seas.
8 Specifically, a warship that has reasonable grounds to suspect that a foreign
ship is engaged in the smuggling of migrants on the high seas, before boarding the
foreign ship, it should request prior confirmation of registry to the flag State to verify
the ship’s right to fly its flag.
If nationality is confirmed, the warship shall request the authorisation to board
and search the vessel from the flag State. If evidence is found that the vessel is
engaged in the smuggling of migrants on the high seas, the warship shall request the
authorisation from the flag State to take appropriate measures with respect to the
vessel, persons and cargo on board. In this case, a warship that has taken any
measure with respect to a foreign vessel suspected of smuggling migrants on the
high seas, it shall promptly inform the flag State concerned of the results of that
measure.
As it is possible to infer from these detailed provisions, the concept of flag State
jurisdiction applies even though a foreign ship engaged in the smuggling of migrants
is intercepted on the high seas. In fact, any measure taken with respect to a foreign
vessel suspected of smuggling migrants on the high seas, it shall be subject to the
flag State’s authorisation under specific conditions to be agreed with the requesting
State. Likewise, a warship shall take no additional measures without the express
authorisation of the flag State, except those strictly necessary to save the lives of
persons in distress at sea or those which derive from relevant bilateral and multilateral agreements.
3 The Right of Hot Pursuit in Irregular Migration Events
at Sea
A provision that is particularly relevant during law enforcement operations at sea is
the ‘right of hot pursuit’ which is enshrined in the Article 111 of the UNCLOS.
9 This
norm provides that the pursuit of a foreign ship may be undertaken when a coastal
State has good reason to believe that the ship has violated its laws and regulations.
However, such pursuit must be commenced when the foreign ship is notably in the
territorial sea or the contiguous zone and may only be continued outside these zones
if the pursuit is uninterrupted.
10
In line with the Article 111(5), the ‘right of hot pursuit’ may be exercised only by
warships or military aircraft, or other ships or aircraft clearly marked and identifiable
as being on government service and authorised to that effect. Usually, during
Frontex operations, such a pursuit may be commenced either by an aircraft or
helicopter of any participating Member States and then followed up by a warship
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.
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M. Fantinato
8 Specifically, a warship that has reasonable grounds to suspect that a foreign
ship is engaged in the smuggling of migrants on the high seas, before boarding the
foreign ship, it should request prior confirmation of registry to the flag State to verify
the ship’s right to fly its flag.
If nationality is confirmed, the warship shall request the authorisation to board
and search the vessel from the flag State. If evidence is found that the vessel is
engaged in the smuggling of migrants on the high seas, the warship shall request the
authorisation from the flag State to take appropriate measures with respect to the
vessel, persons and cargo on board. In this case, a warship that has taken any
measure with respect to a foreign vessel suspected of smuggling migrants on the
high seas, it shall promptly inform the flag State concerned of the results of that
measure.
As it is possible to infer from these detailed provisions, the concept of flag State
jurisdiction applies even though a foreign ship engaged in the smuggling of migrants
is intercepted on the high seas. In fact, any measure taken with respect to a foreign
vessel suspected of smuggling migrants on the high seas, it shall be subject to the
flag State’s authorisation under specific conditions to be agreed with the requesting
State. Likewise, a warship shall take no additional measures without the express
authorisation of the flag State, except those strictly necessary to save the lives of
persons in distress at sea or those which derive from relevant bilateral and multilateral agreements.
3 The Right of Hot Pursuit in Irregular Migration Events
at Sea
A provision that is particularly relevant during law enforcement operations at sea is
the ‘right of hot pursuit’ which is enshrined in the Article 111 of the UNCLOS.
9 This
norm provides that the pursuit of a foreign ship may be undertaken when a coastal
State has good reason to believe that the ship has violated its laws and regulations.
However, such pursuit must be commenced when the foreign ship is notably in the
territorial sea or the contiguous zone and may only be continued outside these zones
if the pursuit is uninterrupted.
10
In line with the Article 111(5), the ‘right of hot pursuit’ may be exercised only by
warships or military aircraft, or other ships or aircraft clearly marked and identifiable
as being on government service and authorised to that effect. Usually, during
Frontex operations, such a pursuit may be commenced either by an aircraft or
helicopter of any participating Member States and then followed up by a warship
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.
224
M. Fantinato