the lawfulness of Italy's agreement with the NTC - Serious doubts
about the lawfulness of the agreement between the government
and the Libyan NTC
Studi Giuridici sull'Immigrazione] expresses its most serious
reservations on the lawfulness of the agreement reached on 17
June 2011 between the Italian government and the Libyan NTC [National
First of all, we regret that the text of such an agreement was
not released to the public. From press dispatches, it appears
that it provides a clause according to which "the parties
will proceed to enact reciprocal assistance and cooperation in
the fight against illegal immigration, including the repatriation
of immigrants whose situation is irregular".
Secondly, it is evident that, as it is an agreement of a political
nature, it can certainly not be concluded in a simplified form,
but must first be submitted to the Chambers [of parliament] for
approval of the law authorising its ratification in application
of art. 80 of the Constitution.
Thirdly, the Italian government does not appear to have clarified
the fate of the treaty between Italy and Libya that was reached
on 30 August 2008 and was ratified and made executive with law
no. 7 of 6 February 2009, whose suspension was declared by the
Italian government itself last February, without its legal nature
being clear, also in view of the Vienna Convention on Treaty
Law. Hence, it is unclear whether the obligations in the treaty
are suspended or not, as it could not be understood if they were
suspended only for the territory governed by Khadafi's groups
and not for that currently governed by the NTC.
Fourthly, regardless of the legitimacy of the NTC's representation
and of its recognition by the Italian government, the agreement
appears to commit the parties to apply the procedures for the
repatriation of foreigners who departed illegally from Libya.
In these aspects, the agreement appears to violate the norms
of international law, also because it currently does not primarily
concern foreigners who have left from Cyrenaica, the region administrated
by the NTC, which has hardly ever happened, but those who have
fled to Italy from Tripolitania, which is administrated by Khadafi
and is subjected to military operations: it is unclear whether
the aim is thus already to return those fleeing from Tripolitania
However, it is necessary to recall that the entire Libyan territory
is subject to military operations and is certainly not a safe
area for life, security and the safety of people, and that the
latter flee from specific persecution operations enacted by Khadafi's
militias using methods that are presently deemed international
crimes even by the International Criminal Court. Hence, it is
evident that, in any case, Italy and the NTC must respect the
international convention on the protection of civilians during
international conflicts and that Italy must respect both the
non-refoulement principle of those who may be granted refugee
status or subsidiary protection status, envisaged by the international
convention on the status of refugees and by Community directives
in this field, and the prohibition of any form of expulsion that
may expose people to risks for their life, security and freedom,
or which, in any case, entail a form of torture or inhuman or
degrading treatment which, according to the European Court on
Human Rights, is inderogable for any state that is a party to
the European Convention on Human Rights.
Obviously, there are even more serious concerns regarding the
agreement if one considers that Libya has never ratified the
Geneva Convention on the status of refugees and that, therefore,
as recent years have shown, it could not effectively protect
such foreigners from the risk of being returned to their home
countries in which they would be subjected to persecution or
in which conflicts are underway.
Hence, what such an agreement endangers is precisely the respect
for these elementary guarantees that substantiate the right to
asylum that is guaranteed by the Italian Constitution in art.
10 point 3 and the safeguard of the most basic fundamental human
rights provided for by constitutional, international and EU norms.
Therefore, every possible legal effort to prevent its implementation
must be enacted.
ASGI press release, "Comunicato
stampa ASGI - Gravi dubbi di legittimità dell'accordo
tra Governo italiano e il CNT libico", 20.6.11
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