ITALY’S MIGRATION POLICIES AND ITS LEGAL IMPLICATIONS: NON-REFOULEMENT AND EXTRATERRITORIAL RESPONSIBILITY IN LIBYA

Abstract

Following the civil war, Libya emerged as a prominent transit nation for migrants striving to access the territories of the European Union (EU), primarily Italy. Subsequently, the EU and Libya entered into cooperative agreements to regulate migratory flows. These accords have prompted significant legal concerns under international law involving Italy’s interception and repatriation of migrants to Libya, a country where severe human rights violations occur. This practice amounts to a breach of the fundamental tenets of international refugee law, particularly the principle of non-refoulement. In this context, the present research aims to ascertain if Italy’s collaboration with Libyan authorities in managing migration qualifies as aid or assistance under Article 16 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and whether this cooperation infringes upon Italy’s non-refoulement obligations under international law. The research uses a doctrinal legal methodology to analyse treaties, customary norms, case law from the International Court of Justice and the European Court of Human Rights, as well as pertinent Italian jurisprudence.
The present analysis suggests that Italy’s financial, logistical, and operational support to Libya, especially through the 2017 Memorandum of Understanding, meets the requirements of Article 16, including material contribution, knowledge, and wrongfulness. Various forms of support provided by Italy with complete awareness of widespread human rights violations in Libya create derivative responsibility through aiding and assisting in the commission of internationally wrongful acts. The study further underlines the possible shared responsibility of the EU under the Articles on the Responsibility of International Organisations (ARIO) and emphasizes the necessity of mechanisms of accountability that ensure migration control policies conform to peremptory norms of international law.