5 Interception Practices During Frontex Operations
and Flag State Jurisdiction
Transnational criminal organisations involved in migrant smuggling by sea pay
close attention to operational activities performed in the maritime environment.
Over the years, criminal networks have adapted their behaviour to law enforcement
operations carried out in the Italian waters by trying to elude coastal State’s jurisdiction. This modus operandi stems from the well-known judgement on the
Kircaoglu and Sanaga case regarding the seizure of a Turkish ship intercepted in
waters beyond the Italian territorial sea.
27
In particular, this ship was suspected of smuggling people in violation of the
Italian law on immigration and its capture took place after the pursuit by a Guardia
di Finanza’s vessel. According to the Italian authorities, the hot pursuit commenced
when the Turkish ship was within the Italian contiguous zone. In this judgment, the
Court of Cassation addressed the issue of the coastal State’s jurisdiction over the acts
committed by a foreign vessel in the contiguous zone.
28 In this case, the Court
remarked that Italy does not have jurisdiction over acts committed within its
contiguous zone by ships flying the flag of a State which is not a contracting party
of the UNCLOS. Therefore, following this important sentence, transnational criminal organisations involved in migrant smuggling by sea started to use ships flying
Turkish or American flags because these two States did not ratify the UNCLOS.
Nevertheless, as already mentioned in the previous paragraphs, in an effort to
apprehend migrant smugglers, Italian authorities have been struggling to extend the
scope of their operations on the high seas under the aegis of Frontex joint operations.
Recently, however, these interception practices adopted by the Italian border police
with respect to foreign vessels on the high seas might challenge key principles of the
UNCLOS such as the ‘right of visit’, the ‘right of hot pursuit’ and the ‘exclusive flag
State jurisdiction’ on the high seas.
During the last couple of years, the Italian authorities have intercepted on the high
seas many foreign ships suspected of having disembarked migrants onshore both in
the southern Mediterranean coasts (Sicily) and in the Adriatic shores (Apulia). In
these instances, border police did not have the opportunity to chase these foreign
ships and therefore there was no hot pursuit that commenced either in the territorial
sea or in the contiguous zone. Notwithstanding, these foreign ships were engaged
directly on the high seas and were seized by border police authorities. These
enforcement measures were possible because during the verification of the ship’s
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.
228
M. Fantinato
and Flag State Jurisdiction
Transnational criminal organisations involved in migrant smuggling by sea pay
close attention to operational activities performed in the maritime environment.
Over the years, criminal networks have adapted their behaviour to law enforcement
operations carried out in the Italian waters by trying to elude coastal State’s jurisdiction. This modus operandi stems from the well-known judgement on the
Kircaoglu and Sanaga case regarding the seizure of a Turkish ship intercepted in
waters beyond the Italian territorial sea.
27
In particular, this ship was suspected of smuggling people in violation of the
Italian law on immigration and its capture took place after the pursuit by a Guardia
di Finanza’s vessel. According to the Italian authorities, the hot pursuit commenced
when the Turkish ship was within the Italian contiguous zone. In this judgment, the
Court of Cassation addressed the issue of the coastal State’s jurisdiction over the acts
committed by a foreign vessel in the contiguous zone.
28 In this case, the Court
remarked that Italy does not have jurisdiction over acts committed within its
contiguous zone by ships flying the flag of a State which is not a contracting party
of the UNCLOS. Therefore, following this important sentence, transnational criminal organisations involved in migrant smuggling by sea started to use ships flying
Turkish or American flags because these two States did not ratify the UNCLOS.
Nevertheless, as already mentioned in the previous paragraphs, in an effort to
apprehend migrant smugglers, Italian authorities have been struggling to extend the
scope of their operations on the high seas under the aegis of Frontex joint operations.
Recently, however, these interception practices adopted by the Italian border police
with respect to foreign vessels on the high seas might challenge key principles of the
UNCLOS such as the ‘right of visit’, the ‘right of hot pursuit’ and the ‘exclusive flag
State jurisdiction’ on the high seas.
During the last couple of years, the Italian authorities have intercepted on the high
seas many foreign ships suspected of having disembarked migrants onshore both in
the southern Mediterranean coasts (Sicily) and in the Adriatic shores (Apulia). In
these instances, border police did not have the opportunity to chase these foreign
ships and therefore there was no hot pursuit that commenced either in the territorial
sea or in the contiguous zone. Notwithstanding, these foreign ships were engaged
directly on the high seas and were seized by border police authorities. These
enforcement measures were possible because during the verification of the ship’s
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.
228
M. Fantinato