The Principle of Non-Refoulement at Sea and Its Implications for Rescue Operations: The Corte di Cassazione's Judgment in the Vos Thalassa Case

On 26 April 2022, the Corte di Cassazione published its decision relating to the socalled Vos Thalassa case, whereby it overturned the Corte d’appello’s judgment and acknowledged that migrants rescued at sea, who forcibly oppose their return to a place where they would face the risk of being subjected to torture or other ill-treatment, could avail themselves of self-defence as per Article 52 of the Italian Criminal Code. From an international law standpoint, the judgment is relevant for at least two reasons. First, it seemingly reiterated, at least prima facie, that Italian judicial practice had integrated the protection of human rights – and more specifically, the non-refoulement principle – in the very notion of a place of safety, provided for in law of the sea treaties. Second, it conferred jus cogens status on the principle of non-refoulement as a result of it being a component of the norm outlawing torture and other ill-treatment. This article places the Corte di Cassazione’s conclusions concerning these two aspects within the broader debate on the meaning of the notion of a place of safety and the jus cogens nature of the non-refoulement principle. In particular, it is concluded that in both cases, the Corte’s findings, while significant, raise doubts as to their consistency within the relevant international legal framework and would have benefitted from a more-in depth analysis.