Written by Eliora Henzler, MSt in Practical Ethics, University of Oxford
EXTRATERRITORIAL MIGRATION MANAGEMENT
How can states ethically justify deporting individuals to third countries?
In October 2024, a ship of the Italian coast guard disembarked in the port of Shëngjin, in Albania. After a few days, it began a voyage in the opposite direction.
Italy and Albania signed an agreement allowing Italy to send migrants to detention centres in northern Albania. The deal, spearheaded by Italian Prime Minister Giorgia Meloni, aims to deter illegal migration. Non-vulnerable, adult, male migrants intercepted in international waters by the Italian Coast Guard, are transferred to detention centres in Albania, where their asylum claims are fast-tracked, and those who are denied asylum face deportation from Albania. After a first transshipment of 16 people in October, the court of Rome invalidated the deportation, and the people were transferred to Italy. In early November, a second transshipment is underway.
Courts and Human rights advocates have opposed the deal from the start calling it immoral, unconstitutional or the ‘Italian Guantanamo’. Critics also point out that building centres abroad might be too costly to be more than a marketing ploy. At the same time, 15 countries wrote the E.U. asking for similar deals, to keep people in “return hubs” where they will await deportation.
The deal invokes a series of questions about what is meant by ‘safe’, ‘vulnerable’ and by ‘borders’. While the harm inflicted on migrants during deportation are discussed in philosophy, finding a person in international waters and sending them to a ‘return hub’ brings up different ethical questions. On what grounds can a state choose to deport someone to a place of their choosing? Is it morally permissible to place someone in detention before processing their claim for asylum?
I – What justifications exist for detention and deportation?
Different justifications typically come together to explain why deportation is permissible: (1) States have the right to limit the flow of illegal immigrants to their country. This is especially true when, like is the case for Italy, (2) their systems are overwhelmed, and (3) stricter border procedures might deter people from attempting to cross. So, although we should not inflict unnecessary harm on people, (4) states should focus on processing the cases of the most vulnerable (women, children etc.) and people from countries where known persecutions are ongoing.
The first justification concerns the rights of states over their territory. It is because the person arriving is arriving – or attempting to arrive – without papers that they make themselves liable to be deported. States have rights of sovereignty over their territory, to control who comes in and out. Some philosophers and political theorists have suggested a state sovereignty needs to be limited to ensure it doesn’t infringe on human rights. For Sidgwick, a state has the right only to control what goes on within its borders, not who passes through there. People impacted by the MOU have not entered Italian territorial waters, nor made an asylum application and been declined. If they had been in Italian waters, they would, in accordance with international maritime law, have to be brought to the closest port of safety. When the coast guard forcibly moves people from international waters to Albania, the Italian state is externalising its borders.
The second leg of the argument is deterrence. While the centres in Albania will not host many people, knowing that people who are from safe countries will get deported will stop others from crossing and “curb migratory flows”. Underneath the idea is a wish to distinguish between “real” refugees and those migrants who are only trying to integrate the social systems in countries of arrival. To understand the ethical implications of this ‘sorting’, we need to look at how deterrence operates here. If going to Albania is as safe as proponents of the deal say, that is, if people are likely to find their basic needs met, and their vulnerabilities fairly assessed after being detained – it may not deter people from crossing. What contributes to the notion of deterrence is that in detention centres, people will not be free to move, have limited access to legal support and be more likely to end in deportation. Enforcing such measures forces asylum seekers to endure restrictive conditions to deter others from crossing. In that sense, those people are being used as means to a political end.
A third, softer justification concerns what the social systems of liberal democracies can be reasonably expected to accommodate. While it is right for states to remain open toward migrants and asylum seekers insofar as they can – when they become overwhelmed, they should adopt measures that help them alleviate this burden and prioritise the most vulnerable. While not wanting to force people immediately into a dangerous situation, detaining them in a safe country is based on an idea of a compromise. Their detention is not justified by deterrence but because of the burden that they pose as part of a group. Part of the answer to the moral question – “on what grounds is it permissible for a state to ship someone, against their will, to a place they have no connection with?” is “when it will not harm them too much, because they are not too vulnerable”.
II – States and individual human rights
To say that, in cases when people do not belong to an especially vulnerable group, the agreement between two states is enough to justify detention, would affect the moral status of persons in two ways. First, it would mean granting states the possibility to judge and punish people based on a probability, instead of based on facts about individual cases. Second it would weaken human rights overall.
1) Probabilistic judgements
Liberal democracies are typically opposed to judgment based on probabilities. In the MOU, it is the likelihood of a person being unsuccessful in their asylum application (because they are from a safe country of origin and do not present immediately obvious vulnerabilities) that leads to their transfer to a detention centre and entering a fast-track procedure for asylum.
‘Safe countries of origin’ refers to countries where people are less likely to be fleeing persecution. The European Court of Justice ruled on October 4th, that for this label to apply, a country must be safe in every part of its territory, without exception. This means that it does not apply to countries where certain people are unsafe – which is the case of Egypt and Bangladesh, where persons from the first transshipment were from. The Italian government, keen to see the MOU enacted, passed a decree placing the responsibility for determining the list of safe countries directly with the Ministry of the Interior. The judiciary is still obliged to verify consistency of the measure with European law, judges replied. The back-and-forth points to the conceptual issue: ‘Safe countries of origin’ is not a clear category. Even if a ministry or the EU commission declares country B as safe, it does not render it safe for citizens from country B. A country might be safe in general, except to those for whom it isn’t, which is why the right to request asylum applies to everyone and examines individual cases.
One answer to this worry has been that the most vulnerable are also excluded from the Italy-Albania deal. As the first round of implementation showed, it is difficult to determine in international waters who has a vulnerability. Four persons were returned from the sorting centre in Shëngjin because their vulnerabilities became clear once on land: two were minors and two in bad health. It might be said that they were returned, so the judgment was corrected – but they suffered a harm along the way.
People are exposed to dangers and distress when they are kept at sea longer than is necessary, which is why international maritime law states that any person found in distress at sea must be transferred to the closest port of safety. In 2022, a court in Catania ruled that ‘permitting only the disembarkation of some – not all – recued individuals […] was unlawful and incompatible with international maritime law’. The vulnerability of distressed cases at sea is used to explain why people need a place of safety; using it to justify deportation deprives them of the protection of maritime law. The choice to temporarily inflict the harm of detentions on the entire group, before and instead of assessing their claim for asylum on land is then a form of collective punishment.
2) Civil liberties
For these reasons, accepting the moral justifications for this MOU would lead us to accept the right of states to restrict other liberties. Using the justification of state sovereignty means extending the sovereignty to mean “the right to displace any person to a place of the sovereigns’ choosing”. Deterrence and overwhelm could also be used to justify deporting citizens to a ‘safe facility’ if they contracted a virus during a pandemic, or if they belonged to a group more likely to have contracted a virus.
Perhaps we think that states should only be permitted to inflict such a harm on non-citizens. This answer highlights the tension between a state sovereignty which excludes noncitizens, and human rights – meant to be universal. Hannah Arendt pointed to this difficulty with human rights enforced by states: the stateless effectively do not have rights because there is no one to enforce them. A person crossing the Mediterranean with no intentions to go to Albania has their right not to be harmed violated. Their ability to access their rights depends on how their vulnerability is assessed, interpreted and classified by the Italian ministry of interior which has made it clear it intends to practice exclusion against non-citizens. This violence exerted in international waters perverts the function of the state from a body that should protect persons into one that violates their fundamental rights. The migrant is then subject to the violence of the Italian state, without having access to the legal protection that the state offers its citizens. This undermines the universality of human rights, which should not apply differently to any person, regardless of group belonging.
Conclusion
There is a wish to streamline asylum and migration processes. People who are active in trying to prevent the growing deaths in the Mediterranean offer an answer: freedom of movement is a right. Perhaps the European Union will offer an alternative answer, but the current ethical justifications for resorting to return hubs are incompatible with a commitment to upholding human rights.
Fiat iustitia, et pereat mundus … If we overboil the water it can disappear completely. It evaporates. The same can happen to human rights if we apply them without any limits (see also Costas Douzinas). In the time of covid pandemic we didn’t hesitate to lock all the people in their homes. The purpose was to protect the health care systems from overloading. But if there is massive migration the health care system or public services can be overloaded as well. This example shows that we cannot talk only about rights or only about duties. If freedom harms somebody the state is allowed to limit it. The clue is proportionality and legitimate aim. But talking just about rights means as well talking about the end of rights.