Statewatch News Online: Italy/Libya: ASGI questions the lawfulness of Italy's agreement with the NTC
28 March 2012
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ASGI questions the lawfulness of Italy's agreement with the NTC - Serious doubts about the lawfulness of the agreement between the government and the Libyan NTC
ASGI [Associazione 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 Transitional Council].
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 to Cyrenaica.
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.
Source
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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