The Malta Declaration and the Applicability of the Principle of Non-Refoulement: The EU-Libya Cooperation on External Border Governance and Irregular Migrant Control

Gyimah, Akosua and Summers, James and Hughes-Gerber, Laura (2025) The Malta Declaration and the Applicability of the Principle of Non-Refoulement: The EU-Libya Cooperation on External Border Governance and Irregular Migrant Control. PhD thesis, Lancaster University.

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Abstract

On 03 February 2017, Members of the European Council and the Libyan government adopted the Malta Declaration, a legally non-binding instrument, to cooperate by joint measures to combat irregular migration to the EU through the Central Mediterranean. The Declaration allows the EU and its Member States to provide funds, equipment and other support to the Libyan Coast Guard and other agencies to intercept persons at sea and return them to Libya. EU States also fund the UN High Commissioner for Refugees and International Organisation for Migration to evacuate refugees, asylum seekers and vulnerable migrants to the Sahel and Lake Chad region and assist migrants to return to their countries of origin. This thesis examined whether the Declaration provides sufficient safeguards against refoulement. It found that many intercepted refugees, asylum seekers and extremely vulnerable migrants are denied access to a safe territory, individualised assessments of their specific protection needs, the opportunity to claim asylum or question their forcible return to Libya. This puts intercepted persons at a real risk of persecution, torture, other ill-treatment and refoulement. The study also found that EU States exercise jurisdiction despite not exercising ‘direct physical control’ or ‘authority’ over the CMR or intercepted persons. Their jurisdiction is based on their degree of control and influence over the Declaration, the actions of the Libyans, their substantial funding, equipment and other support together with the policy’s effect of preventing persons from reaching EU territory and forcing them back to Libya. EU States are, thus, responsible for the violations of non-refoulement perpetrated against intercepted persons by the Libyans. This study builds on existing studies on similar externalisation policies by highlighting the protection gaps in the Declaration in protecting refugees and migrants against refoulement. It makes a case for the development of cooperation agreements that guarantee compliance with non-refoulement principle.