In February 2021, the Administrative Court of the Region of Campania (TAR Campania) assessed a case concerning the claim of members of the Italian armed forces against the Italian Ministry of Economy and Finance, and the General Command of Guardia di Finanza (GF), to pay their salaries according to the remuneration scale for the performance of military missions abroad.

The basis for the claims was that between May 2009 and February 2010 the Italian Government gave to the Libyan authorities six 'Bigliani' class patrol boats, fulfilling the Treaty of Friendship, Partnership, and Co-operation signed in 2008 by Italy and Libya. However, after a guerrilla attack, two of the six vessels were completely destroyed, while the remaining four were seriously damaged. In August 2013, the damaged ships were taken to Naples for renovation and refurbishment, with the claimants in charge of making the ships efficient again and acting as armed surveillance on board.

The claimants asked that their right to receive the salary treatment of a mission abroad be established by virtue of the fact that the ships on which they served were Libyan ships (they flew the flag of that State) and the fact that that the relevant legal regulations had expressly allocated funds for the mission in Libya, also including activity that consisted of the maintenance of the Italian ships sold to Libya. This allocation of funds, according to the claimants' perspective, was also to be considered aimed at the payment of emoluments in favour of the military personnel assigned to those boats.

Held: The claims are dismissed.

The renovation and refurbishment activities took place in Italy. Article 29 of UNCLOS defines 'warships' as follows:

For the purposes of this Convention, 'warship' means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.

Article 92 of UNCLOS provides for the exclusive jurisdiction of the flag State on the high seas: 'Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.'

However, at the time when the claimants were performing their repair activities, the Libyan ships were immobile in Italian waters, and were not under the command of any Libyan official. They cannot be considered foreign territory on the sole basis that they were flying the Libyan flag and were registered in that country.