Decoding Abela’s ‘human rights’ reform

It was a Saturday in November 1950 when the leaders of 12 countries gathered in Rome to sign a document securing certain rights and freedoms within their jurisdictions. They took the principles already laid out in the Universal Declaration of Human Rights and made them binding, even creating an international court to hold the signatories to account.  

It has been 75 years since leaders signed this document – the European Convention of Human Rights. There are now 46 countries party to the convention due to their membership in the Council of Europe, which is conditional to the ratification of the convention.  

And 75 years later, Malta will assume the presidency of the Council of Europe and begin talks to reform this convention to “reflect modern-day realities”.  

Prime Minister Robert Abela caught people off guard, including members of his own government, when he proposed human rights convention reform during a migration meeting with European counterparts. Political parties in Malta asked him to clarify his comments, to which he said that loopholes and a restrictive interpretation of the European Convention of Human Rights merit reform. Days later, he argued that Malta should be able to deport asylum seekers who commit crimes, and that if a country is “5% unsafe”, the government should be able to list that country as safe for deportation.   

Abela’s stance is unsurprising. The European Court of Human Rights (ECHR) has stopped Malta from deporting people a couple of times, each time citing the same articles of the human rights convention. 

Meanwhile, since Giorgia Meloni has maintained Italy’s non-confrontational stance with Malta over who should be taking in migrants rescued at sea, the government feels Malta should keep relations as warm as possible to avoid a return to the stand-offs seen under previous right-wing governments in Italy.  

However, an unsurprising stance can still be concerning, especially when the human rights of vulnerable people are being called into question. But before we can begin to understand the implications of Abela’s position, we must understand the fundamental issues being brought up about the EU’s migration policy. 

Italy’s plan to send rescued migrants to Albania 

In February 2024, Italy and Albania signed an agreement to set up two detention centres in Albania, fully funded by Italy, to help implement fast-track asylum procedures. The agreement applies to migrants rescued in international waters by the Italian coast guard and navy.  

Crucially, eligibility for transfer is determined aboard rescue ships. Only people from so-called “safe” countries are sent to Albania, except for vulnerable groups like children and pregnant women. 

Once in Albania, asylum seekers are first processed in a centre in Shengjin. Those denied asylum are then moved to a facility in Gjader to await repatriation. Unlike the UK’s failed Rwanda migration plan, these centres will operate under Italian jurisdiction.  

Implementing the deal has not been smooth sailing. When the first group of 16 migrants were sent to Albania in October 2024, four were quickly returned to Italy after authorities realised they were minors or had serious medical conditions.  

That same month, the Court of Rome ordered the return of all migrants transferred to Albania, arguing that their countries of origin – Egypt and Bangladesh – could not be deemed safe. The ruling cited a decision from the European Court of Justice (ECJ), an EU court unrelated to the ECHR, that said a country can only be deemed safe if it can be considered safe in its entirety. If a specific region is unsafe, the country cannot be considered safe for asylum purposes.  

The Italian government responded by issuing a decree listing 19 so-called safe countries, including Egypt and Bangladesh, but this was also referred to the ECJ by the Bologna Court’s immigration section, seeking clarification on the criteria for determining whether a country of origin can be considered safe. 

Now, the ECJ is in the process of examining whether Italy’s agreement with Albania is in line with EU law. Italy’s stance has been defended by the European Commission, which insists that EU law allows member states to designate countries of origin as safe, and that a country does not have to be entirely safe, just safe for certain migrant categories. 

Malta’s reality 

Malta has been using the “safe country” system for a while. The International Protection Act lists 21 individual countries as safe for asylum purposes, as well as listing all EU and EEA members. If a person requesting asylum in Malta is from any of these countries, their application will be considered “manifestly unfounded” and processed under an accelerated procedure.  

It will then be the chairperson of the International Protection Appeals tribunal who will decide on the request, and their decision will be considered final and conclusive. The applicant cannot appeal, but they can file a human rights complaint of an application for judicial review before the Civil Court (First Hall). 

Among the list of safe countries is Bangladesh. This is a convenient designation for Malta as, in 2024, almost half of all sea arrivals to Malta were Bangladeshi. Since Malta considers Bangladesh a safe country, half of arrivals to Malta will have their asylum request considered “manifestly unfound” simply because they were born in Bangladesh, regardless of any specific persecution they may be facing in their home country. 

However, this was challenged in the European Court of Human Rights by a Bangladeshi journalist who feared persecution in his home country. 

A landmark court case 

In 2019, a Bandlageshi journalist came to Malta by boat and requested asylum. In the year prior, he reported on the corruption and fraud committed by the Bangladesh Awami League (AL), which provoked them into attacking him while he was taking pictures. After their victory, the AL vandalised his house and supporters of the AL threatened to kill him. No action was taken by the local authorities in fear of the ruling party.  

Since Bangladesh is considered a safe country of origin, his asylum request was considered manifestly unfounded and he was processed under the accelerated procedure. The International Protection Agency went on to reject his claim because his submissions were “clearly inconsistent and contradictory, clearly false or obviously improbable”, despite submitting 40 pictures and documents, including first-hand accounts of the events that led him to flee his country. The IPA also said that his claim to be a journalist was not sufficiently credible because his explanation of his articles did not reach the expected level of detail, and many of them did not cover political issues.  

After the IPA’s final decision, the journalist took his case to the European Court of Human Rights. He argued that the IPA rejected him from the outset due to his nationality despite providing evidence that Bangladesh was unsafe for him based on his specific situation. He also argued that Malta’s designation of Bangladesh as safe was not in compliance with EU law. His case was successful, as in May 2023, the European Court of Human Rights ruled against Malta and said that the decision to deport the journalist violated Article 13 of the human rights convention in conjunction with Article 3. 

The ‘safe country’ concept: Safe for whom? 

Abela’s stance on migration has always been clear – if you do not merit asylum, you get sent back to your country. There is little to argue against this. The status of refugee is clearly established in local and international law, and anyone who does not fit the criteria cannot be granted international protection.  

However, Abela made a small but significant clarification to his argument when speaking with journalists last week. “Who merits asylum can stay here, unless they commit a crime. Who does not merit it has to go back to their country.” He made it clear that people who commit crimes in Malta should be deported, but “a series of conventions create massive challenges to do that”. 

Sending asylum seekers back to a place where they could face persecution violates the principle of non-refoulement – a fundamental principle of international law that cannot be suspended or ignored. 

However, many countries are exploring the idea of a “safe third country” – a location that is neither the home country of the asylum seeker nor the country in which that person is seeking asylum, but that is considered safe for them to be removed to. 

In debates over the concept of "safe third countries," two key legal pillars come into play —the 1951 Refugee Convention and the principle of non-refoulement under Article 33. While the convention does not explicitly endorse the practice of transferring asylum seekers to third countries, states have often argued that such transfers are legally valid, provided that non-refoulement obligations are met. 

However, this interpretation is not without controversy. Critics, particularly from the human rights community, stress that states must ensure the receiving country fully upholds refugee rights under international law. Without ironclad guarantees of protection, they argue, such transfers risk undermining the very principles the Refugee Convention was designed to uphold. 

A country 95% safe 

Another one of Abela’s arguments to reform the human rights conventions is statistical. “If 95% of a country is deemed safe and 5% is not, the ECJ considers it unsafe,” he told journalists. 

The 1951 Refugee Convention defines a refugee as someone with a well-founded fear of persecution. This may include LGBTQI+ individuals or women at risk of gender-based violence. For such groups, countries deemed “safe” by a government may be anything but.  

The designation of a country as safe does not account for individual persecution risks. Marginalised groups such as political dissidents, LGBTQI+ individuals or ethnic and religious minorities may face severe threats in countries deemed safe. Even when a country is broadly stable, or “95% safe”, state protection may be inadequate or nonexistent for vulnerable groups.  

Some countries have carved out exceptions for specific regions or groups. Czechia, Denmark, and Finland, for instance, classify Georgia as safe but exclude South Ossetia and Abkhazia. Similar carve-outs apply to Ukraine, where Cyprus, Czechia, and Iceland exclude asylum seekers from Crimea, Donetsk, and Luhansk. Hungary considers the US a safe country, but only for states that do not enforce the death penalty. Luxembourg applies the safe designation to Benin and Ghana, but only for men.  

So far, Malta has made no such exceptions for the countries in its “safe” list.  

While Malta prepares to lead the Council of Europe, Abela’s push for human rights reform forces a critical discussion on where legal protections should be reinforced or reinterpreted. His proposals reflect growing tensions between national migration policies and international legal standards, but they also raise uncomfortable questions – who gets to decide what is ‘safe,’ and at what cost?

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