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Shifting Burdens: Migration Enforcement Arrangements in the Americas and Mediterranean

About the author: Sophia Wang (J.D. Candidate, Class of 2026) is a Travaux contributor. She is interested in comparative human rights law, technology policy, and international data privacy regulation. Sophia graduated from NYU College of Arts & Science with a major in Philosophy and minor in Economics. During college, she worked at an immigration law office in Brooklyn, where she helped individuals obtain asylum, citizenship, and visas. Before law school, she assisted privacy counsel at a media company. She is proficient in Spanish and a native Mandarin Chinese speaker.

Nations across the world are responding to the 2022-23 “global polycrisis,” a phenomenon marked by compounding socioeconomic, environmental, and political stressors spurring record rates of migration—both voluntary and forced, legal and irregular.

In April 2023, the US Secretary of Homeland Security and the Colombian and Panamanian Ministers of Foreign Affairs released a trilateral statement. The statement affirmed their commitment to a sixty-day campaign to end the illicit movement of people and goods through the Darién Gap, introduce “lawful and flexible pathways” for migrants seeking legal status, and promote economic and infrastructural development in border communities in northern Colombia and southern Panama. 

Simultaneously, discussions between the EU and Tunisia on curbing unauthorized refugee and migrant flows across the Central Mediterranean Route resulted in a partnership to monitor Tunisia’s border and return migrants who arrived illegally in Europe from Tunisia. A staunch proponent of the EU-Tunisia pact, Italian Prime Minister Meloni, later signed a deal with Albanian Prime Minister Rama to construct two centers in Albania where up to 3,000 migrants at any given time will await Italy’s asylum application review.

As parties to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, the United States and Italy are bound by their responsibilities under international refugee and human rights law. Therefore, they may not limit or shift their human rights obligations, regardless of underlying migrant enforcement arrangements. 

US-Colombia-Panama – The Darién Gap

The Darién Gap, a sixty-six-mile stretch of treacherous, roadless jungle between Colombia and Panama, is the only land route connecting Central and South America. Last year, over 248,000 migrants—with one in every six being a child—embarked on the dangerous trek lasting ten or more days. In 2022, the United Nations documented at least 141 migrant deaths in the Panama portion of the Darién alone. In the first two months of 2023, the number of migrants who crossed the Darién Gap increased sevenfold compared to the same period in 2022. Furthermore, from the beginning of the year to July 2023, more migrants have crossed the Gap compared to the entirety of last year.

New restrictions preventing migrants from flying to Mexico or countries in Central America have led to an increase in the number of crossings. In January 2022, Mexico imposed visa regulations that required Venezuelan nationals to provide  valid passports and proof of economic stability, such as employment for the last two years, property ownership, or bank assets. Subsequently, Costa Rica put into effect visa requirements for Venezuelan, Cuban, and Nicaraguan migrants, while Belize enacted similar restrictions on Venezuelans.

Under pressure and requests from the US to limit northward migration flows, host countries have made it more difficult for migrants, particularly individuals of lower socioeconomic status, to obtain valid legal status. Without the ability to fly to Mexico, more migrants are traversing the Darién and arriving in Mexico by foot to present their asylum cases. 

Despite the release of the Trilateral Joint Statement by the US, Colombia, and Panama in April 2023, Darién crossings and irregular migration continued to increase significantly without the collaboration and action as committed in the campaign. The only concrete action so far is Panama’s Operation Shield, a plan to combat migrant smuggling and crime in the Darién Gap. Although the US pledged to establish Safe Mobility Offices in Colombia to consider Cuban, Haitian, and Venezuelan migrants for humanitarian protection, the website abruptly closed one day after its release. Currently, the online application opens for a limited time until a daily quota is met. Meanwhile, Panamanian leaders are frustrated with Colombia’s lack of cooperation. 

The disunified efforts of the three governments are unlikely to remedy the situation in  Darién. Further, any attempts to block land pathways may push migrants toward more dangerous maritime routes. Increased law enforcement may also force more migrants to pay for guides to navigate around authorities in the jungle. 

EU-Tunisia, Italy-Albania – The Mediterranean 

The Central Mediterranean Route is one of the main migratory routes from North Africa to Europe. The most common countries of departure are Libya, Tunisia, Egypt, and Algeria. Migrants typically aim to reach Italy, including its southernmost island, Lampedusa. The UN Refugee Agency counted 90,168 departures between January and September 2022 with 1,017 migrants reported to be dead or missing. On September 12, 2023, over 6,000 migrants arrived in Lampedusa within twenty-four hours, severely overwhelming food, shelter, and medical care units provided by NGOs and local facilities.

In July 2023, the EU and Tunisia signed the Memorandum of Understanding on a strategic partnership to reduce irregular migration and develop legal pathways for migration. In exchange for Tunisia’s cooperation in identifying and returning irregular migrants, fighting networks of migrant smugglers, and coordinating search and rescue operations at sea, the EU will provide Tunisia with training, financial support, and investment toward infrastructure projects. In October 2023, the EU disbursed €127 million, including €60 million to support Tunisia’s economy and €67 million to reinforce border control and prevent the departure of migrant vessels. However, Tunisia returned the €60 million tranche as an indication of its dissatisfaction with the European Commission.

In light of escalating tensions between the EU and Tunisia, Italian Prime Minister Meloni turned to Albania as a potential partner. The Italy-Albania cooperation aims to reduce the number of migrants in Italy by opening two centers in Albania—one for processing migrants found crossing the Central Mediterranean Route and the other for detaining migrants. Together, the two facilities are projected to hold up to 36,000 migrants per year. After a fast-tracked 28-day application period, if Italy rejects the asylum bids, Albania shall deport the migrants back to their countries of origin. Opposition politicians in Italy warned of an impending human rights disaster, and the European Green Party slammed the plan as a “blatant violation of conventions and international law.”

Peremptory norms of international law

Under international law, States have the right to deport or transfer migrants to their places of departure or safe third countries, provided that certain standards are met. Particularly, States must abide by the principle of non-refoulement set forth in the 1951 Convention to protect refugees and asylum seekers from being deported to their places of persecution. The primary responsibility of protecting asylum-seekers falls on the State in which they arrive. A State must protect migrants within its jurisdiction who are fleeing from threats including armed conflict, general violence, and persecution on religious, ethnic, or political grounds. 

The Cartagena Declaration on Refugees adopted in 1984 by ten Latin American countries including Colombia and Panama emphasizes the principle of non-refoulement as a cornerstone of international refugee protection and a rule of jus cogens. The Declaration expands the concept of a refugee to include persons who have fled their country due to internal conflicts, massive violations of human rights, and serious disturbances of public order.

Applied to the US-Colombia-Panama campaign targeting the Darién Gap situation, the principle of non-refoulement prohibits not only the forcible repatriation of refugees and asylum seekers but also certain indirect measures. With increased barriers to Darién crossings and the US implementation of a Migration Enforcement Process to deport Venezuelan asylum-seekers at the US southern border to Mexico, more Venezuelan migrants are returning from host countries despite harsh conditions back in Venezuela. Returnees face various difficulties in accessing jobs, social services, and housing in their home country. They experience backlash from their communities and struggle with the ongoing socio-economic crisis marked by hyperinflation and rampant corruption. The trilateral actions of the US, Colombia, and Panama conflict with the principle of non-refoulement by leaving migrants with no viable alternatives but to return to a place of social disorder. Further, by enhancing Panama’s law enforcement in Darién and establishing processing offices in Colombia, the US effectively bypasses its obligations to migrants seeking legal protection from the US, as migrants can be halted in the jungle and subjected to extraterritorial processings in Colombia or Panama.

Similarly, the EU-Tunisia and Italy-Albania partnerships risk contravening Article 33 of the 1951 Convention, which prohibits a State from expelling or returning refugees in any manner, unless the State bases the refoulement on reasonable public security concerns. The principle of non-refoulement is also enshrined in the Treaty on the Functioning of the EU and the EU’s Charter of Fundamental Rights. For the patrol of the Central Mediterranean Route, Italian, Tunisian, and Albanian authorities, as well as the European Border and Coast Guard Agency, must rescue vessels in distress and provide migrants with immediate assistance rather than intercepting boats and pushing migrants back to their countries of origin. Under the Italy-Albania plan, Albania’s detention and deportation of migrants risk severely violating the principle of non-refoulement and failing to afford asylum-seekers protections required by international law. Moreover, since the detention centers are within Italy’s jurisdiction, Italy circumvents its obligation as the state in which migrants seek protection. By arranging for Albania to monitor the two facilities and having Albania, a non-EU member, conduct immediate deportation prohibited by EU human rights statutes, Italy has shifted its responsibility of protecting refugees under international law.

Finally, States must reevaluate their plans to curb irregular migration and consider adopting a framework of international cooperation developed by The Office of the United Nations High Commissioner for Refugees. Enacting heightened control efforts on migration and intercepting established routes will only force migrants to resort to riskier paths, exposing themselves to smugglers and traffickers. Instead, cooperation between countries entails a state’s refusal to externalize its obligations by contracting with and incentivizing lesser-resourced states, as well as the efforts to identify appropriate balances of solutions including resettlement, local integration, and voluntary repatriation. Burden sharing means pooling emergency funding, securing places of humanitarian evacuation or resettlement, and supporting the economic, social, and political development of migrants’ countries of origin or safe third countries with no strings attached.

1 comment

1 ความคิดเห็น

Adam Wandler
Adam Wandler
26 ก.พ.

Migration enforcement arrangements demand precision and expertise, and Immigration Consultants consistently demonstrate their commitment to upholding these standards. Their contribution to maintaining the integrity of immigration processes is invaluable.

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