José A. de Yturriaga Ph-D.
Ambassador of Spain
Yesterday’s and today’s newspapers contain somewhat alarming headlines about the alleged approval by the Moroccan Parliament of a couple of draft laws that would expand the limits of Morocco’s jurisdictional waters, including those of the Western Sahara to the detriment of the Canaries: “Morocco approves the extension of its maritime border towards the Canaries” and “Spain avoids conflict with Morocco and opts for dialogue to delimit the waters which affect the Canaries” ( ABC), “Spain rejects changes to the maritime border with Morocco” and “Spain and Morocco clash over the control of their maritime border” ( El Mundo), “Morocco launches a fight with Spain over the control of the waters near the Canaries” ( El Pais), “Morocco votes today on two laws to delimit its maritime border with Spain and Mauritania” and “Spain and Morocco reject a unilateral maritime demarcation” ( La Vanguardia), “Parties close ranks to defend the waters of the Canaries against Morocco” and “The Polisario charges against Morocco after fixing its maritime borders and speaks of the failure of Spain” ( La Provincia)…
This news are confusing and inaccurate. What has actually happened is that the House of Representatives of the Parliament yesterday approved two bills on the amendment of the 1973 Dahir which set the outer limit of the territorial sea and the fishing zone of Morocco, and of the 1982 Dahir by which the Alaouite kingdom established a 200-mile EEZ. The bills still have to be approved by the Chamber of Councillors or Senate, sanctioned by King Mohamed VI and the laws adopted published in the Moroccan BOE. It is too early to be alarmed because – although it is not foreseeable given the political will expressed by the Moroccan government- it could be the case that the texts are amended in, or not accepted by, the upper house and that- even if they are- they are not sanctioned by King Mohamed VI. It is therefore a storm in a cup of Moorish tea, which in no way reaches the level of Glory’.
However, the President of the Junta of the Canaries, Ángel Víctor Torres, has affirmed – full of regional patriotic ardour – that his Community will not cede a single millimetre of Canarian waters to another country, and the Senator for the Canarian Coalition, Fernando Clavijo, has asked the government of the nation to present a complaint to the UN about the appropriation by Morocco of waters which do not belong to it and which fully affect the Canaries and Western Sahara. The Spanish Chancellor – or should I say “Chancellor”, Madam Vice President of the Government – Arancha González Laya, had to go out of her way to calm the Canaries and stated on a twitter that the delimitation of the marine areas between Spain and Morocco – which has yet to be fixed – cannot be done unilaterally, but by mutual agreement between the parties and in accordance with international law in force. The Moroccan Minister of Foreign Affairs, Nasser Burita, said, for his part, that his country has no intention of imposing a fait accompli and that Spain is not only a neighbour, but also a strategic partner and trusted ally. González Laya has made her first trip abroad to Rabat as Minister -which was scheduled prior to the alleged Spanish-Moroccan crisis- and, together with her colleague Burita, has tried to de-dramatize the situation.
Although I am not familiar with the text of the two bills passed by the House of Representatives, I sense that they imply two things: on the one hand, the establishment on the coast of Western Sahara of a 12-mile territorial sea of a 200-mile EEZ and a continental shelf of up to 350 miles; on the other, the extension to 350 miles of the outer limit of Morocco’s continental shelf. Tyrants and Trojans confuse two issues that are closely linked but different: the unilateral establishment of the marine spaces of a State, and the delimitation of marine spaces with adjacent or opposite neighbouring States, which must necessarily be done by a bilateral act.
Establishment by Morocco of the marine areas of Western Sahara
One of the main objectives – if not the main one – of the Moroccan parliamentary initiative has been to establish the limits of the marine areas of Western Sahara, to record that it is part of Morocco and can therefore legislate on the territory. This is clear from Burita’s statement that these laws will make it possible to fill the legislative gap which characterises the national legal arsenal concerning marine spaces and to confirm the internal sovereignty of Morocco over its territorial waters, “from Tangiers to La Guerre”. The aforementioned Dahirs established the southern limit of the Kingdom below the town of Tarfaya, by which Saharan waters were included within the Moroccan fishing zone. With this extension of the southern limit to La Güera, situated on the border with Mauritania, the waters of Western Sahara are incorporated into the waters of Morocco. As Burita pointed out, Morocco holds on to its sovereignty and any dialogue on the subject must be placed “within the framework of Morocco’s strategic rights”.
However, it is abundantly clear that, in establishing the limits of Saharan marine spaces, Morocco has acted “ultra vires” and usurped powers that do not correspond to it. As the UN General Assembly has affirmed – especially in its resolution 34/27 of 1979 – Morocco is not the administering power of Western Sahara, it has deplored the continuation of its persistent illegal occupation of the territory and called for an end to it. This assertion has been established at the legal level by the Court of Justice of the European Union in several of its decisions. Thus, in its judgment of 27 February 2018, the Court stated that the territory of Western Sahara was not included in the territory of Morocco and, consequently, the waters adjacent to it were not included in the Moroccan fishing zone, nor could they be considered as “waters under the sovereignty or jurisdiction of Morocco”. In the order of 19 July of the same year, the CJEU added that the geographical area over which Morocco exercised its full jurisdiction did not include Western Sahara, and that its inclusion in the scope of the fisheries agreement with the European Union therefore infringed the rules of international law.
If Morocco did not exercise sovereignty over Western Sahara, it would be difficult for it to unilaterally establish the marine areas of that territory. Its decision cannot be accepted by the UN and, in particular, by its Commission on the Limits of the Continental Shelf. Will the government of Pedro Sánchez dare to condemn this action by the Moroccan Parliament, which is contrary to international law, regardless of the impact it may have on the delimitation between Morocco and the Canary Islands? I am afraid the answer will be no.
The Polisario Front, of course, has strongly criticised the decision of the Moroccan House of Representatives. The head of the Foreign Relations of the Front, Mahmoud Jadad, has pointed out that the act is taking place in the context of the desperate campaign that Morocco is carrying out to legitimise its illegal occupation of parts of Western Sahara. The Saharawi leader has pointed out that this is an illegal appropriation of the natural resources that belong to the Saharawi people, and launched a torpedo on the waterline of the Spanish nation’s ship, stating that this is a direct consequence of Spain’s failure as a power to administer the territory, since it has not fulfilled its legal and historical responsibility to decolonize it.
Extension of the outer limit of Morocco’s continental shelf
According to Burita, Morocco has the right to “delimit” its marine spaces in accordance with international law, as Spain did in 2006 when it requested the extension of its continental shelf in the Cantabrian Sea – together with France, Great Britain and Ireland – and received the corresponding authorization from the Commission on the Limits of the Continental Shelf. The Minister made the mistake – whether out of ignorance or inadvertence – of confusing “delimit” with “establish”. I assume that what he meant was that Morocco had the right to establish its marine spaces, and that it intended to do so in accordance with the 1982 Montego-Bay Convention on the Law of the Sea. In fact, the Moroccan Government has started to prepare the necessary documentation to be sent to the United Nations in order to scientifically justify its request.
Indeed, Morocco has the perfect right to extend the outer limit of the continental shelf of its territory to 350 miles, but not the continental shelf of the Western Sahara. In any case, it cannot do so unilaterally, but bilaterally, since it will need the approval of the aforementioned United Nations Commission. As in the case of the Bay of Biscay, the Spanish Government has presented similar requests in Galicia and the Canary Islands. The request for the Canary Islands was submitted in 2014 and is still pending a decision by the Commission. Spain argued during the submission that its claim was not subject to any dispute with one or more other coastal States, nor did it prejudge issues relating to the establishment of boundaries between neighbouring States. It should be borne in mind that the Limites Commission attributes but does not delimit marine areas, which is a matter for States. In an initial draft, the Spanish delegation mentioned Western Sahara verbatim, but in the end it merely referred to the rights that third parties might have, which could be taken into account when there was a State in the area with which to negotiate and the Spanish Government would then hold the corresponding negotiation. Morocco objected to the Spanish request in 2015 and stated that it rejected any act designed unilaterally to delimit the continental shelf that might adversely affect its rights and interests.
Thus, Morocco had the right to request the Boundary Commission for authorization to extend its continental shelf up to 350 miles on the Atlantic coast, above the former border with Western Sahara. Below this border line, south of Tarfaya, Morocco has no such right.
Delimitation of marine areas between Spain and Morocco
The problems of delimitation of marine spaces between Spain and Morocco are not a consequence of the decision recently taken by the Moroccan House of Representatives, but come from “longa data”. In relation to the territorial sea, there is no problem because – according to Article 15 of the Montego-Bay Convention – when the coasts of two States are adjacent or face each other, neither of them will have the right – unless otherwise agreed – to extend their territorial sea beyond the equidistance line. Even before Spain and Morocco had become parties to the Convention, the issue had been resolved by the Spanish Law on the Territorial Sea of 1977 and the Moroccan dahir of 1973, which set the outer limit of the territorial waters. Consequently, although no ad hoc agreement had been concluded, the border between Spain and Morocco in the Strait of Gibraltar was the equidistance line.
More problematic has been the delimitation of the EEZ and the continental shelf between Morocco and Spain in the Atlantic Ocean, due to the lack of a clear and precise rule in the Montego-Bay Convention. The issue of the delimitation of the EEZ and the continental shelf was perhaps the most contentious point at the Third United Nations Conference on the Law of the Sea and was not resolved until the last minute. There were two radically opposed interest groups: the “equidistant” and the “equitable”, respectively led by the delegates from Spain and Ireland. Morocco was part of the second group, which rejected the criterion of equidistance and advocated the application of “equitable principles”, replacing the objective and geometric criterion of equidistance with the subjective and philosophical criterion of equity. In the end, agreement was reached on a vague and imprecise formula, which, although it did not solve the problem, made it possible to reach a consensus and save the success of the Conference.
According to articles 74 and 83 of the Convention on the Law of the Sea, the delimitation of the EEZ and the continental shelf between States with adjacent or opposite coasts would be effected by agreement between them on the basis of international law, in order to reach an equitable solution. If agreement is not reached within a reasonable period of time, the States concerned would have to resort to the dispute settlement procedures provided for in the Convention and, in the meantime, they should endeavour to conclude practical interim arrangements.
Spain and Morocco have conducted pre-negotiations for the delimitation of the EEZ and the continental shelf between the Moroccan coast and the Canary Islands, but soon reached an impasse in the face of the radical disparity of positions present. Despite the assertion in the Convention that the islands have the right to the same marine spaces as other land areas, Morocco has maintained that it is not “equitable” for the Canary Islands to have the same rights as the Moroccan coast, given the difference in extension between the islands and the continental mass. In practice, the equidistance line has been respected as a border, except in some specific cases where prospecting has been authorized in waters beyond the middle or equidistance line, which led to the submission of the corresponding notes of protest by the injured party.
Minister Burita stated that international law provides for dialogue in the event of overlapping maritime areas and that this dialogue – which is in the Moroccan DNA – will be the basis for any settlement. Morocco remains open to Spain, Portugal and Mauritania on any overlaps that may arise, especially with regard to the Canary Islands, through positive dialogue and collaboration.
Spain should accept the proposed dialogue concerning the delimitation between Morocco and the Canary Islands of the EEZ and the continental shelf up to 350 miles, but only from the actual Moroccan coast and not from the Saharan coast, over which the Alawite kingdom is neither an administrative power nor exercises sovereignty. In a parliamentary response given in 1988 in Congress, the Government of Felipe Gonzalez stated that the delimitation of Spanish waters from the Canary Islands affected Western Sahara, so that it was not possible to proceed with a stable and effective delimitation as long as the conflict that was ravaging that area had not been resolved and it was clear, once the Saharawi people had exercised their right to self-determination. Will the Pedro Sánchez Government maintain the correct line followed at the time by the Government of his “separated brother”, Felipe González, or will it give in once again and agree to negotiate with Morocco the delimitation of the marine spaces of Western Sahara? Spain, which – according to the United Nations – remains “de jure” the administrative power of Western Sahara, even if it recognises that it is not “de facto”, should refuse to do so and contribute to the failure of Moroccan expansionism into Saharan waters.
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