Migration policy has recently sparked an open conflict between the Italian Government and the judiciary, with the Government openly challenging the judiciary at all levels. Domestically, the focus is on the separation of powers; at the international level, on the tension between national sovereignty and the authority of international and regional courts.[1] In both cases, migration is treated as a security issue, and the Government, drawing on its democratic mandate, claims competence to protect its citizens, while non-elected courts are perceived as a potential obstacle to this aim.
This policy is not new, and it has ranged from exploiting legal gaps to directly opposing judicial decisions. Yet it has intensified in recent years, leading to (attempts at) a reform process, championed by the current Italian Government, and involving both European Union (EU) law and the European Court of Human Rights (ECtHR).
Cooperation with Libya is a cornerstone of Italy’s externalization policy and an emblematic example of how the Government has exploited legal loopholes.[2] This policy was reshaped following the 2012 Hirsi Jamaa decision on the violation of Articles 3 and 13 of the European Convention on Human Rights (ECHR), and Article 4 of Protocol 4 to the ECHR.[3] With the 2017 Italy-Libya Memorandum of Understanding, Italy delegated border control, interception, and the return of migrants to Libyan authorities to avoid scrutiny by the ECtHR.[4] With the Memorandum, the practice of pushbacks – i.e. forcing migrants out of Italian jurisdiction without any individual assessment – has been replaced with the practice of pullbacks – i.e. preventing migrants from leaving Libya or allowing Libya to forcibly return them to its territory by Libyan ships.[5] The ECtHR examined the pullback policy in S.S. and others and, on 20 May 2025, declared the application inadmissible for lack of State jurisdiction.[6] Italy, with this policy, achieves results similar to those of pushbacks, namely, preventing migrants from reaching Italian coasts, yet without formally violating the ECHR.
On 2 February 2026, the Memorandum was tacitly renewed, despite criticism and the opposition’s attempt to block it through Motion no. 1-00498, which was rejected by the Chamber of Deputies (548th Meeting, XIX Legislature) on 15 October 2025.[7] On the same day, Motion no. 1-00505 was approved, which called for the renewal of the Memorandum as “an indispensable tool for the national strategy […] to prevent departures from Libya” and reaffirmed the promotion and protection of human rights. On 7 November 2025, the Undersecretary of State for Foreign Affairs and International Cooperation, Mr. Giorgio Silli, in his reply to Question no. 4-05927 before the Chamber (561st Meeting), insisted on the need to cooperate with Libya as a crucial pillar in the fight against irregular migration and expressed the Government’s commitment to the protection of human rights; yet, he failed to consider the several reports on the dire conditions of migrants in Libya.[8]
The process of externalization of migration management has accelerated significantly with the 2023 Italy-Albania Protocol, defined by the President of the Council of Ministers, Ms. Giorgia Meloni, as an “innovative solution” to the migration challenge.[9] The Protocol establishes facilities in Albania, under Italian jurisdiction, originally for certain types of migrants intercepted at sea. These facilities were only to be used for border entry procedures, to detain migrants pending international protection claims and to repatriate those who are not entitled to enter Italy.[10] After Decree-Law no. 37 of 28 March 2025, these facilities can also host migrants awaiting expulsion, including those transferred from Italian repatriation centres. Since 2024, however, the implementation of the Protocol has been undermined by domestic judicial decisions that have not validated the detention in Albania on the basis of the notion of safe country of origin, as interpreted by the Court of Justice of the European Union (CJEU) on 4 October 2024.[11] To circumvent these rulings, a list of safe countries of origin including Albania was established with Decree-Law no. 158 of 23 October 2024. Ambiguities about whether a country can be considered safe even if it is not for certain categories of persons, and about the scope of judicial review on the safe country qualification, led to a new request by Italian courts for a preliminary ruling by the CJEU.[12]
On 1 August 2025, the CJEU decided on the preliminary request and determined that the qualification as a safe country of origin can always be challenged before courts and that Directive 2013/32 precludes designating as safe a country of origin “which does not satisfy, for certain categories of persons, the material conditions for such a designation”.[13] Following the unfavourable decision of the CJEU, Ms. Meloni accused the Court of legitimizing political assessments by domestic judges, and issued the following statement:
Once again, a court, this time European, claims spaces that are not within its competence, in the face of political responsibilities. The [CJEU] decides to hand over to any national judge the decision not on individual cases, but on the part of migration policy regulating returns and expulsions of irregular migrants. Thus, for example, in determining the so-called safe countries, it gives precedence to the national judge’s decision, even based on private sources, over the outcomes of complex investigations conducted by the relevant ministries and evaluated by the sovereign Parliament.[14]
For Ms. Meloni, the CJEU’s decision “should concern everyone […] because it further reduces the already limited margins of autonomy of governments and parliaments”.[15]
On 14 November 2025, before the Chamber of Deputies (566th Meeting), in response to Question no. 4-05160, the Minister of Justice, Mr. Carlo Nordio, softened the tone and offered a more comprehensive reflection on the separation of powers, yet he confirmed that migration policy and the Italy-Albania Protocol fall within the Government’s and Parliament’s competences:
The principle of loyal cooperation […] entails respect for the prerogatives recognized to each of the constitutional bodies […]. It is worth recalling that the function of political guidance – and therefore migration policy – belongs to the Government and Parliament. The Italy-Albania Protocol arises from concrete needs to manage migratory flows, fitting within the framework of international cooperation […] and in line with the obligations set out by international and European Union law.
Mr. Nordio’s statement focuses on the division of powers without considering the primacy of EU law as interpreted by the CJEU, which is the main legal issue related to the Protocol.[16]
Following the CJEU’s decision, there have been other requests for a preliminary ruling by the Corte d’Appello di Roma, mainly focused on the applicability of EU law to the Protocol, on Italy’s competence to conclude the Protocol, and, lastly, on provisions of the Protocol that might violate EU law, regarding migrants’ rights to liberty, effective remedy, and health.[17] The CJEU’s forthcoming decision may thus significantly affect the survival of the Protocol’s model.
In any event, the Government did not back down on its migration policy, as an alleged matter of security.[18] On 1 August 2025, Ms. Meloni stated that “[t]he Italian Government, for the ten months remaining until the European Pact is operational [the EU Migration and Asylum Pact was due to come into effect on 12 June 2026, ed.], will not cease to seek every possible solution, whether technical or regulatory, to safeguard the safety of citizens”.[19] The next day, the Minister of the Interior, Mr. Piantedosi, specified that the facilities in Albania would continue to operate as repatriation centres, but would soon be used for accelerated border procedures.[20]
Reaffirming migration policy choices for security reasons, despite adverse judicial rulings, is not new to the practice of Italian Governments. Already in 2011, Italy refused to comply with the interim measures issued by the ECtHR suspending the expulsions of some migrants, as the then Minister of the Interior, Mr. Roberto Maroni, declared himself “competent for the public safety” and, thus, he retained the power to evaluate the situation, taking “full responsibility for th[e] decision” to repatriate.[21]
Unlike in the past, in 2025, the Government sought to address the issue more structurally, by promoting changes to the applicable European legal framework rather than merely challenging individual judicial decisions. On 17 December 2025, before the Chamber of Deputies (586th Meeting), Ms. Meloni clarified that “a more solid European legal framework” will safeguard national initiatives, such as the Protocol, “from ideological rulings”. She laconically concluded that her cabinet is “resolving [the problem of ideological rulings] by directly intervening in European legislation”. Ms. Meloni was referring to the abovementioned EU Migration and Asylum Pact. Under this new framework, the Government is confident that the Protocol will work both for accelerated border procedures and repatriation centres.
This attempt to reshape the applicable legal framework does not involve only EU law, but it also extends to the role of the ECtHR. Even though this Court has recently become more receptive to States’ interests in migration matters, governments have continued to call for greater latitude over their migration policies.[22] In the same statement of 17 December, Ms. Meloni added that “[a]nother area in which Italy has taken the lead […] is the reflection on the capacity of international conventions […] to address the challenges of modern irregular migration and security”. The reference was to the Letter made public by Italy and Denmark on 22 May 2025 and opened to signature by other European States, whose purpose is “to start[…] a process that should lead to a more effective application of the [ECHR], more in line with the current context”.[23]
The Letter represents a milestone of the Government’s approach to migration, grounded in security concerns and in the strength of its democratic mandate. While the signatories claim commitment to international law, the rule of law, and human rights, they put into doubt the adequacy of international norms in addressing today’s challenges. The central focus is on how the ECtHR has developed its interpretation of the ECHR. They believe that the Court “has extended the scope of the Convention too far as compared with the original intentions […], thus shifting the balance between the interests which should be protected”.[24] This interpretation has curtailed political decision-making “[a]nd thereby affected how [they] as leaders can protect [their] democratic societies and populations”.[25] They declared that “the safety and stability of […] societies should have the highest priority”, reclaiming more freedom to decide over migration issues such as expulsions and stating their intention “to use [their] democratic mandate to launch a […] conversation about the interpretation of the [ECHR]”.[26] The reference to the democratic mandate and to the alleged support among the majority of European citizens clearly stands in contrast with non-elected courts. With the Letter, the signatories seek to extend their power over migration policy, based on the States’ sovereign right to control the entry and expulsion of migrants.[27]
Following the Letter, a discussion on the ECHR has begun: on 10 December 2025, the Member States issued their Conclusions, and on 15 May 2026, the Committee of Ministers of the Council of Europe adopted the Chişinău Political Declaration, which was welcomed by the European Commission.[28] The Declaration softened the language of the Letter. Nevertheless, it urged the Court to interpret the ECHR in conformity with the States’ public interest, rebalance Article 8, limit Article 3 to “the most serious forms of ill-treatment” and accept new externalization policies.
The attempt at redefining competencies within the State and to reaffirm sovereignty over supranational courts is grounded in security concerns and strengthened by the contrast between elected representatives and non-elected courts. The balance is pushed in favour of the Government, with the aim of preventing judicial decisions from undermining governmental migration policies. This aim is pursued through two strategies: open criticism of domestic judicial decisions as politically oriented, and favouring reinterpretation and reforms, supported by other European States, of the current ECHR and EU legal frameworks to grant the State a broader margin of discretion.
Silvia Bortolato
A quotable version of this post will be published in the Italian Yearbook of International Law: Silvia Bortolato, “Separation of Powers and National Sovereignty in the Government’s Migration Policy”, IYIL XXXV (2025), 2026.
[1] Greenberg, “Counterpedagogy, Sovereignty, and Migration at the European Court of Human Rights”, Law & Social Inquiry, 2021, p. 518 ff., p. 522.
[2] Ibid., p. 518 ff.
[3] ECtHR, Hirsi Jamaa v. Italy, Application no. 27765/09, Grand Chamber, Judgment of 23 February 2012.
[4] Greenberg, cit. supra note 1, pp. 528-532.
[5] Moralez, Report on means to address the human rights impact of pushbacks of migrants on land and at sea, UN Doc. A/HRC/47/30 (2021), paras. 34-38 and 67.
[6] ECtHR, S.S. et al. v. Italy, Application no. 21660/18, Decision of inadmissibility of 20 May 2025, paras. 98 and 106. For other international law violations, see para. 112.
[7] See Amnesty International, “Stop al Memorandum Italia-Libia”, 15 October 2025.
[8] See, most recently, UNSMIL and OHCHR, “Business as Usual: Human Rights Violations and Abuses against Migrants, Asylum-Seekers, and Refugees in Libya”, 17 February 2026.
[9] Ms. Meloni, 450th Meeting of the Chamber of Deputies, 19 March 2025. The Protocol was ratified through Law no. 14 of 21 February 2024. For a comprehensive overview of the Protocol, see Fazzini, “The Italy-Albania Protocol on Extraterritorial Detention of Migrants: Critical Issues in International Law”, IYIL, Vol. XXXIV, 2024, p. 273 ff.
[10] Fazzini, cit. supra note 9, p. 274; Antoniazzi, “Italy’s Migration Policy in 2024: Pursuing the Externalization Path”, IYIL, Vol. XXXIV, 2024, p. 417 ff.
[11] Case C‑406/22, CV, 4 October 2024, ECLI:EU:C:2024:841.
[12] See, among others, Tribunale ordinario di Roma (Sez. XVIII Civile), LC, 31 October 2024, no. 44346; Tribunale ordinario di Roma (Sez. XVIII Civile), CP, 4 November 2024; Corte d’Appello di Roma (Sez. Persona, Famiglia, Minorenni e Protezione Internazionale), 31 January 2025, no. 478; Favilli and Marin, “Il controllo giurisdizionale sulla designazione di un paese d’origine sicuro dopo le sentenze CV e Alace”, Rivista del Contenzioso Europeo, 2025, p. 1 ff.
[13] Joint Cases C-758/24 and C-759/24, Alace and Canpelli,1 August 2025, ECLI:EU:C:2025:591.
[14] “Decisione della Corte di Giustizia UE in merito ai Paesi sicuri, la nota di Palazzo Chigi”, 1 August 2025. Similarly, Minister Piantedosi: “Albania, Piantedosi sfida le toghe: ‘La linea non cambia, i centri resteranno aperti’”, Libero, 2 August 2025.
[15] Ibid.
[16] Cf. Ms. Meloni, affirming before the Chamber of Deputies (586th Meeting, 17 December 2025) that the judiciary has overstepped its function, and “Italian legislation has been disregarded, with forced interpretations of European law”.
[17] Case C-706/25, Comeri, 6 November 2025; Borraccetti, “Il Protocollo Italia-Albania e il diritto dell’Unione: note al rinvio pregiudiziale della Corte di Appello di Roma”, Eurojus.it, 2026, p. 199 ff. See also the request for a preliminary ruling of the CJEU in Case C-414/25, Sedrata, 24 June 2025, in which, on 23 April 2026, the Advocate General stated that “EU law does not prevent a Member State from establishing a detention centre for return procedures outside its own territory” but migrants’ rights must be fully protected.
[18] Ms. Meloni hoped that “the Court will avert the risk of compromising repatriation policies […] because it would fundamentally undermine the Schengen system and the very stability of Europe” (see supra note 9).
[19] Nota di Palazzo Chigi, cit. supra note 14. See also “Meloni con Edi Rama: ‘Avanti sui Cpr’. Schlein: ‘800 milioni buttati’”, RaiNews, 13 November 2025.
[20] See Minister Piantedosi’s interview cit. supra note 14.
[21] Gargiulo and Nesi (eds.), “Diplomatic and Parliamentary Practice”, IYIL, Vol. XXI, 2011, p. 387 ff., pp. 391-392. Mr. Maroni justified the violation of Art. 34 of the ECHR also arguing that only a final judgment would compel him to suspend expulsions. On violations of interim measures see ECtHR, Ben Khemais v. Italy, Application no. 246/07, Judgment of 24 February 2009; Trabelsi v. Italy, Application no. 50163/08, Judgment of 13 April 2010; Mannai v. Italy, Application no. 9961/10, Judgment of 27 March 2012.
[22] ECtHR, N.D. and N.T. v. Spain, Applications nos. 8675/15 and 8697/15, Judgment of 13 February 2020; Wessels, “Reverse Strategic Litigation by Governments? Negotiating Sovereignty and Migration Control before the European Court of Human Rights”, AJIL, 2024, p. 214 ff.
[23] Letter, 22 May 2025; it was signed by nine states. Following the Letter, on 10 December 2025, 27 Member States signed a Joint Statement delivered to the Conference of Ministers of Justice of the Council of Europe.
[24] Letter, cit. supra note 23.
[25] Ibid. See also Ms. Meloni’s speech before the Chamber of Deputies (497th Meeting, 23 June 2025).
[26] Letter, cit. supra note 23.
[27] States’ right to regulate migrant entry and expulsion is explicitly acknowledged as fundamental for interpreting the Convention also in the Joint Statement, cit. supra note 23, and in the Committee of Ministers’ Chişinău Declaration, 15 May 2026. Such right is complemented in both documents by the principle of subsidiarity, which appears in other Government’s statements, such as Mr. Nordio’s response to Question no. 4-04883 (524th Meeting of the Chamber of Deputies, 6 August 2025), in a different context from migration policy, yet still in the matter of the relationship between national authorities and the ECtHR.
[28] Informal Ministerial Conference, “Conclusions”, 10 December 2025; Chişinău Declaration, cit. supra note 27; European Commission, “Commission welcomes the Council of Europe declaration on migration”, 15 May 2026.
