Human Rights and Human Wrongs: Challenges to Protecting the Human Rights of Asylum Seekers in Italy
Stephanie Roderick
Asylum seekers are particularly vulnerable to human rights violations. By definition, they are individuals fleeing persecution in their home county on account of race, religion, nationality, membership of a particular social group, or political opinion (UN Convention Relating to the Status of Refugee, 1950, art. 1). Persecution based on any of these factors constitutes a human rights violation, but for many the struggle does not end there. When individuals requesting asylum arrive in their host countries and petition for asylum, also known as the official status of refugee, they are often subject to substandard living conditions, limited economic opportunities, and few legal rights. This is particularly evident in the ongoing crisis in the Mediterranean. Thousands of migrants have tried to sail across the sea into countries in Southern Europe like Italy. Their hope is that once they reach European soil, they can petition for and perhaps be granted asylum. Their reality, however, is often quite different.
Asylum seekers in Italy have found their human rights violated on a number of occasions. It is necessary to further investigate these cases reporting human rights violations, but it is also important to examine why these violations occur so as to prevent future human rights violations. This paper seeks to specifically identify what factors complicate the protection of human rights specifically concerning asylum seekers in Italy? To answer this question, the paper will first look at how human rights are perceived both in theory—according to the four main schools of thought—and in practice—according to international organizations such as the Council of Europe and the United Nations. Additionally, the paper will look Italy’s perspective on human rights and how the country has violated such rights as a result of various factors. In doing so, this paper expects to find three main factors have complicated the protection of asylum seekers’ human rights in Italy: the nature of state sovereignty and the international community’s inability to effectively enforce international human rights legislation; the social marginalization of migrants, including xenophobic and racist sentiments in Italy; and the economic constraints associated with taking in and caring for asylum seekers. Together these three factors offer an offer an explanation on why protecting human rights can be a complicated process.
What are human rights?
Four main schools of thought regarding human rights theory have emerged: the natural school, deliberative school, protest school, and discourse school (Dembour, 2010). The most prominent of the four is the natural school of thought. In this school, human rights are the inherent rights of humans simply for being human (Donnelly, 2007). As such, human rights are universal. Because humanity can neither be earned nor confiscated, all humans, universally, have the same human rights. In the case of asylum seekers in Italy, natural scholars claim they absolutely have human rights (Dembour and Kelly, 2011). The Italian government must therefore respect and protect those rights.
On the contrary, not everyone agrees with this concept of inherent, universal human rights. The deliberative school of thought, for example, claims there is no fixed definition of human rights nor should there be one (Ignatieff, 2001). Human rights are mere social constructs. They develop in response to social pressures, and they only come into existence when they are agreed upon by society. More specifically, human rights are born when they are written into law (Dembour, 2001:12) Accordingly, the human rights of asylum seekers in Italy depend on the laws created by the Italian citizens. Asylum seekers should not necessarily have much control over the legal proceedings in Italy regarding the human rights they are granted because they are not Italian citizens. Given that asylum seekers have very few legal rights in Italy, they have very human rights as well.
Members of the protest school of thought, similar to the deliberative school, do not explicitly define the concept of human rights. Scholars in this school claim that human rights exist because activists and individuals fight for them (Dembour, 2001). They are the byproducts of social movements (Stammers, 1999:984), and the purpose of these social movements is to challenge dominant and oppressive power structures (Stammers, 1999:1007). When one person attains the right he or she was fighting for, that person then has an obligation to make sure others have that same right (Stammers, 1999:1006). Likewise, Italian citizens have an obligation to fight for the protection of asylum seekers’ human rights.
In addition to the natural, deliberative, and protest schools of thought, the discourse school of thought is another avenue scholars take in understanding human rights (Dembour, 2010). Although less common, discourse scholars are skeptical of human rights as a concept. They might even reject it altogether arguing that human rights don’t exist as the other schools have come to define them. The concept is merely an experimental philosophy that comes with many flaws. One main flaw is the influence of the West on common conceptions of human rights. Discourse scholars argue that human rights are a propagation of Western, ethnocentric, imperialist values (Mutua, 2003:3). In the case of asylum seekers in Italy, discourse scholars would argue that the asylum seekers do not have human rights because human rights don’t exist (Dembour and Tobias, 2010). If asylum seekers are to be treated fairly and have their supposed “human rights” respected, the Italian government must take a more solid approach to implementing justice and equality. The pre-existing, empty rhetoric about human rights is insufficient.
Despite their respective theories and disagreements, all four schools are likewise committed to eliminating injustices. They simply prefer to approach the topic in different ways. It is also important to note that these four schools do not encapsulate the full complexity of human rights theory nor are they mutually exclusive. Beliefs might, and often do, overlap.
In addition to these four academic perspectives, it is important to identify Italy’s perspective on the human rights of asylum seekers. On a broad level, the Italian government recognizes the concept of human rights. The country has ratified the Council of Europe’s Convention on Human Rights (ECHR) of 1950. Thus, theoretically the country must guarantee the rights set forth in it (International Humanitarian Law, 2015). This includes the right to life, the right to a fair trial, the right to liberty and security, and the prohibition of torture among others. These rights detailed in the ECHR take on a natural school approach. Moreover, although none of the rights listed in the ECHR specifically addresses asylum seekers, Article 3 on the prohibition of torture has become a key facet of asylum seekers’ human rights. The article explicitly prohibits inhumane or degrading treatment or punishment (European Convention on Human Rights, 1950). With few legal rights, asylum seekers are particularly vulnerable to inhumane or degrading treatment or punishment. By their very nature, asylum seekers face the risk of inhumane or degrading treatment or punishment if they are returned to their place of origin. If they didn’t face this risk, they would be considered immigrants or another type of migrant. Likewise, the act of refoulement, or the forcible return of asylum seekers to their place of origin without allowing them to first petition for asylum, is a violation of Article 3 on the prohibition of torture (Asylum and the ECHR, 2010: 23). In the case of Italy, not allowing asylum seekers to petition for asylum, or refoulering them, is also a violation of Italian law. As deliberative scholars would argue, this legal violation constitutes an actual human rights violation. Article 10 of Italy’s constitution mandates that any foreigner who has been denied the ability to exercise “democratic liberties guaranteed by the Italian Constitution has the right of asylum in the territory of the Republic.” For example, estimates report that in 2014 alone, 64,000 people filed for asylum in Italy most coming from North Africa and Asia (Asylum in the EU, 2015). These 64,000 people thus have the legal and human right to have their petitions for asylum reviewed in Italy. In short, Italy formally recognizes the right to file for asylum as well as human rights detailed in the ECHR.
In the international context, Article 10 of Italy’s constitution requires that all Italian laws follow the principles set forth in international laws. Italian law must be in accordance with the United Nations’ Convention relating to the Status of Refugees of 1951 (CRSR) and the Protocol of 1967. The CRSR set the legal framework for asylum proceedings. It discusses how those who qualify for refugee status and consequently asylum should be treated. For example, the CRSR reiterates the ECHR’s Article 3 on the prohibition of torture. Accordingly, authorities must treat asylum seekers humanely while the asylum seekers wait for their applications to process. Also similar to the ECHR, the CRSR mandates the principle of non-refoulement. Authorities cannot send asylum seekers back without first allowing them to file for asylum. While these rights set forth in international law are open to various interpretations, they provide an assessment of Italy’s, the Council of Europe’s, and the United Nations’ respective positions on the human rights of asylum seekers.
Italy in Violation of Human Rights
Given Italy’s position on the human rights of asylum-seekers, it is surprising to find ample cases of human rights violations executed by the Italian government itself. For example, Italy has faced international criticism for the subpar conditions in Italian reception centers for asylum seekers. The United Nations High Commissioner for Refugees (UNHCR) conducted a report in May 2011 detailing the conditions of these reception centers. The report first found an insufficient number of centers given the amount of people present in the country who are requesting asylum. Due to this deficit in reception centers and accommodation centers, a large number of asylum seekers are forced to live and sleep on the street. This in turn hinders their access to food and other basic needs. They also have very little economic opportunity to improve their situation, since they cannot legally work in the country until their applications have officially been processed. In addition, they have few legal rights to protect themselves from exploitation should they obtain a job clandestinely (UNHCR, 2015). The report also found that authorities in reception centers were not providing asylum seekers with information, or at least accurate information, regarding their rights to health care. This withholding of information has prevented asylum seekers from receiving proper medical attention simply because they did not know they could (UNHCR, 2015:7). The lack of resources offered and misconduct within reception centers violate asylum seekers’ human right to humane treatment.
Italy has also found itself guilty on numerous occasions of refoulering migrants, an indisputable violation of human rights. In a case from 2009, for example, 224 people tried to cross the Mediterranean Sea from Libya to Italy. Some individuals on board planned to petition for asylum once they reached Italy (Coppens, 2014). The Italian Revenue Police, or coast guard, intercepted their vessel before they made it to Italian shores or even to Italian waters for that matter. The interception occurred outside Italian jurisdiction. The Italian Revenue Police subsequently returned all the people on board to Libya without first identifying or assessing their situations. Eleven Somalis and thirteen Eritreans on board eventually filed a case in the European Court of Human Rights (ECtHR) on 26 May 2009 (Coppens, 2014). This case, Hirsi Jamaa and Other vs. Italy, argued that the forcible return of asylum seekers to Libya was in direct violation of the principle of non-refoulement. Italy, on the other hand, argued they were merely rescuing the migrants. They claim they are not responsible for offering political asylum because the migrants never made it to their shores. The case was eventually settled on 23 Februar 2012, when the ECtHR ruled that Italy was indeed repatriating asylum seekers without first offering the ability to petition for asylum. The country violated the principle of non-refoulement (Coppens, 2014). In addition to this ruling, a report from 2013 conducted by the UN Special Rapporteur on the Human Rights of Migrants, Francois Crépeau, revealed that a number of newly arrived persons in Italy had expressed their intention of filing for asylum, but they too were returned to their country of origin before they were given the opportunity to do so (Crépeau, 2013: 79). These actions conducted by Italian authorities directly violate Article 3 of the European Convention on Human Rights, Article 10 of the Italian constitution, laws set forth in the Convention Relating to the Status of Refugees of 1951, and the human rights of asylum seekers in Italy. These are just a few examples.
Factors Complicating the Protection of Human Rights
Considering the positions of Italy, the Council of Europe, and the United Nations, why have human rights violations occurred? What factors have complicated Italy’s ability as a state to protect the human rights of asylum seekers? One factor that explains why Italy has repeatedly violated such treaties, and consequently the human rights of asylum seekers, is the financial burden associated with rescuing and providing services to asylum seekers. Protecting their human can be expensive (Hafner-Burton, 2013:6). For example, in Italy one main cost is funding the rescue efforts in the Mediterranean Sea. The International Organization for Migration (IOM) estimates that in the first month and a half of 2016, 5,987 migrants arrived in Italy by sea, most from North Africa and Asia. In 2015, over 150,000 migrants arrived. More than 3,700 died in the process, a number of which were asylum seekers (IOM, 2016). In order to combat deaths tolls and consequently human rights violations at sea, Italy implemented a search and rescue operation to save migrants and potential asylum seekers in the Mediterranean. The operation Mare Nostrum successfully rescued more than 140,000 people in its one-year life span from October 2013 to November 2014 (Mare Nostrum to End, 2014). The operating costs for Mare Nostrum, however, exceeded €9.5 million (roughly $13 million) per month (A surge from the sea, 2014). After refusing to absorb the costs alone, Italy shut down Mare Nostrum operations. Taking its place was the EU’s Operation Triton. Unlike Mare Nostrum, Operation Triton had a slimmed down budget of €3 million (roughly $4 million) per month. It mainly serves as a border patrol agency within close range of European borders. It is not intended to search and rescue migrants and asylum seekers in the same way Mare Nostrum had. The financial cost of rescuing people at sea has proven to be higher than countries are willing to pay.
Once asylum seekers arrive in Italy, additional costs are incurred. Providing shelter, food, legal resources, and social services are all finances the Italian government must fund. Ghiglione (2014) reports that each individual asylum seeker costs the Italian government €42 (about $57) per day for food and shelter alone, and the average stay of asylum seekers in reception centers can last months to years (Ghiglione, 2014). While the UNHCR’s 2011 report indicated poor conditions in reception centers and an overall insufficient number of centers, providing sufficient accommodations can be a costly endeavor for Italy to tackle alone. The financial pressure on the Italian government offers one explanation as to why such conditions in the reception centers occur.
Additionally, reports indicate that Italy has repeatedly sought financial assistance from the European Union, claiming the asylum and migration crisis in the Mediterranean is not just Italy’s problem to handle (Latza Nadeau, 2014; Amid Record Waves... 2014). Asylum seekers escaping civil war or other desperate circumstances arrive in Italy as a result of geographic proximity. They simply want to enter the EU. The EU, however, has provided little cooperation in mitigating the costs ( A Surge from the Sea, 2014). As scarcity of resources demands that states identify priorities, any lack of cooperation from the EU places deep constraints on Italy’s ability to respond to the crisis (Hafner-Burton, 2013:6). Instead of protecting all human rights of asylum seekers, financial constraints force the country to pick and choose. Financial constraints have thus complicated and often limited Italy’s ability to protect asylum seekers’ human rights.
As perhaps a byproduct of the financial burden asylum seekers place on the Italian economy, social marginalization has risen in the country. The increased social marginalization serves as a second complicating factor in Italy’s ability to protect asylum seekers’ human rights. Historically speaking, Italy has long been a country of emigration, meaning people from Italy moved to other countries (Zanotti, 1993:174). Around the 1980s, the country began to experience its first encounters with immigration, meaning people moved into Italy. This initially provoked the reaction among natives that immigrants were a threat to the country’s security (Zanotti, 1993: 177). Levels of racism and xenophobia increased, and migrants, asylum seekers, and refugees become socially marginalized groups as a result. While the country has taken efforts to eliminate discrimination against these groups in the years since, tensions still linger. The Pew Research Center indicates that anti-immigrant sentiments in Italy are high. A Spring 2014 survey conducted by the center revealed that 69% of Italians view immigrants as social burdens. They claim that immigrants consume social welfare and employment opportunities (Wike, 2014). While asylum seekers and immigrants are technically different under international law, to the everyday Italian, they look the same. Without a fast and clear way to distinguish between the two, the negative sentiment against immigrants is likely to transfer onto asylum seekers as well.
In addition to the Pew Research Center’s report, in 2012 the Council of Europe released a scathing report further detailing racist sentiments in Italy. For example, the report mentions instances of racism and xenophobia found in public discourse. Politicians in the national government have publically criticized the influx of asylum seekers. Former Prime Minster Silvio Berlusconi went on record calling the crisis an “invasion.” Politicians have also referred to some minority groups, such as Black individuals, as “animals” in public (ECRI Report on Italy, 2012); a number of asylum seekers particularly from Africa are Black. Furthermore, despite politicians’ various racist and xenophobic comments in public, the report indicates that such politicians have not received any official punishment or condemnation for their comments. Without facing any consequences, politicians who produce these comments and sentiments are particularly problematic for human rights protection in that politicians producing the comments are also responsible for producing legislation that protects human rights. Such politicians are not likely to agree to dedicate resources to protecting the human rights of asylum seekers, and as deliberative scholars on human rights would argue, without written codification, human rights of asylum seekers do not exist. The racist and xenophobic viewpoints among Italy’s policymakers will complicate the government’s ability to create and protect asylum seekers’ human rights.
In addition, having notable figures such as national level politicians proliferate racist and xenophobic sentiments without consequence legitimizes acts of intolerance, racism, and xenophobia (ECRI Report on Italy, 2012:7). Their comments can influence and further divide the opinion of the Italian population at large, as well as further promote racism and xenophobia in the country. For example, Italians working closely with asylum seekers might uphold similar prejudices that prevent them protecting asylum seekers’ human rights. These sentiments relating to the social marginalization of asylum seekers might explain why authorities in reception centers were not providing asylum seekers with information, or at least accurate information, regarding their rights to health care. While many Italians do not uphold racist and xenophobic views, their efforts to promote the protection of asylum seekers are consistently met with resistance from dissenters. As members of the protest school of thought would, the protection of human rights is the byproduct of social movements, and thus the social marginalization of asylum seekers in Italy hinders activists’ abilities to promote such rights. In discovering a relatively high amount of racism and xenophobia in Italy, it seems that the social marginalization of asylum seekers, and migrants in general, complicates Italy’s ability to protect their human rights.
A third factor that seems to complicate the protection of asylum seekers’ human rights is the nature of state sovereignty and the international community. The principle of sovereignty affords states absolute authority within their borders (Reus-Smit, 2001: 519). States can determine their own political processes, laws, and economic systems. States also have the authority to determine which rights to acknowledge and to protect within their physical territory (Donnelly 2013:32). Although the international community mandates the protection of human rights, implementing and protecting such rights largely rests in the hands of national governments, such as Italy (Donnelly, 2013:32). Italy can to decide which human rights to protect as well as how, where, and when to protect them. In the case of asylum seekers, Italy can carry out its own asylum proceedings, respecting human rights in its own way. While Italy may have agreed to comply with human rights and asylum legislation produced by international organizations (IOs) such as the Council of Europe and UN, the country remains a sovereign state, and as such, it has the authority to interpret for itself what exactly IO legislation mandates and how they wish to comply.
Moreover, complying with IO produced legislation and obeying IO legislation are two different things (Koh, 1999: 1401). Compliance promotes protecting human rights because it is the ethical course of action, but there is no authority figure to reprimand any deviation from the course of action. Obedience, on the other hand, requires strict adherence to a course of action and should deviation occur, an authority figure will inflict negative consequences (Koh, 1999). In the case of Italy, the country has agreed to comply with international human rights laws. Hafner-Burton (2013) argues that if an international law already coincides with what a state—Italy—planned to do, the state will likely obey it as well. If the law, however, differs from the state’s preferred form of action, conflict may arise (Hafner-Burton, 2013:5). The country might agree to comply with legislation in the international community but not necessarily obey the legislation on the state level. Tension between compliance and obedience with international law can arise under state sovereignty.
This tension allows for human rights violations to occur without consequence. In the case of Hirsi Jamaa vs. Italy, Italy interpreted the situation of rescuing and returning migrants to Libya differently in comparison to the international community. The country conducted itself according to its sovereign authority, not according to the UN and Council of Europe’s human rights policy. The ECtHR publically denounced Italy for refoulering and violating the human rights of asylum seekers in the case, but the nature of sovereignty makes it a challenge for the international community to enforce its policies. States and international actors can proclaim to the world the atrocities that occur in Italian reception centers. They can condemn the country for its racism and xenophobic sentiments, advocate the cruelty of refoulement, and try to coerce the country back into obeying international human rights law through public humiliation and shame (Hafner-Burton, 2008). Outside states and international actors cannot, however, intervene with a police force without violating Italy’s sovereignty nor can they sentence the country to jail. The enforcement options on the international level are limited. This inability to enforce international politics in turn affords states an element of freedom in determining how they conduct themselves. Italy can therefore decide for itself how to interpret international human rights legislation and whether or not to obey such legislation within the country’s territorial boundaries. This further complicates the protection of asylum seekers’ human rights in Italy.
Conclusion
The various perspectives on human rights give way to a rich and varied understanding of asylum seekers’ human rights. Natural scholars, for example, believe all humans are entitled to certain universal rights. Deliberative scholars believe these rights only exist once written into law. Protest scholars argue that human rights must be fought for. Discourse scholars, on the other hand, see human rights as merely an experimental philosophy. In addition, IOs have played a key role in the development and protection of human rights. The Council of Europe’s European Convention on Human Rights and the United Nations Convention Relating to the Status of Refugees uphold their own interpretations of asylum seekers’ human rights. They proclaim all humans have the right to humane treatment and punishment, for example. Italy has agreed to comply with these legislative measures, yet on numerous occasions the country has found itself guilty of violating the human rights of its North African asylum seekers.
These violations can be attributed to three main factors. One factor is the financial burden associated with caring for the influx of asylum seekers. Financing the search and rescue missions as well as the reception and accommodation centers for asylum seekers inhibits Italy’s ability to protect all human rights of all people at all times. A second factor is the social marginalization of asylum seekers. Due to research that indicates racist and xenophobic sentiments against asylum seekers exist in high numbers in Italy, protecting the human rights of asylum seekers can be a point of contention within the government and civil society. Even if Italy had the financial resources available to curb human rights crises, not everyone agrees that the money should be spent on asylum seekers. A third factor is the nature of state sovereignty, which allows Italy to determine for itself exactly what constitutes a human right and a human right violation. Italy has used the concept of sovereignty to deviate from international laws on human rights legislation, and without a clear method of enforcement, the international community has little ability to respond. Despite the international as well as national communities’ efforts in promoting human rights, it can thus be noted that additional factors influence a country’s ability to safeguard such rights. In further examining these factors, one can better evaluate effective responses to the challenges protecting human rights evokes.
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Asylum seekers in Italy have found their human rights violated on a number of occasions. It is necessary to further investigate these cases reporting human rights violations, but it is also important to examine why these violations occur so as to prevent future human rights violations. This paper seeks to specifically identify what factors complicate the protection of human rights specifically concerning asylum seekers in Italy? To answer this question, the paper will first look at how human rights are perceived both in theory—according to the four main schools of thought—and in practice—according to international organizations such as the Council of Europe and the United Nations. Additionally, the paper will look Italy’s perspective on human rights and how the country has violated such rights as a result of various factors. In doing so, this paper expects to find three main factors have complicated the protection of asylum seekers’ human rights in Italy: the nature of state sovereignty and the international community’s inability to effectively enforce international human rights legislation; the social marginalization of migrants, including xenophobic and racist sentiments in Italy; and the economic constraints associated with taking in and caring for asylum seekers. Together these three factors offer an offer an explanation on why protecting human rights can be a complicated process.
What are human rights?
Four main schools of thought regarding human rights theory have emerged: the natural school, deliberative school, protest school, and discourse school (Dembour, 2010). The most prominent of the four is the natural school of thought. In this school, human rights are the inherent rights of humans simply for being human (Donnelly, 2007). As such, human rights are universal. Because humanity can neither be earned nor confiscated, all humans, universally, have the same human rights. In the case of asylum seekers in Italy, natural scholars claim they absolutely have human rights (Dembour and Kelly, 2011). The Italian government must therefore respect and protect those rights.
On the contrary, not everyone agrees with this concept of inherent, universal human rights. The deliberative school of thought, for example, claims there is no fixed definition of human rights nor should there be one (Ignatieff, 2001). Human rights are mere social constructs. They develop in response to social pressures, and they only come into existence when they are agreed upon by society. More specifically, human rights are born when they are written into law (Dembour, 2001:12) Accordingly, the human rights of asylum seekers in Italy depend on the laws created by the Italian citizens. Asylum seekers should not necessarily have much control over the legal proceedings in Italy regarding the human rights they are granted because they are not Italian citizens. Given that asylum seekers have very few legal rights in Italy, they have very human rights as well.
Members of the protest school of thought, similar to the deliberative school, do not explicitly define the concept of human rights. Scholars in this school claim that human rights exist because activists and individuals fight for them (Dembour, 2001). They are the byproducts of social movements (Stammers, 1999:984), and the purpose of these social movements is to challenge dominant and oppressive power structures (Stammers, 1999:1007). When one person attains the right he or she was fighting for, that person then has an obligation to make sure others have that same right (Stammers, 1999:1006). Likewise, Italian citizens have an obligation to fight for the protection of asylum seekers’ human rights.
In addition to the natural, deliberative, and protest schools of thought, the discourse school of thought is another avenue scholars take in understanding human rights (Dembour, 2010). Although less common, discourse scholars are skeptical of human rights as a concept. They might even reject it altogether arguing that human rights don’t exist as the other schools have come to define them. The concept is merely an experimental philosophy that comes with many flaws. One main flaw is the influence of the West on common conceptions of human rights. Discourse scholars argue that human rights are a propagation of Western, ethnocentric, imperialist values (Mutua, 2003:3). In the case of asylum seekers in Italy, discourse scholars would argue that the asylum seekers do not have human rights because human rights don’t exist (Dembour and Tobias, 2010). If asylum seekers are to be treated fairly and have their supposed “human rights” respected, the Italian government must take a more solid approach to implementing justice and equality. The pre-existing, empty rhetoric about human rights is insufficient.
Despite their respective theories and disagreements, all four schools are likewise committed to eliminating injustices. They simply prefer to approach the topic in different ways. It is also important to note that these four schools do not encapsulate the full complexity of human rights theory nor are they mutually exclusive. Beliefs might, and often do, overlap.
In addition to these four academic perspectives, it is important to identify Italy’s perspective on the human rights of asylum seekers. On a broad level, the Italian government recognizes the concept of human rights. The country has ratified the Council of Europe’s Convention on Human Rights (ECHR) of 1950. Thus, theoretically the country must guarantee the rights set forth in it (International Humanitarian Law, 2015). This includes the right to life, the right to a fair trial, the right to liberty and security, and the prohibition of torture among others. These rights detailed in the ECHR take on a natural school approach. Moreover, although none of the rights listed in the ECHR specifically addresses asylum seekers, Article 3 on the prohibition of torture has become a key facet of asylum seekers’ human rights. The article explicitly prohibits inhumane or degrading treatment or punishment (European Convention on Human Rights, 1950). With few legal rights, asylum seekers are particularly vulnerable to inhumane or degrading treatment or punishment. By their very nature, asylum seekers face the risk of inhumane or degrading treatment or punishment if they are returned to their place of origin. If they didn’t face this risk, they would be considered immigrants or another type of migrant. Likewise, the act of refoulement, or the forcible return of asylum seekers to their place of origin without allowing them to first petition for asylum, is a violation of Article 3 on the prohibition of torture (Asylum and the ECHR, 2010: 23). In the case of Italy, not allowing asylum seekers to petition for asylum, or refoulering them, is also a violation of Italian law. As deliberative scholars would argue, this legal violation constitutes an actual human rights violation. Article 10 of Italy’s constitution mandates that any foreigner who has been denied the ability to exercise “democratic liberties guaranteed by the Italian Constitution has the right of asylum in the territory of the Republic.” For example, estimates report that in 2014 alone, 64,000 people filed for asylum in Italy most coming from North Africa and Asia (Asylum in the EU, 2015). These 64,000 people thus have the legal and human right to have their petitions for asylum reviewed in Italy. In short, Italy formally recognizes the right to file for asylum as well as human rights detailed in the ECHR.
In the international context, Article 10 of Italy’s constitution requires that all Italian laws follow the principles set forth in international laws. Italian law must be in accordance with the United Nations’ Convention relating to the Status of Refugees of 1951 (CRSR) and the Protocol of 1967. The CRSR set the legal framework for asylum proceedings. It discusses how those who qualify for refugee status and consequently asylum should be treated. For example, the CRSR reiterates the ECHR’s Article 3 on the prohibition of torture. Accordingly, authorities must treat asylum seekers humanely while the asylum seekers wait for their applications to process. Also similar to the ECHR, the CRSR mandates the principle of non-refoulement. Authorities cannot send asylum seekers back without first allowing them to file for asylum. While these rights set forth in international law are open to various interpretations, they provide an assessment of Italy’s, the Council of Europe’s, and the United Nations’ respective positions on the human rights of asylum seekers.
Italy in Violation of Human Rights
Given Italy’s position on the human rights of asylum-seekers, it is surprising to find ample cases of human rights violations executed by the Italian government itself. For example, Italy has faced international criticism for the subpar conditions in Italian reception centers for asylum seekers. The United Nations High Commissioner for Refugees (UNHCR) conducted a report in May 2011 detailing the conditions of these reception centers. The report first found an insufficient number of centers given the amount of people present in the country who are requesting asylum. Due to this deficit in reception centers and accommodation centers, a large number of asylum seekers are forced to live and sleep on the street. This in turn hinders their access to food and other basic needs. They also have very little economic opportunity to improve their situation, since they cannot legally work in the country until their applications have officially been processed. In addition, they have few legal rights to protect themselves from exploitation should they obtain a job clandestinely (UNHCR, 2015). The report also found that authorities in reception centers were not providing asylum seekers with information, or at least accurate information, regarding their rights to health care. This withholding of information has prevented asylum seekers from receiving proper medical attention simply because they did not know they could (UNHCR, 2015:7). The lack of resources offered and misconduct within reception centers violate asylum seekers’ human right to humane treatment.
Italy has also found itself guilty on numerous occasions of refoulering migrants, an indisputable violation of human rights. In a case from 2009, for example, 224 people tried to cross the Mediterranean Sea from Libya to Italy. Some individuals on board planned to petition for asylum once they reached Italy (Coppens, 2014). The Italian Revenue Police, or coast guard, intercepted their vessel before they made it to Italian shores or even to Italian waters for that matter. The interception occurred outside Italian jurisdiction. The Italian Revenue Police subsequently returned all the people on board to Libya without first identifying or assessing their situations. Eleven Somalis and thirteen Eritreans on board eventually filed a case in the European Court of Human Rights (ECtHR) on 26 May 2009 (Coppens, 2014). This case, Hirsi Jamaa and Other vs. Italy, argued that the forcible return of asylum seekers to Libya was in direct violation of the principle of non-refoulement. Italy, on the other hand, argued they were merely rescuing the migrants. They claim they are not responsible for offering political asylum because the migrants never made it to their shores. The case was eventually settled on 23 Februar 2012, when the ECtHR ruled that Italy was indeed repatriating asylum seekers without first offering the ability to petition for asylum. The country violated the principle of non-refoulement (Coppens, 2014). In addition to this ruling, a report from 2013 conducted by the UN Special Rapporteur on the Human Rights of Migrants, Francois Crépeau, revealed that a number of newly arrived persons in Italy had expressed their intention of filing for asylum, but they too were returned to their country of origin before they were given the opportunity to do so (Crépeau, 2013: 79). These actions conducted by Italian authorities directly violate Article 3 of the European Convention on Human Rights, Article 10 of the Italian constitution, laws set forth in the Convention Relating to the Status of Refugees of 1951, and the human rights of asylum seekers in Italy. These are just a few examples.
Factors Complicating the Protection of Human Rights
Considering the positions of Italy, the Council of Europe, and the United Nations, why have human rights violations occurred? What factors have complicated Italy’s ability as a state to protect the human rights of asylum seekers? One factor that explains why Italy has repeatedly violated such treaties, and consequently the human rights of asylum seekers, is the financial burden associated with rescuing and providing services to asylum seekers. Protecting their human can be expensive (Hafner-Burton, 2013:6). For example, in Italy one main cost is funding the rescue efforts in the Mediterranean Sea. The International Organization for Migration (IOM) estimates that in the first month and a half of 2016, 5,987 migrants arrived in Italy by sea, most from North Africa and Asia. In 2015, over 150,000 migrants arrived. More than 3,700 died in the process, a number of which were asylum seekers (IOM, 2016). In order to combat deaths tolls and consequently human rights violations at sea, Italy implemented a search and rescue operation to save migrants and potential asylum seekers in the Mediterranean. The operation Mare Nostrum successfully rescued more than 140,000 people in its one-year life span from October 2013 to November 2014 (Mare Nostrum to End, 2014). The operating costs for Mare Nostrum, however, exceeded €9.5 million (roughly $13 million) per month (A surge from the sea, 2014). After refusing to absorb the costs alone, Italy shut down Mare Nostrum operations. Taking its place was the EU’s Operation Triton. Unlike Mare Nostrum, Operation Triton had a slimmed down budget of €3 million (roughly $4 million) per month. It mainly serves as a border patrol agency within close range of European borders. It is not intended to search and rescue migrants and asylum seekers in the same way Mare Nostrum had. The financial cost of rescuing people at sea has proven to be higher than countries are willing to pay.
Once asylum seekers arrive in Italy, additional costs are incurred. Providing shelter, food, legal resources, and social services are all finances the Italian government must fund. Ghiglione (2014) reports that each individual asylum seeker costs the Italian government €42 (about $57) per day for food and shelter alone, and the average stay of asylum seekers in reception centers can last months to years (Ghiglione, 2014). While the UNHCR’s 2011 report indicated poor conditions in reception centers and an overall insufficient number of centers, providing sufficient accommodations can be a costly endeavor for Italy to tackle alone. The financial pressure on the Italian government offers one explanation as to why such conditions in the reception centers occur.
Additionally, reports indicate that Italy has repeatedly sought financial assistance from the European Union, claiming the asylum and migration crisis in the Mediterranean is not just Italy’s problem to handle (Latza Nadeau, 2014; Amid Record Waves... 2014). Asylum seekers escaping civil war or other desperate circumstances arrive in Italy as a result of geographic proximity. They simply want to enter the EU. The EU, however, has provided little cooperation in mitigating the costs ( A Surge from the Sea, 2014). As scarcity of resources demands that states identify priorities, any lack of cooperation from the EU places deep constraints on Italy’s ability to respond to the crisis (Hafner-Burton, 2013:6). Instead of protecting all human rights of asylum seekers, financial constraints force the country to pick and choose. Financial constraints have thus complicated and often limited Italy’s ability to protect asylum seekers’ human rights.
As perhaps a byproduct of the financial burden asylum seekers place on the Italian economy, social marginalization has risen in the country. The increased social marginalization serves as a second complicating factor in Italy’s ability to protect asylum seekers’ human rights. Historically speaking, Italy has long been a country of emigration, meaning people from Italy moved to other countries (Zanotti, 1993:174). Around the 1980s, the country began to experience its first encounters with immigration, meaning people moved into Italy. This initially provoked the reaction among natives that immigrants were a threat to the country’s security (Zanotti, 1993: 177). Levels of racism and xenophobia increased, and migrants, asylum seekers, and refugees become socially marginalized groups as a result. While the country has taken efforts to eliminate discrimination against these groups in the years since, tensions still linger. The Pew Research Center indicates that anti-immigrant sentiments in Italy are high. A Spring 2014 survey conducted by the center revealed that 69% of Italians view immigrants as social burdens. They claim that immigrants consume social welfare and employment opportunities (Wike, 2014). While asylum seekers and immigrants are technically different under international law, to the everyday Italian, they look the same. Without a fast and clear way to distinguish between the two, the negative sentiment against immigrants is likely to transfer onto asylum seekers as well.
In addition to the Pew Research Center’s report, in 2012 the Council of Europe released a scathing report further detailing racist sentiments in Italy. For example, the report mentions instances of racism and xenophobia found in public discourse. Politicians in the national government have publically criticized the influx of asylum seekers. Former Prime Minster Silvio Berlusconi went on record calling the crisis an “invasion.” Politicians have also referred to some minority groups, such as Black individuals, as “animals” in public (ECRI Report on Italy, 2012); a number of asylum seekers particularly from Africa are Black. Furthermore, despite politicians’ various racist and xenophobic comments in public, the report indicates that such politicians have not received any official punishment or condemnation for their comments. Without facing any consequences, politicians who produce these comments and sentiments are particularly problematic for human rights protection in that politicians producing the comments are also responsible for producing legislation that protects human rights. Such politicians are not likely to agree to dedicate resources to protecting the human rights of asylum seekers, and as deliberative scholars on human rights would argue, without written codification, human rights of asylum seekers do not exist. The racist and xenophobic viewpoints among Italy’s policymakers will complicate the government’s ability to create and protect asylum seekers’ human rights.
In addition, having notable figures such as national level politicians proliferate racist and xenophobic sentiments without consequence legitimizes acts of intolerance, racism, and xenophobia (ECRI Report on Italy, 2012:7). Their comments can influence and further divide the opinion of the Italian population at large, as well as further promote racism and xenophobia in the country. For example, Italians working closely with asylum seekers might uphold similar prejudices that prevent them protecting asylum seekers’ human rights. These sentiments relating to the social marginalization of asylum seekers might explain why authorities in reception centers were not providing asylum seekers with information, or at least accurate information, regarding their rights to health care. While many Italians do not uphold racist and xenophobic views, their efforts to promote the protection of asylum seekers are consistently met with resistance from dissenters. As members of the protest school of thought would, the protection of human rights is the byproduct of social movements, and thus the social marginalization of asylum seekers in Italy hinders activists’ abilities to promote such rights. In discovering a relatively high amount of racism and xenophobia in Italy, it seems that the social marginalization of asylum seekers, and migrants in general, complicates Italy’s ability to protect their human rights.
A third factor that seems to complicate the protection of asylum seekers’ human rights is the nature of state sovereignty and the international community. The principle of sovereignty affords states absolute authority within their borders (Reus-Smit, 2001: 519). States can determine their own political processes, laws, and economic systems. States also have the authority to determine which rights to acknowledge and to protect within their physical territory (Donnelly 2013:32). Although the international community mandates the protection of human rights, implementing and protecting such rights largely rests in the hands of national governments, such as Italy (Donnelly, 2013:32). Italy can to decide which human rights to protect as well as how, where, and when to protect them. In the case of asylum seekers, Italy can carry out its own asylum proceedings, respecting human rights in its own way. While Italy may have agreed to comply with human rights and asylum legislation produced by international organizations (IOs) such as the Council of Europe and UN, the country remains a sovereign state, and as such, it has the authority to interpret for itself what exactly IO legislation mandates and how they wish to comply.
Moreover, complying with IO produced legislation and obeying IO legislation are two different things (Koh, 1999: 1401). Compliance promotes protecting human rights because it is the ethical course of action, but there is no authority figure to reprimand any deviation from the course of action. Obedience, on the other hand, requires strict adherence to a course of action and should deviation occur, an authority figure will inflict negative consequences (Koh, 1999). In the case of Italy, the country has agreed to comply with international human rights laws. Hafner-Burton (2013) argues that if an international law already coincides with what a state—Italy—planned to do, the state will likely obey it as well. If the law, however, differs from the state’s preferred form of action, conflict may arise (Hafner-Burton, 2013:5). The country might agree to comply with legislation in the international community but not necessarily obey the legislation on the state level. Tension between compliance and obedience with international law can arise under state sovereignty.
This tension allows for human rights violations to occur without consequence. In the case of Hirsi Jamaa vs. Italy, Italy interpreted the situation of rescuing and returning migrants to Libya differently in comparison to the international community. The country conducted itself according to its sovereign authority, not according to the UN and Council of Europe’s human rights policy. The ECtHR publically denounced Italy for refoulering and violating the human rights of asylum seekers in the case, but the nature of sovereignty makes it a challenge for the international community to enforce its policies. States and international actors can proclaim to the world the atrocities that occur in Italian reception centers. They can condemn the country for its racism and xenophobic sentiments, advocate the cruelty of refoulement, and try to coerce the country back into obeying international human rights law through public humiliation and shame (Hafner-Burton, 2008). Outside states and international actors cannot, however, intervene with a police force without violating Italy’s sovereignty nor can they sentence the country to jail. The enforcement options on the international level are limited. This inability to enforce international politics in turn affords states an element of freedom in determining how they conduct themselves. Italy can therefore decide for itself how to interpret international human rights legislation and whether or not to obey such legislation within the country’s territorial boundaries. This further complicates the protection of asylum seekers’ human rights in Italy.
Conclusion
The various perspectives on human rights give way to a rich and varied understanding of asylum seekers’ human rights. Natural scholars, for example, believe all humans are entitled to certain universal rights. Deliberative scholars believe these rights only exist once written into law. Protest scholars argue that human rights must be fought for. Discourse scholars, on the other hand, see human rights as merely an experimental philosophy. In addition, IOs have played a key role in the development and protection of human rights. The Council of Europe’s European Convention on Human Rights and the United Nations Convention Relating to the Status of Refugees uphold their own interpretations of asylum seekers’ human rights. They proclaim all humans have the right to humane treatment and punishment, for example. Italy has agreed to comply with these legislative measures, yet on numerous occasions the country has found itself guilty of violating the human rights of its North African asylum seekers.
These violations can be attributed to three main factors. One factor is the financial burden associated with caring for the influx of asylum seekers. Financing the search and rescue missions as well as the reception and accommodation centers for asylum seekers inhibits Italy’s ability to protect all human rights of all people at all times. A second factor is the social marginalization of asylum seekers. Due to research that indicates racist and xenophobic sentiments against asylum seekers exist in high numbers in Italy, protecting the human rights of asylum seekers can be a point of contention within the government and civil society. Even if Italy had the financial resources available to curb human rights crises, not everyone agrees that the money should be spent on asylum seekers. A third factor is the nature of state sovereignty, which allows Italy to determine for itself exactly what constitutes a human right and a human right violation. Italy has used the concept of sovereignty to deviate from international laws on human rights legislation, and without a clear method of enforcement, the international community has little ability to respond. Despite the international as well as national communities’ efforts in promoting human rights, it can thus be noted that additional factors influence a country’s ability to safeguard such rights. In further examining these factors, one can better evaluate effective responses to the challenges protecting human rights evokes.
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