Ruling waves, waiving rules

Italy's forced repatriations of immigrants to Libya have disturbed former President Eddie Fenech Adami, on human rights grounds, while they have been supported by the government and even triumphantly greeted by others as vindicating the approach proposed by the Labour Party and others. Who is right?

International law has to be the starting point. From this perspective, three features of Italy's actions deserve attention. First, the immigrants are not being interdicted in Italian waters. Thus far, they were stopped in international waters; in future interdictions may take place in Libyan waters, with permission.

This feature is a crucial one at law. Immigrants who enter territorial waters have as good as entered the country. Once they have done so, they have to be given the opportunity to request asylum. They cannot simply be expelled. Even the hard-line Italian Minister for the Interior, Roberto Maroni, who is vaunting the repatriations as a historic turn for Europe, has conceded that immigrants who manage to enter Italy illegally will remain in Italy until their rights are determined.

Second, the Italian vessels have not taken the immigrants on board. If they had, the immigrants would have been within Italy's jurisdiction and therefore under the protection of the Geneva Convention, which Italy has of course signed.

Whether Italy then could simply repatriate them to Libya is open to legal argument. The US, which interdicts Haitian immigrants in international waters, processes requests for asylum on board. It repatriates those whose case is rejected (the overwhelming majority). The US argues that its forced repatriations are not bound by laws covering national territory.

Still, the US method has aroused much criticism, not least in Europe. Moreover, the fact that emigration from Haiti is widely acknowledged to be primarily economic probably puts less pressure, from human rights watchdogs, on the US than there would be on Italy, since a much larger proportion of immigrants from Africa have a right to humanitarian status.

Third, the collaboration of Libya is essential. Without it, interdicted immigrants could not be repatriated.

From these details, it is evident that the Italian authorities are doing their best to appear to be operating within international law. Foreign Minister Franco Frattini has gone further. He has declared that the European Pact on Immigration and Asylum (much criticised as weak by Labour) gives Italy the duty, not just the right, to protect Europe's external frontier in this manner. He is referring to the pact's section II (b).

That section also makes reference to the importance of readmission agreements "with those countries with which it is necessary" so that member states can have "the legal instruments" to repatriate immigrants. "The legal instruments": it is striking that, where the law is not clear, Italy is doing its best to play it safe - safe, at least, with respect to the letter of the law, if not with human lives. Interdicting immigrants in Libyan territorial waters and not taking immigrants aboard Italian vessels (unless necessary because of distress) makes it legally more secure to repatriate immigrants to Libyan soil, so Italy has sought to do both.

This emphasis on respecting at least the appearance of legal obligations shows how grotesque it is for anyone to suggest that Italy's current approach vindicates the positions taken by Labour and the likes of Jeffrey Pullicino Orlando. Both of the latter have proposed breaking the law. They wanted to waive the rules while Italy is seeking to rule the waves by the rules.

The Labour leader even suggested that, in the Pinar case, breaking the law would have been ethically correct. Dr Pullicino Orlando, in his turn, suggested what even the far-right Roberto Maroni has balked at: towing out to sea immigrants who have entered national territory. (And although Dr Pullicino Orlando claimed that his proposal was almost identical to the US policy towards Haiti, it is in fact completely different in every crucial feature.)

Does Italy's respect for the letter of the law justify the Nationalist government's support for its actions? Strong protests have come from the Human Rights Commissioner of the Council of Europe and the UNHCR, since bona fide asylum seekers have not been given the opportunity to make their case.

Mr Frattini has said that immigrants will have the opportunity in Libya, where the applications can be processed by human rights organisations. Italy's and Malta's interior ministers will be meeting in Libya soon to discuss (it seems) this point among others.

Much depends on what arrangements are made in practice. Currently, no country other than Libya would be obliged to host anyone with special humanitarian status if the application were filed in Libya, while the latter has yet to sign the Geneva Convention.

Dr Fenech Adami's unease is therefore justified. One can only hope that the government is privy to information that warrants its confidence that its stated ethical commitments will not be jeopardised by Italy's repatriation policy.

ranierfsadni@europe.com