Background: The Italy-Albania Memorandum of Understanding on Migration Control

On 6 November 2023, Italian Prime Minister Giorgia Meloni and Albanian Prime Minister Edi Rama signed a bilateral Memorandum of Understanding (MoU) to manage irregular migration across the Mediterranean. The agreement provides for the construction of two migration centres in Albania, one at the port of Shengjin and the other in Gjader (about 20 km from the coast), designed to jointly accommodate up to 3,000 people rescued by Italian authorities in international waters at any given time. Individuals transferred to these facilities would be subjected to border asylum procedures, including accelerated assessments of international protection claims, and, where applicable, return procedures in accordance with Italian and EU law.

The centres will remain under Italian legal and administrative jurisdiction, while Albania will be responsible for the external security perimeter. According to the agreement, only migrants rescued by Italian vessels will be transferred to these centres. The initiative represents a broader European trend of externalising migration control, wherein EU states collaborate with non-EU countries to manage asylum and border procedures outside the Union’s territory. This arrangement raises pressing legal and ethical questions, especially regarding the protection of migrants’ rights beyond a state’s borders.

Although framed as a response to practical constraints and the need for international cooperation, the agreement has sparked a vivid political and legal debate. Critics argue that this model risks exporting legal responsibilities and shielding domestic authorities from scrutiny. By processing asylum seekers outside its territory, Italy could be seen as insulating itself from judicial oversight, legal challenges, and obligations under EU asylum law. Albania, meanwhile, may find itself burdened with the physical and logistical consequences of hosting thousands of migrants without having the same capacity, resources, or protections in place.

Human Rights Concerns of the UN experts. Jurisdiction, Procedures, and Legal Obligations

Soon after the MoU was announced, a group of United Nations Special Rapporteurs and the Working Group on Arbitrary Detention issued a joint communication (AL ITA 3/2024), notified on 24 June 2024. The signatories included the SR on the human rights of migrants; the Working Group on Arbitrary Detention; the SR on the sale, sexual exploitation and sexual abuse of children; the SR on contemporary forms of slavery; the SR on trafficking in persons; and the SR on violence against women and girls. They warned that such extraterritorial arrangements risk undermining the international obligations of both Italy and Albania.

A core legal concern is that states cannot evade human rights duties simply by shifting operations beyond their borders. International law maintains that any person under a state's effective control, regardless of their geographic location, remains subject to that state's jurisdiction. Thus, even when migrants are physically in Albania, Italy bears the responsibility for their treatment and rights protection. The UN experts emphasised that the absence of detailed procedures and guarantees in the MoU could lead to systematic rights violations, including delayed processing, arbitrary detention, and the possibility of refoulement, which refers to the return of individuals to countries where they may face serious harm.

These concerns are compounded by the lack of clarity in how jurisdiction is shared or delegated. The agreement stipulates that the centres will be governed by Italian law, yet individuals held there will be physically present in Albania. This creates a complex jurisdictional arrangement that risks legal ambiguity. Migrants may not have access to the same legal remedies they would in Italy, especially if Albanian courts are not empowered or obligated to intervene in their cases.

Furthermore, the experts raised questions about transparency and accountability. The MoU does not establish any independent oversight body or reporting mechanism. Without meaningful supervision, there is little to prevent or document violations of rights inside the centres. This is particularly concerning given the vulnerable status of the affected population and the potential for systemic abuse in closed, extra-territorial facilities. The extraterritorial nature of the system also limits the reach of NGOs, legal representatives, and international monitors.

Search and Rescue and Detention Practices

A particularly critical issue identified by the UN relates to search and rescue (SAR) obligations under maritime law. The centres in Albania are located more than 700 kilometres from the typical rescue zones in the central Mediterranean. Transferring rescued individuals such a long distance could significantly delay emergency responses and the availability of rescue vessels in high-risk zones. These delays may directly result in more lives lost at sea, especially since the Mediterranean remains one of the deadliest migration routes in the world.

Search and rescue missions require timely coordination and swift disembarkation. International maritime law, including the SOLAS Convention and the SAR Convention, obliges states to ensure that rescued persons are brought to a place of safety as soon as possible. The predesignated use of Albania as a disembarkation site may interfere with this obligation, particularly if logistical delays or diplomatic hurdles arise. Additionally, relying solely on Italian vessels may place further strain on the already overburdened SAR fleet and limit its capacity for new rescues.

The MoU also introduces a troubling framework for detention. Individuals rescued at sea may be held in the Albanian centres for indefinite periods while Italian authorities assess their eligibility for asylum or deportation. The agreement does not provide for alternative measures to detention, nor does it specify maximum time limits. This practice contradicts international norms that require detention to be used only as a last resort, for the shortest time necessary, and subject to judicial oversight. Automatic and prolonged detention of migrants, especially without timely legal review, may constitute arbitrary detention in violation of the International Covenant on Civil and Political Rights (ICCPR).

Italy has previously relied on the “fiction of non-entry” legal doctrine, which allows authorities to treat migrants held in transit zones or ports as though they had not formally entered Italian territory. This fiction is now applied abroad, effectively creating an offshore detention regime. Such legal constructs risk undermining the principle of effective access to justice and may render certain protections meaningless in practice.

Vulnerable Groups, Asylum Access, and Lack of Oversight

One of the gravest shortcomings of the MoU, according to the UN experts, is its failure to adequately protect vulnerable individuals such as children, pregnant women, and survivors of trafficking or torture. While Italian officials have claimed that such individuals will be exempt from transfer, the MoU contains no formal provisions ensuring their identification or protection. This silence contravenes several international agreements, including the Convention on the Rights of the Child, which stipulates that a child’s best interests must be the primary consideration in all actions concerning them.

International human rights law and guidance from the Committee on the Rights of the Child clearly establish that children should never be detained for reasons related to their or their parents’ migration status. Yet the MoU does not expressly prohibit such detention, leaving open the possibility that minors could be held in Albanian centres for prolonged periods. This contradicts UN guidelines that call for child-sensitive migration policies and appropriate care-based alternatives to detention.

Moreover, the lack of clearly defined asylum procedures raises serious concerns about the fairness and effectiveness of protection processes. Migrants sent to Albania may face significant barriers to legal representation and judicial appeal, particularly due to their physical separation from Italian courts and legal aid services. The absence of established procedures for identifying victims of trafficking, LGBTQ+ individuals at risk, or those with mental health needs further compounds the risk of harm.

In addition, the MoU lacks independent oversight or complaint mechanisms to investigate abuse or misconduct within the facilities, leaving detainees with limited recourse. The failure to establish accountability mechanisms could enable patterns of neglect or abuse to go unchecked. Transparency, monitoring, and the ability to submit grievances are essential components of any lawful and humane detention or asylum system.

Recommendations and Conclusion on Aligning with International Norms

In their communication, the UN experts urged Italy and Albania to align the MoU with international law. They called for the creation of clear and transparent vulnerability screening procedures, the establishment of legal and medical support systems, and the prohibition of detention for children and other at-risk groups. They also emphasised that asylum seekers must have meaningful access to fair hearings and appeals, and that returns to third countries must not violate the principle of non-refoulement.

The experts further recommended that the two countries establish independent monitoring bodies, transparent reporting channels, and judicial review of detention decisions. Without these safeguards, they argue, the MoU risks becoming a blueprint for circumventing legal responsibilities while outsourcing human suffering. The international community, including the European Union, should closely scrutinise such arrangements to ensure that human rights remain at the core of migration governance.

In conclusion, while managing migration is a legitimate and complex policy challenge, it cannot justify undermining human dignity and the rule of law. The Italy-Albania MoU reflects a growing trend of offshoring migration responsibilities to reduce domestic political pressures. However, such measures, if not grounded in human rights principles, risk creating zones of legal ambiguity and humanitarian neglect. The UN experts’ intervention serves as a timely and urgent reminder that migration governance must be rooted in the universal rights and protections to which all human beings are entitled.