provisions concerning refugees and a certain acknowledgment of the different approaches needed to deal with migrants and refugees, affords of course added value, however, some weaknesses there remain. Due to the limits of the present chapter, it is not possible to perform a complete review of these weaknesses, suffice here to say that one of the main weaknesses, if not the main, is that provisions envisaged in Goal 16 have exclusively a programmatic, if not symbolic, character. This situation highlights the lack of a concrete will for its implementation and measurement that leaves without concrete proposals and attempts of solution some serious problems, such as that of refugees.56

4. The implementation of Agenda: Quis custodiet ipsos custodes?

The 2030 Agenda foresees that the SDGs will be customized by each country as States assign priority to a number of SDGs’ targets and translate global indicators into national ones, in order to achieve the SDGs taking into account different national contexts. In addition, States are called to put in place “a robust, voluntary, effective, participatory, transparent and integrated follow-up and review framework” in order to assure a concrete contribution to implementation.57 The monitoring and follow-up process on the SDGs will be realized at national, regional and global levels, according to thematic lines, as well. Multiple intergovernmental forums are mandated to monitor and review aspects of the SDGs as well follow-up and review must be carefully designed in order to avoid repetition and confusion. Under this perspective, the Secretary- General’s report on the follow-up and review process58 has identified

56 Gaia Tascioni, “Migrantes y refugiados en la agenda de desarrollo 2030”, cit. 57 United Nations General Assembly, Transforming Our World: the 2030 Agenda for Sustainable Development, cit., Paragraph 72. 58 United Nations General Assembly, Critical milestones towards coherent, efficient and inclusive follow-up and review at the global level, Report of The Secretary-General, United Nations General Assembly Seventieth Session, 15 January 2016, A/70/684. 164 MARIANNA PACE three preliminary steps to enable intergovernmental agencies and forums to contribute efficiently to the review process, culminating at each stage in the annual United Nations High-level Political Forum on Sus- tainable Development (HLPF)59 held under Economic and Social Coun- cil (ECOSOC) auspices. The Secretary-General’s report suggests that each forum must: reflect on the implications of the 2030 Agenda for its respective areas of work, given the integrated nature of the Agenda; review its programmes and working methods in the light of the SDGs; assess its ability to mobilize key actors for the process. Since all the indicators used in SDGs, according to the classification of the UN Office of the High Commissioner on Human Rights (OHCHR), are result indicators,60 there was consensus among partici- pants of the International Dialogue on Migration workshops organized by International Organization For Migration in 2016, that an effective

59 The establishment of the United Nations High-Level Political Forum on Sustaina- ble Development (HLPF) was mandated in 2012 by the outcome document of the Unit- ed Nations Conference on Sustainable Development (Rio+20), “The future we want”. The format and organizational aspects of the Forum are outlined in General Assembly Resolution 67/290. The Forum meets annually under the auspices of the Economic and Social Council for eight days, including a three-day ministerial segment and every four years at the level of heads of State and Government under the auspices of the General Assembly for two days. The HLPF is the main United Nations Platform on Sustainable Development and it has a central role in the follow-up and review of the 2030 Agenda for Sustainable Development at the global level. General Assembly Resolution 70/299 provides further guidance on the follow-up and review of the 2030 Agenda and the SDGs. The Forum adopts intergovernmental negotiated political declarations. As part of its follow-up and review mechanisms, the 2030 Agenda encourages member States to “conduct regular and inclusive reviews of progress at the national and sub-national levels, which are country-led and country-driven” (paragraph 79). These national reviews are expected to serve as a basis for the regular reviews by the HLPF as stipulated in paragraph 84 of the 2030 Agenda; regular reviews by the HLPF are to be voluntary, State- led, undertaken by both developed and developing Countries, and shall provide a platform for partnerships, including through the participation of major groups and other relevant stakeholders. 60 “Structural Indicators” define all those indicators that help to capture the acceptance, intent and commitment of the State to implement measures in accordance with its human rights obligations. In contrast, so-called “process indicators” are a tool for assessing a State’s efforts, through the implementation of policy measures and action programmes, to transform its human rights’ commitments into desired outcomes. Finally, “outcome indicators” are quantitative indicators that help to assess the impact of the State’s efforts in promoting the enjoyment of human rights, see UN Office of the High Commissioner on Human Rights, Indicadores de derechos humanos: guía para la medición y la aplicación, 2012. HUMAN RIGHTS OF MIGRANTS AND REFUGEES 165 implementation of the 2030 Agenda would have depended on the creation of a strong follow-up and review framework to ensure that States’ national laws and strategies are consistent with achievement of the SDGs’ commitments.61 Moreover, “[q]uality, accessible, timely and reliable disaggregated data will be needed to help with the measurement of progress and to ensure that no one is left behind”.62 So, disaggregating data collected on the basis of migration status, gender, age, and so forth will support measuring and monitoring progress towards the achievement of SDGs on migration issues and in order to ensure policy framework for safe migration.63 Finally, in the light of a human rights approach, it would be desirable to adopt indicators that can measure the state of ratification of the international legal mechanisms on human rights by States. In this way, binding legal ba- ses in the implementation of 2030 Agenda could be also established.64

5. Final remarks

Since 2000, migration has become a pivotal issue in the policy agendas of many United Nations Member States, which provided decisive input also for the 2030 Agenda approach to consider the impact of migration and the role of migrants on sustainable development. According- ly, the inclusion of migration in the 2030 Agenda is apt to provide a framework for a more effective governance of international migration, grounded in protection of the human rights of migrants, regardless of their legal status, and built on inclusive national development planning. At the same time, the Global Compact on migration brings many of those elements together in a guiding document for the governance of international migration. However, gaps concerning the implementation of the SDGs, specifically with regard to issues related to migrants and migration, are at the basis of some criticism on their methodology and ef-

61 International Organization for Migration Publications, International dialogue on migration. Follow-up and review of migration in the sustainable development goals, International Organization for Migration Publications, 2017. 62 United Nations General Assembly, Transforming Our World: The 2030 Agenda For Sustainable Development, cit., Paragraph 48. 63 International Organization for Migration Publications, International dialogue on migration. Follow-up and review of migration in the sustainable development goals, cit. 64 Gaia Tascioni, “Migrantes y refugiados en la agenda de desarrollo 2030”, cit. 166 MARIANNA PACE fectiveness. In particular, main debated issues involve: the management of statistical data for monitoring progress, the implementation of a Global Partnership in the logic of a holistic approach; and, finally, the accountability as central theme of human rights concern. As far as the management of data for monitoring progress is concerned, problems connected to this issue were already evident during the MDGs era. First of all, data disaggregation and breakdown taking into account different groups and categories of people (i.e. the status of migrants or asylum seekers) is essential in monitoring process in order to identify if and for which category of groups or persons there are progress. In the second place, capacity building in migration data collection and data disaggregation at the national level must be a priority: this is the major obstacle to effective review and follow-up of SDG target 10.7 and other migration-related SDGs. This makes it difficult to assess whether migrants are or are not being “left behind”.65 Moreover, the management of data for monitoring progress is particularly relevant with respect to the countries of immigration in order to implement the Agenda as in their territory as through Official Development Assistance.66 Strictly linked to the previous point, finally, in order to ensure the assessment of progress in the protection of rights of individuals, especially vulnerable groups, the monitoring system based essentially on voluntary reports presented by States, is not sufficient. Here, it is worth to note that although the norms on the protection of human rights are not explicitly cited in 2030 Agenda, they are intimately related to SDGs. Therefore, it would be desirable that treaties bodies on human rights take into account in their monitoring activity the 2030 Agenda framework (monitoring progress and Goals) that, although not binding, can constitute an authoritative reference point in assessing respect of human rights obligations when these are related to SDGs implementation. On the other hand, “structural” indicators relating to the level of ratification of international instruments on human rights should be included in the 2030 Agenda; in particular such indicators should have to cover at the very least basic international instrument concerning the protection of migrants’ rights. This seems should be necessary in order to assessing respect of human rights obligations under the 2030 Agenda and to assure both qualitative and quantitative dimensions of monitoring on the implementation of Agenda.67

65 International Organization for Migration Publications, International dialogue on migration. Follow-up and review of migration in the sustainable development goals, cit. 66 Gaia Tascioni, “Migrantes y refugiados en la agenda de desarrollo 2030”, cit. 67 United Nations statement by 17 special procedures mandate-holders of the human HUMAN RIGHTS OF MIGRANTS AND REFUGEES 167

As far as the second issue is concerned, the 2030 Agenda stresses how “the scale and ambition of the new Agenda requires a revitalized Global Partnership … bringing together Governments, the private sector, civil society, the United Nations system and other actors and mobilizing all available resources”.68 Accordingly, national governments bear of course primary responsibility for reaching the SDG targets, including those related to migration; however, they are not the only actors involved in the process. Indeed, the measure of the success of their efforts will also depend to a considerable extent on their ability to involve other stakeholders into the process. The realization of this partnership requires a holistic approach and a good governance69 aimed at including other pivotal actors, such as transnational corporations who are also addressees of the duty to respect human rights and environment principles. In order to achieve this result the implementation of the Agenda requires a strong and coordinated partnership between International organizations, local authorities, civil society, diaspora communities and the private sector in order to draw the maximum benefits from human mobility and reduce its costs especially in terms of human lives and respect for human rights.70 From this side, contemporary human rights crises, including climate change and refugee crises, which demand attention and responses, could be seen to be more immediate concern than the development Goals of the 2030 Agenda. However, it should not be forgotten that these are global and interconnected challenges requiring to be dealt accordingly. They call for global actions and global partnership: if States will be able to fill the abovementioned gaps, the 2030 Agenda might demonstrate to be a powerful instrument for addressing this Goal

Rights Council on the post-2015 development Agenda, grounding development priorities in human rights: incentives to improve equality, social security and accountability, http://www.ohchr.org/documents/issues/food/post2015jointsubmission.pdf; see also: Inga T. Winkler, Carmel Williams, “The Sustainable Development Goals and human rights: a critical early review”, in The International Journal of Human Rights, 8/2017, pp. 1023–1028; Katja Freistein, Bettina Mahlert, “The potential for tackling inequality in the Sustainable Development Goals”, in Third World Quarterly, no. 12/2016, pp. 2139-55; Edward Anderson, “Equality as a global goal”, in Ethics and international affairs, 10 June 2015. 68 United Nations General Assembly, Transforming Our World: The 2030 Agenda For Sustainable Development, cit., Paragraph 39. 69 Ban Ki-Moon, “Prologue”, in J. Sachs, The Age Of Sustainable Development, Paidós, 2014, pp. 19-21. 70 International Organization for Migration Publications, International dialogue on migration. Follow-up and review of migration in the sustainable development goals, cit. 168 MARIANNA PACE in an interconnected and comprehensive manner, beyond simple piece- meal-measures approaches. Of course, enacting the necessary connec- tions and finding comprehensive solutions is a tremendous challenge; however, grounding 2030 Agenda on human rights law is the cornerstone for overcoming most of the abovementioned gaps. Explicit references to international human rights rules provide binding obligations within the framework of a soft law and, moreover, an accountability mechanism, that allow a systems-based and consistent, transformative and structural change in order to reduce inequalities and power imbal- ances and, thereby, response to sustainable development needs. In conclusion, a human rights-based approach is essential in order to fulfil SDGs objectives and, consequently, also accountability becomes a central theme. Linking SDGs with international human rights instruments on a dual mandate basis, by combining both frameworks, will contribute to mutually reinforcing their frameworks and to establish transparent and binding accountability processes and mechanisms in order to fulfil the promise of “leaving no one behind”.71

71 Kate Donald, Sally-Anne Way, “Accountability for the Sustainable Development Goals: a lost opportunity?”, in Ethics & International Affairs, no. 2/2016, pp. 201-13, p. 207ss; Nadja Filskov, SDGs and human rights monitoring guidance for national implementation, Danish Institute for Human Rights, 2015; See also Global Initiative For Economic, Social and Cultural Rights. Snapshot: The SDGs at the Human Rights Coun- cil, March 2017, available at: http://globalinitiativeescr.org/snapshot-the-sdgs-at-the- human-rights-council-march-2017. THE WAY FORWARD IS THE CIVIL SOCIETY Valeria Saggiomo∗

SUMMARY: 1. Introduction. – 2. Italy’s approach to Migrations between 2011-2018. – 3. Italian Civil Society in migration management. – 3.1. Lay activism for migrants. – 3.2. Religious-based activism for migrants. – 4. Conclu- sions.

1. Introduction

This article proposes a reflection on the question highlighted in the title of this volume: what is the way forward to ensure the protection of human rights in the Mediterranean today? The article recalls the experience of civil society organizations in migration management and in the protection of human rights in Italy, in the last few years. Who are civil society organizations who mobilized for receiving and integrating migrants in Italy during the recent increase of migration flows? What are the reasons behind their mobilization? This article reports the experience of lay and religious-based organizations, such as Refugee Welcome Italy, Sant’Egidio, Caritas, the Wal- desian Church, who have been extremely active in Italy in the last three years in support to hosting and integration measures to assist refugees. In the conclusions, the article advances the idea that the reason for civil society activism is a stand against the effects of governmental incapacity to manage increased migration flows in Italy since 2015 and against the recent government-led immoral and ruthless anti-immigrants’ policy. In this perspective, a possible way forward to ensure the protection of human rights in the Mediterranean is the strengthening of the civil society.

2. Italy’s approach to Migrations between 2011-2018

After electoral results in March 2018, Italian political scenario changed radically with traditional left and right parties loosing votes in favour of the anti-establishment five-star movement. The coalition that

∗ Lecturer in International Cooperation for Development at University of Naples “L’Orientale”. 170 VALERIA SAGGIOMO followed, between five-star and the Lega Nord, shaped a Government deeply influenced by populist and far right ideas that are now reflected into the new laws proposed by the so-called “innovation Government”. Among innovations, in September 2018, the Five-Stars and Lega coalition promoted a new Security Decree that severely tightened rules for refugees and asylum seekers and shrank migrant rights’ protection in It- aly. In particular, the security decree, that became law at end of Novem- ber 2018, removed humanitarian protection for migrants, introduced tougher rules for asylum applications and doubled the length of time migrants can be held in deportation centres, among other measures. In order to understand the shift in migration policy in Italy, it is useful to recall the approach Italy used to manage the rise of migration flow from North Africa in 2011, when the violent effects of Arab Springs pushed thousands of people to cross the Mediterranean Sea and seek refuge in Europe, though Italy. In a few months, between January and April 2011, some 10.000 people landed on Italian shores in search of a safe place to live. This exceptional arrival of people fleeing conflicts was managed by the Italian Government through the Civil Protection Department, a national body in charge of dealing with the protection of people during emergencies and natural catastrophes, disaster prevention and management. At the local level, the Civil Protection has branches in each Region and Municipality and refers to the mayors as first responsible authorities on the emergency location. In 2011, local branches of Civil Protection were mobilized to provide first-aid to migrants, organizing their lodgement and care according to the Law (decreto legge) known as North Africa Emergency Plan (PENA), launched on the 13th of April. This Law contained precise measures to manage the sudden and un- expected arrival of large number of migrants from North Africa. Among these, the entitlement to humanitarian protection to all migrants, their distribution among all Italian Regions, and the involvement and the cooperation of a variety of national and local bodies to address the needs of the migrant population seeking refuge in Italy. About 25.000 migrants were assisted by the Italian authorities and got refuge in the reception centres. On the other side, the magnitude of the migration flow of 2011 over- stretched the Italian system and highlighted the need to invest in additional shelters, integration measures, capacity building of specialized personnel. In particular, the 2011 North Africa Emergency solicited Ital- THE WAY FORWARD IS THE CIVIL SOCIETY 171 ian Government to empower the whole reception system, starting from the National Commission on the right of Asylum in charge of processing about 37.000 applications for humanitarian protection in 2011, about three times more compared to the previous year. According to experts,1 the North Africa Emergency Plan provided the opportunity to revise some critical aspects of the Italian reception system, such as the “regional burden sharing”, promoting the coordination among Regions and the redistribution of migrants through a quota system proportioned to the number of the local population. The 2011 experience also prompted the Italian reception system to invest on socio-economic integration of migrants on the Italian territory, also through job-matching mechanisms,2 an improved coordination among local authorities and the establishment of monitoring mechanisms for enhancing the quality of reception centres and services to migrants.3 As a matter of facts, various improvements in migration policy have been promoted since 2011 in Italy. Probably the most interesting is the agreement between the central government and regional authorities on the redistribution of migrants to the Italian Regions signed on 10th July 2014. The agreement intended to speeding the identification system and the procedure to apply for international protection, with a special attention to unaccompanied minors. In addition, the agreement envisaged the empowerment of the reception infrastructures, distinguishing between the first reception needs, focused on identification, medical screening and first aid, and second reception needs, centred on integration measures and access to the welfare system. With reference to this second step of the reception process, the so-called SPRAR, Asylum seekers and Refugees protection system, was identified as a good practice to build on and scale up. The SPRAR system was a local reception model that worked through the involvement of local civil society organizations and municipal au-

1 Nadan Petrovic is responsible of the SID Unit (Decentralized Intervention System) of the International Organization for Migration (IOM). Petrovic, N., (2012) Proposte per l’evoluzione del sistema d’asilo alla luce dell’esperienza Nord Africa. Africa e Mediter- raneo, 77. 2 Such job-matching mechanisms were later developed and launched by the Interna- tional Organization for Migration (IOM) through European funds. For further information see the digital platform http://www.fromskills2work.eu/ 3 For an interesting insight of the effects of the 2011 Italian migration policy on migrants themselves, see the special issue of the review Africa e Mediterraneo "Rifugiati: l’Emergenza Nord Africa in Italia", n.77, 2012. 172 VALERIA SAGGIOMO thorities in the management of small reception centres that, on a project base funded by the Ministry of Interior, were aimed to the integration of migrant in the socio-economic spheres of the municipality. As the Ministry of Interior admitted in 2017,4 the SPRAR was a successful model, because it was articulated in many small reception centres that were manageable and extremely well connected to other local initiatives contributing to migrants’ gradual integration into the society.5 In Naples, for instance, the SPRAR established links with the Uni- versità degli Studi di Napoli “L’Orientale” where migrants learn Italian and attend free language courses. Eventually the University offers grants to enrol refugees in higher degree and specialization courses. Similarly, local NGOs and civil society organizations participated to the SPRAR system reaching good results in terms of migrants’ assistance and integration. Unfortunately, good practices of reception and integration of migrants in Italy are endangered after the rise of the Lega Nord-Five star so called “innovation Government” since March 2018. The coalition promoted a harsh restrictive shift in the management of migration flows to Italy, enacting new rules and guidelines to stop arrivals of migrants and refugees in Italy and to change the reception system in line with a no-welcome attitude. In particular, the decreto legge n. 113 (4th October 2018) that became Law n.132 (4th December 2018), severely restricts the right of applying for humanitarian protection, one of the three protection forms together with the refugee status and subsidiary protection. Humanitarian protection was previously granted to all people fleeing their countries for serious reasons such as severe political instability preventing human security in the origin country, the exposure to abuses or extreme violence, or also because they were victim of natural catastrophes or famine. Worth to note, however, humanitarian protection was granted on the base of the personal situation of a victim and his/her vulnerability with regard to the mentioned external threats. This means that

4 Italian Ministry of Interior, (2017) Le iniziative di buona accoglienza e integrazione dei migranti in Italia. Available at: http://www.prefettura.it/FILES /AllegatiPag/1142/Rapporto_annuale_Buone_Pratiche_di_Accoglienza_Italia_31_mag gio_2017.pdf (09/03/2019). 5 Italian Ministry of Interior, (2010) Buone Prassi dai Progetti Territoriali dello SPRAR. Disponibile su https://www.sprar.it/pubblicazioni/buone-prassi-dai-progetti- territoriali-dello-sprar (09/03/2019). THE WAY FORWARD IS THE CIVIL SOCIETY 173 coming from a war-torn country did not gave automatic access to humanitarian protection in Italy. Therefore, even before the Law 132, migrants fleeing conflicts needed to demonstrate their reduced ability to cope with a dangerous environment, as a personal characteristic of the victim who, because of their vulnerability, could be entitled to humanitarian protection. For those who could benefit humanitarian protection, a two-year residence permit in Italy was secured, as well as the access to work and to social services, including housing, schools and hospitals. Differently, since January 2019, the new Law n. 132 replaces the humanitarian protection tool with one-year “special permits” to people in specific situations such as victims of natural disasters, or people in need of special medical assistance that is not available in their origin country. The new law also extends from 90 to 180 days the maximum perma- nence in the so-called rejection centres that are those centres where migrants who are deemed unfit for entry or for international protection are detained, waiting for expulsion from Italy. The most debated innovation introduced by the Law 132 is the significant downturn in the use of the SPRAR system that Italian previous experience on migration management had celebrated as a good practice to empower and scale up. In fact, The SPRAR system that was considered effective in its focus on integration measures for migrants through the involvement of local civil society actors, is now reserved to those migrants who are already entitled to refugee status, excluding those who are in the process of eventually receiving admittance to international protection.

3. Italian Civil Society in migration management

The civil society I will describe in this paragraph seems to emerge as a reaction to two external inputs. The first is the need of strengthening national migration management systems after the 2015 increase of migrants to Europe due to the outbreak of the Syrian crises. The second, more recent, reason may be the reaction to the authori- tarian attitude of the recent Five-stars and Lega North Government and its stand for restricting migrants’ rights on and access to the Italian territory. As Della Porta and Diani said, civil society is becoming synonym of 174 VALERIA SAGGIOMO associations,6 whose members are united by an ideology, a set of values and norms that push activists to either oppose politely or more openly reject official governmental position vis-à-vis migration management. In the last few years, in fact, Italian civil society has been particularly active in the migration field, with projects addressing hosting and integration measures for new arrivals.7 Interestingly, often in network with other organizations in Europe, they constitute a valid complimentary sector to the feeble state-led response to the increased migration flow from 2015 to date.8 With the aim to shed light on the role that civil society in Italy plays in the so-called migration crises, I will draw few examples of both religious-based and lay civil society activism that openly take sides in solidarity with migrants in the current Italian context.

3.1. Lay activism for migrants

With regard to lay civil society activism, one example is the Italian platform of the European Network Refugee Welcome International. Refugee Welcome International is an association founded in Berlin in 2014 by three young post-graduate students who had personally experimented forms of private hosting of refugees abroad. Their positive personal experience pushed them to scale up that hosting modality in order to “establish a culture of open doors for refugees across the World”.9 The organization Refugees Welcome International provides refugees with the opportunity to live in flat-shares with locals, creating and managing a network of individual private hosts who are selected on the base of a number of criteria, including their genuine attitude towards migrants. The organization assists hosts in their temporary hosting experience, it fundraises through crowdfunding for the necessary economic support and it encourages refugees to start integrating into the society, through language courses, connecting to the community or providing support in the search for internships or admission to university classes.

6 Donatella Della Porta, Mario Diani, Social Movements. In M. Edwards (ed), The Oxford Handbook of Civil Society, Oxford University Press, 2011. p. 71. 7 See Maurizio Ambrosini, “Fighting discrimination and exclusion: Civil society and immigration policies in Italy”. Migration Letters, Vol. 10, Issue 3, 2013. pp. 313-323. 8 Donatella della Porta (eds), Solidarity Mobilizations in the ‘Refugee Crisis’. Pal- grave Studies in European Political Sociology, Palgrave Macmillan, 2018 9 See https://www.refugees-welcome.net/#details (26/03/2019) THE WAY FORWARD IS THE CIVIL SOCIETY 175

From Germany, the model expanded throughout Europe in 15 countries, including Italy, assisting about 1.450 migrants, regardless of their status. The initiative builds on a sentiment of dissatisfaction of people with how refugees are treated in host countries10 and gives an alternative opportunity to engage directly in a practice that has the twofold advantage to represent a practical support for migrants, and a means of social activism for European citizens. In Italy, young volunteers opened a branch of Refugees Welcome In- ternational in Milan in December 2015. Registered as an ONLUS, Ref- ugee Welcome Italia has developed a network of private hosts in 12 Re- gions, prevalently in central and northern parts of Italy.11 As shown in the social report 2015-2018, this network is composed of 18 local groups12 and more than 200 activists who, at 2018, gave refuge to about 600 migrants in Italy.13 Differently from the German mother-organization, the Italian branch of Refugees Welcome hosts particular categories of migrants, namely those aged between 19-30 and, most importantly, those who obtained a form of international protection by Italian authorities and are unable to sustain themselves financially. These migrants are connected to private hosts through the online platform managed by the organization.

3.2. Religious-based activism for migrants

Similarly, the model proposed by religious-based associations in Ita- ly adopts the same approach to mobilize private-hosts to complement state-led response to migration management. Religious activism for migrants in Italy became more visible after the

10 This is deduced from the engagement call published on the organization website that says “Are you dissatisfied with how refugees are being treated in your country and are you interested in helping to ease the process of resettlement? Do you have a spare room in your flatshare available? Get involved and help us welcome refugees”. 11 With the exception of Sicily, Basilicata and Sardinian, all private hosts are in central and northern Italy. 12 Groups are located in the cities of Milano, Como, Venezia, Padova, Alessandria, Torino, Aosta, Cuneo, Genova, Bologna, Firenze Pesaro, Siena, Macerata, Roma, Ca- gliari, Palermo, Catania. 13 Refugees Welcome Italy, Bilancio Sociale 2015-2018. Available online at: https://refugees-welcome.it/wp-content/uploads/2018/12/Bilancio-Sociale.pdf (26/03/2019). 176 VALERIA SAGGIOMO appeal launched by the Pope Francis the II on September 2015, when many religious based organizations in Italy mobilized themselves to address the needs of that multitude of migrants that Italian reception system was not prepared to receive. In fact, out of 153.052 new arrivals in Italy in 2015,14 only 95.000 were taken care by the State-led hosting system, namely the Ordinary Re- ception Centres (CARA), Extra-ordinary Reception Centres (CAS) and the National System for the Protection of Asylum Seekers and Refugees (SPRAR). For the rest, the Pope solicited the Catholic Church and its fol- lowers to avail their infrastructures, including churches and private houses. The religious-based Christian organization Caritas responded to the appeal of the Pope, as it was already active in this field with a project promoting private sponsorship for refugee hosting. The initiative “Rifugiato a casa mia” was launched by Caritas Ital- iana already in 2012. The project aimed at providing migrants with integration paths in “protected” environments; it also had ambitions for sensitizing and mobilizing the Christian community in Italy on solidarity towards migrants and needy people. At 2015, the project had built a network of 170 private families, 150 parishes and 30 religious centres, able to host 1.000 migrants.15 The cost of the project was entirely covered by the Episcopal Conference of Italy (CEI) and supported by the Christian Association of Italian Labourers (ACLI) with an integration kit for private hosts. In an interview, the director of Caritas Italiana highlighted that far from being an alternative reception system, the project complements the efforts of State-led initiatives, epically on the aspect of integration that is, according to Caritas, particularly weak.16 More explicitly against a State policy, is the recent establishment by Caritas of the “Solidarity Found for the Excluded” Migrants in early 2019. As the director of Caritas Ambrosiana Luciano Gualzetti ex-

14 IOM, Mediterranean Update. Migration Flows in Europe. Arrivals and Fatalities 2015. Available at https://www.iom.int/news/iom-counts-3771-migrant-fatalities- mediterranean-2015 (27/03/2019). 15 For further information on the project led by Caritas Italiana “Rifugiato a casa mia” and on other initiatives of private sponsorship in Italy, see the 2018 Report by Fondazione Migrantes, Il diritto d’asilo. Accogliere, proteggere, promuovere, integrare. Sections available at: http://viedifuga.org/diritto-di-asilo-report-2018-migrantes/ (05/04/2019) 16 See for reference http://www.caritasitaliana.it/pls/caritasitaliana/v3_s2ew _preview.mostra_pagina?id_pagina= 6146 (27/03/2019). THE WAY FORWARD IS THE CIVIL SOCIETY 177 plained,17 the initiative was necessary to counter the effects of the so- called Decreto Salvini (Law 132/18) that excluded migrants entitled to humanitarian protection and those with special protection permits from the SPRAR system. According to the new law, migrants who were previously under the protection of Italian institutions, do not benefit from hosting services and integration measures anymore. This restriction of social benefits for migrants includes the attendance of school for migrant children, housing and health facilities for pregnant women. Con- sequently, to comply with the new Law, the Ministry of Interior, through local Prefect’s offices, ordered all associations managing SPRAR centres to expel migrants from the centres, even in the absence of alternative arrangements. Vulnerable people, such as children and pregnant women suddenly lost their homes or abandoned school. As Gualzetti declared, Caritas Ambrosiana decided to oppose this Law and disobey the orders he had received, acting according to “our conscience” and in line with the religious belief of assisting the poor and the destitute. In order to ensure funds for the initiatives in opposition to the effects of the Law 132/18, Caritas established the “Solidarity Fund for Excluded” to the benefit of 200 migrants in the Milan area who would otherwise become homeless.18 Another important religious-based initiative that deserves attention, also for its international dimension is the Humanitarian Corridor Project promoted by the Community of Sant’Egidio, the Federation of Evangel- ical Churches in Italy (FCEI) and the Waldesian Table.19 The project is rooted in the ethical reaction by religious-based organizations (Catholics and Protestants) to the massive increase in the number of deaths in the Mediterranean, following the closure of Mare Nos- trum rescue project in 2015.20

17 See the interview for reference at https://www.caritasambrosiana.it/area-per-la- stampa/approfondimenti-area-per-la-stampa/fondo-di-solidarieta-per-gli-esclusi- dallaccoglienza (27/03/2019). 18 Lorenzo Maria Alvaro, “Accoglienza, Salvini taglia i fondi? A Milano li mette la Caritas”. In Vita, 11 Marzo 2019. Available at http://www.vita.it/it/article/2019/03/11/ accoglienza-salvini-taglia-i-fondi-a-milano-li-mette-la-caritas/150916/ (27/03/19). 19 I would like to thank Sara di Iorio, activist in migration integration for Sant’Egidio and promising student of my course in International Cooperation at Univer- sità “L’Orientale” di Napoli, for her insight on the Humanitarian Corridor Project, offered in her unpublished graduate degree thesis “Il caso dei corridoi umanitari nel contesto italiano delle politiche di accoglienza e integrazione” discussed in April 2019. 20 The operation Mare Nostrum was a naval and air rescue operation launched by the Ital- 178 VALERIA SAGGIOMO

The general scope of the project is to contribute to decrease the number of deaths at sea in the Mediterranean and offer institutions an alternative model to fight smuggling and human trafficking. How? The idea seems to derive from the practice of humanitarianism in conflict zones, where aid is brought to victims through the opening of humanitarian corridors, i.e. temporary demilitarized zones intended to allow the safe transit of humanitarian aid in, or civilians out of a crisis region. In this case, humanitarian corridors bring vulnerable migrants directly to Italy through safe “humanitarian” flights from the refugee camps in Lebanon, Turkey and Ethiopia. This is possible thanks to an interpretation of article 25 of the Euro- pean Union Regulation n.810/2009 on cross-border movements of people.21 Article 25, in fact, foresees the possibility for the State to issue special visa with limited territorial validity for reasons of national interest, on humanitarian grounds or because of international obligations, notwithstanding Schengen Regulation. In this sense, issuing visa is an effective tool to allow vulnerable migrants a safe journey to Europe, instead of a dangerous one on a makeshift boat. Upon arrival to a safe place, migrants may apply for asylum or any other protection measure. Particularly noteworthy, the visa is not sufficient to ensure entry in the destination country, as migrants need to demonstrate their capacity to sustain themselves economically. Here is where the role of the civil society comes in. The project Humanitarian Corridors, in fact, builds on a network of private supporters in Italy who avail themselves to host migrants, provide for their needs and assist them in integrating into the Italian society. On 15 December 2015, religious associations promoting the project concluded an agreement with the Ministry of Foreign Affairs and Interna- tional Cooperation22 and the Ministry of the Interior23 to bring to Italy one thousand migrants from Lebanon, Ethiopia and Morocco in two years. How does this model work? Migrants are identified by the proponent organizations in refugee camps in Lebanon and in Ethiopia based on specific criteria, their credentials screened by the Embassies in those countries, their special needs verified at the local level.

ian government in October 2013, in response to the migratory ship wreckages off Lampedu- sa. In its one year lifetime, the operation Mare Nostrum saved the life of about 150,000 migrants who were life-threatening at sea. The operation ended on 31 October 2014. 21 https://www.esteri.it/mae/normative/normativa_consolare/visti/codice_visti.pdf 22 Direzione Generale per gli Italiani all’Estero e le Politiche Migratori. 23 Dipartimento per le Libertà Civili e l’Immigrazione. THE WAY FORWARD IS THE CIVIL SOCIETY 179

Once the identification procedure is completed, thanks to an agreement with international airline companies, migrant families are offered flight tickets to Rome and accompanied by the organizations’ staff in Italy, where a welcome committee hosts them and allocate them to private hosts, families and volunteers belonging to the organizations’ network. The cost of migrants’ assistance during their stay in Italy is covered by the churches involved and by private hosts. Apart from hospitality, refugees benefit from integration measures, such as language courses and school enrolment for kids, and job coaching. The objective of the organization is to let these families integrate into the Italian society and be independent from the hosts within one year or two. As Sant’Egidio reports on its website, the arrival of the first group of beneficiaries in Rome in 2016 was rapidly followed by others and the target number of one thousand migrants saved through the Humanitari- an Corridors was reached already in October 2017.24 After only one month, in November 2017, an intense diplomacy by the proponent religious organizations led to the signature of the second agreement with Italian authorities, allowing additional one thousand migrants to be rescued and brought to Italy safely in 2018 and 2019.25 At 2018, this model was implemented in more than 80 municipalities, all over the Italian territory. This intense diplomacy between the promoters and the Government ensured the feasibility of the project under the aspect of provision of visa and legal access to the Italian territory. Also, the success of the Humanitarian Corridors’ project is due to a solid social fabric made by charities and individuals that volunteer to fulfil the vision of a more just and inclusive society, in line with their religious leaders’ teaching and, in this current situation, in opposition with Governmental efforts to stop migration. Interestingly, the whole initiative literally stands on two lines that in the Italian context are diverging on migration policy: The State and the civil society. Nonetheless, probably thanks to an excellent use of diplomacy by its promoters, the project was expanded and continues today to represent an alternative model to migration management in Italy.

24 https://www.santegidio.org/pageID/30284/langID/it/itemID/23000/Benvenuti- siamoamille-il-video-dell-arrivo-dei -nuovi-corridoiumanitari.html 25 http://www.nev.it/nev/2017/11/07/corridoi-umanitari-firmato-oggi-protocollo- dintesa/. 180 VALERIA SAGGIOMO

4. Conclusions

Based on the examples of lay and religious civil society activism reported in this article, it is reasonable to point at civil society in answer- ing the question posed by this volume on the way forward to ensure the protection of human rights in the Mediterranean today. As noted by some,26 private sponsorship in Italy has a twofold effect: it is a way to fill the gap of the state-led reception system that is not sufficiently oriented towards integration measures; it also emphasise the positive contribution of Italian civil society that demonstrate solidarity and empathy towards refugees and a positive attitude towards multicultural communities. Newspapers and media reported on cases that awaked people’s conscience, soliciting to taking a position in favour or against such unprecedented violations of human rights by Italian authorities. Examples of these cases are the ban from the Italian ports of the Italian Coastal guard ship Diciotti, the deliberate destruction of the Riace Municipality virtu- ous reception and integration model, the forced eviction disposed by the Prefettura of Crotone of a pregnant women and her six months’ child from the CARA reception centre in Sicily on 1st December 2018. As a consequence, civil society actors and private individuals have been called to take a position with regard to the effects of these measures and to the recent policy to limit access by migrants and asylum seekers to the Italian territory, in violation of the principle of non- refoulement of 1951 Refugee Convention. The sharp restriction of the entitlement of social services such as education, health and shelters by migrants, including vulnerable categories such as pregnant women and minors, did probably represent a powerful push factor triggering the activism of individuals and associations who stand against such measures. Called upon the need to take a stand, associations, individuals and local institutions reacted vividly, shaping a solidarity map to ensure the respect of basic human rights in Italy. This article reported on some of the hubs of this solidarity map, with the profound conviction that the emergence and the strengthening of civil society activism is the way forward to resist unhuman governmental behaviours that, the story teaches, are anyway transitional and limited in time.

26 Chiara Marchetti, 2018, Refugee Reception in Families. Testing Intercultural Communities. In Fondazione Migrantes, Il diritto d’asilo. Accogliere, proteggere, promuovere, integrare. Pp. 179-216. THE WAY FORWARD IS THE CIVIL SOCIETY 181

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Nadan Petrovic, “Proposte per l’evoluzione del sistema d’asilo alla luce dell’esperienza Nord Africa”. In Africa e Mediterraneo, n. 77/2, 2012. Lorenzo Zamponi, “From Border to Border: Refugee Solidarity Ac- tivism in Italy Across Space, Time, and Practices”. In Donatella della Porta (eds) Solidarity Mobilizations in the ‘Refugee Crisis’. Palgrave Studies in European Political Sociology, Palgrave Macmillan, 2018.

FLOATING RIGHTS IN TIMES OF ENVIRONMENTAL CHALLENGES Elisa Fornalé∗

SUMMARY: 1. Introduction. – 2. Human rights implications in the context of environmental migration. – 3. Freedom to leave: a fragile freedom? – 4. Envi- ronmental Changes, Human Rights, Human Mobility: some insights from domestic court practice. – 5. Conclusion.

What we seek is freedom. Freedom to move, return and stay (Hussan, Syed Khalid, Epilogue, 2013, 280)

1. Introduction

It is an everyday reality that worsening weather conditions linked to climate change increase people’s exposure to extreme events like floods, and slow-onset environmental changes such as drought, desertification, and rising sea-levels.1 Such changes may pose a serious threat to the affected individuals and eventually compel environmental migrations2 at the internal, regional or international level.3

∗ Elisa Fornalé, SNSF Professor, World Trade Institute, University of Bern. The author acknowledges the support of the Swiss National Research Foundation, grant no. PP00P1163700. Thanks are also due to Najma Rehouma and Dr Federica Cristani for research assistance, to the NAGA association for support in identifying Italian emerging jurisprudence, and to Susan Kaplan for editorial assistance. 1 Intergovernmental Panel on Climate Change (IPCC), Global Warming of 1.5 °C, an IPCC Special Report on the Impacts of Global Warming of 1.5 °c above Pre-Industrial Levels and Relat- ed Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Re- sponse to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Pov- erty, Switzerland, 2018, p. 131 (in press). Elisa Fornalé, “Klima und Migration: Wer übernimmt Verantwortung?“, in the Special Issue, Chancen und Risiken, UniPress, vol. 172 (2017), 16, http://www.unibe.ch/unibe/portal/content/e796/e800/e10902/e277579/e601350/files601372/up_17 2_ s_16_fornale_ger.pdf. 2 The academic research identifies two forms of environmental migration linked to two types of environmental changes: slow-onset (“emerging more gradually with long-lasting or permanent effects – e.g. sea level rise or land degradation”) and sudden-onset events (e.g. extreme storm, flood). Ingrid Boas et al., “Environmental mobilities: an alternative lens to global environmental governance”, Global Environmental Politics, 18(4), 2018, pp. 107-126, p. 118. 3 UNISDR, Words into Action Guidelines – Disaster Displacement: How to Reduce 184 ELISA FORNALÉ

The rise in sea-level is attracting increasing attention as it “could have adverse effects for centuries, posing significant risk to low lying areas”.4 According to the academic community the long-term nature of these events may turn them into disasters and contribute to an increased risk of displacement.5 A significant part of the world’s population is likely to be directly affected by sea-level rise “(more than 70 States), a group which represents more than one third of the States of the international community”.6 The IPCC report confirms that the “sea level is increasing with substantial impacts already being felt by coastal ecosys- tems and communities. These changes are interacting with other factors such as larger inundation and storms, which may drive greater storm surge, infrastructure damage, erosion and habitat loss”.7 It is difficult to predict how many individuals will be affected, but there is a growing realization that few countries are well-equipped to deal with environmentally induced migration.8 This poses various legal and ethical challenges: how can we legally define the relation between

Risk, Address Impacts and Strengthen Resilience. A Companion for Implementing the Sendai Framework Target E – Public Consultation Version, 2018, https://www.unisdr. org/files/58821_disasterdisplacement05a.pdf (01/19). 4 Davor Vidas, “Sea-level rise and international law: At the convergence of two epochs”, Climate Law 4, 2014, pp. 70–84; IPCC, Global Warming of 1.5 °C, cit., p. 131. 5 Internal Displacement Monitoring Centre (IDMC), Synthesizing the State of Knowledge to Better Understand Displacement Related to Slow Onset Events. Report submitted to the Task Force on Disaster Displacement, 2018, pp. 1-43. 6 International Law Commission (ILC), Report of the International Law Commis- sion, Seventieth Session, Annex b, A/73/10, 2018, p. 326, http://legal.un.org/ilc/reports/2018/english/annex_B.pdf (01/19); Miriam Cullen, “Eaten by the sea: human rights claims for the impacts of climate change upon remote subna- tional communities”, Journal of Human Rights and the Environment, 9(2), 2018, pp. 171-193. 7 IPCC, Global Warming of 1.5 °C, cit., p. 83. 8 Fornalé, Chancen und Risiken, cit.; Boas et al., Environmental Mobilities, cit., p. 118; Ulrich Beyerlin, “Environmental migration and international law”, in Doris König et al. (eds), Coexistence, Cooperation and Solidarity – Liber Amicorum Rüdiger Wolfrum, Martinus Nijhoff Publishers, Leiden, 2012, pp. 319-332; International Organi- zation for Migration (IOM), Mapping Human Mobility and Climate Change and Rele- vant National Policies and Institutional Frameworks, Task Force on Displacement, activity I.2, 2018, https://unfccc.int/sites/default/files/resource/20180917%20WIM% 20TFD%20I.1%20Output%20final.pdf (01/19); IOM, Mapping Human Mobility (Mi- gration Displacement and Planned Relocation) and Climate Change in International Processes, Policies, Legal Framework, Task Force on Displacement, Activity II.2, 2018, https://unfccc.int/sites/default/files/resource/WIM%20TFD%20II.2%20Output.pdf (01/19). FLOATING RIGHTS IN TIMES OF ENVIRONMENTAL CHALLENGES 185 environmental changes and human mobility? Who is (legally and moral- ly) responsible for human mobility within and across States? How can States and individuals cope with the impacts of environmental changes? Do effective legal instruments exist or can they be envisaged? Increasing efforts are being made to address the legal implications of this phenomenon by developing coordinated approaches intended to close persisting gaps in protection for the affected populations.9 To this end, an intense debate is taking place at the academic and political level, in parallel with a burgeoning of initiatives that seek to formulate adaptive strategies, which are the current “leitmotif of the lexicon”10. Vari- ous high-level international agencies and organizations have produced recommendations, reports, and official declarations on themes concerning environmental migration.11 This work is closely linked with the significant efforts made by the Nansen Initiative, which started in 2012.12 Norway and Switzerland, together with other States, launched this initiative to take the debate to a deeper level by enabling States to discuss ways to protect environmental migrants and to concentrate their efforts in the context of the adverse effects of environmental changes. In 2015, the Nansen Initiative concluded its programme of work with the endorsement of the so-called “Protection Agenda”.13 This outcome signified a turning point at international level towards recognizing environmental changes as important drivers for human mobility.14 This increasing awareness at international level over the past ten years

9 Koko Warner, “Coordinated approached to large-scale movements of people: con- tributions of the Paris Agreement and the Global Compacts for migration and on refugees”, Population Environment, 39, 2018, pp. 384-401. 10 Massimo Livi Bacci, Our Shrinking Planet, Polity Press, Cambridge, 2017, p. 54-55. 11 Livi Bacci, Our Shrinking Planet, cit.; IOM, Mapping Human Mobility, cit.; Sa- rah Louise Nash, “Knowing human mobility in the context of climate change, the self- perpetuating circle of research, policy and knowledge production”, Movements, 4 (1), 2018, pp. 67-81. 12 The Nansen Initiative was conceived as a state-led process aiming at “building consensus on a protection agenda addressing the needs of people displaced across borders by natural disasters in the context of disasters and the effects of climate change”, The Nansen Initiative, Cross-Border Displacement in the Context of Disasters and Climate Change: A Protection Agenda, 2015. 13 The Nansen Initiative, Cross-Border Displacement, cit. More than 100 States approved the Protection Agenda. 14 The follow-up to the Nansen Initiative is the Platform on Disaster Displacement whose role is to implement the activities set out in the Protection Agenda. 186 ELISA FORNALÉ has directly influenced the political agenda of several States that are determining policy on the protection of human rights in the context of environmental migration.15 For instance, in April 2018, France, in revising its immigration law, included a new provision (Article 42) to conduct studies and ponder the future adoption of domestic measures to protect environmental migrants.16 In Italy, interesting developments have taken place in this domain. First, a growing number of Italian local municipalities17 have recently approved a document on dealing with the uncertain status of the so-called environmental refugees, calling upon the Italian Government and Parliament to take the appropriate steps in this direction. Second, the gradual expansion of mechanisms for humanitarian protection18 and for admitting those who are unable to return to their country of origin owing to natural events is a novel development in Italy.19 In this context, the chapter aims to contribute to the understanding of the legal implications of so-called environmental migration, among others, through the lens of human rights and international law. To this end, after a short introduction to the links between environmental changes, human mobility and human rights, the focus will be on protection gaps, in particular by highlighting the persisting challenges linked to implementation of the individual right to leave. The chapter will explore its nature and scope by focusing on how this right has been em- bodied in human rights instruments and on the more critical relationship with contemporary migration instruments and immigration restrictions at domestic level. The chapter concludes by introducing some insights from the emerging jurisprudence that is progressively recognizing the relationship between human rights and the adaptive dimension of human mobility in the context of environmental changes, to highlight potential pathways for future development.

15 Koko Warner et al., “Integrating human mobility issues within national adaptation plans”, UNU-EHS Policy Brief, 9, 2014, pp. 1-52. 16 Alice Baillat, “Les migrations climatiques à l’épreuve du « schisme de réalité »”, IRIS-Analyse #9, July, 2018, pp. 1-8. 17 For a comprehensive overview of emerging initiatives see Elisa Fornalé, “A “local turn” to proactively address environmental and human challenges: Some insights from the Italian debate” (forthcoming 2019). 18 In particular within the scope of application of Article 5 (6) of the Consolidated Immigration Act. 19 Anna Brambilla, “Migrazioni indotte da cause ambientali: quale tutela nell’ambito dell’ordinamento giuridico europeo e nazionale?”, Diritto, Immigrazione e Cittadinanza, 2, 2017, pp. 1-26. FLOATING RIGHTS IN TIMES OF ENVIRONMENTAL CHALLENGES 187

2. Human rights implications in the context of environmental migration

Firstly, it is important to recall that the interaction between environmental governance and disaster displacement, and the essential role played by human rights protection in this process, has gained momen- tum over the past decade.20 It is clear that environmental degradation can affect human rights – such as the rights to life, and health – and the major risks related to human mobility were recently identified by the Human Rights Council (hereinafter the HRC).21 The HRC is aptly increasing the awareness of the vulnerability of certain individuals in contexts of environmental damage: they have an “increasing likelihood of being harmed”.22 The interlinkages between human rights and environmental disasters have a long history: in 1922, the Red Cross suggested the adoption of the first international convention on the protection of people in the context of disasters, but it “unfortunately did not survive to the Second World War.”23 Some forward efforts at codification, however, continued until recently when the UN Special Rapporteur of the International Law Commission (ILC), Eduardo Valencia-Ospina, produced a widely- publicized report on the protection of persons in the context of disaster displacement.24

20 Grant Dawson and Rachel Laut, “Human mobility and climate change, transition- ing from a rights-based approach to an adaptive approach”, Journal of International Humanitarian Legal Studies, 8, 2017, pp. 113-201; Jane McAdam et al., “International law and sea level rise: Forced migration and human rights”, Fridtjof Nansen Institute Report, 1/2016, 2016; Amy Maguire and Jeffrey Mcgee, “A universal human right to shape responses to a global problem? The role of self-determination in guiding the international legal response to climate change”, Review of European, Comparative & International Environmental Law, 26, 2017, pp. 54-68, p.58. 21 Human Rights Council (HRC), Report on the slow-onset effects of climate change and human rights protection for cross-border migrants (A/HRC/37/CRP.4), 22 March 2018; Cullen, Eaten by the Sea, cit., p. 174. 22 Roberto Andorno, “Is vulnerability the foundation of human rights?”, in Aniceto Masferrer and Emilio Garcia–Sanchez (eds.), Human Dignity of the Vulnerable in the Age of Rights, Springer, Switzerland, 2016, pp. 257–272. 23 Daniel Farber, “Climate change and disaster law”, in Kevin Gray et al. (eds.), The Oxford Handbook of International Climate Change Law, Oxford University Press, Oxford, 2016; Giovanni Ciraolo, “Projet de statut d’une œuvre internationale de secours et d’assistance aux populations frappées de calamités”, Revue international de la Croix- rouge, 4:44, 1922, pp. 651–654. 24 International Law Commission (ILC), Sixth Report on the Protection of Persons in the Event of Disasters (A/CN.4/662), United Nations, New York, 2013; Bartolini 188 ELISA FORNALÉ

The recommendations made by the ILC stressed the need to consolidate and systematize the protection options for disaster-affected populations, recalling that the protection of human rights relevant in the event of disasters, such the rights to food, health and movement, extend “to the taking of measures aimed at preventing and mitigating their effects.”25 Furthermore, the theme has recently emerged in the preparation of the long-term work programme of the ILC.26 In August 2018, the ILC adopted “Sea-Level Rise in Relation to International Law” as a new element of its work, and one of the three main areas will be the “protection of persons affected by sea-level rise” with the aim of identifying “(vi) Possible principles applicable to the protection of the human rights of persons displaced internally or that migrate due to the adverse effects of sea-level rise” (para. 17, iv and v). In line with this, in 2012, the International Law Association established a new Committee on International Law and Sea-Level Rise that addresses, among other areas “forced migration and human rights”. More recently, in 2018, it published the “Sydney Declaration of Princi- ples on the Protection of Persons Displaced in the Context of Sea-Level Rise” (hereinafter the Sydney Declaration).27 It is worth to reflecting on the significance of this development. To- day the debate is clearly oriented towards understanding the limits of

Giulio, “Il progetto di articoli della commissione del diritto internazionale sulla ‘protection of persons in the event of disasters’”, Rivista di diritto internazionale, 3, 2017, pp. 677-718. 25 International Law Commission (ILC), Draft Articles on the Protection of Persons in the Event of Disasters, (A7/1/10) United Nations, New York, 2016. “Article 5 – Human rights – Persons affected by disasters are entitled to the respect for and protection of their human rights in accordance with international law”; Maguire and McGee, A Universal Human Right, cit., pp. 54–68; Laura Horn, “Climate change and the future role of the concept of the common concern of humankind”, AJEL, II, 2015, pp. 24–56. 26 In line with its mandate, the ILC will conduct an in-depth analysis of existing international law, including treaty and customary international law, which is the progressive development of international law and its codification. The final outcome will be presented and validated by the members of the Commission. In particular, the ILC stresses the need to consolidate and systematize a range of normative and policy strategies to assess the true impact of sea-level rise and the effects of slow-onset disasters. 27 International Law Association, Committee on International Law and Sea Level Rise, Report, Sydney Conference and Resolution 6/2018, http://www.ilahq.org/images/ ILA/Resolutions/ILAResolution_6_2018_SeaLevelRise_SydneyDeclaration.pdf (01/19). In particular, the following principles were identified: Principle 5 – the duty to respect the human rights of affected populations; Principle 6 – the duty to take positive action; and Principle 7 – the duty to cooperate. FLOATING RIGHTS IN TIMES OF ENVIRONMENTAL CHALLENGES 189 international law and cooperation and how to bridge some of the gaps in rights protection for cross-border migrants.28 In its report, the HRC delineated the protection framework available by identifying the capacity of existing laws to respond. Furthermore, it revealed the key challenges in two inter-related dimensions: first, in situ violations that can increase the vulnerability of affected populations by exacerbating economic, social and political pressures29 and increase their desire to move away.30 The second challenge relates to “a lack of protection of their human rights at all stages in their journey, in particular in countries of transit and destination and in the context of access to entry and protection from return to harmful situations”.31 One interesting aspect, in this context, is the recognized need to concretely take human rights into account to inform adaptive strategies. Principle 2 of the Sydney Declaration clearly recalls the “duty to respect the human rights of affected persons” by including the full respect of the freedom to leave and the freedom of movement.32 Furthermore, specific attention was drawn to the impact of environmental changes and the effective enjoyment of the human right to leave, by the concluding observations of the Committee on the Elimination of Discrimination against Women in its “General Recommendation on Gender-related dimensions of disaster risk reduction in the context of climate change”.33

28 Human Rights Council (HRC), Report on the slow-onset effects, cit. 29 Jane McAdam, “The emerging New Zealand jurisprudence on climate change, disasters and displacement”, Migration Studies, 3, 2015, p. 132. 30 Human Rights Council, Report on the Slow-Onset Effects, cit. 31 Human Rights Council, Report on the Slow-Onset Effects of Climate Change and Human Rights Protection for Cross-Border Migrants (A/HRC/37/CRP.4), 2018. See para. 58: “All persons, including all migrants, are entitled to human rights. These rights apply before, during, and after a person has moved, within a State of origin, in transit and at the destination. For cross-border movement, this requires the receiving State to ensure the human rights of migrants, regardless of their immigration status”. 32 International Law Association, Committee on International Law and Sea Level Rise, cit., “Principle 2 – The Duty to Respect the Human Rights of Affected Persons. States of origin, transit, and destination have a duty to respect, on a non-discriminatory basis, the human rights of persons under their jurisdiction who move in the context of sea level rise, including: (a) their right to liberty of movement and freedom to choose their residence; (b) the freedom to leave and return to their own country”. 33 Committee on the Elimination of Discrimination against Women (CEDAW), General Recommendation No. 37 on the Gender-Related Dimensions of Disaster Risk Reduction in the Context of Climate Change (CEDAW/C/GC/37), 2018. 190 ELISA FORNALÉ

3. Freedom to leave: a fragile freedom?

Freedom of movement, including movement away from environmental-affected areas, is a fundamental right. The right to leave is a prereq- uisite of migration and it can allow individuals to improve their resilience in the context of environmental changes by crossing international borders. As an international act, environmental migration requires that some consideration of the implementation of this right be included in international law. The notion of freedom of movement has a long history.34 As an attribute of liberty it is an “essential component of individual’s human capital” and for the enjoyment of other rights.35 As described by Fau- chille in 1924, “emigration is even more than an exercise of this right; it is the consequence of the right to life and the pursuit of happiness pos- sessed by all men, as emigration consists in leaving a country of residence in order to seek more favourable conditions of life elsewhere”.36 It has both an internal and an external dimension: the freedom to move for short-term distance (rural-urban mobility); the freedom to move between States.37 When the Universal Declaration of Human Rights was adopted in 1948, freedom of movement was recognized as a right on its own.38 Article 13(2) Universal Declaration of Human Rights, as well as Article 1239 of the International Covenant on Civil and Political Rights (IC- CPR), recognizes the freedom of movement within the country – a

34 Vincent Chetail, “The transnational movement of persons under general international law – mapping customary law foundations of international migration law”, in Vincent Chetail (ed.), Research Handbook on International Law and Migration, Edward Elgar, Cheltenham, 2014; Livi Bacci, Our Shrinking Planet, cit., p. 80-81. 35 Jane McAdam, “An intellectual history of freedom of movement in international law: the right to leave as a personal liberty”, Melbourne Journal of International Law, 12, 2011, pp. 1-30. 36 Paul Fauchille, “The right of emigration and immigration”, International Labour Review, IX, 3, 1924, 317-333, 319. 37 Elspeth Guild, “To protect or to forget? The human rights to leave a country”, EU Immigration and Asylum Law and Politics, December, 2017, http://eumigrationlawblog. eu/to-protect-or-to-forget-the-human-right-to-leave-a-country/ (01/19). 38 The UNDHR was adopted in 1948. The final text drew on more than fifty consti- tutions and the GA had 58 member states. Art. 13: “Everyone has the right of freedom of movement and residence within the borders of each state”. Art. 13(2): “The right of everyone to leave any country, including his own, and to return to his country”. 39 Art. 12: “Everyone shall be free to leave any country, including his own”. FLOATING RIGHTS IN TIMES OF ENVIRONMENTAL CHALLENGES 191 widely accepted right (liberty of movement: Article 12.1) – and the external dimension (freedom to leave any country: Article 12.2).40 At the regional level, Article 2(2) of Protocol n.4 of the European Convention on States rights states that “everyone shall be free to leave any country, including his own.” The legal terminology adopted in these key texts identifies the right to leave as a self-standing right that is not “dependent on any specific purpose or on the period of time the person chooses to stay outside the country”.41 However, an individual is “dependent” when pursuing his/her own freedom at the international level: there is no general right to gain entry to another country. The individual may have the right to leave but he/she lacks the entitlement to enter another country, and this freedom may thus be close to not being a right at all – a fragile freedom. The movement of the individual has been challenged to varying de- grees, at different times in human history, by considering the admissibility of individuals a strict prerogative of territorial sovereignty. We have seen a gradual shift from “practically complete liberty to increasingly strict regulation”.42 This tendency dates back to the beginning of the 1900s when a group of experts met in Geneva with the common intention to regulate human mobility and to identify guiding principles – the so-called “restriction” principles.43 This right remains associated to State

40 Human Rights Committee, General Comment adopted by the Human Rights Committee, under Article 40, paragraph 4, of the International Covenant on Civil and Political Rights, (CCPR/C/21/rev. 1/add.9), 1 November 1999. As January 2019, the Covenant has 177 parties. There is little leeway for limitations and, for instance, admis- sible to safeguard the State’s national security or public order. 41 Guild, To protect or to forget?, cit.; Human Rights Committee, General Com- ment, cit., para. 8; Harvey Colin and Robert P. Barnidge, “The right to leave one’s own country under international law”, Global Commission on International Migration, 2005; José D. Inglés, Study of Discrimination in Respect of the Right of Everyone to Leave any Country, including his own, and to Return to his Country, (E/CN.4/Sub.2/229/rev.1), United Nations, New York, 1963. 42 Thomas Albert, International Migration and its Control, Proceedings of the World Population Conference, 1927. 43 The following principles were suggested: – Right to leave and settle abroad only under certain conditions – the idea of absolute freedom was considered no longer valid and quite impracticable; – Right of selection for every immigrant-receiving community; – Policy of birth control – to curb excessive growth of certain groups of the world’s population – require international rules on naturalization and assimilation; −An international authority to identify conditions for given States to open to certain classes of emi- grants. 192 ELISA FORNALÉ sovereignty and the reconciliation between individual rights as an expression of individual liberty and States’ prerogatives remains conten- tious. To illustrate this concern, it is useful to recall the statement recently issued by France during the adoption of the Global Compact for Migration44: “there is not a right to migrate, and the Compact is not creating any”.45 The Compact limits itself to recognizing the authority of Member States to decide who to admit to their territory. Although this right is increasingly challenged, the absence of an explicit provision on admissibility, the right to enter, does not mean that the right to enter evolved in a “legal vacuum”. The competence to regulate admission is not an absolute power of States and domestic measures are bounded by international law.46 As mentioned above, the adverse effects of environmental degradation may signify serious and irreparable harm, and the affected individual may require protection in this context. Protection can come in the form of the exercise of their right to leave. As highlighted by the HRC, “States should guarantee that all migrants who require protection in this context are not left in a legal limbo, and should ensure that they are granted a legal status”.47 There is a slow but promising movement in this direction. The “mapping exercise” conducted first by the Nansen Initiative and, more recently, by the International Organization for Migration48 which “iden-

44 The Global Compact for Safe, Orderly and Regular Migration was adopted by the Intergovernmental Conference to Adopt the Global Compact for Safe, Orderly and Regular Migration in Marrakech, Morocco in December, 2018. 45 Statement by France, 10 December 2018, http://www.un.org/en/conf/migration /assets/pdf/GCM-Statements/france.pdf (01/19). Original version: « Cependant il n’existe pas de droit à la migration – et le pacte n’en créée aucun. Il ne dit pas autre chose quand il rappelle que les Etats ont la prérogative de déterminer qui ils admettent sur leur territoire ». (English translation provided by the author.) 46 HRC, Report on the Slow-Onset Effects, cit.; Higgins Rosalyn, “The right in international law of an individual to enter, stay in and leave a country”, International Affairs, 49, 1973, pp. 341–357; Vasak Karel and Lisfofsky Sidney (eds.), The Right to Leave and to Return, The American Jewish Committee, 1976; Juss S. Satvinder, “Free movement and the world order”, International Journal of Refugee Law, 16(3), 2004, pp. 289– 335; Purcell M. Joy, “A right to leave, but nowhere to go: reconciling an emigrant’s right to leave with the sovereign’s right to exclude”, The University of Miami Inter- America Law Review, 39(1), 2007, pp. 177–205. 47 HRC, Report on the Slow-Onset Effects, cit., para. 61. 48 In 2018, the International Organization for Migration (IOM), to support the drafting process of the Task Force on Displacement recommendations, conducted a mapping FLOATING RIGHTS IN TIMES OF ENVIRONMENTAL CHALLENGES 193 tified more than 50 States that had used their discretion to admit persons affected by disasters”49 by favouring an extensive interpretation of existing legal instruments (such as the humanitarian mechanisms) or adopting new measures.50 Whereas this was particularly positive in cases where individuals were affected by sudden-onset disasters, more limited instruments, with a direct impact on the effective exercise of the right to leave, have facilitated movement in the case of slow-onset events.

4. Environmental Changes, Human Rights, Human Mobility: some insights from domestic court practice

The emerging legal practices towards determining the scope of human rights protection in the context of environmental changes has started to engage with substantive arguments that helps to consider these questions as a priority. The quality of reasoning of domestic court decisions and their impact on the interpretation of international law can have the effect of filling persisting “gaps” and affecting future developments.51 Back in 1995, protection claims based on the adverse impacts of environmental changes started to be invoked in Australia and New Zea- land. Since then, a number of cases have been brought before the Migra- tion and Refugee Division of the Administrative Appeal Tribunal (AAT) by Pacific Island citizens asking to remain in Australia on human rights grounds because of environmental degradation in their countries of origin.52 Even though the cases were dismissed by the AAT, it exercise to analyse “to what extent human mobility (migration, displacement and planned relocation) in the context of climate change is integrated in” existing frameworks. See the analysis report submitted to the Task Force on Displacement: IOM, Mapping Human Mobility, cit., p. 5 and pp. 7-8. 49 Human Rights Council (HRC), Summary of the panel discussion on human rights, climate change, migrants and persons displaced across international borders, Report of the Office of the United Nations High Commissioner for Human Rights (A/HRC/37/35), 18 November 2017, para. 17. 50 The Nansen Initiative, Cross-Border Displacements, cit.; IOM, Mapping Human Mobility, cit., pp. 7-8. 51 Cedric Ryngaert, “Sources of International Law in Domestic Law: Relationship between International and Municipal Law”, in Samantha Besson and Jean d’Aspremont (eds.), The Oxford Handbook of the Sources of International Law, Oxford University Press, 2017. 52 Margaretha Wewerinke–Singh, Hansdeep Singh and Jaspreet Singh, Human Rights and the Environment in Pacific Island States, forthcoming 2019. 194 ELISA FORNALÉ acknowledged “that the applicant was correct to be concerned about the impact of sea level rise on Kiribati in the next 90 years. It would appear that this would affect the way of life in Kiribati and possibly the ability to live there at all”.53 Also, a number of cases brought before the Immi- gration and Protection Tribunal in New Zealand concerned claimants who argued that “environmental factors such as inundation, coastal erosion, salination of the water table, combined with factors at the individual and households levels, meant that the appellants should be recognized as refugees”.54 The Tribunal dismissed their cases because the “indiscriminate nature of their claims and processes gave rise to no nexus to a Convention Ground”, but the New Zealand jurisprudence emphasized that these decisions “did not mean that environmental degradation resulting from climate change or other natural disasters could never create a pathway into the Refugee Convention or protected person jurisdiction”.55 A further step has been taken by some domestic courts in Italy that managed to apply existing measures (humanitarian measures). These novel achievements culminated with the recent introduction of the “permit for calamities” (Article 20 bis) by Law n. 132 in December 2018.56

53 Migration and Refugee Division of the Administrative Appeals Tribunal, case of 0907346 (2009) RRTA 1168, 10 December 2009, para. 34. 54 AC (Tuvalu) NZIPT 800517–520 (Immigration and Protection Tribunal New Zea- land) 4 June 2014; AF (Kiribati) NZIPT 800413 (Immigration and Protection Tribunal New Zealand) 25 June 2013; AJ (Tuvalu) NZIPT 801120–123, Immigration and Protec- tion Tribunal New Zealand, 20 March 2017, para. 34. AF (Kiribati) NZIPT 800413 (Immigration and Protection Tribunal New Zealand) 25 June 2013, para. 67. 55 See the decisions adopted by the High Court, the Courts of Appeal and the Su- preme Court (Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125; Teitiota v. Chief Executive of the Ministry of Busi- ness, Innovation and Employment [2014] NZCA 173 and Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107. AF (Kiribati) NZIPT 800413 (Immigration and Protection Tribunal New Zealand) 25 June 2013, para. 67. 56 Law 1 December 2018, n. 132, Conversione in legge, con modificazioni, del decreto–legge 4 ottobre 2018, n. 113, recante disposizioni urgenti in materia di protezione internazionale e immigrazione, sicurezza pubblica, nonché' misure per la funzionalità del Ministero dell'interno e l'organizzazione e il funzionamento dell'Agenzia nazionale per l'amministrazione e la destinazione dei beni sequestrati e confiscati alla criminalità organizzata. Delega al Governo in materia di riordino dei ruoli e delle carriere del personale delle Forze di polizia e delle Forze armate, (18G00161) (GU n.281 del 3–12– 2018), entered into force on December 4, 2018; Brambilla, Le principali novità, cit.; The FLOATING RIGHTS IN TIMES OF ENVIRONMENTAL CHALLENGES 195

Before the adoption of this new measure (article 20 bis), the granting of a residence permit for humanitarian reasons57 was identified as the means of filling protection gaps for persons that remain outside the international protections regime of refugee law. In particular, a unique jurisprudence has developed in the case of environmental migration. This instrument, identified by domestic decisions as a kind of “safeguard clause of the system” has been increasingly used to grant the authorization to stay in all “concrete situations”, to individuals affected by environmental changes. It is applied in situations that are not expressly regulated by the relevant legislation, but that are nonetheless deserving of protection, to implement State obligations in the context of human rights protection.58 This gradual expansion of the protection to encompass vulnerability was articulated by the Ministry of Interior and its National Commission for the right to asylum.59 It adopted a circular to provide specific guidelines to the Territorial Commissions60 on which cases to consider grant-

Italian Senate, Decreto–legge immigrazione e sicurezza pubblica – Dossier Servizio Studi, 2018, http://www.senato.it/service/PDF/PDFServer/BGT/01076617.pdf (01/19). 57 The residence permit for humanitarian reasons was described in Article 5(6) of the Italian Consolidated Immigration Act (TU 286/98). The context has been substantially modified in the new Law n.132, see above: in its original version it stated “[t]he refusal or the revocation of the residence permit can […] be adopted on the basis of international agreements or conventions, made executive in Italy, when the alien does not satisfy the conditions of residence applicable in one of the contracting States, unless there are serious reasons, in particular of humanitarian nature or resulting from constitutional or international obligations of the Italian State” (Unofficial English version). 58 The Tribunal of Bologna recognized that the environmental disaster, the flood that occurred in Pakistan in 2013, and its direct consequences for the personal situation of the appellant, who lost all his relatives and his property, were the major factors that pushed the applicant to move. This serious situation could justify the granting of humanitarian protection. Tribunal of Bologna, Civil Section I, decision of 17 November 2014, proceeding n. 7334/2014 R.G, http://www.tempi–moderni.net/wp–content /uploads/2016/08/ordinanza_Tribunale–di–Bologna.pdf (01/19), confirmed by the Court of Appeal of Bologna, on 29 March 2016, n. 504/2016. 59 National Commission for the right to asylum of the Ministry of Interior, Circular on ‘Ottimizzazione delle procedure relative all’esame delle domande di protezione internazionale. Ipotesi in cui ricorrono i requisiti per il rilascio del permesso di soggiorno per motivi umanitari’, 30 July 2015, prot. 00003716, http://briguglio.asgi.it/immigrazione–e–asilo/2016/febbraio/circ–comm–naz–asilo–30– 7–2015.pdf (01/19). 60 The Territorial Commissions for the Recognition of International Protection (Ter- ritorial Commissions) are competent to examine and take preliminary decisions on issues of international protection. They are also responsible for forwarding the request to 196 ELISA FORNALÉ ing humanitarian protection, and expressly referred to “grave natural disasters or other local factors that preclude a repatriation in dignity and security” as one of the possible grounds for granting humanitarian protection.61 In line with this, the emerging municipal legal practice shows a tendency towards an “open-ended” interpretation of humanitarian protection, with much of its content being decided on specific cases.62 In particular, “natural disasters” have been included among the factors that can affect the enjoyment of human rights.63 Interestingly, vulnerability emerged as a criterion to complement the exceptional circumstances standard in the case-by-case evaluation. The concept of “vulnerability”64 has been enriched by including the concrete exposure to a “risk” of serious human rights violation – when the country of origin is affected by natural disasters – as relevant when determining its scope and consequently the recognition of humanitarian protection. The risk assessment should be based on personal and general circumstances: the subjective circumstances of vulnerability of the applicant together with the socioeconomic environment and situation in the country of origin play a crucial role in the overall evaluation.65 the competent Police Headquarters (Questura) in order to issue residence permits for humanitarian reasons. The Territorial Commissions are administrative bodies established under the Prefectures; their functioning and composition have recently been reformed by legislative decree n. 220/2017; as of 2017, there are 20 Territorial Commis- sions on the Italian territory. 61 National Commission for the right to asylum of the Ministry of Interior, Circular, cit. Translation provided by the author. The Italian version states: “Gravi calamità naturali o altri gravi fattori locali ostativi ad un rimpatrio in dignità e sicurezza”. 62 Flegar, Vulnerability and the principle of non–refoulement, cit., pp. 148–169. 63 The Tribunal of Milan listed the occurrence of natural or environmental disasters among the “objective conditions” to be considered in the country of destination to grant the humanitarian protection. Decision of the Tribunal of Milan of 16 September 2015, RG n. 8727/2015, p. 4, https://www.asgi.it/wp–content/uploads/2015/12/2015_tribunale _milano_16sett_Mali.pdf (01/19). 64 Veronika Flegar, “Vulnerability and the principle of non–refoulement in the Eu- ropean Court of Human Rights: towards an increased scope of protection for persons fleeing from extreme poverty?”, Contemporary Readings in Law and Social Justice, 8(2), 2016, pp. 148–169; Andorno, “Is vulnerability the foundation of human rights?, cit.. 65 In particular, the Italian Civil Supreme Court pointed out that the judge should consider the situations of vulnerability, which could derive not only from the socio- political situation of the country of origin, but also from a geo-political situation of “drought, famine or of extreme poverty”. Decision of the Italian Supreme Civil Court, I FLOATING RIGHTS IN TIMES OF ENVIRONMENTAL CHALLENGES 197

This approach guarantees an individual human-rights-centred assessment by including a careful analysis of potential or current impacts of natural disasters in the country of origin and the direct link with the real risk of a limited enjoyment of human rights. Two recent examples illustrate this positive trend: the decision adopted by the Tribunal of Naples on 5 June 201766 and the one adopted by the tribunal of l’Aquila on 16 February 2018.67 Both cases concerned requests submitted by citizens from Bangladesh and in both cases humanitarian protection with respect to environmental disasters was granted under Article 5 (6) of the Consolidated Immigration Act. In fact, in the first decision, the judge took into consideration the precarious environmental condition of the country of origin. This seriously affected the living conditions of the applicant by increasing his poverty (in particular, the judge described the district of Chittagong as well-known for being affected by recurring floods). In the second decision, the judge also took into account the difficulties relating to the overall environmental situation in Bangladesh, as well as the situation of vulnerability described by the applicant: as a consequence of the violent flooding in the region, the applicant and his family faced serious financial challenges that had pushed him to move in search of a better future. In addition, the judge supported his evaluation by recalling the international human rights framework that was applicable. In particular, the right to an adequate standard of living, and the fundamental right to freedom from hunger, deriving from the ratification of the ICCPR and the International Covenant on Economic, So- cial and Cultural Rights were highlighted. This process seems to have culminated with the recent adoption of the permit for “calamities”, mentioned above. The new law, by replac- ing the previous Article 5(6) on humanitarian protection, adopted a more restrictive approach by defining a typology of humanitarian cases

Civil Section, n. 4455/2018, 12 December 2017, in the original Italian version at http://www.questionegiustizia.it/doc/cassazione_4455_2018.pdf (01/19). 66 Tribunal of Naples, Civil Section I bis, decision of 12 May 2017, proceeding n. 7523/2016 R.G., http://www.meltingpot.org/IMG/pdf/tribunale_di_napoli_ord_ 05062017.pdf (01/19). 67 Tribunal of L’Aquila, decision of 16 February 2018 in the proceeding n. RG 1522/17, http://www.meltingpot.org/IMG/pdf/ordinanza_umanitaria_bangladesh.pdf (01/19) ; Chiara Maiorano, La situazione di povertà e le problematiche legate ai cam- biamenti climatici giustificano la protezione umanitaria dei richiedenti asilo, 2018, https://www.meltingpot.org/La–situazione–di–poverta–e–le–problematiche–legate– ai.html#.XEH7bc0o82w (01/19). 198 ELISA FORNALÉ qualifying for authorization of a permit for humanitarian reasons (health issues, calamities and special merit). This permit can be issued in case of natural disasters that seriously affect the return of the vulnerable individuals.68 In particular, the Ministry of Interior, in the illustrative note on the adoption of the new measures, highlighted the intention to address the persisting legal gaps relating to the protection of migrants, specifically in the case of disasters.69 This new development has been welcomed with muted enthusiasm and has been subject to increasing criticism.70 It is clear that for the first time Italy has moved in the direction of formalizing the criteria determining access the territory in case of severe disasters, but the exact meaning of “calamity” requires further clarification. This is particularly a major concern in light of the current debate on how to identify who deserves protection, especially in the case of sea-level rise, and the persisting governance gaps identified in the case of people who move away because of gradual environmental processes.71 A narrow interpretation of “calamity” (e.g. sudden-onset disasters) could limit the scope of protection to a very restricted group of vulnerable people, giving the administrative authority (the questore) the discretionary power to decide whether or not a situation qualifies as a “calamity” in the country of origin and to limit the boundaries of the concept of vulnerability.

68 For a period of 6 months (before the duration of 2 years) and this permit cannot be transformed into a work permit. 69 “L’abrogazione dell’istituto del permesso di soggiorno per motivi umanitari de- termina inoltre l’esigenza di individuare e dotare di apposita copertura normative ipotesi eccezionali di tutela dello straniero che, per non rientrando, ai sensi della vigente normative, nelle ipotesi di protezione internazionale come disciplinata dale norme europee di riferimento […], non consentirebbero di eseguire il provvedimento di espulsione senza determinare una violazione dei principi fondamentali dell’ordinamento italiano e internazionale. Tali esigenze sono individuate nelle condizioni di salute di eccezionale gravi- tà e nelle situazioni contingent di calamità natural nel Paese di origine che impediscono temporaneamente il rientro dello straniero in condizioni di sicurezza”. Ministry of Inte- rior, Decreto Sicurezza, Relazione Illustrativa, 2018, https://www.adnkronos .com/r/Pub/AdnKronos/Assets/PDF/Decreto_SAlvini_migranti_scheda.pdf (01/19). 70 ASGI, Manifeste illegittimità costituzionali delle nuove norme concernenti i permessi di soggiorno per esigenze umanitarie, protezione internazionale, immigrazione e cittadinanza previste dal decreto–legge 4 ottobre 2018, n. 113 https://www.asgi.it/wpcontent/uploads/2018/10/ASGI_DL_113_15102018_manifestioni _illegittimita_costituzione.pdf (01/19) 71 Boas et al., Environmental mobilities, cit., pp. 118–119; Flegar, Vulnerability and the principle of non–refoulement, cit., pp. 148–169. FLOATING RIGHTS IN TIMES OF ENVIRONMENTAL CHALLENGES 199

Individuals who move because of slow-onset environmental changes risk missing out on this formal form of protection. Recent studies conducted in affected countries, such as Bangladesh, highlighted how the “the socioeconomic conditions of these more gradually affected communities make them highly vulnerable.”72 Even though it is too early to reach a firm conclusion on its possible impact, there is a concrete risk of facilitating a dangerous shift from the assessment of individual circumstances to the merely objective assessment of the conditions in the country of origin, with detrimental impacts on the human rights protection of affected persons.

5. Conclusion

Contemporary changes, such as the environmental crisis, can give rise to new legal challenges and make our freedoms more fragile. This brief examination of the freedom to leave in international law intended to draw attention to the fact that the vast majority of States regard the right to leave as a human right that requires international protection. While the right to leave is not dependent on the right to be admitted to a country, it is not possible to simply avoid this issue. The lack of a corresponding right to enter means that a source elsewhere needs to be found if people want to enter another country to avoid what was described as “an indispensable” condition becoming an “inconvenient” human right.73 If a sufficient consensus emerges at the international level on the need to make progress on the human rights protection of environmental migrants, the opportunity must be seized to address the persisting tensions between individual and States’ prerogatives. This would necessi- tate reframing this subject under international law, in particular human rights law, and identifying domestic practices as a means to ensure its significance. Kaelin eloquently expressed how “in the absence of specific obligations to admit and not to return persons displaced across borders in the context of the adverse effects of climate change and other disasters, harmonizing and strengthening national approaches is crucial for the protection of such persons”.74

72 Boas et al., Environmental mobilities, cit., pp. 118–119. 73 Harvey and Barnidge, The right to leave, cit., p. 1. 74 HRC, Summary of the panel discussion, cit., para. 19. 200 ELISA FORNALÉ

This conclusion is not completely incompatible with the current practices of States. The insights provided by the emerging jurisprudence give some positive insights into how the protection of individual liberty could evolve.75 To conclude, I would like to refer to the recent book by Bauder entitled “Migration Borders Freedom”.76 He wittily uses a play on words to alert us to the risk that migration does not facilitate more freedom, but it raises a border around freedom. This view is in line with the contemporary dilemma: a right to leave, but nowhere to go. It is crucial to expand international cooperation to turn the future into “Freedom Borders Mi- gration” by paying proper attention to the legitimate reasons that induce mobility.

75 ‘La protezione umanitaria copre dal rischio di rimpatrio […] a fronte di sradica- menti sociali consumati a causa di disastri ambientali (più o meno circoscritti nel tempo e nello spazio ) come in Bangladesh […]. Tutte situazioni che impongono la protezione della persona fuggita da situazioni di estrema difficoltà di sopravvivenza o di elevato rischio quand’anche siano situazioni che possano apparire nel tempo superabili nel paese di origine e provvisorie. In tali gravi condizioni obiettive e soggettive consistono i “seri motivi, in particolare di carattere umanitario o risultanti da obblighi costituzionali o internazionali dello Stato italiano”. Di qui la nozione di vulnerabilità pur sempre relativa alle condizioni personali vissute nel paese di origine ed a quelle che incontrerebbe il richiedente nel paese verso il quale chiede di non essere respinto […]. Dunque vulnerabilità intesa come esposizione al rischio di grave sacrificio dei diritti umani per ragioni diverse da quelle tipizzate dalla protezione di fonte sovranazionale […]’ (Tribu- nal of Florence, Civil Section for International Protection, proceeding N.R.G. 14046/2016, decision of 19 February 2018, 13-14, in the Italian original version at http://www.questionegiustizia.it/doc/tribunale_di_Firenze_n_rg_2016_14046.pdf (01/19). 76 Harald Bauder, Migration Borders Freedom, Abingdon, Routledge, Taylor and Francis, 2016. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA: SOME MAIN ISSUES WITH PARTICULAR REFERENCE TO THE ECOWAS SPACE AND NORTHERN AFRICA Marianella Piratti∗

SUMMARY: 1. Introduction. – 2. A glance at the migration movements in Af- rica. – 3. African human rights framework and migration. – 4. African context, migration, nationality and statelessness. – 5. An overview of case-law on the right to nationality: the merging of the right to nationality with old and new migration issues. – 6. The ECOWAS Protocol relating to Free Movement of Per- sons, Residence and Establishment. – 7. Conclusions.

1. Introduction

In the entire African continent the migratory phenomenon has ancient roots that precede the formation of States arising from the decolonization process. The transition from the colonial phase to the postcolonial phase has determined some problematic issues that have not yet ceased to produce their effects and that also relate to profiles relevant to migration law. Given the breadth of the subject matter, within the general frame of the African Union (AU),1 the analysis conducted here will be geograph- ically circumscribed and will favor some aspects of migration and human rights law that assume particular importance in the African context. We will therefore focus on international migratory movements in the sub-region of West Africa in the space of the Economic Community of West African States (ECOWAS)2 and to a certain extent in the geo-

∗ University of Padua. 1 In 1963 at the conference of African Heads of State in Addis Ababa, Ethiopia, was established the Organization of the African Unity (OAU). In 2000 in Lomé, Togo, was adopted the Constitutive Act of the African Union (AU) entered into force on 26 May 2001. According to its article 33 the Constitutive Act shall replace the Charter of the Organization of the African Unity, Charter of the Organization of African Unity, UN Treaty Series, Vol. 479, 1963, N. 6947, pp. 70-89; Constitutive Act of the African Union, UN Treaty Series, Vol. 2158, 2003, N. 37733, pp. 3-6 and pp. 32 ss.. 2 Established in 1975, ECOWAS includes currently 15 member States: Benin, Burkina Faso, Cabo Verde, Côte d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, 202 MARIANELLA PIRATTI graphical areas of the Sahel and the Maghreb, starting from a survey of the extent of the migratory phenomenon in the regions concerned. The international human rights law of migrant people will be viewed through the lens of the African system of human rights and an in-depth analysis will be devoted to the subjects of nationality and statelessness in Africa, that are emerging as some of the most sensitive issues relating to the enjoyment of human rights in the Continent and are closely related to migration law. Finally, we will consider the freedom of movement within the ECOWAS space according to the rights formalized under the ECOWAS Protocol relating to Free Movement of Persons, Residence and Establishment.3

2. A glance at the migration movements in Africa

The opening of the adopted geographical perspective to a wider context than that of ECOWAS, is required both because of some recent evolutions in the international institutional framework within the region (infra § 6) and because some of the migration flows intra ECOWAS are to be considered as transit flows, which means that the final intended destination of the migrant person is located in the territory of a State that is not a member of the Community.4 The concepts of transit and of ir-

Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, Togo. Treaty of the Economic Community of West African States (ECOWAS). Concluded at Lagos on 28 May 1975, UN Treaty Series, Vol. 1010, 1976, N. 14843, pp. 17-41. A revised treaty was adopted in Cotonou, Benin Republic, in 1993 and it entered into force on 23 August 1995: Re- vised Treaty of the Economic Community of West African States (ECOWAS). Cotonou, 24 July 1993, UN Treaty Series, Vol. 2373, 2006, N. 42835, pp. 233-274. 3 ECOWAS, Protocol A/P.1/5/79 relating to Free Movement of Persons, Residence and Establishment, signed in Dakar on 29 May 1979, entered into force on 5 June 1980, ECOWAS Official Journal, June 1979, Vol. 1, pp. 3-6, also available at: http://documentation.ecowas.int/download/en/legal_documents/protocols/PROTOCOL %20RELATING%20TO%20 %20FREE%20MOVEMENT%20OF%20PERSONS.pdf (10.18). Infra § 6. 4 Hein de Hass, Irregular Migration from West Africa to the Maghreb and the Euro- pean Union: An Overview of Recent Trends, IOM Migration Research Series, n. 32, Ge- neva, 2008; Burkina Faso, among the States of ECOWAS, “can be characterized as a country of transit for migrants from Côte d’Ivoire, Ghana, Guinea, Mali, and Senegal travelling through Niger towards Algeria, Libya, and eventually to European countries”: A Survey on Migration Policies in West Africa, Second Edition, ECOWAS Commission, ICMPD and IOM, January 2016, p. 90. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 203 regular migration have actually been introduced in the African context only in the past few decades due to the migration flows from Africa to Europe,5 an issue that has largely prevailed in both academic and public debate on the migration phenomenon, while policies put in place by Af- rican States and African Organizations to govern migrations have been substantially ignored or undervalued. Even if the term “transit migration” “is now used almost exclusively in a European context, to refer to actual or potential irregular migration in the broader vicinity of Eu- rope”,6 transit flows from Africa to Europe have first of all an African dimension and shall be considered from an African perspective also with respect to the rights that are recognized to migrant people. Beyond that, it can not be ignored that the present conditions of migration flows from sub-Saharan Africa to North Africa and eventually Europe, as we will see, is a matter of great concern even for the most important Afri- can Institutions. According to the UN Human Rights Council’s Report on the situation of migrants in transit “The contemporary phenomenon of transit migration is linked in many ways to increasing barriers to international migration. Stringent migration control measures … are increasingly restricting the options for movement of potential migrants and, in many cases, compelling them to move through irregular channels …. Studies indicate that most irregular migrants will use the services of a range of actors in the informal economy, including smugglers, at some point during their journey. For instance, it has been estimated that 80 per cent of recent crossings of the Mediterranean from Africa to Europe were facilitated by migrant smugglers …. For migrants in transit, corruption can exacerbate risks and prolong journeys; it is an enormous obstacle to the realization of human rights and has a disproportionate impact on the poor. Migrants who have been victims of abuse by State officials or private actors are rarely able to access justice effectively and abusers can operate with impunity”.7

5 Ibrahim Awad, “Introduction: concepts, practice and policies of international migration in Africa”, African Yearbook of International Law Online, Vol. 16, Issue 1, 2008, pp. 3-23, pp. 4-5. 6 Frank Düvell et al. (eds.), Transit Migration in Europe, Amsterdam University Press, IMISCOE Research, Amsterdam, 2014, p. 13. 7 UN Human Rights Council, Situation of migrants in transit - Report of the Office of the United Nations High Commissioner for Human Rights, 27 January 2016, A/HRC/31/35, § 12-14, available at: http://www.refworld.org/docid/ 56ead46d4.html (10.18). 204 MARIANELLA PIRATTI

It is worth noting that the proposed example concerns the crossing of the Mediterranean from Africa to Europe, i.e. the area in the world where between 2014 and the end of October 2018 the highest number of migrant fatalities had occurred, and where Africa is the most sadly represented region among those of origin of the migrant deaths.8 At the same time it must be emphasized that until recently the effort to collect data on migrant deaths occurring during overland journeys through the sub-Saharan region and North Africa was almost non-existent.9 The lack of data is in fact a constant of all migration issues in Africa and affects both individual States and the AU and ECOWAS. In this regard, it can be observed that at the very first International Forum on Migration Sta- tistics held in January 2018, a session was devoted specifically to Mi- gration Statistics Challenges in Africa.10 For our purposes it is important to note that according to the data provided by the Italian Ministry of the Interior in 2017, 42% of the migrants arriving in Italy via Libya declared to be a national of a Member State of ECOWAS, considering also that when this data was provided the nationality of some of the arriving migrants had still to be determined.11 This implies that before reaching

8 According to the data provided by the Missing Migrants Project by the Internation- al Organization for Migration (IOM), in 2017 the total recorded migrant deaths by region were 6164 and by region of origin 6169 worldwide. The Mediterranean region alone counted 3139 migrant deaths, while considering globally the region of origin, 1677 migrant deaths were from Africa and 3247 of mixed/unknown origin. Among the 3139 migrant deaths in the Mediterranean, 2215 were of mixed/unknown origin and 907 from Africa: 823 from sub-Saharan Africa, 82 from North Africa and 2 from Horn of Africa. The same trend is confirmed even in 2018. Significantly the Missing Migrants Project has been started after two shipwrecks in October 2013 near the Italian island of Lampedusa, when at least 368 individuals died, https://missingmigrants.iom.int/ (10.18). 9 Frank Laczko et al. (eds.), Fatal Journeys. Improving Data on Missing Migrants, Vol. 3, Part 2, IOM, Geneva, 2017, p. 7, p. 37. The Statement of 18 December 2017 by the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa – a Special Mechanism of the African Commission on Human and People’s Rights – on the occasion of the International Migrants Day, was focused especially on the situation in Libya asking for efforts to be deployed “to address the root causes of migration and prevent the occurrence of tragedies such as the loss of human lives in the Mediterranean and the Sahara Desert”, available at: http://www.achpr.org/press/2017/12/d382/ (10.18). 10 OECD, IOM, UN, International Forum on Migration Statistics 2018, 15-26 Janu- ary 2018, Paris, Session 2.H, see: http://www.oecd.org/migration/forum-migration- statistics/ (10.18). 11 Data by country of origin are as follow: Nigeria 15%, Guinea 8%, Cote d’Ivoire 8%, Mali 6%, Senegal 5%. Given the institutional evolution within ECOWAS that we INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 205 the Mediterranean shores these migrants had mainly travelled or even settled in the ECOWAS space, exercising in principle the right to movement as set out under the provisions and implementation of the 1979 ECOWAS Protocol on Free Movement, Right of Residence and Establishment.12 Accordingly, these flows are firstly intra ECOWAS flows13 and only subsequently are to be considered as South-North flows. If we speak about a Euro-African migration space,14 it must nevertheless be borne in mind that as the most recent available data testify, in the whole West Africa region, including Mauritania, 89.2% of international migrations originated from the same area, while at the continental level the data referred to the same phenomenon amounts to78,5%.15 The recent availability of new migration databases has also made it possible to study the long term migration trends since 1960 based on migrant stock data and considering 20 years intervals (1960, 1980, 2000).16 With the caveat that databases generally do not collect irregular migration data, the research highlights that while “intra- African emigration has shown a clearly declining trend between 1960 and 2000, extra-continental emigration, albeit much lower, shows an in- will consider later on (§ 6) it deserves also to be mentioned that 5% of migrants were arriving from Tunisia and 5% from Morocco. Data available at: http://www.libertaciviliimmigrazione.dlci.interno.gov.it/sites/default/files/allegati/crusco tto_statistico_giornaliero_31-1 2-2017.pdf (10.18). 12 Infra § 6. Facilitating the free movement of people is also among the goals of the Community of Sahel-Saharan States (CEN-SAD) which counts 29 Member States, but its implementation is unclear, see: Assessing Regional Integration in Africa VIII: Bring- ing the Continental Free Trade Area About, United Nations Economic Commission for Africa, African Union and African Development Bank, Addis Ababa, 2017, pp. 15-16. Memberships of twelve CEN-SAD States is nonetheless overlapping with ECOWAS. 13 It has however been remarked that South of the Sahara, whether or not the migrants are nationals of a Member State of ECOWAS, with or without the required documents for moving, the conditions of their mobility do not differ much. Everybody can move until illegal taxes are paid at borders crossing or even within Countries asked by agents of the State: Julien Brachet, “Le jeu des frontières sahariennes”, Plein droit, n. 87, 2010-4, pp. 20-23, p. 21. 14 Olivier Pliez, “De l’immigration au transit ? La Libye dans l’Espace Migratoire Euro-Africain”, in Olivier Pliez (éd.), La Nouvelle Libye: Sociétés, espaces et géopoli- tique au lendemain de l’embargo, Karthala, Paris, 2004, pp. 138-155. 15 UN, DESA, Population Division, International Migration, 2017, available at : http://www.un.org/en/development/desa/population/migration/publications/wallchart/do cs/MigrationWallChart2017.pdf (10.18). 16 Marie-Laurence Flahaux and Hein De Hass, ”African migration trends, patterns, drivers”, Comparative Migration Studies, 4.1, 2016, pp. 1-25. 206 MARIANELLA PIRATTI creasing trend, particularly between 1960 and 1980”. The increase in extra-continental migration was mainly due to high emigration intensity from the Maghreb countries by reason of both the geographical proximity to Europe and the labour recruitment agreements the Maghreb States have signed with European countries since the 1960s.17 In that period the West African region has nonetheless maintained a constant level of migration within the continent with one of the highest levels of intra- regional movements even if a significant rise in emigration to Europe is to be reported since the end of the 1990s.18 The migratory dynamics of the continent leads us to underline in the next paragraph some recent achievements within the AU system concerning the free movement of people in Africa.

3. African human rights framework and migration

In the speech for the opening of the Thirtieth Ordinary Session of the Assembly of the Union in January 2018, Moussa Faki Mahamat, Chair- person of the Commission of the AU, expressed the need “to create opportunities for young people who are embarking on the adventure of crossing the deserts and oceans in search of an illusory paradise on the other side of the Mediterranean” and called for the adoption by the Summit of the Protocol on Free Movement of Persons and the African Passport, adding that “In doing so, it is to ensure that our citizens, who are experiencing so many difficulties and are often subjected to count- less humiliations to move out of Africa, finally cease to be foreigners on their own continent”.19 During the Summit the Protocol was adopted by the Assembly20 (hereinafter: AU Protocol on FM).

17 Ivi, p. 8, p.10. 18 Ivi, pp. 9-10, pp. 15-16. The African migration trends between 1990 and 2015 can be grasped at a glance in the World Migration Report 2018, International Organization for Migration (IOM), 2017, p. 45, available at: http://publications.iom.int/system /files/pdf/wmr_2018_en.pdf (10.18). 19 AU, Thirtieth Ordinary Session of the Assembly of the Union, 28-29 January 2018, Addis Ababa, Ethiopia, Speech of the Chairperson of the Commission of the Afri- can Union H.E. Moussa Faki Mahamat, pp. 3-4. 20 AU, Protocol to the Treaty Establishing the African Economic Community relating to Free Movement of Persons, Rights of Residence and Right of Establishment and its Implementation Roadmap, AU, Assembly/AU/Dec.676(XXX), Decision on the legal instruments, par. 2 e). INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 207

The subsequent 10th Extraordinary Session of the Assembly held in Kigali on 17-21 March 2018, was dedicated to the Agreement on the African Continental Free Trade Area (AfCFTA).21 Again the States were invited to sign the AU Protocol on FM as well.22 All the North Af- rican States (Morocco, Algeria, Tunisia, Libya and Egypt) signed the AfCFTA Agreement, but none of them signed the AU Protocol on FM that was signed by 30 African States.23 It is clear that transit flows are a major concern both at the level of the AU and of the individual States that are most affected by the phenomenon. From this perspective the conventional categories of South-South migrations and South-North migrations overlap. What does not overlap is the scope of the two regional (African and European) conventions on human rights and their guarantee mechanisms: the African Charter on Human and Peoples’ Rights (hereinafter: the Charter)24 and the European Convention on Human Rights.25 If the latter is beyond the scope of this study, the African human rights system presents some elements of complexity that cannot be discussed here in their entirety26 but that nevertheless can be set in three main axes: the Charter, the African Commission on Human and Peo-

21 AU, Ext/Assembly/AU/Dec.1(X), Decision on the draft Agreement establishing the African Continental Free Trade Area (AfCFTA), Doc. Ext/Assembly/AU/2(X), par. 5. 22 AU, 10th Extraordinary Session of the Assembly of the Union on the African Continental Free Trade Area, Kigali, Rwanda, 21 March 2018, Statement of the Chair- person of the African Union Commission, Moussa Faki Mahamat, p. 3. 23 https://au.int/CFTASummit2018 (10.18). As of July 2018, the Protocol was signed by 32 States – 10 ECOWAS Members – and ratified by Rwanda, https://au.int/en/treaties/protocol-treaty-establishing-african-economic-community- relating-free-movement-persons (10.18). According to article 33.1, 15 instruments of ratification are required for entering into force. 24 African Charter on Human and Peoples’ Rights, UN Treaty Series, Vol. 1520, 1988, N. 26363, pp. 217-258 (English text, authentic texts: Arabic, English and French), adopted by the then OAU Assembly on 28 June 1981 in Nairobi, entered into force on 21 October 1986; OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). The Charter was ratified by all the AU member States except for Morocco (10.18) that was admitted back into the AU during the Twenty-Eight Ordinary Session of the Assembly of the Un- ion held in Addis Ababa, Ethiopia on 31-31 January 2017: Decision on the admission of the Kingdom of Morocco to the African Union, Assembly/AU/Dec.639 (XXVIII), par. 4. 25 Council of Europe, Convention for the protection of Human Rights and Funda- mental Freedoms, ETS n.5, adopted 04.11.1950 entered into force 03.09.1953. 26 Christof Heyns, “The African regional human rights system: In need of reform?”, African Human Rights Law Journal, Vol. 1, 2001-2, pp. 155-174; Manisuli Ssenyonjo (ed.), The African Regional Human Rights System. 30 Years after the African Charter of Human and Peoples’Rights, Nijhoff, Leiden-Boston, 2012. 208 MARIANELLA PIRATTI ples’ Rights (ACmHPR, hereinafter: the Commission) and the African Court on Human and People’s Rights (AfCHPR, hereinafter: the Court)27 about which we will limit ourselves to grasp only a few relevant aspects. The Charter states in the Preamble that the African States which are members of the OAU take “into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights” opening to a kind of “africanization” of human rights or, as somebody argued, to “la « tropicalisation » nécessaire, dans le respect bien entendu de l’universalité des droits de l’homme”.28 As for the Commission, whose decisions are non-binding, it was established in 1987 according to article 30 of the Charter.29 Article 55 provides that even individuals can seize it, provided that Communica-

27 Protocol to the African Charter on Human and Peoples’ Rights on the Establish- ment of an African Court on Human and Peoples’ Rights, adopted by the Member States of the then OAU during the Thirty-Fourth Ordinary Session of the Assembly of Heads of State and Government held in Ougadougo, Burkina Faso, on 8-10 June 1998, entered into force on 25 January 2004, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III); Fat- sah Ouguergouz, “La Cour africaine des droits de l’homme et des peuples. Gros plan sur le premier organe judiciaire africain à vocation continentale”, Annuaire français de droit international, Vol. 52, 2006, pp. 213-240; Samir Séro Zime Yerima, “La Cour et la Commission africaines des droits de l’homme et des peuples: noces constructives ou cohabitation ombrageuse?”, African Human Rights Yearbook/Annuaire Africain des Droits de l’Homme, Vol. 1, 2017, pp. 357-385. 28 Sitsofé Kowouvih, “La Cour africaine des droits de l’homme et des peuples: une rectification institutionnelle du concept de “spécificité africaine” en matière de droits de l’homme”, Revue trimestrielle des droits de l’homme, N. 59, juillet 2004, pp. 757-790, p. 776. 29 As for the applicable law, according to article 60 of the Charter, the Commission “shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Na- tions and by African countries in the field of Human and Peoples’ Rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the Parties to the present Charter are members”. Moreover article 61 states that it “shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognised by Member States of the Organisation of African Uni- ty, African practices consistent with international norms on Human and Peoples’ Rights, customs generally accepted as law, general principles of law recognised by African States as well as legal precedents and doctrine”. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 209 tions “Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged” (art. 56.5). The Court, as set forth in article 5 par. 3 of its founding Protocol, has jurisdiction to hear cases instituted by individuals and non-governmental organizations with observer status before the African Commission, only if the relevant State has made the pertinent declaration of acceptance provided for under article 34 par. 6. As of October 2018, 30 African States had ratified the Protocol establishing the Court30 and 8 of them had made the Declaration under article 34: Burkina Faso, Ghana, Mala- wi, Mali, Rwanda, Tanzania, Côte d’Ivoire and Tunisia.31 Article 7 of the Protocol, that defines the sources of law, states that the Court shall apply the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned. Given that international migration law is not structured in a unitary way, but is fragmented in a set of instruments whose main pillars are the human rights system and the principles deriving from State sovereignty,32 the protection accorded to migrant people in Africa must be considered within the framework of the African human rights system. It is worth noting that in its Resolution 398 on Mixed Migratory Flows, Challenges of Protecting Migrants and the Prohibition of Trafficking in Persons and all forms of Violence in North and sub-Saharan Africa, adopted in May 2018, the Commission explicitly refers to the provision of African international instruments and generically to “international instruments on the protection of migrants”.33 Resolution 398 considers “the steady increase in mixed migratory flows despite the various measures taken by States to separate asylum seekers from people who

30 Among the Member States of ECOWAS: Benin, Burkina Faso, Côte d’Ivoire, Gambia, Ghana, Mali, Nigeria, Niger, Senegal, Togo; among the States of the North Af- rica area: Algeria, Libya, Mauritania, Sahrawi Arab Democratic Republic and Tunisia. 31 In August 2018 both Sierra Leone and Liberia expressed the willingness to ratify the Protocol establishing the Court and deposit the declaration under Article 34 par. 6, http://www.african-court.org/en/index.php/news/press-releases/item/248-sierra-leone- and-liberia-express-willingness-to-ratify-the-african-court-protocol-soonest (10.18). 32 For a general survey see: Richard Perruchoud et al. (eds), Compendium of international migration law instruments, IOM and T·M·C·ASSER PRESS, The Hague, 2007. 33 AU, ACmHPR, 62nd Ordinary Session held from 25 April to 9 May 2018 in Nouakchott, Islamic Republic of Mauritania, 398: Resolution on Mixed Migratory Flows, Challenges of Protecting Migrants and the Prohibition of Trafficking in Persons and all forms of Violence in North and Sub-Saharan Africa, available at: http://www.achpr.org/sessions/62nd_os/resolutions/398/ (10.18). 210 MARIANELLA PIRATTI are not covered by international protection” and calls upon States Parties “to promote conventional cooperation ties in the prevention of irregular migration and the return of irregular migrants” (point 9) while calling at States Parties “to implement the Protocol relating to Free Movement of Persons, Right of Residence and Right of Establishment” (point 5) that in principle would erase or at least weaken the distinction within the Continent between those that are effectively entitled to move from one’s Country and – what is more important – enter another, and those who are not. Let us thus analyze, by way of example, the status of the instruments aimed at the protection of the rights of two specific categories of migrants in the African context, i.e. workers and refugees, focusing on ECOWAS and North African States. Among the instruments that specifically pertain to the rights of migrants, the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families34 has been ratified as of October 2018 by 54 States35 of which 22 are African; 11 Member States of ECOWAS ratified, 3 signed36 and Côte d’Ivoire did neither. In the North African area, the States that ratified are Mauritania, Morocco, Algeria, Libya and Egypt. As for the UN Convention relating to the Status of Refugees37 and the Protocol relating to the status of Refugees38 all the Member States of ECOWAS are parties to both of them, except for Cabo Verde that is party only to the Convention’s 1967 Protocol. The States of Maghreb and Egypt are parties as well, except for Libya. Libya is however party to the regional OAU Convention governing the specific aspects of refugee

34 Adopted by Resolution A/RES/45/158 of 18 December 1990 at the forty-fifth session of the General Assembly, entered into force 1st July 2003, UN Treaty Series, Vol. 2220, 2004, N. 39481, p. 3, English text p. 93 ss.. 35 Paul de Guchteneire, “Les obstacles à la ratification de la Convention des Nations Unies sur la protection des droits des travailleurs migrants”, Droit et Société, 75, 2010/2, pp. 431-451: “À ce jour, les États parties à la Convention sont surtout des pays d’émigration qui – à l’instar du Mexique, du Maroc ou des Philippines – la voient comme un moyen de protéger leurs citoyens à l’étranger”, p. 437. 36 Respectively: Benin, Burkina Faso, Cabo Verde, The Gambia, Ghana, Guinea, Guinea Bissau, Mali, Niger, Nigeria and Senegal; Liberia, Sierra Leone and Togo. 37 Signed at Geneva on 28 July 1951, entered into force on 22 April 1954, UN Trea- ties Series, Vol. 189, 1954, N. 2545, p. 137 ss.. 38 Adopted on 31 January 1967, entered into force on 4 October 1967, UN Treaties Series, Vol. 606, 1970, N. 8791, p. 268 ss.. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 211 problems in Africa,39 as are all the other States considered, with the exception of Morocco, that ratified it in 1974 but is currently not a State party as it left the OAU in 1984. The OAU Convention that, according to its article VIII.2, “shall be the effective regional complement in Afri- ca of the 1951 United Nations Convention on the Status of Refugees”, gives a broader definition of refugee than the UN Convention as it “shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality” (art. I.2). The adoption of the OAU Refugee Convention was meant to cope with the specific problems of African refugees among which is the mass influx of refugees, in fact, as Jamil Ddamulira Mujuzi argues: “The 1951 UN Refugee Convention was not designed to address the problem of people fleeing in big numbers as is often the case with African refugees, but rather to deal with individuals who are being persecuted or had a well- founded fear that they would be persecuted by their countries …. This meant that the 1951 UN Refugee Convention definition ignored the unique nature of the refugee problem including factors that force people to flee their countries on the African continent. When people flee in big numbers, they are more likely to be associated with many problems as opposed to those who flee individually, and hence the need for different approaches to deal with the different problems that crop up. Some of the problems associated with a mass influx of people are that they become a burden to the financial resources of the host country and they can easily organise themselves and form a rebel group to destabilise their country of origin”.40 The OAU Convention also formalizes the principle of solidarity among African States under article II.4, stating that where a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through

39 Adopted on 10 September 1969, came into force on 20 June 1974, UN Treaties Series, Vol. 1001, 1976, N. 14691, p. 45 ss.; George Okoth-Ohbo, “Thirty Years on: a Legal Review on the 1969 OAU Refugee Convention”, African Yearbook of Interna- tional Law Online, Vol. 8, Issue 1, Jan 2000, pp. 3-69. 40 Jamil Ddamulira Mujuzi, “The African Commission on Human and Peoples’ Rights and the promotion and protection of refugees’ rights”, African Human Rights Law Journal, Vol. 9, 2009-1, pp. 160-182, pp. 163-164. 212 MARIANELLA PIRATTI the OAU, and such other Member States shall in the spirit of African solidarity and international co-operation take appropriate measures to lighten the burden of the Member State granting asylum. Nonetheless, it is argued that the decisions of the Commission on communications alleging violations of refugee rights were founded mainly on the provisions of the Charter, rather than on those of the 1969 OAU Refugee Convention that would give to refugees greater protection.41 Taking into account specific circumstances and the vulnerability of certain groups of people such as refugees, the Commission has developed a case-law in which it admits the possibility of derogating from the principle of exhaustion of local remedies set out in article 56.5 of the Charter. In the case Rencontre Africaine pour la Defense des Droits de l’Homme v Zambia42 dealing with 517 West Africans who were expelled from Zambia on 26th and 27th February 1992, on grounds of being in Zambia illegally, the Commission stated that the rule requiring the exhaustion of local remedies does not mean that complainants are required to exhaust any local remedy which is found to be, as a practical matter, unavailable or ineffective (§ 11), while in the case Jawara v The Gambia43 the Commission stated that local remedies must be available, effective and sufficient (§ 31) and that the existence of a remedy “must be sufficiently certain, not only in theory but also in practice, failing which, it will lack the requisite accessibility and effectiveness. There- fore, if the applicant cannot turn to the judiciary of his country because of generalised fear for his life (or even those of his relatives), local remedies would be considered to be unavailable to him” (§ 35). The Com- mission reiterated this position in the case African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guin- ea) v Guinea44 where, recalling the case Rencontre Africaine pour la

41 Ivi, p. 182. 42 ACmHPR 1996, Communication 71/92, Rencontre Africaine pour la Défense des Droits de l’Homme v Zambia Decided at the 20th ordinary session, Oct. 1996, 10th An- nual Activity Report, AHRLR, 2000, p. 321. 43 ACmHPR 2000, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, Decided at the 27th ordinary session, May 2000, 13th Annual Activity Report, AHRLR, 2000, p. 107. 44 ACmHPR 2004, Communication 249/2002, African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Republic of Guin- ea, Decided at the 36th ordinary session, December 2004, 20th Activity Report, AHRLR, 2004, p. 57. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 213

Defense des Droits de l’Homme v Zambia, it argued that victims of persecution are not necessarily required to return to the place where they suffered persecution to exhaust local remedies (§ 35). If most of the African Countries are formally party to important international conventions protecting the rights of migrants and refugees, the main obstacle to the effective enjoyment of human rights and fundamental freedoms is the lack of implementation on the national level45 that of course, broadly speaking, might affect non migrant people as well. On the side of the principles related to sovereignty even though Afri- can countries are formally among those with the most restrictive policies for entry visas,46 “subregional reports have shown that unauthorized border crossing and overstaying are [also] common for intra-African migration, presumably resulting in serious underreporting of migration between African countries. Such unauthorized migration is the direct consequence of the lack of legal migration facilities. While unauthorized stay is often tolerated by Governments that either lack the capacity or willingness to implement regulations, it often leaves migrants at the mercy of exploitation, abuse and extortion by employers, police and officials”.47 A clear example of such a situation could be found in Libya. Regard- less of the different migration policies adopted by Qathafi’s regime over time, immigration was characterized by a high degree of informality, accessibility to the territory and to work, whose counterpart was the lack of legal protection for the immigrants. In particular, since 2004, infor-

45 UN-ECA, African Migration. Migration Governance, Draft Report Prepared for Africa Regional Consultative Meeting on the Global Compact on Safe, Orderly and Regular Migration, October 2017, p. 5, available at: https://www.uneca.org/global- compact-migration-2017 (10.18). 46 African Development Bank Group-AU, Africa Visa Openness Report 2018, for a general glance see p. 14, available at: https://www.visaopenness.org/fileadmin /uploads/afdb/Documents/Africa_Visa_Openness_Report_2018.pdf (10.18); Hein de Haas et al., International Migration. Trends, determinants and policy effects, IMIn Working Paper Series no. 142, January 2018, p. 33; Mathias Czaika, Hein de Hass, “The Effect of Visas on Migration”, International Migration Review, Vol 51, N. 4, Winter 2017, pp. 893-926; Ali Bensaâd, “Le Sahara et la transition migratoire entre Sahel, Ma- ghreb et Europe”, Outre-Terre, n. 23, 2009/3, pp. 273-287, p. 274, p. 277. 47 UN-ECA, AU, IOM, Draft report. Situation analysis. Patterns, levels and trends of African migration, African Regional Consultative Meeting on the Global Compact on Safe, Orderly and Regular Migration, Addis Ababa, 26 and 27 October 2017, § 43, available at: https://www.uneca.org/global-compact-migration-2017 (10.18). 214 MARIANELLA PIRATTI mal/irregular migrants have begun to be assimilated to transit migration, an attitude that could be observed throughout the whole Maghreb where, on the other hand, data on irregular migration are generally not dis- closed because they are considered by the States to be sensitive data.48 Border control is actually a major concern in Africa today, as testified by the launch in 2007 of the ongoing AU Border Programme (AUBP)49 that is aimed at addressing the persistence of the border delimitation and demarcation issue. This situation is considered “fraught with risks, as the lack of delimitation and demarcation gives rise to ‘un- defined zones’, within which the application of national sovereignty poses problems, and constitutes a real obstacle to the deepening of the integration process”.50 Lastly, the Declaration on the AUBP and the measures for its consolidation adopted on 6 October 2016 in Addis Ab- aba, at the Meeting of the Ministers on African Border Issues, recommended, through the Specialized Technical Committee on Defence, Safety and Security (STCDSS), to extend the deadline of 2017, set by the Assembly of the Union in July 2011 in Malabo, for the Delimitation and Demarcation of all African boundaries, to stand till 2022.51 In 2014 the AU Assembly adopted the AU Convention on Cross Border Cooper- ation (Niamey Convention),52 not yet entered into force. The Conven-

48 Delphine Perrin, “Fin de régime et migrations en Libye. Les enseignements juri- diques d’un pays en feu”, L’Année du Maghreb, VII, 2011, pp. 285-301, pp. 288-292. 49 AU, Assembly of the African Union eighth ordinary session 29 – 30 January 2007 Addis Ababa, Assembly/AU/Dec.145 (VIII), Decision on the Activities of the Peace and Security Council of the African Union and on the Status of Peace and Security in Africa Doc. Assembly/AU/3 (VIII), par. 18; http://aubis.peaceau.org/en/ (10.18). 50 AU, Conference of African Ministers in Charge of Border Issues, Addis Ababa, Ethiopia, 4-7 June 2007, Declaration on the African Union Border Programme and its Implementation Modalities, Preventing Conflicts, Promoting Integration, Addis Ababa, 7 June 2007, BP/MIN/Decl. (II), § 2.a. 51 Adopted at the Meeting of Ministers on African Border Issues held in Addis Ababa on 6 October 2016, § 3, available at http://www.peaceau.org/en/article/meeting-of- ministers-on-african-border-issues-concludes-with-the-adoption-of-the-addis-ababa- declaration-on-aubp (10.18); AU, Assembly of the Union, 28th Ordinary Session, 30-31 January 2017, Addis Ababa, Ethiopia, Assembly/AU/6(XXVII)Rev.1, Report of the Peace and Security Council on its Activities and the State of Peace and Security in Africa, § 50. 52 AU, Assembly of the Union, 23rd Ordinary Session, 26-27 June 2014, Malabo, Equato- rial Guinea, Decision on the Draft Legal Instruments, Assembly/AU/Dec.529(XXIII), § 2.b. The Convention is available at: https://au.int/en/treaties/african-union-convention-cross- border-cooperation-niamey-convention (10.18). As of October 2018, 3 States ratified (Benin, Burkina Faso and Niger) and besides these, 12 States signed. According to article 15, 15 instruments of ratification are required for the Convention entering into force. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 215 tion is aimed at facilitating the delimitation, demarcation and reaffirma- tion of interstate borders (art. 2.3) and to ensure efficient and effective integrated border management (art. 2.5). The areas of cooperation include security, especially combating cross-border crime, terrorism, piracy and other forms of crime (art. 3.4) and the de-mining of border areas (art. 3.5). Article 7 encourages States Parties to harmonize their domestic law pertaining to border issues. Border governance is also part of the Revised migration policy framework for Africa and plan for action (2018-2027),53 according to which an effective Cooperative Border Management (CBM) is a key element in any national migration system. To control the movement of persons to eliminate illegal border crossings, human trafficking and smuggling is one of the strategic goals of border security.54 The Revised migration policy framework also considers the human rights of migrants a cross cutting issue and recommends to reinforce national policies and legal frameworks to ensure that migrants’ rights are protected, by incorporating key legal instruments on migrants rights and human rights.55 What emerges, under the double profile of the guarantee of rights and of the principles pertaining to sovereignty, is a weakness in the Af- rican States of the principle of the rule of law that affects both the effective enjoyment of human rights and the implementation of the rules related to the criteria for admission of non-nationals within the State.56 On the other hand, the respect for democratic principles, human rights, the rule of law and good governance is among the principles according to which the AU shall function (Constitutive Act, art. 4 (m)). In such a

53 Available at: https://au.int/en/newsevents/20170824/meeting-validate-report- evaluation-migration-policy-framework-africa-revised, pp. 23-25 (10.18), adopted by the AU Executive Council at its 32nd Ordinary Session, held on 25-26 January 2018, Addis Ababa, Ethiopia, Decision on the Reports of the Specialised Technical Commit- tees (STCs), EX.CL/Dec. 987 (XXXII) Rev. 1, § 5. The Decision also encourages Mem- ber States to align their policies to the Migration Policy Framework in order to facilitate proper migration management and governance and reaffirms Decision EX.CL/Dec.314 (IX) on the creation of the African Centre for the Study on Migration, § 6 - § 7. 54 Ivi, p. 23. 55 Ivi, p. 45. 56 “[T]he rule of law is as fragile in Africa today as it was at independence in the 1960s. This is holding back the continent’s progress and remains the biggest develop- mental challenge for the future”, Charles Manga Fombad, “An overview of the crises of the rule of law in Africa”, African Human Rights Law Journal, Vol. 18, n. 1, 2018, pp. 213-243, p. 240. 216 MARIANELLA PIRATTI scenario, given that article 7 of the Charter provides that every individual shall have the right to have his cause heard, the international regional Courts and institutions committed to safeguarding human rights, can play a key role in enhancing the effective guarantee and protection of human rights in Africa, making up for the deficiencies of the rule of law on domestic legal orders, as the above mentioned case-law of the Com- mission demonstrates. Finally, considering the main pillars of international migration law, it is possible to observe that the construction of the human rights framework in Africa57 evolves with policies and programs aimed at an effective and sustainable border management, starting with the 2007 launch of the AUBP. It should be noted that the legacy of Africa’s colonial history lead the then OUA in the first two decades after its creation, to concentrate its efforts on political and economic independence rather than on individual rights and freedoms58 and that the issue of national boundaries definition and control has been a recurrent source of conflicts and disputes on the continent.59 With the exception of the relatively recently rediscovered Charter of Kurukan Fuga which, by the way, states at its article 24 “Never do wrong to foreigners”,60 both the doctrine of human rights and the conception of international sovereignty have their roots in the Western legal tradition. In Africa, the process of post-colonial institutional building both at the international and domestic level, seems to determine, as regards the migratory phenomenon, a progressive shift from a situation that saw a de facto informal freedom of movement with no rights, to a situation where international movements are regulated and human rights formally (and effectively?) guaranteed.

57 The Commission was officially inaugurated on 2nd November 1987, the Protocol establishing the Court entered into force on 2004 (see note 27) and in 2005 the competence of the sub-regional Community Court of Justice of ECOWAS has been extended to the human rights field (ECOWAS, Supplementary Protocol A/SP.1/01/05 amending the Preamble and articles 1, 2, 9 and 30 of Protocol A/P.1/7/91 relating to the Communi- ty Court of Justice and article 4 paragraph 1 of the English version of the said Protocol, Accra, 19th of January 2005. New article 9.4: The Court has jurisdiction to determine case of violation of human rights that occur in Member State). 58 AU, ACmHPR, http://www.achpr.org/about/history/ (10.18). 59 AU, AUBIS, http://aubis.peaceau.org/en/ (10.18); see note 80. 60 Mangoné Niang, “The Kurukan Fuga Charter: An example of an Endogenous Governance Mechanism for Conflict Prevention”, Inter-generational Forum on Endog- enous Governance in West Africa, org. by Sahel and West Africa Club/OECD, Ouaga- dougou-Burkina Faso, 26-28 June 2006, Vol. 2, SAH/D (2006) 563 Annexes, 2006, pp. 71-82. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 217

The African context has in fact distinctive historical and cultural features that must be taken into account and that here can only be briefly sketched out in order to address two crucial issues related to the rights of migrant people: the right to nationality and statelessness.

4. African context, migration, nationality and statelessness

Before the decolonisation process and the establishment of States on the European (Westphalian) model of statehood, populations in Africa moved across trade routes extending from the Atlantic Ocean to the Red Sea. Movements across the Sahara Desert also have a long-standing tradition, as the Sahara has historically been a bridge between sub-Saharan and North Africa, and between West Africa and East Africa. Today, the same ethnic and language groups straddle the borders between States, borders that because of the specific nature of States and State relations in Africa, are porous and incontrollable.61 Conversely, State borders have had the effect of grouping in the same geopolitical space populations and ethnic groups of great diversity in terms of their modes of organization, their beliefs and their languages.62 Even prior to the contemporary conceptualization of the term “migration”63 – and international, transit or irregular migration – that, as we will see a bit further on as regards international migration, still does not find a clear framework in International Law, it is worth remembering that a common problem of the new States arising from the process of decolonisation was “the difficulty they experience(d) in legitimating their authority to govern within their own societies”.64 If for instance we

61 Awad, “Introduction: concepts, practice”, cit., pp. 6-7. 62 Dabié Désiré Axel Nassa, “Frontières ivoiriennes à l’épreuve des migrations in- ternationales Ouest-africaines”, Migrations Société, Vol. 144, N. 6, 2012, pp. 61-84, p. 69. 63 The etyimology of “migration” is the Latin word migration -onis derived from migrare with the meaning of emigrate, move. For the contemporary definition see: Ste- phen Castles, “International migration at the beginning of the twenty-first century: global trends and issues” International Social Science Journal, Vol. 52, Issue 165, Septem- ber 2000, pp. 269-281, pp. 269-271. 64 Richard A. Falk, “The New States and International Legal Order”, Collected Courses of The Hague Academy of International Law, Vol. 118, 1966, V, p. 13. It deserves here to be reminded that the international intervention in Libya based on UN Se- curity Council Resolution 1973 adopted on 17 March 2011, seems to have ignored the 218 MARIANELLA PIRATTI consider Côte d’Ivoire – a country with a long history of immigration and one of the main countries of residence for ECOWAS Member States nationals and where, according to the latest available data, 26 percent of the population is composed of immigrants65 –, Ruth Marshall- Fratani observes, as regards the dynamics of State and citizenship building, that “The advent of the independent state introduced a new notion of foreigner, against which that of citizen, as articulated in positive law, would be expressed from now on (as opposed, theoretically, to previous definitions of citizenship based on notions of autochthony). However, the relationship between foreigner and citizen continued to be thought of in terms of territorialized ethnic spaces, and an absolutist conception of the foreigner, or stranger, as anyone from outside these territorialized communities was perpetuated”.66 In some cases “ethnical borders” converge in the definition of the rules that regulate the acquisition of citizenship. Article 27 paragraph b) of the 1986 Constitution of the Republic of Liberia prescribes that in order to preserve, foster and maintain the positive Liberian culture, values and character, only persons who are Negroes or of Negro descent shall qualify by birth or by naturalization to be citizens of Liberia, while paragraph c) provides that the Legislature shall, adhering to the above standard, prescribe such other qualification criteria for and the proce- tribal character of the Country and of the 2011 insurgence itself, in which the tribes of Cyrenaica first rose up demonstrating against the power of the until then recognised and undisputed leader of Libya Muammar Qathafi (Jean Pierre Ferrier “Une resolution “historique” du conseil de securité”, Relaciones Internacionales, n. 40, 2011, pp. 181-191, p. 183 and p. 185). In this regard suffice to recall that Part Three of the Green Book by Muammar Al Qathafi, which enclosed the ideology of the State and could be considered as a document of constitutional rank, was devoted to the Social basis of the Third Uni- versal Theory, according to which social bonds are structured from the family through the tribe to the nation (Muammar Al Qathafi, The Green Book, Word Center for the Study and Research of the Green Book, Tripoli, Jamahiriya, 3rd Ed. 1999, pp. 71-91). The tribal element was therefore included in the institutional framework of the State. 65 This corresponds to residents born abroad, regardless of their nationality. Nation- als make up only 2% of the immigrant. See: A Survey on Migration Policies in West Af- rica, cit., p. 125 and note n. 416. 66 Ruth Marshall-Fratani, “The War of “Who Is Who”: Autochthony, Nationalism, and Citizenship in the Ivorian Crisis”, African Studies Review, Vol. 49, N. 2 (September 2006), pp. 9-43, p. 18; on Côte d’Ivoire see also: “Côte d’Ivoire, la tentation ethnona- tionaliste”, Politique Africaine, Vol. 78, n. 2, 2000. More broadly “Colonial boundaries are still reflected in the modern boundaries between contemporary West African states, cutting across ethnic and cultural lines, often dividing single ethnic groups between two or more states”: ECOWAS, http://www.ecowas.int/member-states/ (10.18). INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 219 dures by which naturalization may be obtained.67 In accordance with the constitutional provisions, the Aliens and Nationality Law at article 21.1, which regulates eligibility for naturalization, states at paragraph 1: Race. No person shall be naturalized unless he is a Negro or of Negro descent.68 Similar provisions can be found also in the Sierra Leone Citi- zenship Act of 197369 whose Section 2, as amended, states that every person who, having been born in Sierra Leone before the nineteenth day of April, 1971, or who was resident in Sierra Leone on the eighteenth day of April, 1971, and not the subject of any other State shall, on the nineteenth day of April, 1971, be deemed to be a citizen of Sierra Leone by birth provided that his father, mother or any of his grandparents was born in Sierra Leone and is or was a person of Negro African descent.70 The negro African descent requirement is mostly required for naturalization too.71 If these are two examples of restriction to the right to nationality on a racial basis, discrimination on the grounds of race or ethnic origin in the recognition of nationality is still widely practiced in Af- rica.72 As a result, many persons are without a nationality and are in the condition of statelessness. Emblematic in this regard is the situation of the so called “Lebanese” in Sierra Leone. Having arrived in that land starting from the last decade of the nineteenth century from Syria and Lebanon – at the time still under the jurisdiction of the Ottoman Empire

67 Republic of Liberia, Constitution, available at: http://judiciary.gov.lr/constitution- of-liberia-2/ (10.18). 68 Republic of Liberia, Alien and Nationality Law - Title 4 - Liberian Code of Laws Revised, Approved: May 15, 1973- Amendments approved: May 9, 1974, available at: http://www.liberlii.org/lr/legis/codes/aanlt4lcolr505/ (10.18). 69 Sierra Leone, The Sierra Leone Citizenship Act, 1973 No. 4 of 1973, as amended by Citizenship (Amendment) Act No. 13 of 1976, Citizenship (Amendment) Act No. 11 of 2006 and the Bill The Citizenship (Amendment) Act (Gazette Vol. CXLVIII, No. 34, 22nd June 2017), available at: https://www.sierralii.org/sl/legislation/act/13 /LEGISLATION%20OF%20SIERRA%20LEONE1976%20ACT%20NO.%2013.pdf and https://www.sierralii.org/sl/legislation/act/11/20 06_11_pdf_10942.pdf (10.18). 70 Sierra Leone, Sierra Leone Citizenship (Amendment) Act No. 13 of 1976, amending at Section 3 the Interpretation Act no. 8 of 1971, defines “native” as follow: a citizen of Sierra Leone who is a member of a race, tribe or community settled in Sierra Leone, other than a race, tribe or community – (a) which is of European or Asiatic or American origin; or (b) whose principal place of settlement is the Western Area. 19 April 1971 is the date in which the Republic was proclaimed. 71 Ivi, Section 1. 72 AU, African Commission on Human and Peoples’ Right, The Right to Nationality in Africa, ACHPR, 2015, pp. 32-33. 220 MARIANELLA PIRATTI

–, the descendents of the members of this community have found legal restrictions to the acquisition of citizenship due to the origins of their ancestors.73 Statelessness, as will become clearer further on in this paper, is now a major concern both at the level of the AU and ECOWAS. The issue has only recently been addressed, due to the lack of reliable statistics in many African States. The reasons for the phenomenon are often rooted in the colonial history through which, in a nutshell, the original territories and political organizations have been transformed into Nation States. The word “nationality” is derived from the word “nation”,74 and in general terms it indicates the individual’s belonging to a nation.75 Ac- cording to article 25 of the Constitutive Act of the AU the working languages of the Organization and all its institutions shall be, if possible, African languages, Arabic, English, French and Portuguese.76 In the

73 Bronwen Manby, Citizenship and Statelessness in Africa: The law and politics of belonging, Wolf Legal Publishers, Oisterwijk, 2015, pp. 261-273; Lina Beydoun, “The Complexities of Citizenship among Lebanese Immigrants in Sierra Leone, African Con- flict & Peacebuilding Review, Issue. 3, Vol. no. 1 Spring 2013, pp. 112-143. 74 Derived from Latin nation –onis, derived from natus, p.p. of nasci, to be born. 75 “According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attach- ment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of a State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national”, Nottebohm Case (second phase), Judgment of April 6th, 1955, ICJ, Reports 1955, p. 23, done in French and English, the French text being authoritative. 76 In 2003 the AU Assembly adopted a Protocol on amendments to the Constitutive Act of the AU not yet entered into force (Assembly of the African Union, 2nd Ordinary Session, 10-12 July 2003, Maputo, Mozambique, Assembly/AU/Dec.26 (II), Decision on the Amendments to the Constitutive Act, Doc. Assembly/AU/8(II) Add. 10, § 1). Ac- cording to its article 11 in article 25 of the Constitutive Act the title “Working Lan- guages” shall be replaced with “Official Languages” and the existing provision substi- tute with: The official languages of the Union and all its institutions shall be Arabic, English, French, Portuguese, Spanish, Kiswahili and any other African language (§1). The Protocol is available at: https://au.int/sites/default/files/treaties/7785-treaty-0025_- _protocol_on_the_amendments_to_the_constitutive_act_of_the_african_union_e.pdf (10.18). INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 221 three European languages we find respectively the word nationality, na- tionalité, nacionalidade (or, recalling it in Italian and German, naziona- lità and Nationalität) while in Arabic the word is jinsīa.77 The language reflects therefore the common cultural and juridical ascendancy of the (former colonial) European powers whose conception of the State has been established on a global level. The research on the subject of the concept of nationality in pre-colonial Africa is still at a very early stage, but the few studies on this field suggest that citizenship was understood in a completely different way.78 Today in International Law, nationality and citizenship are “used as synonyms, to describe the legal relationship between the state and the individual … Neither term has any connotation of ethnic or racial content but is simply the status that gives a person rights and obligations in relation to a particular state”.79 Central to the notion of nationality is then the State which sovereignly decides the conditions under which to confer it. As is well known a State in International Law exercises an exclusive authority within a given territory and on the community allocated therein80 and, as the International Court of Justice has argued, “To “define” a territory is to define its frontiers”.81 Borders are in fact at the very core of the international migration law.

77 Jinsīa means nationality, citizenship and sexuality and is derived from the word jins whose meanings are gender – even in grammar – species, category, class, sex, family, descent, race and nationality. 78 African Union, African Commission on Human and Peoples’ Right, The Right to Na- tionality, cit., p. 8. From these considerations it is to be excluded the Islamic tradition that predominantly characterizes the area of North Africa. This tradition, that historically funds nationhood on a different basis than the European tradition, is by no means unknown. 79 Bronwen Manby, Nationality, Migration and Statelessness in West Africa. A study for UNHCR and IOM, UNHCR-IOM, Dakar, 2015, p. iv. 80 Tullio Treves, Diritto internazionale. Problemi fondamentali, Giuffrè, Milano, 2005, p. 52. In the Resolution AHG/Res 16 (1), named “Border disputes among African Sates”, adopted by the first ordinary session of the Assembly of Heads of State and Government of the Organization of African Unity, held in Cairo, UAR, from 17th to 21st July 1964, it is solemnly reaffirmed the strict respect by all Member States of the Organ- ization for the principles laid down in paragraph 3 of Article III of the Charter of the Organization of African Unity and solemnly declared that all Member States pledge themselves to respect the borders existing on their achievement of national independence. Article III, paragraph 3 of the OAU Charter states the principle of respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence. 81 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ, Reports 1994, § 52, done in French and in English, the French text being authoritative. 222 MARIANELLA PIRATTI

Even though, as already pointed out, “international migrant” is a broad term for which no universally accepted definition exists, one of the most authoritative guides for the definition of international migrations is the Recommendations on Statistics of International Migration. Revision 1 of the United Nations,82 which is conceived to provide States with indications in order to achieve a homogeneous detection of international migration flows and stocks. As regards the flows, an international migrant is defined as any person who changes his or her country of usual residence (§ 32) and that can be a long-term migrant if she/he moves for a period of at least a year (§ 36) or a short-term migrant if she/he moves for a period of at least 3 months, but less than a year, except in cases where the movement is for purposes of recreation, holiday, visit to friends and relatives, business, medical treatment or religious pilgrimage (§ 37). In this case the criteria that are emphasized are those of residence and moving from one country to another. Given this characterization of the international migrant, in dealing with the migration stock the Rec- ommendation considers that “many of the concerns related to international migration are citizenship-specific in the sense that foreigners and citizens do not necessarily have equal social, economic or political rights”. Consequently, the need for information relates to foreigners living in a country and to foreigners-born, despite their having acquired the citizenship of the country where they live (§ 185-186). Here the relevant criteria is citizenship. If we look at the definition of international migration provided by the Glossary on Migration edited by IOM, we read that international migration is a “Movement of persons who leave their country of origin, or the country of habitual residence, to establish themselves either permanent- ly or temporarily in another country. An international frontier is therefore crossed”.83 As for the migrant stock this is defined as “The number of migrants residing in a country at a particular point in time”.84 The definitions provided by the Glossary emphasizes the residence. Nation- ality is not mentioned but could be implicit in the reference to the country of origin. Common to the two sources is the transition from one

82 UN, DESA, Statistics Division, Recommendations on Statistics of International Migration. Revision 1, Statistical Papers Series M, No. 58, Rev. 1, United Nations, 1998. 83 Richard Perruchoud and Jillyanne Redpath-Cross (eds.), Glossary on Migration. Second Edition. International Migration Law, n. 25, IOM, Geneva, 2011, p. 52. 84 Ivi, p. 62. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 223 sphere of jurisdiction to another. In this transition the nationality assumes a fortiori a primary relevance if the rights attached to it include the rights to movement, residence and establishment as provided in the pertinent ECOWAS Protocols. Significantly, the definition of “international migrant” provided by the Office of the United Nations High Commissioner for Human Rights (OHCHR), in a study devoted to human rights at international borders refers to “any person who is outside a State of which he or she is a citizen or national, or, in the case of a stateless person, his or her State of birth or habitual residence”.85 Here, beside nationality, the condition of stateless person is highlighted. If nationality is the “right to have rights”, statelessness might affect not only the accessing to basic rights, but the freedom of movement as well.86 The foundation of the international legal framework to address statelessness are the 1954 Convention relating to the Status of Stateless Per- sons87 and the 1961 Convention on the Reduction of Statelessness.88 The first defines a stateless person as a person who is not considered as a national by any State under the operation of its law (art. 1). According to article 28 the Contracting States shall issue to stateless persons lawfully staying in their territory travel documents for the purpose of travel outside their territory and article 31 forbids the Contracting States from ex- pelling a stateless person lawfully in their territory save on grounds of national security or public order. As far as possible the Contracting States shall facilitate the assimilation and naturalization of stateless persons (art. 32). For the purpose of reducing statelessness the 1961 Con-

85 OHCHR, Recommended Principles and Guidelines on Human Rights at Interna- tional Borders, 2014, p. 4, note 2. 86 UNHCR, http://www.unhcr.org/en-us/stateless-people.html (10.18). 87 Convention relating to the Status of Stateless Persons, adopted on 28 September 1954, entered into force on 6 June 1960, UN Treaty Series, Vol. 360, 1960, No. 5158, p. 117, p. 136 ss. English text. ECOWAS Members that are parties as of May 2018, with date of accession: Benin 2011, Burkina Faso 2012, Côte d’Ivoire 2013, The Gambia 2014, Guinea 1962, Guinea Bissau 2016, Liberia 1964, Mali 2016, Niger 2014, Nigeria 2011, Senegal 2005, Sierra Leone 2016. Northern Africa States: Algeria 1964, Libya 1969, Tunisia 1969. 88 Convention on the Reduction of Statelessness, adopted on 30 August 1961, entered into force on 23 December 1975, UN Treaty Series, Vol. 989, 1975, No. 14458, p. 175 ss.. ECOWAS Members that are parties as of May 2018, with date of accession: Benin 2011, Burkina Faso 2017, Côte d’Ivoire 2013, The Gambia 2014, Guinea 2014, Guinea Bissau 2016, Liberia 2004, Mali 2016, Niger 1985, Nigeria 2011, Senegal 2005, Sierra Leone 2016. Northern Africa States: Libya 1989, Tunisia 2000. 224 MARIANELLA PIRATTI vention provides at article 1 that the Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless and at article 9 that a Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.89 As reported in notes 87 and 88 most of the ECOWAS States that ratified the two treaties have done so only since the 2010s. There is, in fact, a growing attention being paid in Africa to the subjects of the right to nationality and statelessness that is leading to the adoption of specific policies and legal instruments. The extent of the phenomenon of statelessness in Africa is vast, but even in this case the data are not certain. According to the UNHCR 2016 Report on Forced Displacement only a few African States provided data on statelessness,90 while a Guide to birth registration programming edited by UNICEF, reports that in Africa only 5% of population is living in country with complete registration systems.91 The Charter states at article 12.2 that every individual shall have the right to leave any country, including his own, and to return to his country, and that this right may only be subject to restrictions provided for by law for the protection of national security, law and order, public health or morality. The reference to “his own/his country” is not otherwise specified and the Charter on the right to nationality is silent. This right is instead established by the African Charter on the Rights and Welfare of the Child92 according to which every child shall be registered immediately after birth (art. VI.2) and has the right to acquire a nationality (VI.3). The African Committee of Experts on the Rights & Welfare of the child (ACERWC), held a theme day on birth registration and the

89 Alessandra Annoni et al. (eds.), The Changing Role of Nationality in International Law, Routledge, Abingdon-New York, 2013; Tenday Bloom et al. (eds.), Understanding Statelessness, Routledge, Abingdon-New York, 2017; Nafees Ahmad, “The Right to Nationality and the Reduction of Statelessness – The Responses of the International Mi- gration Law Framework”, Groningen Journal of International Law, Vol. 5, No. 1, 2017, pp. 1-22. 90 UNHCR, Global Trends. Forced Displaced in 2016, 2017, pp. 66-71. 91 United Nations Children’s Fund, A Passport to Protection. A Guide to Birth Reg- istration Programming, UNICEF, New York, 2013, p. 32. 92 Adopted by the Twenty-sixth Ordinary Session of the Assembly of Heads of State and Government of the OUA held in Addis Ababa, Ethiopia on 11 July 1990, by Resolu- tion AHG/Res. 197 (XXVI), § 2. Entered into force on 29 November 1999. 48 States have currently ratified, see: https://au.int/sites/default/files/treaties/7773-sl-african_ charter_on_the_rights_and_welfare_of_the_child_1.pdf (10.18). INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 225 rights of the child during its 20th session in November 2012 where it was decided to develop a General comment on article 6 for guidance to States Parties.93 The General comment that was issued94 considers that “There are hundreds of thousands of people living in Africa who are stateless, and many more whose nationality is in doubt or dispute. The causes of this situation can be found in Africa’s history, in the arbitrary creation of the borders of African States, in problems related to the transition from the colonial era to independence and more recent creations of states or transfers of territory, in both historical and contemporary migration, and in deficiencies in nationality laws and their implementation” (§4). “Due process is often not respected in the recognition, conferral and withdrawal of nationality, creating the serious risk of arbitrary decision” (§ 6). “At a practical level, the greatest obstacle to the effective realization of the right to a nationality in Africa is the lack of functional and universal civil registration systems” (§ 7). The General comment can be seen as the first step of a process of developing policies and an African legal framework that has undergone a major acceleration in the past few years. On June 2013 the Commission adopted Resolution 234 on the Right to Nationality.95 After recalling the international legal obligations of States Parties and expressing concern for the arbitrary denial or deprivation of the nationality of persons or groups of persons by African States, the Commission reaffirmed that the right to nationality of every human person is a fundamental human right implied within the provisions of Article 5 of the Charter96 and essential to the enjoyment of other fundamental rights and freedoms under the Charter. Considering then the necessity to carry out an in-depth study on issues relating to the right to nationality, it decided to assign the task to the Special Rapporteur on Refugees, Asylum seekers, Displaced Persons and Migrants in Africa.97

93 AU, 20th Session of the African Committee of Experts on the Rights & Welfare of the Child (ACERWC) 12-16 November 2012, Addis Ababa, Ethiopia, ACERWC/RPT (XX), § 32. 94 AU, ACERWC, General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child: “Right to Birth Registration, Name and Nationality”, available at: http://www.acerwc.org/ (10.18). 95 AU, ACmHPR, available at: http://www.achpr.org/sessions/53rd/resolutions/234/ (10.18). 96 Article 5 of the Charter states that every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. 97 AU, ACmHPR, Res.234 (LIII) 13 on the Right to Nationality, 53rd Ordinary Ses- 226 MARIANELLA PIRATTI

By further Resolution 277 on the drafting of a Protocol to the African Charter on Human and Peoples’ Rights on the Right to Nationality in Africa, adopted during its 55th Ordinary Session in 2014, the Commis- sion decided to assign the task of drafting a Protocol to the Special Rap- porteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa.98 We will go back to this topic shortly. As regards ECOWAS, a Protocol relating to the definition of Com- munity citizen was adopted in 1982.99 The acquisition of Community Citizenship is however dependent on holding or acquiring the nationality of a Member State of ECOWAS (art. 1 (a) (b), art. 1 (d)) and can be lost inter alia by reason of a permanent settlement in a State outside the Community (art. 2.1 (a)). The condition of not being a national of any non-Member State of the Community is also required (art. 1 (a), (d) (i), art. 2.1 (b), (c)). A turning point within the Community occurred with the adoption on 25 February 2015 of the Abidjan Declaration of Minis- ters of ECOWAS Members States on Eradication of Statelessness,100 that according to its article 22 has been further implemented by the validation and adoption of the Regional Plan of Action to eradicate statelessness in West Africa during a Ministerial Meeting held in Banjul, The Gambia, on 7-9 May 2017.101 The Preamble to the Declaration underscores that West Africa has

sion held from 9 to 23 April 2013 in Banjul, The Gambia, available at: http://www.achpr.org/sessions/53rd/resolutions/234/ (10.18). 98 AU, ACmHPR, Res. 277 (LV) 14 on the drafting of a Protocol to the African Charter on Human and Peoples’ Rights on the Right to Nationality in Africa, 55th Ordi- nary Session held from 28 April to 12 May 2014 in Luanda, Angola, available at: http://www.achpr.org/sessions/55th/resolutions/277/ (10.18). 99 ECOWAS, Protocol A/P.3/5/82 relating to the definition of Community citizen, Cotonou, 29th of May 1982, ECOWAS Official Journal, Vol. 4, June 1982, pp. 21-23, also available at: http://documentation.ecowas.int/legal-documents/protocols/ (10.18). 100 UNHCR, ECOWAS, available at: http://www.unhcr.org/ecowas2015/ENG- Declaration.pdf (10.18). 101 UNHCR, http://www.unhcr.org/5919aaec4 (10.18). On the implementation of the Abid- jan Declaration see also: https://news.un.org/fr/story/2018/02/1006711 (10.18). On the binding force of the Abidjan Declaration the only reference that could be found is a joint press release by ECOWAS and UNHCR of 10 May 2017, according to which “The technical experts of ECO- WAS Member States met on 7 and 8 May 2017 to formulate and validate the Plan of Action before its validation by ECOWAS Ministers. This document will be presented for approval at the forthcoming ECOWAS statutory meetings, which would make it legally binding on all the Member States”, available at: http://www.ecowas.int/west-africa-on-path-to-become-the-first- region-in-the-world-to-adopt-a-plan-of-action-to-end-statelessness/ (10.18). INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 227 traditionally experienced movements of population, including situations of prolonged migration and forced migration, and notes that the absence of nationality constitutes a serious impediment to the exercise of rights such as access to health, education, social protection, freedom of movement and identity documentation. Paragraph 1 addresses the issue of the extent and the reasons of statelessness in ECOWAS Member States and paragraph 2 enshrines the commitment to prevent and reduce statelessness by reforming constitutional, legislative and institutional regimes related to nationality in order to include appropriate safeguards against statelessness. ECOWAS institutions are encouraged to study how migration within West Africa and migration originating from West Africa can lead to situations of statelessness and to propose practical measures to confirm the nationality to nationals abroad and to promote issuance of identity documentation to them (§ 9). Furthermore, there is the commitment to prevent statelessness in a migratory context by ensuring that migrants and their families who fulfill residence and other requirements, have access to procedures for acquisition of nationality by naturalization and that off-spring of migrants can acquire nationality through the application of appropriate criteria, including birth in the territory (§ 11). Member States are invited to accede to the 1954 Conven- tion relating to the Status of Stateless Persons and to the 1961 Conven- tion on the Reduction of Statelessness (§ 14 and § 4) and the African Union is called to prepare and adopt a protocol to the African Charter on Human and Peoples’ Rights on the right to a nationality (§ 5). The process for the adoption of a Protocol to the African Charter on Human and Peoples’ Rights on the specific aspects of the right to a nationality and the eradication of statelessness in Africa is currently moving forward: lastly the Draft was discussed at the Meeting of Member States Experts held in Abidjan, Côte d’Ivoire on 7-11 May 2018.102 Though we cannot fully analyze the Draft Protocol103 at this time, suffice it to say that the Preamble recalls “the pioneering role played by the Regional Economic Communities of the African Union in the evolution of new frameworks for citizenship at the regional level as a means of

102 AU, see: https://au.int/en/newsevents/20180507/member-states-experts-meeting- draft-protocol-african-charter-human-and-peoples (10.18). 103 The draft protocol was adopted by the African Commission on Human and Peo- ples’ Rights in 2015, and formally submitted to the African Union in May 2017 and is available at: https://au.int/sites/default/files/newsevents/working documents/34175-wd- draft_citizenship_protocol_en_may2017-jobourg.pdf (10.18). 228 MARIANELLA PIRATTI accelerating the integration of Africa’s peoples” and “that the history of the African continent, especially the initial establishment of borders by colonial powers, has given questions of nationality and statelessness particular characteristics in our States that are not sufficiently taken into account by the existing African and international instruments”. The provision of article 3.2.a fills a legal vacuum of the Charter stating that States Parties agree and recognize that every person has the right to a nationality and article 8 considers specifically Nomadic and Cross- borders Populations. For these people, whose habitual residence can be in doubt, among the evidence aimed at establishing an appropriate connection with a State there is the location of the burial sites of ancestors (art. 8.c.v.). On the subject of Overcoming the Challenges of Statelessness, Forced Displacement and the Free Movement of Persons in Africa, the Special Technical Committee on Migration, Refugees and Internally Displaced Persons, held a meeting on 29 October – 3 November 2018 to finalize the text of the Draft Protocol to be submitted to the AU Assem- bly for adoption.104 Until then, as we will see in the next paragraph, the right to nationality has been affirmed in the case-law of the African In- ternational judicial bodies.

5. An overview of case-law on the right to nationality: the merging of the right to nationality with old and new migration issues

Although, as we have seen, the Charter does not provide for the right to nationality there are some Decisions of the Commission that through an extensive interpretation of article 5, which, as already mentioned, provides for the right to the recognition of the individual legal status, have come to affirm the right to nationality. Such an extensive interpretation, as quoted above, was also formalized in Commission Resolution 234 on the Right to Nationality. One of these cases is The Nubian Community in Kenya v The Re- public of Kenya.105 The Nubian Community comprises descendants of

104 AU, Concept note, available at: https://au.int/sites/default/files/newsevents /conceptnotes/34999-cn-malabo_november_concept_note_for_extraordinary_stc- rev2.pdf (11.18). 105 ACmHPR 2015, Communication 317/2006, The Nubian Community in Kenya vs The Republic of Kenya, Decided at the 17th Extraordinary Session, 19 - 28 February 2015, INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 229 ex-Sudanese – that originally occupied the Nuba Mountains in the central part of the Republic of The Sudan – forcefully conscripted into the colonial British King’s African Rifles Regiment in the early 1900s, who were taken to various parts of British East Africa, including present-day Kenya. The colonial authorities did not grant British citizenship to the Nubians (§ 2-§ 3). Upon Kenyan independence, in 1963, the citizenship status of the Nubians was not directly addressed, and for a long period of time they were consistently treated by the government as “aliens” and their right to nationality denied. De facto stateless, they were without legal protection (§ 2-§ 5). The Complainants submitted that restrictions were imposed on Ken- yan Nubians in securing the ID card that is necessary to obtain recognition of their Kenyan citizenship (§ 74). The Commission argued on the Merit that recognition of one’s legal status (or juridical personality)106 is an indispensable requirement for the enjoyment of the rights enshrined in the Charter because it grants an individual recognition before the law (§ 138) and that nationality is intri- cately linked to an individual’s juridical personality; the denial of access to identity documents which entitles an individual to enjoy rights associated with citizenship violates an individual’s right to the recognition of his juridical personality and in the Commission’s view a claim to citizenship or nationality as a legal status is protected under article 5 of the Charter (§ 140). By failing to take measures to prevent members of the Nubian Community from becoming stateless and by failing to put in place fair processes, devoid of discrimination and arbitrariness for the acquisition of identity documents, the Commission considered therefore that Kenya had failed to recognize the legal status of Nubians, in violation of Article 5 of the Charter (§ 151). Similarly, the question is raised in the case Open Society Justice Ini- tiative v Côte d’Ivoire,107 where the Commission also investigates the

Banjul, Gambia, February 28 2015, available at: http://www.ach pr.org/files/sessions/17th- eo/comunications/317.06/communication_317.06_eng.pdf (10.18). 106 Note 47 of the Decision clarifies that “In the French version of the Charter, ‘legal status’ is translated as ‘personalité juridique’ or ‘juridical personality’, which accords more with the terminology used in other human rights instruments. Juridical personality and legal status are therefore used interchangeably in the present Communication”. 107 ACmHPR 2015, Communication 318/2006, Open Society Justice Initiative v. Côte d’Ivoire, Decided at the 17th Extraordinary Session, 19 - 28 February 2015, Banjul, Gambia, February 28 2015, available at: http://www.achpr.org/file s/sessions/17th- eo/comunications/318.06/communication_318.06_eng.pdf (10.18) 230 MARIANELLA PIRATTI relation between the different migration waves over the centuries to the territory of today’s Côte d’Ivoire and the notion of nationality. Beyond that, the case addresses crucial issues related to nationality and statelessness that are not limited to the specific situation of the Respondent State. According to the complainant, President Henri Konan Bédié introduced in the Respondent State the concept of “ivoirité” the implementation of which meant that Ivorian nationality could be obtained only by persons born in Côte d’Ivoire by two Ivorian parents (§ 4). Over time the notion of “ivorité” was worsened by a xenophobic nationalism in the form of discrimination by Ivorian authorities against the Dioulas from the North (§ 7). Even when their nationality was attested to, some Diou- las were denied certain benefits and services by the Government, including acquisition of passports, birth certificates and national identity cards (§ 9, and § 53-§ 56). The Commission in its Analysis on Admissibility, first notes that the alleged facts were inevitably likely to result in the violation of the right of recognizing the legal status guaranteed by Article 5 of the African Charter (§ 47) and on the Merits poses the crucial issue as to whether there is a “right to nationality” according to the provisions of Article 5 of the Charter, arguing that nationality is a basic component of the right of the recognition of the legal status. Also recalling its Reso- lution 234 on the Right to Nationality, the Commission states that the Ivorian nationality is the component, at least the primordial mode of realization of the right to the recognition of legal status that the Dioulas of Côte d’Ivoire were invoking. After affirming this principle the Commis- sion then poses the issue of the definition of the notion of “Ivoirian” and of the concept of nationality (§ 97) and to these aims introduces the distinction between a de facto and de jure notion of nationality, the first of which, having a sociological and political meaning, is extended beyond the legal dimension. From such a perspective nationality may be considered appropriately as the determination of existence as a nation of a human group whose members are united by ethnic, social and cultural traits (§ 98). Given these premises, the Commission addresses the conception of nationality in pre-colonial Africa, asserting that nationality as an ethnic, social and cultural unit poses a fundamental problem in the African context, since the demarcation of borders inherited from independence caused a split of entities of nationalities that existed before colonization and that it was up to the new sovereign African States to create national entities out of several entities dismantled by colonization INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 231 and to redraw the borders (§ 99). In the Commission’s opinion in many African States, any legal creation of nationality must essentially take its main source from a sociological and political understanding but also from the historical source of nationality and recalling the Nottebohm Case of the International Court of Justice108 (§ 100), it therefore considers that to the aim of determining the Ivorian nationality, considerations of historical, legal and political elements must be taken into account. Proceeding along these lines the Commission goes back to the XIII century to reconstruct the different migratory waves that through the ages led Dioulas to the territory that is today Côte d’Ivoire (§ 101-§ 103, § 105), concluding that they are part of the nucleus of historical Ivorian nationality and therefore untitled to claim to Ivorian nationality. The question then remains as to whether from this historically established claim it is possible to derive a legal guarantee from the initial creation of nationality in Côte d’Ivoire, that could only be granted since the time the State of Côte d’Ivoire legally has existed, namely from 7 August 1960, the date in which it gained international sovereignty (§ 104-§ 105). Until that time, in fact, there was nothing like Ivorian nationality and all were to be considered French subjects (§ 118). Accordingly, it will be necessary to look at the domestic law that regulates nationality (Law No. 61-415 of 14 December 1961 relating to the Ivorian Nationali- ty Code) to establish who is legally Ivorian and whether the provisions on nationality comply with those of article 5 of the Charter (§ 106), also with reference to the second generation of Dioulas that emigrated to the Country between 1960 and 1993. In the Commission’s view, though in principle this group of people should be assimilated to foreigners, the time they spend within the territory must be taken into account and the privileges attached to nationality obtained in practice, must be maintained with retroactive effect for their beneficiaries by any new law on nationality (§ 125). Also reviewing further reforms on nationality legislation (Law No. 72-852 of 21 December 1972; Law No 2013-653 of 13 September 2013) the Commission reaches the conclusions that the laws and practices of the Respondent State violate the provisions of Article 5 of the Charter with regard to all victims. In particular it highlights that the Ivorian nationality Code establishes original nationality for Ivorians and acquired nationality for foreigners but fails to clearly define who an outright Ivorian is, who an Ivorian by origin is and who is a foreigner (§

108 See note 75. 232 MARIANELLA PIRATTI

138). As a result of the vagueness of the provisions of the law, thousands of persons born in Côte d’Ivoire to persons who were themselves born in Côte d’Ivoire, and who have always lived there, find themselves in a situation of statelessness (§120), to be precise, according to the statistics produced by UNHCR, there were at least 700.000 stateless persons as at the time of the decision (§ 129). This decision raises and analyses several significant issues. First of all, we can underline the relevance of the intra-African migration movements in relation to the recognition of the legal status of citizen once the new independent African States were established, in a context in which the sole European nationality prevailed before the existence of any African nationalities (§ 110). Nonetheless in the Commission’s discourse, European nationality is left in the shade and what is relevant is the search for an African conception of nationality which, in the absence of state political entities, by its very nature, could not be found in a legal bond but in the ethnic, social and cultural traits that unite a given human group. Here we can grasp the echo of the well known Prolusione of Pa- squale Stanislao Mancini109 where he wrote that “lo Stato non è opera di arte, né di consenso: ed implica già come suo principio di vita la idea di nazionalità, la quale per necessità lo antecede”110 and as such determines “la perenne impotenza di tutti gli umani artifizii contro la neces- sità della natura, la vanità di tutt’i tentativi ripetuti nel giro de’ secoli per opprimere sotto la mole di gigantesche creazioni politiche il gran fatto naturale della partizione dell’umanità in nazionalità distinte per caratteri assai più certi e durevoli degl’instabili arbitrii delle combina- zioni diplomatiche”.111 In the colonial African context, Mancini’s theory on nationality couldn’t merge with the conception of statehood and the problems attached to this impossibility have not been completely over-

109 Pasquale Stanislao Mancini, Della nazionalità come fondamento del diritto delle genti: Prelezione al corso di diritto internazionale e marittimo pronunciata nella R. Università di Torino dal Professore Pasquale Stanislao Mancini, nel dì 22 gennaio1851, Tipografia eredi Botta, Torino, 1851. 110 Ivi, p. 48 (“the State is not a work of art, nor of consensus: and already implies as its principle of life the idea of nationality, which by necessity precedes it”). 111 Ivi, p. 51 (“the everlasting impotence of all human artifices against the necessity of nature, the vanity of all attempts repeated over the centuries to oppress under the bulk of gigantic political creations the great natural fact of the partition of humanity into nationalities, distinct in characters far more certain and lasting than the unstable will of diplomatic combinations”. This translation and that of the previous note are by the author). INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 233 come once international sovereignty has been acquired, appearing on the legal level in the norms defining the acquisition of nationality and on both the legal and social level for the foreclosure to the enjoyment of the rights that derive from nationality. The consequences of this state of affairs are manifold: the Commis- sion, in adopting an historical approach to the determination of nationality in Africa, states that one of the ultimate purposes is to resolve, once and for all, the dramatic equation of imposing arbitrary borders on new sovereign African States at independence (§ 115)112 and reminds that successive Governments of the Respondent State have recognized the problem of nationality as the main factor behind the socio-political crisis and armed conflict which Côte d’Ivoire has experienced since 2002 in particular (§134). Conflicts are actually among the reasons that can force people to leave their country. In this regard, we recall the provisions of the above mentioned article I.2 of the OAU Convention governing the specific aspects of refugee problems in Africa, according to which events seriously disturbing public order in either part or the whole of the country of origin or nationality, and that compel persons to leave to seek refuge in another place outside the country of origin or nationality, fall under the conditions for eligibility to the recognition of the status of refugee. The lack of acquisition of nationality can thus be considered as a factor that influences migratory flows. On the other side, the Commission considers that by virtue of the historical colonial context, in the creation of legal nationality in Africa – all of Africa – the priority is to identify who is a “national”, who is a “foreigner” and the parameters for the determination of nationality (§ 108). Unclear standards could in fact be considered a violation not only of the provisions of article 5 of the Charter but also of the relevant Internation- al Law (§ 112) and in the Commission’s worlds, statelessness is one of the most dramatic consequences of the vagueness of legislation on nationality. In bridging the provisions of the Charter and the international Con- ventions relating to nationality, namely the 1954 United Nations Con- vention on the Status of Stateless Persons and the 1961 Convention on the Reduction of Cases of Statelessness – both of them ratified by Côte d’Ivoire in 2013 – the Commission recalls articles 60 and 61 of the Charter (§ 113. See above note 29), i.e. the law it can apply. This pas-

112 ACmHPR 2015, Communication 318/2006, Open Society Justice Initiative v. Côte d’Ivoire, cit.. 234 MARIANELLA PIRATTI sage allows us to highlight in the jurisprudential practice, the different mechanisms that govern the two main bodies for the guarantee of human rights in Africa, that is to say the Commission and the Court. The latter in fact decided in March 2018 its first case on the right to nationality that we will briefly review. The case in question is Anudo Ochieng Anudo v United Republic of Tanzania113 and relates to the withdrawal of nationality and expulsion from the Country of the Applicant by the Respondent State (§ 3). First of all, we must point out that Tanzania is among the States parties to the Protocol establishing the Court, that also deposited the special declaration under article 34 par. 6 to allow individuals and Non-Governmental organizations to access the Court directly. Given the context of the case, it must also be said that the State is not party to any of the two mentioned international conventions on statelessness, something that is relevant in relation to the law applicable by the Court. In summary, Mr. Anudo was born in Tanzania of Tanzanians parents and claimed to be a Tanzanian national. In 2012, while he was processing formalities for his marriage, the Tanzanian authorities decided to retain his passport on the grounds that there were suspicions regarding his Tanzanian citizenship. His Tanzanian nationality was withdrawn and in 2014 a Notice of Prohibited Immigrant was issued against him; he was then expelled, with immigration officers escorting him to the Kenyan border. In Kenya a Court declared him to be in an “irregular status” in the territory, sentenced him to pay a fine for illegal stay and, following this decision, he was expelled to Tanzania. As he could not enter the Country, he remained in the “no man’s land” between the Tanzania- Kenya border (§ 4, § 9, §11, §12; § 9 of the Summary). The Applicant alleged that the confiscation of his passport, the “illegal immigrant” status issued against him and his expulsion from the United Republic of Tanzania deprived him of his right to Tanzanian nationality, guaranteed and protected under articles 15.1 and 17 of the Tanzanian Constitution and article 15.2 of the Universal Declaration of Human Rights (UDHR) (§ 13) and violated a range of other of his fundamental rights (§ 14); he thus prayed the Court to order that the immi-

113 AfCHPR, Anudo Ochieng Anudo v. United Republic of Tanzania, Application No. 012/2015, Judgment, 22 March 2018, available at: http://www.african- court.org/en/images/Cases/Judgment/-012%20-%202015%20-%20Anudo%20Vs.%20 Tanzania%20-%20Judgment%2022%20March%202018%20-%20Optimized.pdf (10.18). INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 235 gration authorities’ decision to expel him from his own Country, be declared null and void and, inter alia, the prohibited immigrant notice issued against him cancelled and his nationality reinstated by declaring him a citizen of the United Republic of Tanzania (§ 26-§ 27). Following the objection of the Respondent State to the admissibility of the Application on grounds of failure to exhaust local remedies according to article 6.2 of the Protocol establishing it, that refers to article 56 of the Charter, the Court noted that when the Applicant was in the position to exercise the requested remedy, since he had already been expelled from Tanzania and was no longer in the territory of the Respond- ent State, it would have been very difficult for him to exercise such a remedy and dismissed the Respondent State’s objection (§ 52 - § 53). On the Merits the Court analyzes the Applicant’s right to nationality and the right not to be arbitrarily deprived of his nationality; the right not to be arbitrarily expelled and the right to have his cause heard by a court (§ 61). On the first point, recalling that the conferral of nationality is the sovereign act of States, the Court considers that the question is to determine whether the withdrawal of the Applicant’s nationality was arbitrary or whether it conformed with international human rights standards (§ 74-§ 75) and that the power to deprive a person of his or her nationality must be exercised in accordance with international standards to avoid the risk of statelessness (§ 78). Noting that neither the Charter nor the International Covenant on Civil and Political Rights (ICCPR) provide for the right to nationality, the Court relies on the provisions of article 15 of the UDHR which states that (1) everyone has the right to a nationality and that (2) no one shall be arbitrarily deprived of his nationality (§ 76), holding in conclusion, that the deprivation of the Appli- cant’s nationality was arbitrary and contrary to article 15.2 of the UDHR (§ 88). In relying on the UDHR the Court considers that it is recognized as forming part of customary International Law (§ 76). Formally, however, according to Article 7 of its founding Protocol, the Court must apply the provisions of the Charter and any other relevant human rights instrument ratified by the States concerned. This provision, as the former Court’s judge Fatsah Ouguergouz observed, defines a strictly conventional applicable law. This notwithstanding, according to this opinion, the Court should not be prevented from applying customary law when such an expression is to be found in the Commission’s resolutions 236 MARIANELLA PIRATTI and decisions.114 In the case we are reviewing the Court doesn’t mention the Commission’s case-law. It must however be observed that currently the official site of the Court, which explains the law the Body can apply, without explicitly mentioning the relevant articles, repeats the provision of article 7 of the Court’s Protocol and the provisions of article 60 of the Charter: these last including the UDHR115 but referring to the Commis- sion’s applicable law. Briefly, on the right not to be arbitrarily expelled, the Court also arguing that the Respondent State failed to take the necessary measures to prevent the Applicant from being in a situation of statelessness (§ 102),116 considers that the manner in which the Applicant was expelled by the Respondent State constitutes a violation of article 13 of the IC- CPR (§ 106). Finally, on the right to have his cause heard by a court, the Court rules that by declaring the Applicant an “illegal immigrant” thereby denying him Tanzanian nationality, which he had until then enjoyed, without the possibility of an appeal before a national court, the Re- spondent State violated his right to have his cause heard by a judge within the meaning of Article 7.1 a), b) and c) of…the official document quoted here at note 113 refers to the ICCPR (§ 115), but it must be article 7 of the Charter. Furthermore, the Court, noting that the Tanzanian Citizenship Act contains gaps inasmuch it does not allow citizens by birth to exercise judicial remedy where their nationality is challenged, as

114 Ouguergouz, La Cour africaine des droits de l’homme et des peuples, cit., p. 233. 115 “Which is the Applicable Law for the Court? The Court shall apply the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned. The Charter provides that the sources of law that apply for the monitoring of the implementation of the Charter are international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peoples’ rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, now the Constitutive Act of the African Union, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples’ rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the Charter are members”, see: AfCHPR, http://www.african- court.org/en/index.php/faqs/frequent-questions (10.18). For the provisions of article 60 of the Charter see note 29. 116 AfCHPR, Anudo Ochieng Anudo v. United Republic of Tanzania, cit.. Recalling the Convention relating to the Status of Stateless Persons (§ 103), the Court reminds at note 11 that Tanzania has not ratified it, but that according to the International Law Commission, the definition of article 1.1 can be considered to have acquired customary character. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 237 required by International Law, expresses the opinion that the Respond- ent State has the obligation to fill the said gaps (§ 116). In conclusion both the Commission and the Court come to affirm the right to nationality, but on different legal grounds according to the applicable law provided under their Statutes. In particular, it must be observed that whereas the Commission gives an extensive interpretation of the provisions of the Charter, the Court moves away from the application of the strictly conventional principles to which it is formally subjected, relying on customary law both when applying the provisions of the UDHR and the provisions of the Convention relating to the Status of Stateless Persons, this one not ratified by the State concerned. Nonetheless, in so doing the Court ad- heres to the formal dictate of the invoked instruments, choosing not to follow the path laid out by the Commission that through an interpretative criterion, affirms the right to nationality as implied within the right to the recognition of one’s legal status as provided for in article 5 of the Charter. Even though the decisions of the Commission are not binding and only 8 States made the declaration recognizing the competence of the Court to receive cases from NGOs and individuals, it can be observed that the clear orientation that emerges from the jurisprudence of the two Bodies goes hand in hand with the legal voluntarism of the AU expressed by the draft of the Protocol to the African Charter on Human and Peoples’ Rights on the specific aspects of the Right to a Nationality and the Eradication of Statelessness in Africa. Yet, on the basis of the reviewed case-law it is possible to remark that in the African context there exists a sort of border within the State borders, which separates nationals from non-nationals whether these last are actually migrants or aliens, or not. Rooted in the colonial history and in the past migration waves, the particular status of those in the “no man’s land” – to recall the expression used in the Anudo case – is statelessness, a situation that deprives persons of the enjoyment of the rights attached to the status of citizen even when abroad. In fact, if we consider diplomatic protection, the mechanism of International Law that States employ to secure just treatment for their nationals abroad, as a general rule it might be exercised only by the State of nationality. The Interna- tional Law Commission (ILC)’s draft articles on diplomatic protection,117 sets this rule at article 3.1, but introduces at article 8 an im-

117 U.N., “Report of the Commission to the General Assembly on the work of its fifty-eight session”, Yearbook of the International Law Commission, Vol. II, Part II, 2006, U.N. 2013, p. 23 ss.. 238 MARIANELLA PIRATTI portant innovation, adopting provisions allowing States to exercise diplomatic protection even in respect of stateless persons and refugees lawfully and habitually resident in the claimant State. Even though this exception to the general rule has to be considered an exercise in progressive development of the law, it is nonetheless worth noting that under article 8.2 a refugee is the person that is recognized as such by the State concerned. The term “recognized refugee” was intended by the ILC to cover persons who do not strictly conform to the 1951 Convention relating to the status of refugees and the related 1967 Protocol, with the aim of extending the concept to include refugees recognized by regional instruments such as the OAU Convention governing the specific aspects of refugee problems in Africa, defined as “widely seen as the model for the international protection of refugees”.118 Beyond this formal frame, we have seen however how the Commission itself in cases related to alleged violations of refugee rights, relied mainly on the Charter rather than on the just mentioned Convention (supra § 3); furthermore, a context like the African one, where data collection on migration as well as on statelessness is lacking, birth registration is a challenging issue and for many nationality is in doubt or dispute, does not seem favourable both in respect of the requirements that stateless persons and refugees have to fulfill for eligibility to diplomatic protection de lege ferenda, and in respect of the exercise of diplomatic protection de lege data, when the acquisition of nationality is hampered by unclear standards in the domestic law. Both the Commission and the Court consider in fact that the domestic laws on nationality of the concerned States were not consistent with international standards and require to fill the shortcom- ings of the law for the purpose of avoiding statelessness. This, to sum up, means calling upon African States to fulfill the responsibility they hold under International Law. Sound guide to the international responsibility are the Draft articles on responsibility of States for internationally wrongful acts and the related commentaries drawn up by the ILC.119 According to article 1 every international wrongful act of a State entails the international responsibility of that State. Such a responsibility extends, for example, “to human rights violations and other breaches of international law where the pri-

118 Ivi, p. 36. 119 U.N., “Report of the Commission to the General Assembly on the work of its fifty-third session”, Yearbook of the International Law Commission, Vol. II, Part II, 2001, U.N. 2007, p. 20 ss.. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 239 mary beneficiary of the obligation breached is not a State”;120 in the field of human rights “the content and application of internal law will often be relevant to the question of international responsibility”.121 Giv- en this legal framework, the exhortation to an assumption of responsibility with respect to the migratory phenomenon as a whole, is specifically addressed to African States by Elhadj As Sy, Secretary General of the International Federation of Red Cross and Red Crescent Societies, and national of Senegal, when he states that African governments: “Devrai- ent reconnaître – et non renier – leurs propres citoyens …. Les Afri- cains ne peuvent pas laisser ce problème à d’autres. Certes, le monde adoptera un pacte mondial pour des migrations sûres, ordonnées et ré- gulières, à Marrakech, en décembre. Mais le fait est qu’une grande partie du problème relève de l’Afrique et devra être réglée en Afrique. Nombre de nos problèmes – et de leurs solutions – se situent chez nous. Mettons fin à l’indifférence et protégeons l’humanité”.122 The Intergovernmental Conference to Adopt the Global Compact for Safe, Orderly and Regular Migration (GCM) will be held in Marrakech, Morocco, on 10-11 December 2018. The final draft of the GCM sets 23 objectives. Significantly, the first one is to collect and utilize accurate and disaggregated data as a basis for evidence-based policies and the fourth is to ensure that all migrants have proof of legal identity and adequate documentation.123

6. The ECOWAS Protocol relating to Free Movement of Persons, Resi- dence and Establishment

The most advanced achievement on the free movement of persons in Africa is currently the ECOWAS Protocol relating to Free Movement of Persons, Residence and Establishment adopted in 1979124 (hereinafter:

120 Ivi, p. 87. 121 Ivi, p. 38. 122 Elhadj As Sy, “L’Afrique ne peut plus rester indifférente à ses migrants”, Jeune Afrique, n. 3012, 30 sept.-6 oct. 2018, p. 34. 123 The GCM is based on the U.N. General Assembly Resolution A/RES/71/1 “New York Declaration for Refugees and Migrants”, adopted on 19 September 2016, Annex II. Global Compact for Safe, Orderly and Regular Migration, Final draft, 11 July 2018, § 16, available at: https://refugeesmigrants.un.org/sites/default/files/180711_final _draft_0.pdf (10.18). 124 See note 3. 240 MARIANELLA PIRATTI

Protocol FM) and the implementation protocols that followed. On this subject some preliminary notes are required due to some relevant elements of novelty affecting both ECOWAS and the AU. First of all it must be underscored that three North African States applied for adhesion to ECOWAS: Morocco applied for membership and Tunisia for observer status; Mauritania, founding member of ECOWAS, withdrew from the Community in 2000 to concentrate its efforts on the building of the Arab Maghreb Union (AMU), an organization established in 1989 by the Maghreb States125 and that due to the question of Western Sahara that, as known, opposes in particular Morocco and Al- geria, never really worked. In August 2017 Mauritania and ECOWAS concluded an Association Agreement (currently not available on a public website) that has still to be implemented but that in principle, according to the initialing of the Association Agreement that the Parties signed in Nouakchott in May 5, 2017, should also promote the free movement of persons.126 The ECOWAS Authority of Heads of States and Govern- ment, in June 2017,127 directed “that Mauritania, being a former member of ECOWAS, should speed up the process for full membership in order to be able to enjoy all the rights and benefits of a Member State” (§ 58). It further declared to support in principle the granting of membership to the Kingdom of Morocco (§ 61) and that the Republic of Tunisia should be granted an observer status to ECOWAS (§ 60). At the 52nd ordinary session of the ECOWAS Authority of Heads of State and Government held in December 2017,128 regarding the applications received from the

125 AMU/UMA, The Treaty of Marrakesh, 17 February 1989, art.1. Member States are Algeria, Libya, Morocco, Tunisia and Mauritania. Available in unofficial translation in French only at: http://www.umaghrebarabe.org/sites/default/files/u33/traite_de _marrakech.pdf (10.18). 126 ECOWAS-Islamic Republic of Mauritania, Communique Final, sanctionnant la conclusion des négociations de l’Accord d’Association entre la CEDEAO et la Répu- blique Islamique de Mauritanie, Nouakchott, le 5 mai 2017 (in French only), available at: http://www.ecowas.int/communique-final-accord-dassociation-entre-la-cedeao-et-la- republique-islamique-de-mauritanie/?lang=fr (10.18). 127 ECOWAS, Cinquante-et-unième Session ordinaire de la Conférence des Chefs d’État et de Gouvernement de la CEDEAO, Communiqué Final, 4 Juin 2017, Monrovia, République du Libéria, in French only, availble at: https://caert.org.dz/Press- releases/CEDEAO-fr.pdf and https://parl.ecowas.int/fr/communique-final-du-51eme- sommet-ordinaire-de-la-conference-des-chefs-detat-et-de-gouvernement-de-la-cedeao/ (10.18). 128 ECOWAS, Fifty-second Ordinary Session of the ECOWAS Authority of Heads of State and Government, Final Communiqué, 16 December 2017, Abuja, Nigeria, availa- INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 241 three States, it was decided to set up a Committee of Heads of State and Government to adopt the terms of reference and supervise a comprehensive study on the implications of the membership (§52). It is in fact noted that the subject matters should be preceded by the appropriate institutional framework which constitutes the legal basis for the related decision (§53). Pending the conclusions of these analyses, it can nonetheless be observed that article 13.3 of the Protocol FM, states that it shall be annexed to and shall form an integral part of the ECOWAS Treaty.129 Moreover, in 2011 the Supplementary ACT A/SP.2/08/11 on sanctions against Member States that fail to honour their obligations to ECO- WAS130 was enacted. Article 2 defines the categories of obligations of Member States that, according to paragraph 2 shall, inter alia: i) respect and protect Human Right, the Rule of law, democracy and constitutional order; ii) ratify ECOWAS Protocols and Conventions; iii) dismantle tariff and non-tariff barriers which hinder the free movement of persons, goods, the right of residence and establishment. The State which does not fulfill its obligations to the Community shall be liable to judicial and political sanctions (art. 3). Accordingly, it is reasonable to assume that new full memberships should imply an expansion of the territorial base of the scope of the Protocol FM, with the new accessions to the ECO- WAS Treaty creating a space of free movement extended from the Gulf of Guinea to the Mediterranean. The process of enlargement of ECOWAS must also be seen in relation to the adoption by the AU of the AU Protocol on FM,131 that as of July 2018 – last available data –, Mauritania, Morocco and Tunisia did not sign, unlike 10 ECOWAS Member States. Although we cannot at this time indulge in an analysis of the elements of convergence and the differences between the regional and the continental Protocol, with the prospect of the entering into force of the AU Protocol on FM a reflection on the harmonization of the two instruments will be necessary. Ar- ticle 26.1 of the AU protocol on FM, provides in fact that “States Parties ble at: http://www.ecowas.int/wp-content/uploads/2017/12/Final-Communiqu%C3%A9- 52nd-ECOWAS-Summit-Abuja-16-Dec-17-Eng.pdf (10.18). 129 Similar provisions are contemplated in the following implementation Protocols, referred to later in this paragraph. 130 ECOWAS, Fortieth Ordinary Session of the Authority of Heads of State and Government, Abuja, 2011, Supplementary ACT A/SP.2/08/11 on sanctions against Member States that fail to honour their obligations to ECOWAS, ECOWAS Official Journal, Vol. 59, 2011.08.17, p. 111 ss.. 131 See notes 20 and 23. 242 MARIANELLA PIRATTI shall harmonise and coordinate the laws, policies, systems and activities of the regional economic communities of which they are members which relate to free movement of persons with the laws, policies, systems and activities of the Union” and article 28.3 that “Regional Eco- nomic Communities shall harmonise their Protocols, policies and procedures on free movement of persons with this Protocol”. However, it is not clear how the required harmonization, both at the level of individual States and of the regional Community, could be implemented if all the concerned States were not party of both the ECOWAS system on free movement – currently all the ECOWAS Member States are – and the Continental Protocol. In addition to this, it must be considered that both the ECOWAS and the Continental Protocol provide for the right of free movement of persons, of residence and establishment to be established progressively and accomplished in three phases, the first involving the right of entry and the abolition of visa, the second the right of residence and the third the right of establishment (respectively art. 2.1 and art. 5.1), with an obvious misalignment of the different implementation phases once the AU Protocol on FM comes into force. The Protocol FM is strictly related to the ECOWAS Common approach to migration enacted in 2008.132 Based on six principles, the free movement of persons within the ECOWAS zone is the first listed, defined as one of the fundamental priorities of the integration policy of ECOWAS Member States. It emphasizes the well-defined relationship between freer movement within the ECOWAS regional area and migratory pressure, as it is established that the free movement within the region has contributed to the reduction in the migratory pressures beyond ECOWAS borders. (§ 1.2, 1)). Freedom of movement within the ECOWAS space finds its first legal basis in the ECOWAS Treaty of 1975. According to article 2.2 d), the Community shall by stages ensure the abolition as between the Member States of the obstacles to the free movement of persons, services and capital and article 27 states that (1) citizens of Member States shall be regarded as Community citizens and accordingly Member States undertake to abolish all obstacles to their freedom of movement and residence within the Community and that (2) member States shall

132 ECOWAS Commission, 33rd 3ordinary Session of the Head of State and Gov- ernment, Ougadougou, 18 January 2008, ECOWAS Common Approach on Migration, available at: http://ecowasmigration.ug.edu.gh/ecowas-common-approach-migration- 2008/ (10.18). INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 243 by agreements with each other exempt Community citizens from holding visitors’ visas and residence permits and allow them to work and undertake commercial and industrial activities within their territories. Paragraph 1 of Article 27 was amended by Decision A/DEC 8/5/82 as follows: citizens of the Community are citizens of Member States fulfilling the conditions to be defined in the Protocol relating to the citizenship code. Consequently, all Member States pledge to eradicate all obstacles to the free movement and residence within the Community.133 The Protocol relating to the citizenship code was adopted on 29 May 1982 (see note 99). The ECOWAS revised Treaty states that the Com- munity shall ensure the removal, between Member States, of obstacles to the free movement of persons, goods, services and capital, and to the right of residence and establishment (art. 3.2. d) iii)) and under article 59 provides that citizens of the Community shall have the right of entry, residence and establishment and that Member States undertake to recognise these rights of Community citizens in their territories in accordance with the provisions of the Protocols relating thereto. The FM Protocol of 1979 states that the right of entry, residence and establishment of the Community citizens in the territory of Member States, had to be progressively established in the course of 15 years from the entry into force of the Protocol. The implementation of the First Phase (abolition of visas and entry permit) is defined under article 3: the Community citizen wishing to enter in the territory of any other Member State shall be required to possess valid travel document and international health certificate (par. 1). The entrance through official entry points for a visit to any other Member States for a period not exceeding 90 days shall be free of visa requirements (par. 2). This notwithstanding article 4 grants Member States the right to refuse admission into their territory to Community citizens considered inadmissible immigrants under their domestic law. The provisions of the Protocol shall however not operate to the prejudice of citizens of the Community already in residence and establishment in a Member State provided they comply with the laws in general and in particular with the immigration laws of that Member State (art. 10). Article 11 establishes some requirements for expulsion. According to article 12 the provisions of the Protocol shall not affect more favorable provisions contained in agreements already

133 ECOWAS, Authority of Heads of State and Government, A/DEC 8/5/82 Deci- sion amending the provisions of paragraph 1 of article 27 of the Treaty of the Economic Community of West African States, ECOWAS Official Journal, Vol. 4, June 1982, p. 55. 244 MARIANELLA PIRATTI concluded between two or among several Member States. Article 7, in relation to disputes that may arise among Members States on the interpretation and application of the Protocol, proscribes an amicable settlement by direct agreement and, should this fail, the referral of the matter to the Tribunal of the Community. This last Institution was in fact provided for under articles 4.1 d) and 11 of the ECOWAS Treaty of 1975 which, however, have not been implemented. In 1989 the Supplemen- tary Protocol A/SP1/6/89 was adopted, amending at article 2 the provision of article 7 and prescribing a different mechanism for the settlements of disputes.134 1985 saw the adoption of the Supplementary Protocol A/SP.2/7/85 on the Code of Conduct for the implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment.135 Ar- ticle 2 proscribes (1) that Member States shall ensure that their nationals who travel to the territory of another Member State possess valid travel documents recognised within the Community and (2) that Member States shall establish or strengthen appropriate administrative services in order to furnish migrants with all necessary information likely to permit legal entry into their territory. Moreover (3) in order to avoid illegal recruitment and its negative effects, Member States shall take all necessary measures to exercise stricter control on employers in their territories. Article 3 of the 1985 Protocol is devoted to the rights and obligations of migrants in host Member States and to the conditions and procedures for expulsion. It is stated that the enjoyment and exercise of their human rights must be guaranteed to clandestine or illegal immigrants and this even in case and during the procedure of expulsion. Ac- cording to article 5 Members States shall take all possible steps to ensure or facilitate the obtaining of the correct documents by illegal immigrants under the conditions stipulated in the different Protocols relating to the free movements of persons, the right of residence and establishment and on the basis of factors such as the existence of an ample political consensus making the regularisation of stay desirable or necessary, the acceptability of the immigrants by a large section of society, the ab-

134 ECOWAS, Supplementary Protocol A/SP1/6/89 Amending and Complementing the Provisions of Article 7 of the Protocol on Free Movement of Persons, the Right of Residence and Establishment, ECOWAS Official Journal, June 1989, Vol. 15, pp. 4-7. 135 The number of the Protocol is widely reported by further official documents of the Community as A/SP.1/7/85. The number reported here is the one that appears in the Official Journal, ECOWAS Official Journal 1985-7, Vol. 7, p. 11 ss.. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 245 sence of legal punitive measures against persons wishing to regularise their stay. Member States undertake to work together to reduce and eliminate the incidence of clandestine immigration as well as the smuggling of illegal workers (art. 6.2). Article 7 is devoted to the protection of properties legally acquired by immigrants who are citizens of the Community. A further implementation of the freedom of movement was introduced by the adoption in 2014 of Decision A/DEC.01/12/14 establishing a travel certificate for ECOWAS Member States136 where a National Bi- ometric Identity Card is established as a travel document within the ECOWAS Region (art. 1). According to article 2 (1) the Biometric Iden- tity Card shall be rolled out by 2016 and (2) Nationals of each Member State shall undergo biometric census in the host countries. The competent authorities of the countries of origin shall forward the biometric data of their nationals to the competent authorities of the host countries, in strict compliance with personal data protection rules. A monitoring and evaluation committee is also prescribed in order to evaluate the implementation of the Decision (art. 3.1). Senegal was the first State to introduce the biometric ID card with Law n. 2016-09 of 14 March 2016.137 If the first phase of the Protocol FM can be considered fully implemented some critical issues remain, as testified by some ECOWAS official positions: in 2013 at its Forty-third Ordinary Session, the Authority of Heads of State and Government, determined to ensure the effective implementation of the ECOWAS Protocol FM decided to use all possible means to eliminate all barriers to the mobility of persons and endorsed the establishment and implementation of joint border posts in the ECOWAS space.138 In the words of the then ECOWAS Commission President Kadré Désiré Ouédraogo the lack of knowledge of the ECO- WAS texts by ECOWAS citizens and sometimes by the administrations, as well as the weakness of these administrations, constitute obstacles for

136 ECOWAS, Forty-sixth Ordinary Session of the Authority of Heads of State and Government, Abuja, 15 December 2014, Decision A/DEC.01/12/14 amending Decision A/DEC 2/7/85 establishing a Travel Certificate for ECOWAS Member States, available at: http://www.ecowas.int/wp-content/uploads/2015/01/3-Travel-Certificate.pdf (10.18). 137 République du Sénégal, Journal Officiel n. 6929 du samedi 23 avril 2016, see: http://www.jo.gouv.sn/spip.php?art icle10821 (10.18). 138 ECOWAS, Forty-third Ordinary Session of the ECOWAS Authority of Heads of State and Government, Abuja, 17-18 July 2013, Final Communiqué, § 10 (italics added), available at: http://www.ecowas.int/wp-content/uploads/2015/02/43rd-ECOWAS-Summit- Abuja-17-18-July-20141.pdf (10.18). 246 MARIANELLA PIRATTI the free movement of people and goods. Moreover, despite the protocols in force, many ECOWAS nationals continue to suffer police and customs harassment along the main corridors.139 The harassment of Com- munity citizens at the border crossing, as a major handicap to the free movement of persons, is also underlined by the former ECOWAS Commission President Marcel de Souza, in his remarks at the opening of the ECOWAS Heads of Immigration Meeting in Abuja on the 3rd of August 2017. President de Souza also stressed the importance of accelerating operationalization of the biometric identity card of ECOWAS and drew attention to the necessity of setting up a regional data sharing mechanism. He also urged the development of an improved management mechanism of both migratory and irregular migration flows.140 These concerns were recently shared at the Fifty-fourth Ordinary Ses- sion of the Authority of Heads of State and Government141 when it was stated that there is a need to conduct an overall assessment of the implementation of the Protocol FM and proposed measures for smooth implementation (§12). To this purpose instructions were given to organize a high-level conference on free movement in the first half of 2019 (§13). Members States were also invited to speed up the implementation of the biometric ID card (§14). These critical issues a fortiori concern the further two Protocols adopted to implement the Second and Third phase of the FM Protocol that we are going to review. The Second phase of implementation of the Protocol FM is assigned to the Supplementary Protocol A/SP.1/7/86 adopted in 1986.142 Accord- ing to article 2 each of the Member States shall grant to citizens of the Community who are nationals of other Member States, the right of residence in its territory for the purpose of seeking and carrying out income

139 Intellivoire, CEDEAO: La libre circulation est entravée par de multiples obstacles, juillet 4, 2014, available at: https://intellivoire.net/cedeao-libre-circulation- entravee-multiples-obstacles/ (10.18). 140 ECOWAS Info, ECOWAS Commission President urges setting up of Regional Data sharing Mechanism for Migration, 03.08.17, available at: http://www.ecowas.int/ecowas-commission-president-urges-setting-up-of-regional-data- sharing-mechanism-for-migration/ (10.18). 141 ECOWAS, Fifty-fourth Ordinary Session of the ECOWAS Authority of Heads of State and Government, Abuja, 22 December 2018, Final Communiqué, available at: http://www.ecowas.int/wp-content/uploads/2018/12/ENGLISH-VERSION.pdf (12.18). 142 ECOWAS, A/SP1/7/86 Supplementary Protocol on the Second Phase (Right of Residence) of the Protocol on free movement of persons, the right of residence and establishment, ECOWAS Official Journal, July 1986, Vol. 9, pp. 1-7. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 247 earning employment. Restrictions might be due to reasons of public order, public security and public health (art. 3). The right of residence is conditional upon obtaining an ECOWAS Residence Card or a Resi- dence Permit (art. 5).143 Expulsions en masse of migrant workers and members of their family are forbidden and cases of expulsion shall be considered and judged on an individual basis (art. 13). Article 14 defines the reasons for which migrant workers and members of their families complying with the residence requirements, might be expelled. Na- tional security, public order or morality are among these reasons (1.a) but expulsions might also be done in accordance with the laws and regulations applicable in the host Member State (1.d). In case of expulsion migrant workers and members of their families may appeal for the protection and assistance of consular and diplomatic authorities of their countries of origin (art. 15.2). According to the definition provided for at article 1 “Member State of origin” means the Member State or country of origin of the migrant worker or the country of which he is a national, while “Migrant worker or migrant” means any citizen who is a national of one Member State, who has travelled from his country of origin to the territory of another Member State of which he is not a national and who seeks to hold or proposes to hold or is holding or has held employment. Accordingly, and by virtue of the considerations set out in paragraph 5, it is likely that the protection and assistance of consular and diplomatic authorities of their “countries of origin”, refers to the “country of nationality”. Article 16.2 provides that no expulsion order may be carried out without ensuring that all the fundamental rights of the migrant worker have been respected. Article 18 prescribes cooperation among Member States in order to collect a wide (and ambitious) range of data as far as migrant labour is concerned, such as identifying the types of migratory movement within the Community as well as the reasons for such movement (18.1). Nonetheless, a 2006 study highlights how “the current information system on international migration in West Africa suffers from numerous weaknesses which combine to pose a general problem as regards the reliability of the data collected, their representativity, their coherence, their comparability and their accessibility” and underlines that “the structures which supply this type of data do not have the specialized technical capacities required to process

143 The ECOWAS Residence Card was established by Decision A/DEC. 2/5/90 of the ECOWAS Authority of Heads of State and Government, ECOWAS Official Journal, June 1990, Vol. 17, p. 17. 248 MARIANELLA PIRATTI migration statistics”.144 Member States shall also co-operate to prevent and stop illegal or clandestine movement and employment of migrant workers whose status is irregular (art. 22.1), including taking (a) appropriate measures against the dissemination of misleading information on emigration and immigration and (b) measures intended to detect and stop the illegal or clandestine movement of migrant workers and members of their families and to impose effective sanctions on persons or bodies who organise or help to organise such movements or participate in them (art. 22.2). Article 23 stipulates equal treatment with nationals in the enjoyment of some social rights for migrant workers complying with rules and regulations governing residence. The rights guaranteed in the Protocol may not be withdrawn (art. 25.1) and Member States shall guarantee that any person whose rights and liberties as recognised by the Protocol have been infringed upon, shall enjoy the right of recourse, even when this infringement has been committed by persons exercising their official functions (art. 26.a). The last Protocol aimed at implementing the Third phase of the Pro- tocol FM was adopted in 1990.145 We will focus only on some main definitions. Article 1 defines the “Right of Establishment” as the right granted to a citizen who is a national of the Member State to settle or establish in another Member State other than his State of origin, and to have access to economic activities, to carry out these activities as well as to set up and manage enterprises, and in particular companies, under the same conditions as defined by the legislation of the host Member State for its own nationals. The non-discrimination principle is stated both at articles 2 and 4. Under some conditions access to non-salaried activities and the exercise of such activities as well as the creation and management of enterprises are subject to the same conditions stipulated by the laws and regulations of the country of establishment for its own nationals (art. 2) and in matters of establishment and services, each Member State shall undertake to accord non-discriminatory treatment to nationals and companies of other Member States (4.1) except when oth-

144 Hamidu Ba, Babacar Ndione (coll. with), Labour migration statistic in West Afri- ca, International Migration Papers No. 79E, International Labour Office, Geneva, 2006, p. 26, p. 32. 145 ECOWAS, Supplementary Protocol A/SP 2/5/90 on the implementation of the third phase (right of establishment) of the Protocol on free movement of persons, right of residence and establishment, ECOWAS Official Journal, June 1990, Vol. 17, pp. 9- 15. INTERNATIONAL MIGRATION AND HUMAN RIGHTS IN AFRICA 249 erwise required by exigencies of public order, security or public health (art. 4.3). Moreover, according to article 7, assets and capital invested by ECOWAS citizens who are not nationals of the Member State of establishment, having been duly authorized, shall not be subject to any act of confiscation or expropriation on a discriminatory basis. Even in the case of ECOWAS the formal statement of legal principles is not a guarantee for the effective enjoyment of formalized rights. Nonetheless, the ECOWAS citizens in case of violations of their human rights, may also apply to the Community Court of Justice146 whose Stat- ute, it must be remembered, does not define the applicable law on the basis of which it should adjudicate. A case judged in 2017 is significant for our purpose.147 It dealt with a citizen of Nigeria that while returning to his country after a visit to Togo, was stopped for a routine check by the Defendants’ police officers at the Hillacondji border (between Togo and Benin). The Plaintiff claimed that the police officer asked for some money to have his passport returned. As the Plaintiff couldn’t meet the request, he was beaten and thrown into a cell where he was detained for several hours before being released. The Plaintiff argued in his Applica- tion to the Community Court that this behavior violated the Plaintiff’s rights to free movement of his person as protected in Article 12 of the African Charter on Human and Peoples’ Rights, Article 32 of the Re- vised Treaty of ECOWAS and the Protocol of the Revised Treaty of ECOWAS relating to movement of persons (p. 6). In the Community Court’s view “Unreasonably, detention for purposes of calming down or obtaining travel documents is not within the purview of the ECOWAS Protocol on free movement” and accordingly, the Plaintiffs detention amounted to deprivation of his liberty within the meaning of Article 6 of the African Charter (pp. 17-18). Even though the Community Court does not rely on the Protocol FM, this case is significant to highlight the already mentioned harassments to which people in Africa are subject at border crossings. In this case a person holding regular travel documents was involved, so a huge question remains with regard to all those people

146 See note 57. Solomon T. Ebobrah, “A rights-protection goldmine or a waiting volcanic eruption? Competence of, and access to, the human rights jurisdiction of the ECOWAS Community Court of Justice”, African Human Rights Law Journal, Vol. 7, n. 2, 2007, pp. 307-329. 147 ECOWAS, Community Court of Justice, Benson Olua Okomba v. Republic of Benin, Suit N. ECW/CCJ/APP27/14, Judgment N. ECW/CCJ/JUD/05/17, 10 October 2017, available at: http://www.courtecowas.org/site2012/pdf_files/decisions/judgements /2017/ECW_CCJ_JUD_05_17.pdf (10.18). 250 MARIANELLA PIRATTI in Africa crossing international borders without the required documents or without documents at all because they are stateless.

7. Conclusions

In general terms it is possible to affirm that movements of people within the African continent have always existed and that in some regions, such as today’s ECOWAS, they have been and are particularly intense. The acquisition of statehood and of international sovereignty by territories previously subject to colonial rule, occurred with the definition of borders arbitrarily established by the colonial Powers. If the colonial domination with its legacy has therefore undoubted and repeatedly reasserted historical responsibilities in having imposed borders that did not correspond to the original African “Nations”, about 60 years after the decolonization process, there is today a responsibility that weighs first of all on African States as regards the respect for the human rights of their citizens. Even if in the last few decades the migration flows from Africa to other continents has known a significant increase, most of the African migration movements are within the Continent. In this context it is possible to observe on the one hand a kind of acceleration by the International African Organizations in adopting instruments aimed at protecting human rights, including instruments related to the protection of migrant people, on the other hand, the persistent violation or non-application of long-established human rights instruments. The African international judicial bodies must be recognized as having a key role in calling upon States to respect human rights but, finally, it is up to African States, by fulfilling their international commitments, to grant the respect of human rights to their people, whether they are migrants or not. This too would be a way of manifesting the power deriving from one’s sovereign independence. UNDERSTANDING MIGRANTS’ CONTRIBUTION TO DEVELOPMENT. A CASE STUDY FROM SOMALILAND Valeria Saggiomo∗

SUMMARY: 1. Introduction. – 2. Migration and Development Discourse. – 3. How do migrants’ projects work? The case-study of Mandhaye hospital in Bu- rao. – 4. How do migrants’ projects differ from traditional ones? The four distinctive elements. – 5. New development practices?

1. Introduction

The migration and development theory, that recognizes and empow- ers migrants as key development actors, assumes a critical role in the current debate on migration management. Caught between rejection im- pulses and humanitarian imperatives, the world can hardly build a positive narrative on migrations despite evidences that migrations tend to stimulate local development rather than the opposite. In literature, the contribution of migrants to local development processes remains under- researched and empirical studies in support of the Migration and Devel- opment theory are scant. Instead, it would be useful to understand how and under what conditions migrants can activate positive development processes in their origin countries. In fact, a deeper understanding of the characteristics of migrants’ activism for development would inform policy makers on how to encourage and support the Migration and Development paradigm. For instance, how do migrants’ development projects work? In what do they differ from development projects promoted by traditional aid actors? Is there a specific modality of aid that migrants adopt to gen- erate development? This paper discusses migrants’ own modalities to promote development through a case-study in Somaliland and advocates for more empirical research on migrants’ projects in their origin countries with the view to provide evidence for policy formulation in the migration and development sector. In describing migrants’ contribution to development, this work identifies specific elements that characterise migrants’ activism based on

∗ Lecturer in International Cooperation for Development at University of Naples “L’Orientale”. 252 VALERIA SAGGIOMO sentiments, a marked organizational capacity and the tendency to build transnational networks to support their actions.

2. Migrations and Development discourse

In this account, the term “migrant” is used as a synonym for diaspora. It is however important to note that diaspora - the segment of migrants this work concerns itself with - indicates those foreigners who are relatively integrated into their settlement societies and, at the same time, manifest a will to contribute to the wellbeing of their origin societies through various forms of capital (mostly social and economic) they can dispose of. This form of social activism is implied in the notion of diaspora and describes what this work refers to as “the modality of aid” that migrants use to contribute to the improvement of the leaving conditions of people in the origin countries. The question of “how much can migration contribute to the development of origin countries” has been debated over the last five or six decades, dividing those scholars who conceived migration as detrimental for origin countries and those who noticed positive effects on the economies of the origin countries by effect of remittances sent by migrants to their extended families. During the 1970s and 1980s the prevalent school of thoughts considered migration as an effect of poverty and at the same time its consequence: relatively well-off populations migrated in search for better living conditions, leaving the country of origin emptied of its quality workforce and thus generating a negative spiral of further deprivation and poverty in sending countries.1 This pessimistic view embraced by neo- Marxists and structuralist scholars called upon the role of the State to reverse the negative trend with structural reforms able to activate internal markets and economy and retain the population in country. In this perspective, the relationship between poverty and migration is linear and proportional: more poverty was equal to more migration. This “pessimistic” view was later challenged by an optimistic perspective on the relationship between migration and development, mostly moved by the phenomenon of the remittances that migrants used to send home, that were able to counter poverty and activate positive develop-

1 Papademetriou, D. G. (1985). UNDERSTANDING MIGRANTS’ CONTRIBUTION TO DEVELOPMENT 253 ment. During the 1980s and 1990s, the extent to which remittances could contribute to the development of migrants’ countries of origin became the subject of investigation of many scholars, mostly economists.2 This “optimistic” approach, largely embraced by the Neo-liberal school, emphasized the role of the individual migrant – the so-called agency – in contributing to activating development processes in multiple places, pointing to the evidence that rich societies tend to be more mo- bile and that migration stimulates development rather than the opposite.3 The result of empirical research conducted in Latin America, and the Mediterranean Countries suggested that if a positive impact on migrants’ origin countries was attributable to the engagement of migrants in sending remittances back home, this impact was however limited to a local micro-economic level and did not influence the macro- development framework at the national level.4 The 2000s marked a surge in the Migration and Development studies, probably triggered by the availability of structured data on remittances provided by the World Bank, and by the shocking figure of 2003 showing the total amount of remittances worldwide surpassing the volume of official development assistance (ODA) to countries benefitting from aid.5 An enormous amount of money flowing into the economies of poor countries were seen by many as potentially able to push countries out of the poverty trap and many empirical works of those times were intended to demonstrate these assumptions. The results however were not able to prove the assumption valid as different countries experienced different results. Scholars belonging to the Neo-Marxist school correctly pointed out that poverty depends on structural constraints of states, such as the limited access to welfare, justice, power and markets by the majority of the population of least developed countries; in these circumstances, they affirm, it is naïve and unrealistic to postulate that migrants’ remittances may influence such processes. Consensus seems to converge on the idea that remittances, seen as an economic contribution of migrants to their origin families, generally affect the micro, rather than macro level of the receiving countries’ economies.

2 See for instance Massey Douglas S. et al. (1998), and Agunias, Dovelyn Rannveig (2006). 3 Skeldon R. (1997). 4 World Bank (2001). 5 World Bank (2017).

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According to Hein de Haas,6 who is among the leading scholars working on migration theory, the theoretical framework used to explain migration as a phenomenon is still unsatisfactory. The reason is that both the two dominant approaches, the functionalist and the historical/structural, contain useful elements as well as limits. In 2014, De Haas advanced the idea of framing migrations within the capabilities theory of Amartya Sen, Nobel laureate in economics in 1998, who conceived of poverty and underdevelopment as a “capability gap”, occurring when individuals are deprived of their substantive freedoms, such as the ability to live to old age, engage in economic transactions, or participate in political activities. In his notorious work Development as Freedom, Amartya Sen proposed a new definition of development as a condition in which individuals are able “to achieve outcomes that they value and have reason to value”.7 In such view, migration is a function of aspirations and capabilities to migrate. To Sen’s perspective, De Haas added the opportunity structure theory that brings the structural element to Sen’s theory, i.e. the external opportunities that may facilitate or hinder migration individual choices and aspirations. De Haas, in sum, proposed an aspiration-capabilities theoretical framework to understand human mobility, with the aim of bridging the gap between the divergent theoretical schools on migration and at the same time account for empirical realities of migration narratives.8 To date, few empirical studies have explored the potential of the theoretical framework proposed by Hein De Haas in 2014, and there is the need to promote empirical works to support the validity of his theory. This study takes some initial steps in this direction, exploring how migrants’ projects operate locally through an ethnography I collected in 2014 between Denmark, Germany and Burao, the second largest city of Somaliland and the capital of the Togdheer region.

3. How do migrants’ projects work? The case-study of Mandhaye hospital in Burao

This story unfolds in various places, but the epicentre is without

6 Hein de Haas (2014). 7 Amartya Sen (2001). p. 291. 8 Hein de Haas (2014). UNDERSTANDING MIGRANTS’ CONTRIBUTION TO DEVELOPMENT 255 question a small city located in the midst of the desert highlands of So- maliland: Burao.9 Burao hosts some 350.000 inhabitants, mostly living as nomads. The city is an important commercial centre, and the largest livestock market in the region. Wealth, however, is not apparent: camels and goats are easily found in the dusty streets of the city centre, while the outskirts host lovely villas built by wealthy diaspora individuals who dream of their return home. Burao is also the place where Dr. Ahmed Haji Hassan Awad, was born and raised back in the 1950s, before migrating to Germany, where he became a medical doctor and a specialist in internal medicine. After his studies, Ahmed Awad established his life and family in Germany, working there as a doctor and marrying a German woman, Brigitte.10 In 2005, at a certain point in his life, Dr. Ahmed felt the desire to visit his homeland and see what kind of contribution he could give to its development. Using his professional skills, Dr. Ahmed decided to assess medical facilities in Somaliland. During his first tour to Somaliland, he found that the condition of health facilities in the country was acceptable compared to the needs of the population, except for one medical sector that was almost abandoned by the Ministry of Health, that was the mental illness. What drew his attention was the desperate situation of children and youngsters with learning disabilities, who were kept at home, often chained and without any kind of proper medication or stimulation. Some were hospitalized in the psychiatric hospital of Berbera and others were simply left to fend for themselves – as a result becoming homeless. Hargeisa hospital had a department for the mentally ill though it was badly organized, and almost unable to provide effective treatments to patients.

9 Some names have been changed in order to protect the identity of those who requested anonymity. This does not apply to public figures in the exercise of their scientific functions, such as University Professors, and to those subjects whose name were already public. 10 The story of Mandhaye hospital relies on different sources. Primary source: Direct interviews to Dr. Ahmed Awad in Burao (June 2014), telephone interview to dr. Amina Ali (July 2014). Secondary sources: narratives from http://fatumaali.dk/mhis/mental%20 health%20center.html (lastly accessed 29 November 2018) and the report by Anne Lindhardt and F. Ali (2010) Mental health services in Somaliland Report-Fact finding mission to Somaliland. Mental Health in Somalia (MHIS), January 25th till February 4th 2010.

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In 2006, back in Germany, with the help of his wife, Dr. Ahmed started mobilizing friends and colleagues to raise funds for a new mental hospital in Burao, and set up the NGO Medical Care Somalia (MCS) for this purpose. Dr. Ahmed, knew he lacked a background in psychiatry to address mental health gaps in his Country and decided to create a network of European and Somali psychiatrists in the diaspora, encouraging them to join his project. Using his NGO as a catalyst, Dr. Ahmed started con- tacting medical doctors who were part of his extended professional network in Europe. This is how Dr. Anne Lindhardt, who was director of mental health services in Copenhagen and Associate Professor at the University of Copenhagen, was sensitized, together with her colleague, Dr. Anders Michelsen. In Somalia, Dr. Ahmed used his clan-based network and involved the Togdheer Development Committee (TDC), a group of eminent persons at the community level who had been very active in the establishment of the University of Burao in 2004, significantly contributing to the ad- vancement of the education sector in the region and to local development. TDC became involved in Dr. Ahmed’s project to establish the mental health hospital in Burao and was key in its implementation, assisting in the restoration of a ward just near the main city Hospital, the start-up of activities, and enabling its operation, including staff wages and availability of drugs. In March 2008, Dr. Ahmed and TDC opened a day hospital for mentally retarded children and youths, and six months later an outpatient unit for psychiatric patients in a facility that they named “Mandhaye” hospital. While the hospital was being set up, Dr. Ahmed began looking for Somali psychiatrists in the diaspora to support the hospital with quali- fied and skilled personnel. A combination of word of mouth and good luck led him to a Somali psychiatrist, a native of Beletwyene in South Somalia who was living in Denmark, Dr. Amina Ali. Dr. Amina was an experienced psychiatrist in Denmark. When she was young, she pursued her secondary school in Mogadishu, than she studied medicine in Moscow and later specialized as a psychiatrist in Denmark where she worked on transcultural psychiatry, general psychiatry and community psychiatry. To Ahmed, Dr. Amina seemed to be the perfect resource for the hospital and, in 2007, he convinced her to become fully involved in the project. Dr. Amina accepted the challenge posed by Dr. Ahmed. She visited Somaliland in 2008 and once back to Denmark established an informal UNDERSTANDING MIGRANTS’ CONTRIBUTION TO DEVELOPMENT 257 network of professionals in psychiatry, the Somali Psychiatric Network (SPN), with the aim of providing diaspora expert knowledge to Somalia in the field of mental health. Two important nodes of this network were the Somali psychiatrists, Dr. Yakoub Aw Aden from Sweden and Dr. Jama Yusuf Elmi from Norway. In January 2009, Dr. Amina Ali established her own Danish-Somali NGO, the Mental Health in Somalia (MHIS) involving Dr. Anne Lindhardt of the University of Copenhagen as vice-chair, with the aim of establishing mental health services in Somalia, treating patients, training health professionals and providing education to relatives and to the public at large on mental health issues. Under the umbrella of the NGO MHIS, with her colleague Anne, Dr. Amina visited Burao again in 2010 to get a better understanding of the situation in Somaliland, to assess the feasibility of the interventions they had in mind and to establish priorities for upgrading the hospital to Eu- ropean approaches to mental sickness treatment. The following is narrative of the two doctors on their visit in Burao: “During our stay in Burao Mental Health Centre, the rumour that two international doctors were in town, spread in the community in few days. One day, 60 patients showed up, all accompanied by families, so more than 100 people were waiting in the clinic when it opened. They were queuing and when the working hours for the clinic were over, 20 (of them) had to return home. Of course, most severe cases including patients brought to the clinic in chains by family members had priority”.11 After this visit to Burao, Dr. Amina started working regularly at Mandhaye, bringing Danish professionals annually to work at the centre on a voluntary basis and looking for funding opportunities for the hospital through her own NGO MHIS. The commitment and enthusiasm of Dr. Ahmed attracted other actors. In 2010, Dr. Ahmed enrolled a regional diaspora organization composed of Somalis natives of Burao living in the UK and in Norway, the Togdheer Abroad Foundation (TAF). TAF-UK helped in building an in-patient unit that was later opened in 2011, equipping it with 10 beds for men and 5 beds for women, and paying the salaries of the staff for 2 years. TAF-Norway assumed the responsibility from TAF-UK in 2012 and changed its name to Mandhaye Norway.

11 Testimony drawn from the report by Anne Lindhardt and F. Ali (2010) Mental health services in Somaliland Report-Fact finding mission to Somaliland. Mental Health in Somalia (MHIS), January 25th till February 4th 2010. P. 14.

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Capitalizing on the participation of a large community of Somali medical doctors in northern Europe, Dr Ahmed created the Somali- Danish NGO PeaceWare-Somaliland, composed of a number of Somali organisations. Among these, were the Somali Psychiatric Network (SPN), consisting of psychiatrists in Scandinavia; the German-based Medical Care Somalia (MCS), started by Ahmed and Brigitte Awad; the Danish NGO Mental Health in Somalia (MHIS), founded by Amina Ali; and, most important, the University of Copenhagen. Peaceware Somaliland participated in a project promoted by Associ- ate Professor Anders Michelsen of the University of Copenhagen’s De- partment of Arts and Cultural Studies. As a technical partner, the Uni- versity added a key component to Dr. Ahmed’s project: the Somaliland Telemedical System for Psychiatry project. This project built on a research platform called PeaceWare ICT4D that experimented the use of information technologies in medical assistance in developing countries. PeaceWare established tele-psychiatric facilities at the Mandhaye hospital in collaboration with the Somali psychiatrists of TAF, Dr. Yakoub and Dr. Jama, the so-called mirror Doc- tors, as the patients used to call the psychiatrists who, since 2012, conduct weekly Skype consultations with the Outpatients at Mandhaye.12 In 2013, the Ministry of Health of Somaliland recognized the value of the work that was being done at Mandhaye hospital and stepped in by putting the staff on the payroll and giving Mandhaye the status of ward under the General Hospital of Burao. Later, in 2014, the Ministry of Health took responsibility of around 30% of the Hospital budget. The local business community also contributed regularly, in particular the money transfer company Dahabshil that covered the running costs for the tele-medical system, as did the hotel Cityplaca and other businessmen in Burao. When I was in Burao in 2014,13 I had the opportunity to attend a tele- psychiatric session at Mandhaye hospital myself. I witnessed how Dr. Jama Elmi from Norway visited a patient through skype. I talked to patients and their parents who were enthusiastic about the opportunity to receive treatments by an international Somali doctor, in line with mod-

12 For further reference, see also https://globalhealth.ku.dk/news/news_2009- 2011/the_mirror_doctors_the_somaliland_telemedical_system_for_psychiatry/ (accessed 29/11/2018). 13 Fieldwork in Somaliland was funded by the Danish Refugee Council, as part of the Mid-Term Evaluation of the Diaspora Project, May-July 2014. UNDERSTANDING MIGRANTS’ CONTRIBUTION TO DEVELOPMENT 259 ern standards on mental diseases. I also talked to people in Burao and I collected various testimonies of appreciation of the Mandhaye project by the entire community who contributed to it in various ways: the food for patients was being paid annually by local donors during Ramadan, as a zakat contribution; also sadaqa14 was occasionally donated to the hospital through the hospital charity account. The level of knowledge of Mandhaye experience in Burao by the community and the high degree of participation to this initiative induced me to consider this diaspora-led project as one of the most participatory and successful social projects promoted by the Somali diaspora I had ever seen.

4. How do migrants’ projects differ from traditional ones? The four distinctive elements

Not entirely donors and not really beneficiaries, diaspora organizations operate through their own modalities to promote change and largely rely on enriching social capital and networks across territories. Back in Italy, I began reflecting on the elements that brought Mandhaye to success and on the characteristics of the diaspora projects I had visited during my fieldwork. In my view, the success story of Mandhaye hospital contains various elements that characterise diaspora associations’ modality to promote successful development initiatives. These elements are, in order of importance, sentimental, social, organizational and transnational. The sentimental element expresses the passionate commitment and the motivation of Dr. Ahmed, a skilled diaspora member residing in Germany, who was motivated by the willingness to contribute to the development of his origin country, or, in other words, by the dream of a better society in the homeland. Because this willingness is grounded on a sentiment, it is potentially perpetual and not opportunistic. In fact, external opportunities to develop local initiatives – such as availability of funding, or other NGOs – are created by the diaspora to fulfil the “dream”, not vice versa. The following extract of the interview with Dr. Ahmed15 confirms this thesis:

14 Zakat and Sadaqa are religious forms of charity that individual perform annually (Zakat) or on voluntary basis (Sadaqa) to support the poor and destitute. 15 Interview with Dr. Ahmed Awad, Hotel City Plaza, Burao, Somaliland, June 2014.

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VS: Dr. Ahmed, based on your experience, what is the key for success of a Diaspora initiative? Dr. Ahmed: Motivation is the key element. You must love your country and be committed to invest your time and your money for the benefit of your people.

The use that Dr. Ahmed made of words pertaining to the sentimental sphere, such as love, suggests that the real driver of diaspora engagement in development is emotional rather that rational. Rationality occurs at a later stage, when Dr. Ahmed, pushed by his motivation, moved to elaborate a strategy to achieve his objective. What kind of capital did Dr. Ahmed need most? The answer is social capital and names, the second element that characterizes diaspora successful modalities to promote development. In fact, in diaspora modes of being development actors is the social, before financial, capital critical to trigger durable change. The resources Dr. Ahmed used to fulfil his objective in Burao encompass all the skills developed in his migration path over various decades. This is confirmed by the explanation Dr. Ahmed gave me during our conversation in Burao: VS: How did you manage to attract so many actors around your idea? Dr. Ahmed: When I was a young student at University in Germany, I used to be an activist in youth associations. There, I developed networking skills and I acquired the competences to build a group, motivate people to a common objective. This experience at University encouraged me to think I could mobilize other people to reach other, more important objectives, such as the one of the Mandhaye hospital. In his early adulthood, Dr. Ahmed understood he had charisma, he could influence the actions and thoughts of others and he built on this innate quality to develop other skills that made him a leader. Leadership and charisma are crucial personal qualities that compose the so-called social capital Dr. Ahmed used years later for the Mandhaye hospital project. The third element is organizational. This refers to the way Dr. Ah- med organized himself and his group to pursue his goal. Dr. Ahmed, in fact, set up multiple formal and informal organizations to gather human and financial resources, and he developed a network of all actors and of other potential partners that span over the national boundaries of Ger- many, across Europe to Norway, UK, Sweden and Somalia. The capaci- UNDERSTANDING MIGRANTS’ CONTRIBUTION TO DEVELOPMENT 261 ty to overcome boundaries to expand its network of supporters and to set up organizations for mobilizing a collective action is another important characteristic of diaspora successful strategies to promote development initiatives. The fourth element is transnational. This refers to the outreach capacity of diaspora leaders or associations to extend their network across boundaries, involving various territories and maximizing the external opportunities they may offer. In the story of Mandhaye hospital for instance, the involvement of Dr. Amina in Denmark opens the doors to funding sources offered by the Danish Refugee Council Diaspora Pro- gram, funded by Danish International Development Agency (DANI- DA). The Diaspora Program was aimed at identifying leading diaspora organizations and individuals to support their transnational activism with training and small grants.16 On the same note, the University of Copenhagen represented an important external resource to equip Man- dhaye hospital with innovation technology. Similarly, Sweden and Norway, the UK, all these territories offer their contribution to the project and are a determining factor in its success.

5. New development practices?

This paper offers an insight on how diaspora projects work through an ethnography collected in Somaliland. It suggests to consider migrants’ contribution to development, such as the case of Mandhaye hospital in Somaliland, as a form of transnational activism whose objective is development. This activism needs to be framed on one side as the aspiration of diaspora individuals to transfer competences and channel funds to their origin countries, on the other as the capability to do so, offered by an environment that is not hostile to diaspora engagement. In the case of Mandhaye hospital, external opportunities were offered to the ambitious Dr. Ahmed by projects supporting migrants’ activism in

16 Led by Mingo Heiduk, the Diaspora Global Program of the Danish Refugee Council is still operational in Denmark and expanded significantly since 2014. Today, it operates across multiple geographic and thematic areas, such as in the humanitarian support of diaspora organizations to their origin communities, in the capacity enhancement of diaspora organizations, and in projects involving networking and knowledge sharing. For further information, see http://www.drc.ngo/relief-work/diaspora- programme.

262 VALERIA SAGGIOMO development between Denmark and Somalia, and by a general support- ive policy of local authorities in Somaliland who acknowledge the role of the Somali diaspora in social and economic development. In such a situation where individuals like Dr. Ahmed are able to manifest their aspirations and realize them, and external variables do not represent an obstacle but encourage activism, new development practices, such as the case of Mandhaye hospital in Somaliland, have the potential to influence local development and enhance the welfare of the local population. Whether the impact of the Mandhaye experience was limited to the local level only, or had snowball effects touching the regional or even the national level, is a question needing more in-depth evaluation and research. In order to be effective, however, evaluation and research probably needs to develop new tools and adapt to new development practices, such as the ones promoted by migrants’ activism. This work concludes suggesting the need to invest in empirical research on possible ways to adapt project evaluation tools to the four elements that this paper identifies as characteristics of diaspora transnational projects, ac- counting for the sentimental element (motivation) as indicator for sustainability, and for the social, organizational and transnational elements in assessing diaspora efforts in aid and development.

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