Abstract
During joint operations in the Mediterranean, the European Border and Coast Guard agency (Frontex) has contributed to the implementation and development of the law of the sea. Under Frontex-led activities, frontline Member States such as Italy have encouraged an extensive interpretation of the United Nations Convention on the Law of the Sea provisions to extend the application of enforcement powers on the high seas. However, in an effort to intercept foreign ships suspected of having disembarked migrants on the Italian shores, border guard authorities started to intercept those ships directly on the high seas. Since these interception measures could have a significant impact on the freedom of navigation on the high seas, these practices should always find their legal basis in the key principles enshrined in the law of the sea and in other international law instruments.
Against this backdrop, this essay firstly focuses on the existing provisions regulating flag State jurisdiction, right of visit and right of hot pursuit in migrant smuggling operations on the high seas. Secondly, this analysis presents the evolution of the exercise of coastal State jurisdiction through the development of maritime interception practices adopted during Frontex operations. In the last part, accountability and responsibility during these maritime operations will also be discussed. The aim of this chapter is to present extensive legal approaches in the exercise of coastal States’ jurisdiction while highlighting a recent trend in using interception measures that could potentially affect the principle of exclusive flag State jurisdiction on the high seas.
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Notes
- 1.
Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC.
- 2.
United Nations Convention on the Law of the Sea, with Index and Final Act of the Third United Nations Conference on the Law of the Sea, 1983.
- 3.
Papanicolopulu (2016).
- 4.
Protocol against the Smuggling of Migrants by Land, Sea and Air, Annex III of the United Nations Convention against Transnational Organised Crime, Palermo, 2000.
- 5.
See Art. 110 (Right of visit), UNCLOS.
- 6.
See Art. 92 (Status of ships), UNCLOS.
- 7.
See Art. 87 (Freedom of the high seas), UNCLOS.
- 8.
See Article 8 (Measures against the smuggling of migrants by sea) of the Protocol against the Smuggling of Migrants by Land, Sea and Air.
- 9.
See Art. 111 (Right of hot pursuit), UNCLOS.
- 10.
Art. 111(1-2). Mussi (2016), pp. 23–43.
- 11.
- 12.
See Art. 33 (Contiguous zone), UNCLOS.
- 13.
See supra note 5.
- 14.
See supra note 8.
- 15.
- 16.
The European Maritime Safety Agency (EMSA) is a European Union agency charged with reducing the risk of maritime accidents, marine pollution from ships and the loss of human lives at sea by helping to enforce the pertinent EU legislation.
- 17.
Bevilacqua (2017), pp. 79–101.
- 18.
See Art. 5 (Shared responsibility) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard.
- 19.
Leanza and Graziani (2014), pp. 163–209.
- 20.
See Art. 98 (Duty to render assistance at sea), UNCLOS.
- 21.
International Convention on Maritime Search and Rescue (chapter 1.3.2) and Resolution MSC.167(78) Guidelines on the Treatment of Persons Rescued at Sea (paragraph 2.5) adopted in May 2004 by the Maritime Safety Committee together with the SAR and SOLAS amendments.
- 22.
Sentence no. 14510/14 of the Italian Court of Cassation. Available at http://www.cortedicassazione.it.
- 23.
Sentences no. 3345/15 and 6590/2016 of the Italian Court of Cassation. Available at http://www.cortedicassazione.it.
- 24.
Papanicolopulu (2016), pp. 13–15.
- 25.
See Art. 12 of the Italian Legislative Decree no. 286/1998 (Consolidated Immigration Act).
- 26.
Following the entry into force of the Legislative Decree 177/2016, from January 2017 the Guardia di Finanza is the only Italian authority responsible for maritime security while the Italian Coast Guard retains the coordination of all the activities related to the provision of Search and Rescue services in its area of responsibility.
- 27.
Sentence no. 32960/2010 of the Italian Court of Cassation. Available at http://www.cortedicassazione.it.
- 28.
It must be noted that the issue of the contiguous zone in Italy has always been controversial. For more information, please refer to Andreone (2011), pp. 1–6.
- 29.
See the case of the vessel ANIKA-52 where a Ukrainian vessel flying a Croatian flag of convenience was intercepted during the “Operation ZORA” while trying to smuggle migrants across the Mediterranean Sea. A detailed description of the operation is available in Cataldi (2016), pp. 286–291.
- 30.
See Sentence no. 5157/2018 of the Italian Court of Cassation. Available at http://www.cortedicassazione.it. This case involved the interception on the high seas of the sailboat named KALA which was flying an American flag and was registered in Delaware. On the 8th June 2018, the sailboat was intercepted on the high seas, in front of Apulian shores by the Italian border police authorities because suspected of having disembarked migrants on the Italian territory several hours earlier. This sentence is quite controversial because while recognizing that the boarding on the high seas was not performed in compliance with international law provisions, the Court held that it was possible to intercept the boat on the high seas after a hot pursuit that began in the territorial waters. However, after reading all the acts of the trial, it emerges that the American sailboat KALA with three Ukrainians on board was intercepted and boarded directly on the high seas without any pursuit performed by the Italian border police authorities that began either in the territorial sea or in the contiguous zone.
- 31.
On the 18th March 2017, during Frontex joint operation TRITON in Sicily, a sailboat flying a Turkish flag was boarded on the high seas by the Italian border police authorities because suspected of having disembarked migrants on the Italian shores several hours earlier. The sailboat was detected by a Frontex aircraft at about 40 nm from the Sicilian coasts (high seas) and then intercepted on the high seas. Also in this case, the Turkish sailboat was detected, engaged and boarded directly on the high seas without any hot pursuit performed by the Italian border police authorities and two smugglers were arrested (one Russian and one Ukrainian). A reconstruction of the event is available at http://www.lasicilia.it/news/siracusa/69907/siracusa-catturato-in-alto-mare-il-veliero-che-ha-lasciato-a-vendicari-21-profughi.html and at http://www.siracusanews.it/siracusa-immigrazione-clandestina-due-scafisti-ucraini-fermati-dal-gruppo-interforze/.
- 32.
The ‘principle of territoriality’ (principio di territorialità) in the Italian legal framework is defined by the Article 6 of the Italian Penal Code. For more information, please refer to the Art. 6 of the Italian Penal Code.
- 33.
See supra note 8.
- 34.
Sentence no. 14709/2018 of the Italian Court of Cassation. Available at http://www.cortedicassazione.it.
- 35.
See Arts 2 (Elements of an internationally wrongful act of a State) and 5 (Conduct of persons or entities exercising elements of governmental authority) of the text adopted by the International Law Commission at its fifty-third session on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II.
- 36.
See Art. 42 (civil liability) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard.
- 37.
See supra note 5.
- 38.
See Rules of Engagement (Annex 6) of the Themis Operational Plan, Public Accessible Document version, available upon prior request to the European Agency Frontex.
- 39.
Art. 40 (Tasks and powers of the members of the teams) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard.
- 40.
See Art. 6 (Conduct of organs placed at the disposal of a State by another State) of the text adopted by the International Law Commission at its fifty-third session on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II.
- 41.
See Art. 56 (Legal status and location) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard.
- 42.
Salvadego (2017), pp. 1122–1150.
- 43.
See Art. 7 (Conduct of organs of a State or organs or agents of an international organisation placed at the disposal of another international organisation), Draft articles on the responsibility of international organisations, Yearbook of the International Law Commission, 2011, vol. II, Part two. The text was adopted by the International Law Commission at its sixty-third session, in 2011 and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10).
- 44.
- 45.
See supra note 18.
- 46.
Moreno Lax (2018), pp. 119–140.
- 47.
Fantinato (2017), pp. 209–214.
- 48.
Liguori (2017), pp. 209–226.
- 49.
Trevisanut (2013), pp. 661–675.
- 50.
See supra note 34.
- 51.
See recital 45, ibidem.
- 52.
Sentences no. 14510/14 and 35474/2014 of the Italian Court of Cassation available at http://www.cortedicassazione.it.
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Fantinato, M. (2020). Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and Operational Challenges to the Principles of Coastal and Flag State Jurisdiction in Italy. In: Ribeiro, M., Loureiro Bastos, F., Henriksen, T. (eds) Global Challenges and the Law of the Sea. Springer, Cham. https://doi.org/10.1007/978-3-030-42671-2_13
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