From life-saver to pirate – The case of the Aquarius

Twitter SOSMedFrance / Maud Veith

Maritime lawyer Ann Fenech explained that when a vessel is struck off the country’s register in legal terms, the vessel becomes a veritable pirate ship. It stops being entitled to fly the flag of that country and cannot travel the ocean unless it is answerable to a jurisdiction.

Fenech was contacted in relation to the case of Aquarius 2 by to understand better what it means to strike off a vessel and revoke its registration. Fenech explained that, objectively speaking, a vessel is obliged to be within the jurisdiction of a state, meaning a vessel is obliged to be registered and fly a country’s flag. Speaking about Aquarius 2, she explained that given they are at sea they should put into port until their situation is regularised. Such regularisation would mean registering in another jurisdiction, under a new flag, a country’s register which would be prepared to register the vessel under their flag.

Fenech spoke of the possible awkward situation in which Aquarius 2 might find itself given its registration has been withdrawn. She said that once its registration has been withdrawn it cannot sail the seas and cannot travel unless the vessel is registered somewhere. She explained that when a vessel is at sea without a flag would certainly be in breach of maritime law.

When asked if the vessel could be liable to criminal action, Fenech explained that whether or not the offence concerned is a crime, would be entirely dependent on the law of the country which the vessel is present or which it finds itself in its territorial seas. Fenech explained that criminal law is very territorial and would be difficult to generalise, saying that it would entirely dependent on what the criminal law of the country states.

After rescuing 47 people on Sunday the Libyan Coast Guard patrol boat ordered Aquarius to leave the Libyan Search and Rescue Region. Earlier, Aquarius had rescued 11 people at sea.

Aquarius 2 is a vessel chartered by SOS MEDITERRANEE and operates in partnership with Doctors Without Borders (MSF). It was previously known as Aquarius however following the rescuing of 141 people who were brought to Malta after an ad hoc agreement was reached, Aquarius was stripped off its Gibraltar registration. The registration was officially revoked on August 20. Aquarius had spent 19 days docked in the port of Marseille.

The Italian authorities complained to their Panamanian counterparts saying that the Aquarius’s captain had “refused to return migrants and refugees back to their point of origin”. The Aquarius has been banned from Italian ports since June. Malta refused to offer a port of safety saying that it was not the competent authority to do that.

SOS MEDITERRANEE is a European association with teams in Germany, France, Italy and Switzerland. It has been in continuous operation since February 2016 in international waters with Italy and Libya. More than 29,000 people have been rescued aboard the Aquarius.