On 15 August 2015, the Command of the Italian Navy in charge of controlling migratory flows in the Mediterranean Sea received a warning regarding a 13 metre-long wooden boat, not sailing under any flag, and without any safety measures on board. The Italian military vessel Cigala Fulgosi intervened at 135 nm off the coast of the Sicilian city of Lampedusa in the SAR (Search and Rescue) area falling within the competence of the Libyan maritime authority. The boat had over 300 people on board, was overcrowded, and was taking on water. The passengers were rescued by the Italian Navy. Shortly after the rescue, the boat sank. The dead bodies of 49 people were found in the hold of the boat, as a result of the terrible and degrading conditions that the migrants were forced to live in by their human traffickers. In June 2020, the Criminal Court of second instance (Corte di Assise d'appello) of Catania confirmed the judgment of the Criminal Court of first instance, establishing criminal liability for homicide in respect of four Libyan nationals and one Moroccan national. They then challenged the decision, appealing in cassation.

Held: the appeal in cassation is dismissed.

The Court ascertains the exercise of Italian jurisdiction over the allegations of illegal immigration and homicides occurring on the high seas and in international waters. With regard to illegal immigration, the Court recalls previous cases where it ruled in favour of the legitimacy of Italian jurisdiction, based on art 110 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), where Stateless ships were involved.

As to the crimes of homicide, the Court notes that Italian law provides for obligations to rescue and protect migrants, and expressly provides for the Italian authorities, like those of other States, to exercise particularly penetrating coercive powers precisely in the event that the ship is on the high seas and has no flag. The enforcement and boarding powers performed by the Italian military vessels in the high seas derive their justification and legitimacy from several provisions of UNCLOS. Within Pt VII dedicated to the high seas, art 98 of UNCLOS provides, among other things, the duties to render assistance to any person found at sea in danger of being lost, and to rescue persons in a situation of distress. Furthermore, art 110.1.d of UNCLOS, together with art 91 of UNCLOS, allows the boarding of ships without a flag, such as the one dealt with in this case, carrying illegal migrants in the Mediterranean Sea.

Article 110.1.d of UNCLOS establishes that a warship which encounters a foreign ship on the high seas is not justified in boarding it unless there is a reasonable ground for suspecting that the ship is without nationality.

Article 91 of UNCLOS provides that '[e]very State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship'.

As recalled by the Grand Chamber of the CJEU in The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) v Secretary of State for Transport, Case C-308/06, ECR 2008 I-04057, ECLI:EU:C:2008:312, UNCLOS establishes the legal regimes of the territorial sea (arts 2-33), the waters of straits used for international navigation (arts 34-45), the archipelagic waters (arts 46-54), the exclusive economic zone (arts 55-75), the continental shelf (arts 76-85), and the high seas (arts 86-120). For all these maritime zones, the Convention aims to establish a fair balance between the theoretically conflicting interests of States in their capacity as coastal States and the interests of States in their capacity as flag States; to this end the Contracting Parties have agreed to establish material and territorial limits of their respective sovereign rights (see in particular arts 2, 33, 34.2, 56 and 89 of UNCLOS).

By contrast, individuals do not enjoy, in principle, autonomous rights and freedoms under the Convention. They can enjoy the freedom of navigation only in so far as they establish between their ship and a State that attributes its nationality to it, thus becoming its flag State, a close legal and factual relationship: a relationship that is rigorously constituted pursuant to the national law of the flag State (art 91 of UNCLOS specifies that the relevant State establishes the conditions governing the concession to vessels of its nationality, the registration of vessels in its territory, and the right to fly its flag) and an effective link (further requirements in this regard are dictated by arts 91 and 92).

Thus, when a ship is not traceable to a State, that ship, and the persons on board, do not enjoy the right to freedom of navigation at all. So much so that, precisely because of this legal situation, the aforementioned Convention provides, in particular, in art 110.1, that a warship encountering a foreign ship on the high seas may legitimately board it if there are reasonable grounds for suspecting that the ship is without nationality.

It should be noted, moreover, that the freedom of navigation on the high seas that derives from UNCLOS depends exclusively on the flag State and its adherence to the mutual recognition and limitation agreement of the respective sovereignties, not on the fact that the ship belongs to certain natural or legal persons.

If there is no nationality attributable to the vessel in question, as in this case, the right to freedom of navigation on the high seas cannot be invoked, thus enabling the intervention of the Italian authorities.