Valentina Faggiani (Associate Professor of Constitutional Law at University of Granada) 

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The trend towards the externalisation of migratory policy has been reaffirmed in the recent Italy–Albania Protocol, whose objective is to institute a new model. This Protocol aims at intervening to overcome a real problem: the systemic crisis of asylum that Italy is suffering. The idea that inspires it and the scheme are clear and have some original profiles: if the situation in the reception centres in Italy is unsustainable, why not transfer migrants in irregular situation and asylum seekers to reception centres instituted outside the Italian territory, but managed, controlled and financed by Italy? In this country, particularly in frontline areas such as Lampedusa, on the one hand, foreigners suffer serious and systematic violations of fundamental rights; on the other hand, there has been a strong feeling of uneaseamong the local population, who live in an unsafe environment characterised by the proliferation of criminality and situation of violence.

The idea has the characteristic of extrema ratio: the purpose of building a new model of migratory flux management. Regarding the innovation profiles, it is interesting to observe that in this case Italy does is not delegating, as it did in the Memorandum of Understanding with Libia, the liability for controlling the fluxes and for pushing back the migrants to their country of origin, but it assumes the management of all phases, and it extends the jurisdiction and the cost that it implies. It is a much more extensive and complex project. Indeed, the political and economic context of Albania apparently offers more guarantees than other countries.

From a political point of view, this measure has a strong symbolic meaning. The aim of the Italian government is to show the electorate at home and beyond Italy’s borders its strength and autonomy in the international scenario and the capacity to find alternative solutions to solve the problem of incoming irregular immigration and, in general, the lack of aid and the ineptitude of the European Union (EU). In this sense, we must recognise that the Italian executive has shown the capacity to dialogue with third countries.    

The close relationship between Italy and Albania goes back a long way. A precedent can be found in the Treaty of Friendship and Cooperation of 13 October 1995, ratified by Law no. 170/1998.[1] In this treaty on political, economic, scientific, cultural, and migratory aspects,[2] the two States committed themselves to “favouring the construction of Europe” and “the rapid approximation of the Albania Republic to the EU”, reaffirming the respect for “sovereignty and territorial integrity, equality of rights”, “human rights” and the “inadmissibility of the use of force”.[3] On 3 November 2017, they stipulated the Protocol to reinforce bilateral cooperation in the fight against terrorism and trafficking of human beings. Finally, Italy approved the ratification and execution of the Protocol with Albania, adopted in Rome on 6 November 2023, on 15 February 2024.[4] It will contribute to further tightening of the relationships between the two countries.

Regarding the parliamentary proceeding, on the one hand, Italy has correctly applied Article 80 of the Constitution, which requires Parliament’s authorisation for international treaties of political nature that entail financial charges. On the other hand, in Albania, the Constitutional Court has endorsed the agreement in the framework of a preventive review on 29 January 2024, presented by opposition members of parliament..[5] It considered that it does not constitute a prejudice for territorial integrity.

The objective of this Protocol is to “reinforce the bilateral cooperation between parties in the management of migratory flows from Third countries, according to international and EU Law”,[6] through the creation of reception and repatriation centres for migrants on Albanian soil, which are financed and managed by Italy. The Protocol will remain in force for 5 years with the possibility of tacit renewal for a further five years, unless one of the parties gives at least six months’ notice of its intention to close the agreement.[7]

The text states the transfer of shipwrecked people rescued by Italian military vessels on Albanian territory and their detention in two facilities, built in the port of Shengjin and in the hinterland of the locality of Gjader,[8] in which the existence of the conditions for the recognition of international protection and the repatriation of migrants not entitled to enter and remain on Italian territory for the time strictly necessary will be established.[9] The number of migrants present at the same time on the Albanian territory cannot exceed 3.000.[10] In any case, it will increase in practice, considering that it is an insignificant proportion compared to the number of people entering Italy.

Italy will take charge of the expenses related to the construction of the facilities, ensuring the necessary health services,[11] the responsibility for the transfers, the management of these facilities, and the jurisdiction on any disputes that may arise between authorities and migrants.[12] The extraterritorial character of the effects is according to both Article 10(1) and Article 117(1) of the Constitution. This agreement does not violate the obligations derived by international law in this field, to which the Italian State is subject. From this point of view, one State can exercise its jurisdiction over another State, with its consensus.

Regarding the respect of EU Law that the Protocol invokes,[13] the Commissary of EU for Home Affairs has declared that the Italy–Albania agreement is not contrary to EU Law because it is not covered by it. In any case, she has highlighted that Italian authorities will examine the legal situation of migrants according to Italian law and European norms. It is an evaluation that, although it allows the EU to avoid any responsibility, needs to be deeply analysed. In fact, it is unclear whether this agreement is outside the scope of EU Law. In the field of immigration and asylum, the EU has shared competencebecause it has built a legal system, the CEAS, integrated also by national provisions and international agreements with third countries or other international organisations.

The possibility to adopt international agreements, recognised in general terms by Article 218 TFUE, is stated in a specific way by Article 78(2)(g) TFEU, which authorises the European Parliament and the Council to elaborate measures that improve partnership and cooperation with third countries for managing inflows of people applying for asylum or subsidiary or temporary protection. In this way, it is a competence that it shares with Member States, but which, as Favilli observed , could become exclusive to the EU under the external profile if the agreement affects a harmonised field, common provisions or modifies their scopes.[14]

The Court of Justice of the European Union (CJEU) could clarify this profile whith some instruments. The Court of Luxembourg can evaluate the compatibility of an agreement with the EU Treaties framework, according to Article 218(11) TFEU, which can be required by the EU Parliament, the Council, and the Commission. “Where the opinion of the Court is adverse, the agreement expected may not enter into force unless it is amended or the Treaties are revised”. The second and third instruments are the preliminary ruling by a national judge that must resolve a concrete case on the interpretation and application of the protocol (Article 267 TFUE) or an infringement procedure by the Commission (Article 258 TFEU). However, this last hypothesis does not seem possible, considering that European institutions have substantially accepted the agreement. In any case, even if the EU did not conclude the Protocol, it must respect EU law. In fact, in the “centres”, Italian legislation will be applied, which must be compatible with EU law.

From an abstract point of view, this extraterritorial system is not contrary to the right of asylum. Although the enjoyment of this right is stated “on the Republic’s territory” (Article 10(3) of the Constitution), the application for international protection and the examination to assess whether the foreigner “is prevented from exercising the democratic freedoms guaranteed by the Constitution” in his or her country can also be made on the territory of another Member State. It is sufficient to consider the possibility of applying for asylum at the consulates and embassies of a given country. In any case, the violations of fundamental rights that the delocalisation mechanisms produce are known.

Indeed, in this line, there are apparently no profiles of incompatibility with the European Convention on Human Rights (ECHR), which provides, as an exception to the principle of territoriality (Article 1 ECHR), for the application beyond the borders of a signatory State of acts adopted by it, and therefore the extension of its effectiveness, by virtue of the existence of a ratione personae or ratione loci link.. Specifically, in this case, the link would be re-established by the control exercised over the foreign state, with its consent.. Transfers should respect the ECHR and its fundamental principle, in primis, the principle of non-refoulement and the prohibition of inhuman and degrading treatment, according to Article 3 ECHR, which is applicable both to Italy (Article 4 Code of navigation) and Albania. The latter, being part of the Council of Europe, constitutes a “safe state” and must therefore respect fundamental rights. This is a very important aspect: the fact that Albania, although it has persistent structural problems, offers major guarantees in terms of democracy and the level of fundamental rights protection prevents the invocation of this profile, which is determinant, for example, before the ECHR or before the Constitutional Court, such as in the case of the Memorandum of the United Kingdom with Rwanda.[15]

In this case, in fact, the ECHR has ordered the preventive suspension of the transfers of migrants in Rwanda, considering that it is difficult to consider this country as a safe and democratically stable state. The applicants would have risked suffering inhuman and degrading treatments (Article 3 ECHR) and systematic violations of rights due to the absence of mechanisms to allow applicants to return to the UK.[16] In this line, the Court of Appeal, on 29 June 2023,[17] with a decision contrary to that adopted at first instance, and more recently the Supreme Court, in its sentence of 15 November 2023, has followed the ECtHR’s approach, reaffirming these profiles.[18] The jugdment of the Supreme Court, particularly, focuses on the importance of non-refoulement, according to Article 33 of the Geneva Convention, Article 6 of The Declaration of the Rights of Man and of the Citizen and Article 3 ECHR, the national normative on immigration and asylum and the indexes from which it is possible to deduce the effective violation of this principle.[19]

In contrast to the UK’s agreement with Rwanda, in the case of the Italy–Albania Protocol, migrants transferred to Albanian territory would not be subject to the jurisdiction of the host third country, but to that of Italy. As Savino puts it, we are not witnessing a  “strategy of externalisation” but a “strategy of extra-territorialisation”, which maintains the responsibility of the Italian state over the asylum application made in Albania.[20] In any case, it is difficult to believe that this strategy will guarantee “outside” the Italian territory a minimum level of protection equivalent to that established and guaranteed on the ground. The risk of a “selective application” is one of the main problems that the agreement presents, risking creating inevitable discrimination between the “legal condition of foreigner rescued in the international sea and transported to the Albanian centres and the foreigner transported to the Italian territory” to be identified and submit an asylum application, which is eventually examined and challenged. Even in the “protection regime elsewhere”,[21] which the agreement wants to establish, there is tension between abstract and concrete dimensions that characterises this type of agreement.

Another critical issue is the notion of reception provided for in the Protocol. It is practically impossible to ensure the minimum standards for reception and the services that this entails, considering the special vulnerability of migrants, and to respect the procedural rights provided for in the Protocol. Although the Italian authorities will adopt the necessary measures to protect the permanence within these areas, they have prevented them from exiting Albania, during the administrative proceedings and at the end, regardless of the final result. In the case of unauthorised exits, the Albanian authorities will take them to the centre. An approach of this type transmits the idea that, in the doctrine defined as an “Italian enclave in Albania territory”,[22] people should be suject to administrative detention (in CPR and hotspot) and criminal detention (in “mini prisons”),[23] if they commit some crimes in the centre.[24]

The Albanian authorities will be able to ensure the maintenance of order and public security outside of these areas and during transfers by land to and from the Areas, which occur on Albanian territory[25] and “may enter the Areas” only “with the express consent of the person in charge of the facility itself” or “exceptionally”, “by informing the Italian person in charge of the facility, in the event of fire or other serious and imminent danger requiring immediate intervention”.[26]

Finally, from an economic point of view, Italy will assume the necessary costs for the accommodation of people in these structures with the inclusion of food, medical care (even if they need the assistance of the Albanian authorities) and any other service deemed necessary by the Italian side, committing itself to ensure that such treatment respects fundamental human rights and freedoms, in accordance with international law. It is a too high a cost to accommodate only 3,000 people.

The conclusion is that this Protocol does not convey a positive feeling. The originality of this scheme clashes with the difficulty of reaching an equilibrium with respect to fundamental rights, which are systematically violated in the contexts of deterritorialisation of migratory policy, and with the difficulty of reducing the flow and therefore reaching the objective and the excessive costs associated with it. But if seems so evident that this project will not contribute to solve the management of irregular immigration, why is it moving forward? Thus, the government wanted to prove its strength. In fact, it knows that it will only be able to transfer a minimum number of migrants. In any case, it wants to show that it can transfer them elsewhere, to another country. Evidently, Albania is neither Libya nor Rwanda, yet it is still democratically vulnerable and cannot offer sufficient guarantees in terms of fundamental rights.

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[1] Law no. 170 of 21 May 1998,, “Ratifica ed esecuzione del trattato di amicizia e collaborazione tra la Repubblica italiana e la Repubblica di Albania, con scambio di lettere esplicativo dell’articolo 19, fatto a Roma il 13 ottobre 1995”, Official Gazette no. 127 of 3 June 1998..

[2] Article 19, Treaty of Friendship and Cooperation between Italy and Albania, 1995.

[3] Articles 1, 2, and 3, Treaty of Friendship and Cooperation between Italy and Albania, 1995.

[4] Law no. 14 of 21 February 2024, “Ratifica ed esecuzione del Protocollo tra il Governo della Repubblica italiana e il Consiglio dei ministri della Repubblica di Albania per il rafforzamento della collaborazione in materia migratoria, fatto a Roma il 6 novembre 2023, nonché norme di coordinamento con l’ordinamento interno”,  OJ General Series no. 44 of 22-02-2024. House of Parliament, Senate of the Republic, Dossier XIX Legislature. Ratification and Execution of the Italy-Albania Protocol on Extraterritorial Migration Management, as well as Rules for Coordination with the Internal Order, A.S. no. 995, Servizio Studi, Dossier no. 202/2, 30 January 2024.

[5] The opposition considered that the procedure for the negotiation and conclusion of international treaties on territorial issues and affecting fundamental rights, which requires the prior authorisation of the President of the Republic [Article 121, paragraph 1(a) and (b) of the Constitution], was not followed.

[6] Article 2, Italy–Albania Protocol.

[7] Article 13, Italy–Albania Protocol.

[8] Article 3, Italy–Albania Protocol.

[9] Article 4(3),, Italy–Albania Protocol.

[10] Article  4(1), Italy–Albania Protocol.

[11] Article  4(6),, Italy–Albania Protocol.

[12] Article 4(2), Italy–Albania Protocol.

[13] Article 4(3), Italy–Albania Protocol.

[14] On this point, see Chiara Favilli, “Audizione ddl Protocollo Italia–Albania”, 8 January 2024, 2-5. Available at: https://documenti.camera.it/leg19/documentiAcquisiti/COM01/Audizioni/leg19.com01.Audizioni.Memoria.PUBBLICO.ideGes.26889.11-01-2024-11-46-29.403.pdf.   .

[15] Memorandum of understanding between the UK and Rwanda, MoU between the Government of the United Kingdom and the Government of the Republic of Rwanda for the provision of an asylum partnership arrangement, April 14, 2022, and Addendum to the Memorandum of Understanding, April 6, 2023.   

[16] Judgment ECtHR N.S.K. v. the United Kingdom, application no. 28774/22, formerly K.N. v. the United

Kingdom, an asylum-seeker facing imminent removal to Rwanda, 197. Grant by the Court of an urgent interim measure.

[17] Judgment approved by the Court for handing down minor editorial corrections accepted by the Court thereafter R (AAA) and others v. The Secretary of State for the Home Department [2023] EWCA Civ 745. United Kingdom: Court of Appeal (England and Wales), 109.

[18] Judgment United Kingdom Supreme Court  R (AAA and Ors) v Secretary of State for the Home Department [2023] UKSC 42, 15 November 2023.

[19] Although the United Kingdom did not leave its project, it signed a new agreement with Rwanda on 5 December 2023. See Thomas Brown, “International Agreements Committee report on the UK-Rwanda treaty”, House of Lords Library, 18 January 2024. Available at: https://lordslibrary.parliament.uk/international-agreements-committee-report-on-the-uk-rwanda-treaty/.

[20] Mario Savino and FlavioValerio Virzì, “Il protocolo tra Italia e Albania in materia migratoria: prime riflessioni sui profili dell’extraterritorialità”, ADiM Blog, Editoriale, November 2023,  1-9.

[21] Chiara Favilli, “Audizione ddl Protocollo Italia–Albania”, 2.

[22] Luca Masera, “Il Disegno di legge di ratifica ed esecuzione del Protocollo tra Italia ed Albania in materia di immigrazione: analisi del progetto e questioni di legittimità”, Sistema Penale, 28 December 2023, 6.

[23] Luca Masera, “Il Disegno di legge…”,, 4.

[24] Article 9, Italy–Albania Protocol.

[25] Article 6(2), Italy–Albania Protocol.

[26] Article 6(3), Italy–Albania Protocol.

Picture credits: Ahmed akacha on Pexels.com.