Protocol Italy-Albania (2023) as a Model of Extraterritorialization of Asylum Procedures: Legal Bases and Political Dimension

Ortega Machado Sharon Elizabeth ORCID: 0009-0009-6270-0567 Postgraduate student; Institute of International Relations and World History; N.I. Lobachevsky National Research Nizhny Novgorod State University 23 Gagarin Ave., Nizhny Novgorod, Nizhny Novgorod, 603022, Russia sharon.ortega.93@gmail.com Other publications by this author

Introduction

The Protocol between the Government of the Italian Republic and the Council of Ministers of the Republic of Albania, signed on November 6, 2023, is one of the most institutionally designed European examples of taking individual stages of the border procedure and related content of applicants for international protection outside the territory of an EU member State while maintaining Italian jurisdiction ^{[1; 2; 3]}. This is its difference from the more familiar forms of externalization, in which control over migration is largely transferred to a third State.

The scientific interest in the Protocol is determined by two circumstances. First, it allowed us to check whether an EU member state could carry out an expedited border procedure to a third country without removing it from the scope of its own law and relevant standards of Union law. Secondly, it was around this case that in 2024-2026 a broader discussion began to develop about the transfer of migration procedures and functions of return to the external space. Therefore, the Protocol is important not only as a legal experiment, but also as a politically visible precedent ^{[1; 4]}.

The practical history of the Protocol has revealed an internal contradiction in its design. Italy sought to show that bringing the procedures to a third country was possible without formally withdrawing from EU law, but the first attempts to launch the mechanism were met with judicial blockage. A further line of judicial control showed that the stability of the scheme depended not so much on the very idea of extraterritorialization as on how it used the regime of the safe country of origin ^[5]. Thus, the Italian-Albanian case turned out to be important not only for assessing the permissibility of a specific bilateral scheme, but also for a broader discussion about the limits of legal compatibility of external and quasi-offshore migration management mechanisms in the EU.

There are three main research blocks in the existing literature.

The first block consists of works on the legal compatibility of the Italy–Albania Protocol with EU law and the ECHR. The most significant studies here are those by A. De Leo and E. Celoria ^[1], the analytical note by E. Gemi and H. Ruci, which is correctly used as a policy paper rather than as a peer-reviewed article ^[6], as well as the article by E. Muharremaj and G. Cami, which considers the agreement as a case study for the externalization of EU policy ^[7]. These studies make it possible to evaluate the legal structure of the Protocol and the main arguments for or against its compatibility with Union law in the context of taking individual migration procedures outside the territory of an EU member State.

The second block combines research on the external dimension of EU migration policy, the externalization of migration control, and the Italian experience of cooperation with third countries. This includes the works of O. Y. Potemkina and O. A. Glubokaya ^{[8; 9]}, who consider the Italian case in the broader context of the external dimension of EU migration policy. In the Russian literature, this context is further revealed in the research of Yu. A. Ryabov ^[10], who showed the early stages of the formation of the foreign policy dimension of the EU space of freedom, security and justice and linked externalization with the transfer of control outside the territory of the Union; I. A. Zakharov and M. M. Agafoshin ^{[11; 12]}, analyzing externalization as part of a restrictive turn in asylum policy at the pan-European level and on the example of the United Kingdom after Brexit; as well as D. V. Ivanov ^[13], who considers the externalization of international protection as a modern international legal trend and specifically includes the Italy–Albania Protocol in a number of offshore models for issuing procedures. Of particular importance for this article is O. Y. Potemkina's work on new trends in the external dimension of EU migration and asylum policy ^[14], in which the Italo-Albanian case is placed in the context of a broader shift towards strengthening external and quasi-offshore control tools.

The third block sets the theoretical and methodological background of the research. The work of S. is used to analyze Europeanization. Lavenex and E. M. Uçarer ^[15]; the logic of choosing a decision-making site (venue shopping) is based on the approach of V. Guiraudon ^[16]; the political demand for stricter control tools is considered through the concept of securitization by D. Bigo ^[17]; and the transition of the case from a bilateral format to a broader institutional agenda is analyzed based on the approach of S. Princen towards shaping the EU agenda ^[18]. These approaches make it possible to consider the Protocol not only as a private legal mechanism, but also as a political instrument through which the national experiment can be translated into a broader coalition and institutional agenda.

Thus, unlike existing studies focused either on the legal compatibility of the Italo-Albanian scheme or on its inclusion in the broader context of the external dimension of EU migration policy, this article considers this case as a mechanism for the transition from a bilateral legal experiment to its coalition and institutional articulation at the EU level.

The purpose of the article is to explain how the Italy–Albania Protocol has acquired the importance of a politically visible precedent in the pan-European discussion on the introduction of migration procedures and related functions of return to the external space and what factors limited its immediate practical feasibility.

The research question of the article is formulated as follows: what is the role of the Italy–Albania Protocol in the evolution of the pan-European discussion on the transfer of migration procedures and related functions of return to the external space?

To answer this question, the article solves three tasks: firstly, it reconstructs the legal structure of the Protocol; secondly, it identifies the limits of its practical feasibility through dependence on the regime of the safe country of origin; thirdly, it traces how the bilateral experiment was turned into a coalition argument and further integrated into the institutional discussion at the EU level..

The scientific novelty of the article lies in the fact that, firstly, it shows that the legal limits of the Italo-Albanian scheme were determined not by the existence of an abstract prohibition of any extraterritorialization of asylum procedures, but by its dependence on the regime of the safe country of origin; secondly, the mechanism of transition from a bilateral legal experiment to its coalition, and then institutional articulation at the EU level; thirdly, the relationship between the limited managerial effectiveness of the Protocol and its high political importance for the pan-European migration agenda has been clarified.

The working hypothesis of the article is that the importance of the Italy–Albania Protocol for EU policy was determined not so much by its direct managerial effectiveness as by its ability to act as a politically convenient and visible precedent within a broader course to strengthen the external dimension of migration policy. Accordingly, its practical limitations and its political visibility should be analyzed separately, although in their interrelationship.

Based on this, the article consistently separates the legal and political analysis levels, since the limits of the practical feasibility of the Protocol and its significance for the pan-European discussion do not automatically coincide and require independent consideration.

1. Methodology and analytical framework

The article uses a case study design ^{[19; 20]} and a chronologically oriented analysis of documents with elements of process tracing ^{[21; 22]}. This choice is determined by the nature of the object itself: the protocol combines in one case a bilateral international treaty, national implementation in Italy, constitutional control in Albania, judicial control in Italy and the reaction of EU institutions. Therefore, the research value of the case lies not in statistical generalization, but in the possibility to trace the interaction of legal innovation, judicial restriction and political articulation.

The study covers the period from November 2023 to March 2026 and is based on a corpus of documents at four levels: interstate and national legal acts, court decisions, documents of political articulation at the EU level, and parliamentary or reference materials that allow assessing the operational side of the scheme. Such a construction of the source base is necessary, since the legal and political levels in this case do not coincide in their indicators.

The documents were selected based on two criteria: their direct connection to the legal structure and practical implementation of the protocol, as well as their significance for tracing how the case was articulated in a supranational discussion. The empirical core includes the protocol itself, Italian Law No. 14/2024, the decision of the Constitutional Court of Albania No. 2/2024, Decreto-Legge No. 158/2024, the decision of the EU Court of Justice in cases C-758/24 and C-759/24, a letter from 15 EU member States dated May 15, 2024, the conclusions of the European Council and documents on the new regime of return ^{[3; 4; 5; 23; 24; 25; 26; 27]}.

Methodologically, the article separates two levels of analysis. The first level is legal: is this model compatible with current EU law and where are the limits of its operation? The second level is political science: how the bilateral legal experiment was used in the EU's interstate and institutional discussions. This separation is fundamentally important because the legal design of the scheme and its political significance do not automatically coincide.

The theoretical framework is based on three interrelated approaches. Firstly, it is aimed at Europeanization "from the bottom up", when an EU member state tries to promote its own preferences at the supranational level ^{[15, pp. 418-422]}. Secondly, the logic of choosing a venue for decision-making (venue shopping): Having failed to achieve the desired result through the usual EU procedures, Italy used the bilateral format to create a precedent, and then included this precedent in the pan-European discussion ^{[16, pp. 266-270]}. Thirdly, the approach to the formation of the agenda, which makes it possible to consider the protocol not as a ready-made regulatory transfer, but as one of the factors increasing the visibility of a certain solution in the EU institutional agenda ^{[18, pp. 1-60]}. The concept of securitization is used in the work as a context explaining the political demand for stricter control tools ^{[17, pp. 63-70]}.

The elements of process tracing in the article are used not to prove direct linear causality, but to reconstruct the mechanism of transition from a national experiment to a supranational articulation. In its minimal form, this mechanism includes three links: the creation of a bilateral precedent; its use by a group of states in a coalition; and the transfer of relevant topics to official documents of EU institutions. If one of these elements is missing, the conclusion is formulated more cautiously — as consonance with the general course, rather than as a documented effect of agenda formation ^{[18; 21; 22]}.

The practical feasibility of the protocol is assessed by three indicators: the ability to ensure the transfer of persons to Albanian centers without systematic judicial blocking; the stability of the legal framework of the accelerated procedure in relation to applicants from States recognized as safe countries of origin; the ratio between the stated management objectives, the actual scope of the scheme and confirmed budget expenditures.

When interpreting the political significance of the protocol, alternative explanations are also taken into account: a general shift in EU migration policy towards accelerating returns, an increase in interstate demand for more stringent instruments after 2023, and a broader institutional cycle of revision of the return regime. Therefore, the article does not interpret the Italian-Albanian case as the only reason for subsequent initiatives, but shows it as one of the most visible and documented precedents within the already formed course.

The limits of the source base should also be taken into account. The study is based mainly on official documents, judicial acts, parliamentary materials and open public sources and does not include interviews with negotiators or closed documents of EU institutions. Therefore, the conclusions relate primarily to the documented forms of legal restriction and political articulation of the case.

The key documentary links forming the empirical core of the study are summarized in Table 1. Table 1 systematizes the main documents that make it possible to trace the transition from a bilateral legal experiment to its coalition and then institutional articulation at the level of the European Union.

Table 1 - Key documentary links in the evolution of the Italy-Albania Protocol and their analytical significance

Source: compiled by the author based on the materials of the Italy–Albania Protocol dated November 6, 2023, the decision of the Constitutional Court of Albania No. 2 dated 01/29/2024, the Italian Law No. 14 dated 02/21/2024, Decreto-Legge No. 158 dated 10/23/2024, the decisions of the EU Court of Justice in combined cases C-758/24 and C-759/24 dated 08/01/2025, the joint letter 15 Member States of the EU dated 05/15/2024 and the position of the European Parliament on Returns Regulation dated 03/26/2026.

2. Protocol as a model of extraterritorialization: legal construction

The key feature of the Italian-Albanian protocol is that it is not based on the transfer of powers to Albania to consider applications for international protection. On the contrary, Italian authorities had to operate in specially designated areas in Shengjin and Jadar and Italian procedures embedded in EU law had to be applied ^{[1; 3]}. Thus, the model differed both from the EU agreements with third countries to curb flows, and from the classical schemes for transferring procedures to the external space, in which part of the responsibility actually shifts to the host state.

That is why it is crucial for protocol analysts to distinguish between externalization and extraterritorialization. Externalization in a broad sense describes the transfer of control and filtering to the external space through cooperation with third countries; for example, agreements with Turkey, Libya or Tunisia. Extraterritorialization assumes that the status review procedure itself and the associated administrative control are carried out outside the territory of the state, but under its own jurisdiction ^{[1, pp. 596-598; 2, pp. 200-220]}. In the Italian-Albanian case, it was about the second mechanism.

The context of the case Hirsi Jamaa v. Italy is important for understanding this construction. In it, the ECHR established the principle that a State cannot evade its human rights obligations if it actually controls individuals outside its own territory. The Italy–Albania Protocol can be interpreted as an attempt not to circumvent this principle, but to integrate it into a new architecture: not to deny Italian jurisdiction, but to preserve it and move the place of implementation of individual procedures outside ^{[2, pp. 147-170]}.

The domestic legal framework confirms this logic. Italian Law No. 14 of February 21, 2024 ratified the protocol; for Italy, it entered into force on February 23, 2024, and the protocol's entry into force at the international level was fixed on March 25, 2024 ^[24]. Thus, the protocol became legally binding for the parties within the established time frame.

An essential element of the legal legitimation was the decision of the Constitutional Court of Albania No. 2 dated 29.01.2024. The court rejected the deputies' demand to recognize the protocol as unconstitutional and prohibit its ratification, thereby removing a key domestic political and constitutional obstacle on the Albanian side ^[25]. This is important for political analysis because the successful passage of constitutional control allowed the protocol to be presented in the EU as a legally workable, rather than a purely declarative scheme.

This leads to the first intermediate conclusion. The Italy–Albania Protocol was not another kind of standard external cooperation, but a more ambitious attempt to spatially shift the scope of the accelerated procedure while maintaining Italian jurisdiction. It is this legal originality that has ensured his high visibility in the European debate.

3. Operational lockdown: secure country of origin as a bottleneck of the model

The transition from legal construction to practical application revealed the main limitation of the model. The protocol could only work if the categories of persons transferred to Albania were subject to an expedited border procedure in accordance with EU and Italian law. In practice, this meant that the scheme was heavily dependent on the regime of the safe country of origin, which allows for accelerated consideration of petitions, but at the same time remains subject to judicial control ^{[28, articles 36-39, articles 40-43]}.

After the first transfers of persons to Albanian centers in the fall of 2024, this dependence became apparent. The first two operations involved a total of only 24 people, after which the Italian courts began to block confirmation of detention and question the legality of the accelerated procedure in relation to citizens of States included in the national list of safe countries of origin ^{[27; 29; 30]}. Since a separate consolidated series of transfers to Albanian centers is not presented in the available official materials, operational media reports are used to reconstruct these first operations, which should be taken into account as a limitation of the source base ^{[29; 30]}.

Consequently, the problem was not the lack of a formal infrastructure, but the gap between the spatial design of the scheme and the procedural conditions under which the expedited procedure could be applied at all. That is why the operational weakness of the protocol manifested itself not as a private administrative failure, but as a structural dependence on a narrower legal instrument.

The culmination was the line of the EU Court of Justice in cases C-758/24 and C-759/24. In press release No. 103/25 dated August 1, 2025 The Court confirmed that the designation of a State as a safe country of origin should be subject to effective judicial verification, and the application of this regime cannot be based on arbitrary or insufficiently substantiated lists ^[5]. Thus, the Court did not establish a general ban on any form of extraterritorialization, but significantly narrowed the space for the practical launch of the Italian-Albanian scheme in its original form.

The main analytical result of the article is shown here. The operational failure of the protocol cannot be explained by the general formula "extraterritorialization is incompatible with EU law." It is more correct to say that this option of extraterritorialization turned out to be institutionally dependent on the regime of the safe country of origin and judicial control over its application. In this sense, the limits of the model were procedural and context-specific, rather than universal.

The further steps of the Italian Government confirm exactly this interpretation. Already in March 2025, Decreto-Legge No. 37 was adopted, subsequently converted into Law No. 75 of May 23, 2025, which allowed the use of the Albanian infrastructure for the detention of persons against whom decisions on return had already been made. Thus, the executive branch actually shifted the focus from the initial scheme of the border procedure to a broader set of tools related to return ^[31].

The financial aspect reinforces this conclusion. The parliamentary dossier of the Italian Chamber of Deputies on the ratification law fixed project costs of about 654 million euros for a five-year period, while the protocol itself allowed for the simultaneous presence of up to 3,000 people in Albania, and the actual scope of the scheme in its original form remained minimal ^[32]. Therefore, the discrepancy between the regulatory intent, costs and the actual scale of use of the protocol should be considered as one of the manifestations of its limited practical feasibility.

4. The political dimension: from the bilateral case to the Pan-European agenda

The political significance of the protocol should be analyzed not as an automatic consequence of its existence, but as a result of consistent interstate and institutional articulation. From a political point of view, it is not the question of direct causation that is fundamental, but the question of how a particular national experiment acquires the function of a coalition argument and then becomes part of the official EU agenda ^{[16; 18]}.

This process can be summarized as three stages. At first, the bilateral protocol acts as a national legal and managerial experiment. Then it turns into a horizontally shared argument of a group of States interested in expanding the external dimension of migration policy. Finally, the relevant issues are transferred to the official documents of the Union's institutions. It is this sequence that allows us to talk about the effect of shaping the agenda, without replacing it with the thesis of direct normative borrowing.

The key to this logic is the letter from the 15 EU member states dated May 15, 2024. The document calls for the search for new solutions to counter irregular migration, and explicitly mentions as one of the directions the development of mechanisms to address issues of protection and return outside the territory of the Union ^[4]. Even without a detailed reproduction of the Italo-Albanian scheme, the letter is important because it shifted the discussion from a national format to a coalition interstate plane and thus made the case suitable for further advancement at the EU level.

The composition of the signatories is also indicative. The letter was supported by Italy, Greece, Cyprus and Malta as external border states, as well as Austria, Bulgaria, the Czech Republic, Denmark, Estonia, Finland, Latvia, Lithuania, the Netherlands, Poland and Romania ^[4]. This configuration united the Mediterranean states, the countries of Central and Eastern Europe, and part of the Northern European governments, which made it possible to present the initiative not as a local request from one southern European country, but as a broader coalition in favor of tightening the external dimension of migration policy. In V. Guiraudon's terms, this corresponds to the logic of venue shopping: having failed to achieve the desired result through the usual EU procedures, Italy first used the bilateral format with Albania to create a precedent, and then returned this precedent to the Union level as a coalition argument ^{[4; 16, pp. 251-258, pp. 267-271]}.

The next stage is related to the transition of the topic to the official agenda of the EU institutions. In the conclusions of the European Council of October 17, 2024, member States called for new ways to prevent and counter irregular migration in accordance with EU and international law, as well as to accelerate work on returns ^[26]. On March 11, 2025, the European Commission submitted a proposal for a new common European mechanism for returns, and on March 26, 2026, the European Parliament supported the start of inter-institutional negotiations on a new Returns Regulation ^{[23; 33]}. Thus, it was not about the final adoption of the norm, but about the transition of the topic to a full-fledged legislative agenda.

If we apply S. Princen's approach to this sequence, then the Italo-Albanian case served as one of the focusing examples through which the topic of procedures and returns received institutional visibility. The letter from 15 states transferred it to the circle of intergovernmental pressure on the Commission, the conclusions of the European Council fixed it on the strategic agenda, and the Commission's proposal and the decision of the European Parliament to start negotiations gave it the status of a legislative file ^{[4; 18, pp. 1-10, pp. 89-120; 23; 26; 33]}. In this sense, we are talking about the effect of shaping the agenda, and not about a complete normative copy of the Italian-Albanian model.

This is the dual effect of the protocol. As a tool for direct management of migration flows, it has shown limited effectiveness. As a politically visible precedent, it proved to be much more successful, as it made the discussion of the issuance of procedures and returns more legitimate in the EU interstate and institutional discussion. ^{[4; 23; 26; 33]}.

That is why it is correct to say that the protocol has become one of the most publicly visible precedents of the EU's general policy of tightening migration control tools, and not its only driving reason. The collected documents confirm the hypothesis regarding the coalition articulation of the case and its effect on shaping the agenda at the EU level; however, the available data are insufficient to conclude a direct linear causality between the Italo-Albanian agreement and subsequent EU initiatives. ^{[4; 5; 18; 23; 26; 33]}.

Conclusion

The analysis allows us to draw three main conclusions.

Firstly, the Italy-Albania Protocol was not a common form of external cooperation in the migration sphere, but an attempt to spatially transfer certain stages of the border procedure and the related detention of applicants outside the territory of an EU member State while maintaining national jurisdiction. It was this legal structure that provided the case with high visibility in the European discussion, since it was not just about transferring functions to a third state, but about a more complex model of combining external space and internal jurisdiction.

Secondly, the practical feasibility of this model was limited not by the very idea of extraterritorialization as such, but by the fact that its application was strictly linked to the use of an accelerated procedure for citizens of States recognized as safe countries of origin. As a result, the stability of the scheme depended on judicial review of the criteria and the procedure for applying this regime. Consequently, the legal limits of the Italo-Albanian mechanism were not universal, but procedurally determined.

Thirdly, the political significance of the Protocol turned out to be broader than its direct managerial effect. Even with limited practical application, it was used as a clear precedent in the EU inter-state and institutional discussion on acceptable forms of migration procedures and related functions of return to the external space. Thus, the managerial weakness of the scheme did not exclude its political productivity, but, on the contrary, showed that the symbolic and coalition effect of such a case may be higher than its direct administrative effectiveness.

Consequently, the importance of the Italo-Albanian Protocol for the evolution of EU migration policy is determined primarily not by its direct administrative effectiveness, but by the fact that it can be considered as a politically significant precedent that further legitimized the idea of transferring certain migration functions to the external space. This is precisely its broader significance both for analyzing the external dimension of EU migration policy and for understanding the mechanisms through which a national legal experiment can become an element of the pan-European political agenda.

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