the jurisdiction was applied in accordance with the Italian penal code with respect to
those crimes committed outside national territory,
32 the interception and boarding of
the ship did not comply with international legal framework, thus invalidating the
enforcement measures taken by the coastal State at domestic level.
In fact, this operational approach seems to collide with the legal provisions
enshrined in the UNCLOS (‘right of visit’ and ‘right of hot pursuit’) and the
safeguards ensuring the exclusive flag State jurisdiction on the high seas included
also in the Protocol against the Smuggling of Migrants by Land, Sea and Air
(‘Measures against the smuggling of migrants by sea’).
33 Besides, although these
foreign ships intercepted on the high seas were flying the flags of States which are
not parties to the UNCLOS (USA and Turkey), the enforcement measures taken by
border police at sea do not justify this controversial modus operandi which could
open a path towards a gradual erosion of the principle of exclusive flag State
jurisdiction on the high seas. In this regard, recently the Court of Cassation remarked
that in the absence of a ‘distress call’ or a ‘hot pursuit’, the Italian jurisdiction cannot
be extended over a foreign ship navigating on the high seas, with particular reference
to those flag States that have not ratified the UNCLOS.
34
6 Accountability and Responsibility During Frontex Joint
Operations
Although the above-mentioned practices are often carried out under the aegis of
Frontex joint operations, it is worth noting that participating States remain primarily
responsible for any behaviour of their agents contravening international law provisions as established by the principle of responsibility of States.
35 Moreover, in
terms of accountability, Frontex regulation expressly provides that the host Member
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-mareil-veliero-che-ha-lasciato-a-vendicari-21-profughi.html and at http://www.siracusanews.it/siracusaimmigrazione-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.
230
M. Fantinato
those crimes committed outside national territory,
32 the interception and boarding of
the ship did not comply with international legal framework, thus invalidating the
enforcement measures taken by the coastal State at domestic level.
In fact, this operational approach seems to collide with the legal provisions
enshrined in the UNCLOS (‘right of visit’ and ‘right of hot pursuit’) and the
safeguards ensuring the exclusive flag State jurisdiction on the high seas included
also in the Protocol against the Smuggling of Migrants by Land, Sea and Air
(‘Measures against the smuggling of migrants by sea’).
33 Besides, although these
foreign ships intercepted on the high seas were flying the flags of States which are
not parties to the UNCLOS (USA and Turkey), the enforcement measures taken by
border police at sea do not justify this controversial modus operandi which could
open a path towards a gradual erosion of the principle of exclusive flag State
jurisdiction on the high seas. In this regard, recently the Court of Cassation remarked
that in the absence of a ‘distress call’ or a ‘hot pursuit’, the Italian jurisdiction cannot
be extended over a foreign ship navigating on the high seas, with particular reference
to those flag States that have not ratified the UNCLOS.
34
6 Accountability and Responsibility During Frontex Joint
Operations
Although the above-mentioned practices are often carried out under the aegis of
Frontex joint operations, it is worth noting that participating States remain primarily
responsible for any behaviour of their agents contravening international law provisions as established by the principle of responsibility of States.
35 Moreover, in
terms of accountability, Frontex regulation expressly provides that the host Member
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-mareil-veliero-che-ha-lasciato-a-vendicari-21-profughi.html and at http://www.siracusanews.it/siracusaimmigrazione-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.
230
M. Fantinato