7 Concluding Remarks
Frontex joint operations at sea have promoted a securitisation approach of the EU
external sea borders in the Mediterranean through border surveillance activities that
extend well beyond territorial sea and contiguous zone of participating States.
46 In
this scenario, concepts like early-interception techniques and pre-frontier monitoring, which allowed Frontex to step up its reaction capabilities with respect to crossborder threats by sea, have certainly contributed to the phenomenon of “moving
borders” at sea.
47 Recently, these sea borders were displaced farther away from
territorial seas of participating coastal States, insofar as to lead to the externalisation
of border management towards unsafe third countries with which the EU has signed
bilateral agreements and negotiated capacity-building programmes (e.g. Turkey and
Libya).
48 However, as some scholars pointed out, this ‘de-territorialisation of border
control’ could have an impact on the applicable legal framework, with a particular
reference to the safeguards the individuals submitted to the border control activities
are entitled to, such as the right to asylum and the principle of non-refoulement.
49
Against this operational background, frontline Member States like Italy have
encouraged the interpretation of existing international law provisions through
“creeping jurisdiction” at sea. Under the technical coordination of Frontex, the
development of these maritime interception practices and legal advancements have
undoubtedly brought to an increase in the number of smugglers arrested in spaces
which would otherwise be subtracted from coastal States’ jurisdiction. Nevertheless,
these irregular migration cases always found their legal basis in the UNCLOS, either
through the application of the ‘right of hot pursuit’ from territorial sea and contiguous zone or based on the ‘right of visit’ with respect to those vessels without
nationality engaged in migrant smuggling on the high seas.
However, border police authorities have recently started to engage directly on the
high seas foreign ships suspected of having disembarked migrants onshore. This
trend could pose a serious challenge to the principle of the freedom of navigation on
the high seas. In fact, where no prior authorisation from the flag State is requested to
board, search and seize a foreign vessel presumably involved in migrant smuggling
on the high seas, this approach could certainly pave the way to adopting a similar
modus operandi for the prosecution of other cross-border crimes at sea.
Along this line of reasoning, a recent judgement of the Italian Court of Cassation
confirmed that Italy does not have any jurisdiction over those foreign ships suspected
of having disembarked migrants onshore and intercepted directly on the high seas,
unless it seeks for the assistance of the flag State in order to take any appropriate
measure with respect to those vessels.
50 Furthermore, during joint operations hosted
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.
13 Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and. . . 233
Frontex joint operations at sea have promoted a securitisation approach of the EU
external sea borders in the Mediterranean through border surveillance activities that
extend well beyond territorial sea and contiguous zone of participating States.
46 In
this scenario, concepts like early-interception techniques and pre-frontier monitoring, which allowed Frontex to step up its reaction capabilities with respect to crossborder threats by sea, have certainly contributed to the phenomenon of “moving
borders” at sea.
47 Recently, these sea borders were displaced farther away from
territorial seas of participating coastal States, insofar as to lead to the externalisation
of border management towards unsafe third countries with which the EU has signed
bilateral agreements and negotiated capacity-building programmes (e.g. Turkey and
Libya).
48 However, as some scholars pointed out, this ‘de-territorialisation of border
control’ could have an impact on the applicable legal framework, with a particular
reference to the safeguards the individuals submitted to the border control activities
are entitled to, such as the right to asylum and the principle of non-refoulement.
49
Against this operational background, frontline Member States like Italy have
encouraged the interpretation of existing international law provisions through
“creeping jurisdiction” at sea. Under the technical coordination of Frontex, the
development of these maritime interception practices and legal advancements have
undoubtedly brought to an increase in the number of smugglers arrested in spaces
which would otherwise be subtracted from coastal States’ jurisdiction. Nevertheless,
these irregular migration cases always found their legal basis in the UNCLOS, either
through the application of the ‘right of hot pursuit’ from territorial sea and contiguous zone or based on the ‘right of visit’ with respect to those vessels without
nationality engaged in migrant smuggling on the high seas.
However, border police authorities have recently started to engage directly on the
high seas foreign ships suspected of having disembarked migrants onshore. This
trend could pose a serious challenge to the principle of the freedom of navigation on
the high seas. In fact, where no prior authorisation from the flag State is requested to
board, search and seize a foreign vessel presumably involved in migrant smuggling
on the high seas, this approach could certainly pave the way to adopting a similar
modus operandi for the prosecution of other cross-border crimes at sea.
Along this line of reasoning, a recent judgement of the Italian Court of Cassation
confirmed that Italy does not have any jurisdiction over those foreign ships suspected
of having disembarked migrants onshore and intercepted directly on the high seas,
unless it seeks for the assistance of the flag State in order to take any appropriate
measure with respect to those vessels.
50 Furthermore, during joint operations hosted
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.
13 Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and. . . 233