A legal analysis carried out by a group of professors and students from the Faculty of Law of the Torino Public University has been published at the end of last October. The analysis is focusing on the unlawful use of the ‘Memorandum of Understanding’ (MoU) signed by Italian authorities and Sudanese police. The signing of this MoU occurred on August 2016 on Italian soil, after which 40 Sudanese migrants were deported back to Sudan. The full report can be found here.
After a careful legal analysis of the ‘Memorandum of Understanding’, the researchers say that it shows that the legal base of the document was used in an incorrect and misleading way. Specifically analysing the facts occurred, researchers state three possible human rights violations can be allegedly suspected: violation of the principle of non-refoulement; violation of the prohibition of collective expulsion; and violation of the right to an effective remedy. In particular, the report states: “concerning the first violation, the MoU contains several provisions which stress the importance of the respect of human rights and compliance with pertinent International law, including the respect of the 1951 Geneva Convention. However, there is not a direct and expressed reference in any Article of the Memorandum to the respect of the principle of non-refoulement. The group of Sudanese people, who were repatriated by the Italian police on the basis of Articles 9 of the MoU, can also be considered as victims of a collective expulsion; this practice is explicitly prohibited by Article 4, Protocol 4 of the European Convention on Human Rights (ECHR)”.
Another reason of concern is the fast paced spreading of informal agreements of this nature between countries and a third parties, bypassing the formal and legally regulated international procedures. The use of this ‘simplified international cooperation’ can be noticed not only in the event analysed by this report, but also in similar circumstances involving different EU countries. The legitimate doubt that this report wants to raise regards the fact that such informal deals are becoming a common policy in Europe in order to deter migration, but at the same time such agreements are endangering the rights and safety of refugees and migrants.
A final consideration linked to the previous point is about the fact that the stipulation of any informal agreement regarding irregular migration is a European competence, and should therefore be discussed at European Union level. . As outlined by the report: “In the case of Italy ‘any legislative measure should have followed the procedure set forth by Articles 80 and 87 of the Constitution regarding the ratification of international treaties, in order for the Italian constitutional principles to be respected. [..] More generally, it should be noted that the competence for combating irregular migration and signing readmission agreements with Third Countries is defined as a European competence under Article 79 TFEU: therefore, agreements concerning identification procedures in the context of expulsion – where there were no previous agreements, neither bilateral nor signed by the EU – shall be discussed and adopted at the European level”.