Albania’s Constitutional Court clears controversial deal with Italy to host third-country migrants in extraterritorial camps

Tirana Times
By Tirana Times January 31, 2024 17:34

Albania’s Constitutional Court clears controversial deal with Italy to host third-country migrants in extraterritorial camps

Story Highlights

  • Further challenges and protests expected as unpopular deal angers local and international sensitivities.

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TIRANA, Jan. 29, 2024 - In a tight 5-4 vote, the Albanian Constitutional Court has ruled that a controversial agreement between Albania and Italy on migrants is “in line” with the country’s constitution, greenlighting the ruling majority to approve the government decisions in parliament. 

The ruling came after a group of opposition MPs asked the court to void a Memorandum of Understanding signed by Prime Minister Edi Rama and his Italian counterpart, Giorgia Meloni, in Rome in November 2023.

The Democratic Party MPs had argued that the deal between the two countries violated Albania's constitution and human rights conventions to which Albania is a party, and the country’s highest court had suspended parliamentary approval in December as Albania’s ruling Socialist Party of Prime Minister Rama rushed to approve the deal in parliament.

The agreement, which is opposed by many local and international organizations, aims to hold migrants intercepted at sea trying to reach Italy from North Africa, in a closed camp in Albania under Italian extraterritorial jurisdiction. 

It envisions the establishment of two centers: the first in Shëngjin, Albania’s third largest port and a tourist hot spot, where migrant verification procedures will take place, and the second in Gjadër, an Albanian air force base, where they will be held in isolation until asylum acceptance or rejection procedures are completed.

The legal challenge to the Constitutional Court aimed to prove that Albania was relinquishing parts of its territory to Italy as part of the deal to build the two migrant processing and holding centers, which is a clear violation of the country’s constitution. 

However, the Constitutional Court’s ruling stated that the protocol "does not establish territorial boundaries or alter the territorial integrity of the Republic of Albania, thus not constituting an agreement related to the physical aspect of territory."

The court also noted that the Friendship and Cooperation Treaty of 1995 between Albania and Italy, addressing migration, "provides a sufficient basis for the protocol to be negotiated with authorization from the prime minister." 

-Court says Albania shares responsibility on rights-

The court emphasized that the responsibility for regulating the matters outlined in the protocol rests with the Albanian state, drawing from both constitutional norms and international law governing state responsibility within the framework of the extraterritorial application.

Regarding the management of reception structures, the agreement specifies that they are "administered by the competent authorities of the Italian side, according to Italian and European legislation. Disputes arising between these authorities and entities accommodated in the aforementioned structures are exclusively subject to Italian jurisdiction." 

However, the Constitutional Court observed that the Albanian state bears responsibility for matters regulated by the deal, and this responsibility stems not only from constitutional norms but also from international law governing state responsibility within the framework of its extraterritorial application. In this regard, the court affirmed that "there is dual jurisdiction for human rights and freedoms, meaning that Italian jurisdiction in these areas does not exclude Albanian jurisdiction."

Constitutional Court Chief Justice Holta Zaçaj noted that "this interpretation should also be reflected in the acts that will need to be adopted for the implementation of the agreement."

The court’s ruling added that the agreement "does not create new constitutional rights and freedoms, nor does it impose additional restrictions on existing human rights and freedoms beyond those provided by Albanian legal order." Therefore, the court concluded that the claim of violating the rights of foreigners is unfounded.

-Opposition angry at ruling-

In response to the court's decision, the leader of the Democratic Party parliamentary group, Gazmend Bardhi, one of sponsors of the challenge said the ruling was clearly wrong. 

"Denial of transparency and, above all, avoiding the possibility of advisory opinion from the European Court of Human Rights are clear indications that the Constitutional Court lost the opportunity to administer justice in this matter," Bardhi said in a statement.

The Constitutional Court now has 30 days to publish a full explanation of its ruling, which will also mark the opening of the way for parliamentary procedures to greenlight the deal. 

Rama’s party has enough votes to pass the deal, and if recent no-discussion votes are any indicator, it will simply be approved in parliament with little regard for opposing options. 

Italy has seen similar discussions, but there too the majority has overruled dissenting voices. 

-Albanian activists mourn court’s decisions-

Grassroots activists in Albania’s Lezha County, where the migrants are to be held, have been protesting for months against the deal, which they say will destroy the area’s tourist industry through creating the reputation of being a “prison camp” on top of violating the human rights of the migrants themselves, on Italy’s behalf. 

“The ruling was a test this court did not pass. The issue was simple: whose interest would this court protect, the people or the one man? The Constitutional Court decided for the latter,” Arilda Lleshi, a young activist from the Lezha District, who laid a funeral wreath at the court’s entrance, said. She was referring to Prime Minister Rama, who the activists accuse of selling parts of Albania for his own political interests.

-CEPS calls the deal ‘worst practice’-

International human rights organizations are also very opposed to the deal. 

In an in-depth analysis and report on the deal, CEPS, one of Europe’s best known think tanks, calls the deal the “worst practice in migration and asylum policies.”

“The MoU can be understood as a nationalistic and unilateral arrangement that, while not involving the EU, covers policy areas falling within the scope of European law. The MoU runs contrary to EU constitutive principles enshrined in the Treaties, including the EU Charter of Fundamental Rights, as well as international law,” the scathing report notes. “It should be regarded as a non-model in migration and asylum policies as it is affected by far-reaching illegality and unfeasibility grounds undermining both its rationale and implementation.”

-Albania as Europe’s Nauru-

Faced with a wave of irregular migration and asylum seekers from Africa and the Middle East, EU governments are desperate to find solutions, and extraterritorial deals to send migrants to non-EU countries like Albania, Rwanda and Tunisia are seen as one possible solution, following the Australian model of stranding its own irregular migrants to prison-like camps in the isolated pacific island of Nauru. 

As such, the Albania-Italy deal has the backing of some of the EU's leadership, and the interest of conservative German politicians who are lobbying hard with Rama to create their own camp in Albania. 

He was recently featured in a conference in the German state of Bavaria, hosted by a right wing party. It was the second time that Rama, leader of Albania's Socialists, was a star at a right wing conference in EU countries, after being featured earlier in Meloni’s own gathering in Rome.

Rama’s latest efforts are part of a series. Consecutive Albanian governments have been willing to do a series of deals over the years to host refugees from far flung places like China, Iran and Afghanistan in order to carry favor with Western governments with little regard for domestic implications, which in the case of MEK, the Iranian dissident group, have been large as Albania has been under severe cyber attacks from Iranian-linked groups, after MEK, which were supposed to be hosted under humanitarian reasons, used its camp in Albania to launch cyber attacks on Iran. 

But the deal with Italy has the potential to be far larger in scale, critics argue, and is a slap in the face of Albanians’ dreams for EU membership. 

Instead of progress in Albania joining the EU, which has seen little progress in more than a decade, the country is seen as a convenient non-member to help solve an EU problem and as a way to please Meloni’s right-wing electorate.

With the likelihood that tens of thousands of Italian-managed African migrants that cannot be deported to their origin countries will end up staying in Albania, regardless of the stipulations of the deal to the contrary, the EU walls around Albania are about to grow higher, not come down, critics argue.

Tirana Times
By Tirana Times January 31, 2024 17:34