under the technical coordination of Frontex.
17 However, it is worth noting that
although participating in an international operation under the aegis of a European
agency, Member States always retain primary responsibility for the management of
their sections of the external sea borders.
18
This improved capacity at sea has led Member States to perform maritime
interceptions farther away from their territorial seas while adjusting their modus
operandi during law enforcement operations to apprehend migrant smugglers on the
high seas. In fact, over the last few years, disproportionate migratory pressures
across the Mediterranean Sea have brought about a significant increase in the
number of interception operations of migrant boats on the high seas. These events
clearly highlighted the need for law enforcement and judicial authorities to take
effective measures to secure the arrest of smugglers apprehended on the high seas
from an operational and legal perspective.
Therefore, in an effort to tackle transnational criminal organisations, during the
last 5 years, Italy has confirmed a trend to exercise both enforcement and adjudicative jurisdiction on the high seas.
19 In the context of Frontex operations carried out in
Sicily and Apulia, Italian border police and the Italian Courts have gradually
succeeded in extending criminal jurisdiction on the high seas through an extensive
interpretation of the existing national and international legal frameworks. This legal
approach found its application also in respect of those smugglers that endangered the
lives of migrants at sea by exploiting Search and Rescue operations performed by the
coast guard, border police and non-governmental organisations (NGOs) to transport
migrants into the Italian territory.
During operations that occurred outside the Italian Search and Rescue region, the
judge confirmed the possibility of claiming jurisdiction over the smugglers arrested
on the high seas. In particular, the Italian Court of Cassation held that smugglers
systematically use unseaworthy boats in order to trigger Search and Rescue events.
This well-known modus operandi compels the coastal State to act in accordance with
the ‘duty to render assistance at sea’
20 and transport migrants into Italian territory
pursuant to the existing provisions on the place of safety.
21
In addition, the Italian Court of Cassation argued that by endangering the lives of
migrants, smugglers create a ‘state of necessity’ which is clearly premeditated and
whose ultimate goal is to facilitate the entry of migrants into Italian territory under
the aegis of Search and Rescue operations.
22 Under such circumstances, the distress
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.
226
M. Fantinato
17 However, it is worth noting that
although participating in an international operation under the aegis of a European
agency, Member States always retain primary responsibility for the management of
their sections of the external sea borders.
18
This improved capacity at sea has led Member States to perform maritime
interceptions farther away from their territorial seas while adjusting their modus
operandi during law enforcement operations to apprehend migrant smugglers on the
high seas. In fact, over the last few years, disproportionate migratory pressures
across the Mediterranean Sea have brought about a significant increase in the
number of interception operations of migrant boats on the high seas. These events
clearly highlighted the need for law enforcement and judicial authorities to take
effective measures to secure the arrest of smugglers apprehended on the high seas
from an operational and legal perspective.
Therefore, in an effort to tackle transnational criminal organisations, during the
last 5 years, Italy has confirmed a trend to exercise both enforcement and adjudicative jurisdiction on the high seas.
19 In the context of Frontex operations carried out in
Sicily and Apulia, Italian border police and the Italian Courts have gradually
succeeded in extending criminal jurisdiction on the high seas through an extensive
interpretation of the existing national and international legal frameworks. This legal
approach found its application also in respect of those smugglers that endangered the
lives of migrants at sea by exploiting Search and Rescue operations performed by the
coast guard, border police and non-governmental organisations (NGOs) to transport
migrants into the Italian territory.
During operations that occurred outside the Italian Search and Rescue region, the
judge confirmed the possibility of claiming jurisdiction over the smugglers arrested
on the high seas. In particular, the Italian Court of Cassation held that smugglers
systematically use unseaworthy boats in order to trigger Search and Rescue events.
This well-known modus operandi compels the coastal State to act in accordance with
the ‘duty to render assistance at sea’
20 and transport migrants into Italian territory
pursuant to the existing provisions on the place of safety.
21
In addition, the Italian Court of Cassation argued that by endangering the lives of
migrants, smugglers create a ‘state of necessity’ which is clearly premeditated and
whose ultimate goal is to facilitate the entry of migrants into Italian territory under
the aegis of Search and Rescue operations.
22 Under such circumstances, the distress
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.
226
M. Fantinato