The EU Liberal Constraint or the ECtHR Liberal Constraint? The Case of Italy’s Treatment of Boat People Seeking Asylum

In Joppke’s (1998) comparative analysis of asylum in the US, the UK and Germany, he questioned the validity of Soysal (1994) and Jacobson’s (1996) assumption that outside influences had limited states’ powers to restrict immigration. Since the publication of Joppke’s work, states have sought to increasingly externalise their refugee regimes so that asylum seekers cannot benefit from states’ inherent liberalness. Scholars in recent years have consequently begun to investigate possible external constraints states have faced as result of this turn, most notably from the EU (e.g. Ripoll Servent and Trauner 2014; Toshkov and de Haan 2012; Kaunert and Léonard 2012). But these analyses have rarely compared the impact that the EU has had on national asylum polices with that of the ECtHR. This paper seeks to counter this by examining Italy’s attempts to stem the arrival of boat people seeking asylum in recent years. The instigation of various agreements between Italy and Libya in the 2000s enabled Italy to return boat people to the North African state. The EU remained largely silent on the issue; but the ECtHR did not. It repeatedly ruled that Italy’s attempts to push asylum seekers back to Libya without facilitating access to a fair asylum application contravened the non-refoulement stipulation in the European Convention of Human Rights. It is therefore the influence of Strasbourg that states fear rather than Brussels