In September 2017, the Palermo Court of Appeal confirmed the first instance judgment of the Tribunal of Palermo concerning a case of traffic of narcotic substances carried on the M/V Ouzu II, establishing the criminal liability of the three defendants, who recurred to the Court of Cassation against this decision.

In the defendants' view, Italy could not exercise jurisdiction over the case, given that the relevant ship enjoyed Libyan nationality and the event occurred beyond Italian boundaries. Moreover, the previous decisions by the Italian courts constituted a breach of art 92 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), which provides for the exclusive jurisdiction of the flag State on the high seas for its own public and private vessels. More than that, the case did not fall within the exceptions to the freedom of navigation in the high seas considered by the Convention, such as piracy (arts 100-107), the right of hot pursuit (art 111), or unauthorised broadcasting from the high seas (art 109).

The fact that the Italian authorities (the Guardia di Finanza (GF)) carried out a flag investigation because the ship did not hoist its flag at the time of detention did not mean that they exercised a right of visit according to art 110 of UNCLOS, and this would not be capable of establishing the jurisdiction of the Italian courts. Furthermore, the fact that, during the check, the documents relating to the nationality of the vessel were shown in copies and not in the original, so as not to allow their authenticity to be ascertained with certainty, was the only factor that could make the subsequent exercise of the right to visit 'legitimate' under art 110. But, once the ship's nationality was ascertained, the adoption of any measures against the ship and crew and the exercise of jurisdiction by the Italian authorities should have been authorised by the flag State, Libya.

Held: The appeal in cassation is dismissed.

There is no legal basis for the appellants' claims of lack of jurisdiction. The intervention by the GF took place in a portion of the high seas adjacent to Italian waters and targeted a vessel without a flag. Therefore, the GF was allowed to adopt enforcement measures against this ship, by virtue of domestic law and in conformity with international law.

The exercise of the right of visit by the GF was legitimate. Neither the on-board inspections, nor the documents provided by the master clarified the nationality of the M/V Ouzu II. The identification of the nationality of the vessel occurred only later in the port of Palermo, the same place where the remaining part of the load of narcotic substances was discovered inside the ship. It is therefore undeniable that this episode, which took place within Italian territory, determines the basis of the Italian courts' competence. There may be no objection to the legitimacy of the right of access exercised on a ship without a flag.