Why Democracies Need to Keep Talking to Find an Agreement on Immigration

BY REFORMING THE DUBLIN REGULATION ON MIGRANTS AND REFUGEES, EU INSTITUTIONS CAN REGAIN AUTHORITY AND REMIND NATIONALISTS THAT UNTRAMMELED SOVEREIGN POWER GOES AGAINST INTERNATIONAL LEGITIMACY

by Graziella Romeo, Dept. of Legal Studies, Bocconi
Translated by Alex Foti


In recent months, one of the most heated Italian parliamentary debates concerned the conversion into law of a short decree passed at the beginning of July, by which the new Italian government gave the Libyan Coast Guard twelve patrol boats for free. The new Italian government has underlined the necessity and urgency of the provision, which aims to increase the operational capability of the Libyan government in controlling its borders, combat illegal immigration, and human trafficking.

The Libyan Coast Guard is overseen by the country’s Ministry of the Interior in concert with the Ministry of Defense. Lybia is plagued by chronic political instability, and since it did not sign the Geneva Convention on refugees, is not formally bound to the obligation of respecting international human rights agreements in the deployment of its coast guard and treatment of rescued migrants. The Italian decree therefore has raised more than one doubt about its constitutionality, since the free cession of patrol boats with the stated intent of transferring the protection of national borders to a country evidently incapable of ensuring the protection of refugees and migrants is in violation of international obligations. It is also in contradiction with Article 11 of the Constitution, by which Italy promotes and fosters international organizations pursuing peace and justice among nations.

Looking beyond Italy and Libya, the protection of political communities is an essential element that has oriented the management of migratory flows in recent years. In Europe there are many examples of this, such as the decision of the Hungarian government to have its citizens vote on a referendum about the EU obligation to accept a given share of refugees, the reform of the procedures for examining political asylum applications in Greece and Italy, and amendments in the legislation concerning the identification and expulsion of foreigners in both Great Britain and France.

In the United States, President Trump first supported the construction of a wall along the Mexican border and, a few weeks later, issued a series of executive orders to prevent citizens of seven Islamic countries considered harbors for jihadist terrorism from entering the country. Furthermore, in Australia, citizenship requirements have been modified to exclude second-generation immigrants from the application of ius soli, while keeping asylum seekers in a state of potentially endless administrative detention on islands that are far from the mainland.
 
Self-imposed closure of political communities often has to do with the rebirth of nationalism and the rediscovery of imagined ethnic identities, combined in political formulas that add to the defense of borders mistrust vis-à-vis international and supranational institutions. There is therefore a logical contiguity between an immigration policy dominated by security considerations, and sovereign nationalism. This dangerous combination can be halted by a more proactive role of international and especially European institutions, in defining new rules for the regulation of immigration and the inflow of refugees. A first step should be the reform of the so-called Dublin system, currently one of the pillars of the Common European Asylum System, which sets out common EU rules regarding procedures for the granting of asylum and international protection.
 
The mechanisms devised in Dublin have been strongly criticized by the Central European countries belonging to the Visegrad group and, more recently, by the Italian government, because it stipulates that the burden of refugees should be shouldered by the EU country where migrants first landed. In fact, Dublin has proved inefficient and ineffective, and thus deserve a major rethink, also to leave no room for excuses to those governments aiming to evade EU obligations. And a newly-found active role on the part of EU institutions would also remind nationalists that according to contemporary constitutionalism sovereignty does not equate with the exercise of autocratic power. Conversely, in a liberal democracy, sovereignty imposes a constant dialogue with the international community, to which we are bound by obligations rooted in constitutional pacts binding national political communities.