In 2023, the Italian Government adopted several decrees-law with the aims of stemming migration flows, restricting the grounds for legal stay in Italy, and increasing expulsions from the territory. Italy also further pursued an externalization of migration management, by concluding a much-discussed bilateral agreement with Albania[1] and by playing a prominent role in the conclusion of “strategic partnerships” between the European Union (EU) and Mediterranean countries, namely Tunisia (in July 2023) and Egypt (in March 2024).[2] Additionally, the Italian Government was active in shaping the EU New Pact on Migration and Asylum, whose adoption it hailed as a success, especially insofar as the “defence” of the external borders of the EU is concerned.[3]
Whereas the compatibility of the mentioned decrees-law and of the Italy-Albania Protocol with international law is analysed in detail elsewhere in this Volume,[4] the purpose of this contribution is to contextualize these developments in the broader approach that the current Italian Government has adopted toward migration, and to examine how the Government has justified such an approach on the basis of international law.
The conceptual point of departure for the Italian Government’s migration policy is the alleged existence of a “right not to migrate”, which was already referred to in 2022.[5] In 2023, such right was mentioned repeatedly,[6] also in connection with the flagship initiative of the Italian Government in Africa – the so-called Piano Mattei – which purports to start a new era of relations between Europe and Africa. In the words of the President of the Council of Ministers, Ms. Giorgia Meloni, as expressed during the 69th Meeting (XIX Legislature) of the Chamber of Deputies on 15 March 2023:
We want to drive all of Europe toward a new relationship with Africa, it is what we called Piano Mattei, namely a cooperation strategy centred on an equal relationship, a relationship of mutual growth and interest to guarantee the fundamental right of African peoples not to be forced to migrate in search of a better life.
Within the same statement, President Meloni contrasted such right not to migrate with an “indefinite right to migrate” (also referred to as “hypothetical” on other occasions[7]), at the heart of an “ideological view of a world without national borders”. According to the Italian Government, the agreements concluded with Tunisia and Egypt by the EU would pursue an objective similar to that of Piano Mattei – i.e., combining the stemming of migration flows with socio-economic development, also with a view to realizing the right not to migrate.
Should individuals nonetheless decide to attempt the treacherous routes to Italy, the Italian Government insists on its sovereign right to decide who and at what conditions can enter the national territory, first and foremost to guarantee national security. Accordingly, on 25 October 2023 the Minister of Foreign Affairs and International Cooperation, Mr. Antonio Tajani, stated before the Chamber (184th Meeting, XIX Legislature): “[t]he position of the Government is clear: we want to decide who comes in and not to leave this choice to human traffickers and criminal networks”.
Indeed, border control and the fight against irregular migration can be considered the main pillar of the Italian Government’s migration policy, which often appears to equate irregular migration flows to the “smuggling business” and thus find solutions in criminal law. Therefore, among the measures adopted in 2023 are the toughening of relevant penalties and the creation of a new crime of “death or injury as a consequence of crimes related to illegal migration”.[8] More generally, the Italian Government has called for a global mobilization against the trafficking of migrants. On 21 September 2023, President Meloni addressed the 78th United Nations (UN) General Assembly on this issue and, after qualifying the trafficking of migrants as a form of mafia, she called for the involvement of the UN. She added: “I believe it is the duty of this organization to reject any hypocritical approach to this issue and wage a global war without mercy against traffickers of human beings”.
However, human traffickers are not the only ones who, in the view of the Italian Government, interfere with its sovereign right to regulate entry into the national territory. In illustrating Decree-Law No. 1 of 2 January 2023, which restricts the search and rescue (SAR) activities carried out by non-governmental organizations (NGOs), the Undersecretary of State for the Interior, Mr. Nicola Molteni, during the 42nd Meeting (XIX Legislature) of the Senate of the Republic held on 23 February 2023, stated that
the defence of [national] borders – and thus the management of migration – are a prerogative of the State and not of foreign private organizations, and therefore rescue at sea must be carried out by the State and not by foreign private organizations […] we do not delegate foreign private entities unlimitedly to do what our country should do – and does appropriately.
Undersecretary Molteni interestingly added, in defending the new restrictions:
we demand that NGOs comply with international conventions, which clearly state that SAR activities […] must be non-systematic, occasional, non-autonomous and coordinated by the national authorities for search and rescue. This is what the international conventions prescribe and what our decree prescribes.
However, no reference to specific international instruments was made.
Relatedly, during the 50th Meeting (XIX Legislature) of the Senate on 21 March 2023, President Meloni asserted the existence of a “principle of involvement of flag States of NGOs’ vessels in SAR operations, which cannot and must not exclusively be incumbent on port States anymore”.[9] She added that, accordingly, “flag States, which fund NGOs, must assume the responsibilities that the law of the sea bestows upon them”. Besides a certain confusion between flag States and States contributing to the funding of NGOs, again, no specific international rule was mentioned.
Strengthening the idea that it is the prerogative of the Government to decide who enters and stays in Italy, and that irregular migration represents a significant security threat, considerable emphasis was placed on the expulsion process. In this respect, the Government announced its intention to increase the number of centri di permanenza per i rimpatri (CPRs, detention centres for repatriations) and boost the number of repatriations; and it extended the repatriation procedure to long-term residents in Italy. All these measures were justified before the Chamber on 17 October 2023 (179th Meeting, XIX Legislature) by the Minister of the Interior, Mr. Matteo Piantedosi, by referring to the need to comply with international and EU law:
On the basis of EU law, we are required to ensure the effective enforcement of expulsion orders, and I want to reiterate it: detention in CPRs […] exclusively concerns adult migrants with no right to stay in Italy and, as such, bound to be expelled, who do not cooperate with their identification or pose a danger to society […] in such circumstances, failure to detain [these individuals] in facilities like CPRs would undermine the implementation of EU norms, thus making Italy responsible.
In the view of the Italian Government, the stemming of irregular arrivals and the increase in repatriations are complemented by the expansion of legal channels for migration, which can be considered another component of the Government’s strategy. In 2023, the Government increased the number of foreigners allowed to work in Italy through the Decreto flussi (“flows decree”),[10] but the number remains relatively small and a majority consists of seasonal workers. The Government also reiterated its intention to use the Decreto flussi to reward those countries with which Italy has concluded or plans to conclude agreements to stop migrant departures, by increasing access quotas from the countries in question.[11]
A final controversial element of the Italian migration policy in 2023 concerns the treatment of migrant minors. Decree-Law No. 133 of 5 October 2023 firstly modified the age assessment procedure by speeding it up and medicalizing it; secondly, it introduced the possibility of placing minors over 16 years old in reception centres for adults, albeit in special sections.[12] Notwithstanding the concerns expressed by several civil society organizations, the Government maintained that both measures were fully in line with international and EU law as well as with the rights of minors.[13]
Overall, in the course of 2023, the Italian Government almost invariably either maintained that the changes introduced to the legislation on migration matters were in compliance with international and EU law, or even justified the new measures with the need to align the internal legal order with supranational law. At times, the Government sought to clarify in greater detail how a certain measure adhered to international law, as done, e.g., in relation to the Italy-Albania Protocol by Minister Tajani, who addressed several aspects of the agreement discretely during the 199th Meeting (XIX Legislature) of the Chamber on 21 November 2023. This was arguably due to the wealth of concerns raised with regard to the United Kingdom-Rwanda Treaty;[14]accordingly, Minister Tajani insisted on the differences between that treaty and the Protocol that Italy concluded with Albania:
this Protocol is not comparable to the Agreement between the United Kingdom and Rwanda. There is no […] externalization of the management of asylum requests to a third country and there is no derogation from internationally-guaranteed rights, which are, on the contrary, explicitly reaffirmed multiple times in the Protocol.
Much more often, however, the Government seemed to rather ritualistically refer to the compliance of its measures with international law, without identifying the relevant norms or explaining how the measures in question are justified by or otherwise abide by international law. This applies, for instance, to the generic statements to the effect that the measures regarding migrant minors or the restrictions on SAR activities by NGOs adhere to international and EU law.
As a further example, when reporting on 7 March 2023 to the Senate (46th Meeting, XIX Legislature) regarding the shipwreck that took place between 25 and 26 February off the coast of Cutro, in which at least 94 migrants died, Minister Piantedosi insisted that all national authorities, both those responsible for SAR activities and those tasked with law-enforcement activities at sea, cooperate as required by international law, and that “[t]he law-enforcement activities to combat irregular migration are always ready to be combined with SAR activities, precisely because of […] the higher interest of protecting human life”. However, in the specific case, two customs patrol boats – instead of better-equipped coastguard boats – were sent out for law-enforcement activities and did not manage to reach the migrants’ vessels due to bad weather.
Thus, while the Italian Government appears well-aware of the relevance of international and EU law when devising its migration policy, there is a risk that it might pay mere lip-service to such norms, without guaranteeing genuine compliance. Moreover, should the Government wish to go further and potentially develop international law on a particular issue (e.g., with respect to the “right not to migrate”, or the responsibilities of flag States in SAR operations), the relevant opinio juris should be more clearly spelled out and coordinated with existing law. Otherwise, references to international law run the risk of being devoid of any practical significance.
Chiara Tea Antoniazzi
A quotable version of this post was published in the Italian Yearbook of International Law: Antoniazzi, “Italy’s Migration Policy in 2023: Respect for or Empty References to International Law?”, IYIL XXXIII (2023), 2024, pp. 507-511; available here.
[1] Protocol between the Government of Italy and the Council of Ministers of Albania on strengthening cooperation in migration matters, 6 November 2023. The ratification and execution of the Protocol by Italy were authorized by Law No. 14 of 21 February 2024.
[2] Memorandum of Understanding on a strategic and global partnership between the European Union and Tunisia, concluded on 16 July 2023; and Joint Declaration on the Strategic and Comprehensive Partnership between the Arab Republic of Egypt and the European Union, 17 March 2024. While in themselves comprehensive, these partnerships were openly justified by the EU and its Member States (above all Italy) with the goal of reducing migration flows to Europe.
[3] See the Statement by the Minister of the Interior, Mr. Matteo Piantedosi, during the 179th Meeting (XIX Legislature) of the Chamber of Deputies on 17 October 2023: “Italy was not only a leader and an architect of this reform, but we must recognize that the text agreed upon is very close to Italy’s need and demands, and it represents the best compromise which was realistically possible”.
[4] See Mussi, “The Recent Italian Response to Migration: Everything Must Change So That Everything Can Stay the Same?”, IYIL, Vol. XXXIII, 2023, p. 377 ff.
[5] See Turrini, “Of Castaways and Pirates: Migrants’ Rights from Departure to Arrival”, IYIL, Vol. XXXII, 2022, p. 498 ff., pp. 500-501, also available here.
[6] Including in Prime Minister Meloni’s speech at the 78th United Nations General Assembly, 21 September 2023.
[7] E.g., during the 50th Meeting (XIX Legislature) of the Senate of the Republic on 21 March 2023.
[8] DL No. 20 of 10 March 2023, introducing Art. 12 bis in D.Lgs. No. 286 of 25 July 1998.
[9] According to President Meloni, such principle was for the first time accepted at the European level and enshrined in the EU Action Plan for the Central Mediterranean. However, the Action Plan appears to merely invoke “closer cooperation” between coastal and flag States, whereas the New Pact on Migration and Asylum provides for solidarity measures but only applying to arrivals following SAR operations and without singling out flag States. Therefore, no EU provision would seem to imply any legal responsibility for the flag State in relation to SAR operations.
[10] See the Decree of the President of the Council of Ministers of 27 September 2023 on the Plan for the legal entry of foreign workers in Italy for the period 2023-2025.
[11] See, among others, the Statement by Minister Piantedosi during the 90th Meeting (XIX Legislature) of the Chamber on 19 April 2023. The concept had already been put forward by the Italian Government the previous year: see Turrini, “Of Castaways and Pirates: Migrants’ Rights from Departure to Arrival”, IYIL, Vol. XXXII, 2022, p. 498 ff., p. 499.
[12] See, for further details, Mussi, cit. supra note 4, also referring to the problems highlighted by civil society organizations during their hearings before the Committee on Constitutional Affairs of the Chamber of Deputies.
[13] See the Statement by Minister Piantedosi during the 161st Meeting (XIX Legislature) of the Chamber on 13 September 2023; and the Statement by Undersecretary Molteni during the 202nd Meeting (XIX Legislature) of the Chamber on 24 November 2023.
[14] See, among many, the critical remarks by the United Nations High Commissioner for Refugees, Mr. Filippo Grandi, and the United Nations High Commissioner for Human Rights, Mr. Volker Türk.
Italy's Diplomatic and Parliamentary Practice on International Law 