Coastal states that have coastlines have a territorial sea that cannot extend beyond 12 nautical miles (22 km), an adjacent space for sanitary and tax purposes, and an exclusive economic zone (EEZ) that extends up to 200 miles (370 km). In this last demarcation, countries have the right to explore resources, manage them, and even prohibit third parties from any activity. When the EEZs of two neighboring countries intersect, the two territories, although unrelated, must negotiate. And this is what Spain and Morocco will be doing starting this week, as announced by the President of the Canary Islands, Ángel Victor Torres.
Between the easternmost point of the archipelago and Morocco is about 100 kilometers, so the ocean is not enough for one EEZ of both regions. Prior to this, the median criterion was used as a reference system. Grosso modo, it’s like a cake split in two because of a lack of agreement between those who claim it. A sort of equidistant line between Gran Tarajal and Juby in the Tarfaya corridor. The Spanish government and the Alawite kingdom did not discuss this issue for 15 years. Foreign Minister José Manuel Albarez confirmed that the islands would have a representative at the negotiating table.
There are those who might think that an imaginary straight line in the middle would suffice to demarcate the territorial waters. In this case, the principle of equidistance will apply. Until now, this has been done in this way, and that is why it has always been said that the maritime border between Morocco and the Canary Islands exists in fact, and not in law, regardless of the claims that each of them set forth. “Neither we can force them to accept our position, nor they us. We have to come to an agreement,” says Concepción Escobar Hernandez, professor of public international law at the National University of Distance Education (UNED) and member of the International Law Commission.
The problem is that Morocco is no longer interested in the principle of equidistance; now he wants to establish a rule of justice, which is not the same thing. This means that the line that divides the EEZ into two parts takes into account other aspects such as coastline length, population size or flooded surface. “By applying this rule, Morocco will comply with a larger proportion,” said Marta Iglesias Berlanga, professor of international law, ecclesiastical law and philosophy of law at the Complutense University of Madrid (UCM).
According to a study by Rafael García Pérez of the University of Santiago de Compostela (USC) entitled “The Canary Islands and the foreseen expansion of their continental shelf: the complex balance between Spain, Morocco and Western Sahara”, this “clear disparity” between the archipelago and the Moroccan state would lead to a ratio of 5.3 to 1 in favor of Morocco (between Capes Sim and Dakhla). “It is difficult for us to imagine the difficulties that future bilateral negotiations will face” on this issue, the article emphasizes. It remains to be seen whether the recent Copernican turn in Spanish foreign policy, which recognized Morocco’s position on Western Sahara, will reduce the claims of the neighboring country. Or if the Moroccan state’s constant search for oil multiplies its interests.
The backdrop to this main controversy is what is known as the “Treasure Island of the Canary Islands”, a Tropic mountain that is not even within the Spanish EEZ, but it can be confirmed as has been pointed out by the Geological and Mining Institute. Spain (IGME), which is an extension of the “grandmothers of the Canary Islands,” a chain of seamounts that will store vast amounts of strategic minerals for the ecological transition of the future, several expeditions have shown.
“The tropic is a point, a huge volcanic edifice in which British researchers discovered tellurium,” a rare but highly prized material for making solar panels, for example, argues José Mangas, professor of crystallography and mineralogy at the University of Las Palmas de Las Palmas. . Gran Canaria (ULPGC) and within the Institute of Oceanography and Global Change (IOCAG). Mangas has been studying the so-called rare earth elements, which have also been found in the rest of the seamounts around the islands, for about 30 years.
“The key concept is polymetallic manganese crusts,” the expert continues. “They contain cobalt, nickel, copper, rare earth elements… Components that are formed as a result of deep ocean currents. Every 1000 years, this causes a crust to form per millimeter. They have to spend thousands and thousands of years to form the crusts we see today.
Tropic is located about 250 nautical miles (about 460 kilometers) from the Canary Islands, outside the Spanish EEZ, in international waters. The seamount is part of the international seabed and ocean floor area, the common heritage of mankind administered by the International Seabed Authority (ISA), recalls Berlanga. In short, this means that Tropic does not belong to any state. And that if it is being exploited (the technology to do that hasn’t come along yet, and environmental groups are struggling to protect the place), it should be done according to what the ISA sets out.
In 2014, the national government submitted a request to the United Nations (UN) to expand its continental shelf, which could expand to 350 miles, and thus acquire the most coveted of all seamounts. In fact, Spain supported IGME’s arguments and defended that “the natural extension of the submarine continental mass in the western part of the Canary Islands extends beyond 200 nautical miles.”
In a presentation coordinated by IGME Deputy Director Luis Somoza, the state acknowledges that it will have to negotiate with Portugal to expand the platform to the north due to the presence of the Wild Islands, the Portuguese archipelago and south with “third party rights that can be claimed in due course ”, using a safeguard clause, given the uncertainty about the future of Western Sahara.
The Commission on the Limits of the Continental Shelf (CLCS) has not yet responded to Spain’s petition. Escobar says it’s a “very small” working group and there are a lot of presentations. The request from Spain ranks 77th, and the last recommendation issued as of 2019 was number 32 (March 2017). “The commission visits according to a scrupulous order of arrival. They have time left to tell us something,” adds Berlanga.
Before that “time” expires, Morocco can submit its own request to extend the continental shelf. Moreover, you don’t have much time if you want to do it. Expressing its agreement with the United Nations Convention on the Law of the Sea (UNCLOS), it had a deadline until 2017, but requested an exceptional five-year extension that ends in May 2022, a few weeks later.
For some reason, the Moroccan kingdom announced its intention to include the waters of Western Sahara in its application, mainly because otherwise it would not be able to expand its continental shelf (before it, the Canary Islands) and because in this way it would add salt to the wound of the people of the Sahara.
“These texts aim to include maritime space off the Sahara in the national legal arsenal in order to secure Morocco’s legal protection over these waters,” the Rabat Governing Council said on July 6, 2017. Three years later, in 2020, the Moroccan Upper House approved two maritime demarcation laws that directly affect the waters of the Canary Islands and the Sahara.
To date, all indications are that if the Alawite nation had submitted a request to the CLCS, they would have rejected it, remind international law experts consulted at the time of writing this article. “There is a risk that the lawsuit will be ignored, since the Sahara issue has not been resolved legally. Because the waters of the Sahara belong to the future state that can be built,” says Berlanga.
“The commission is not going to accept it. There is no doubt in the UN. Morocco also asked at the time to manage Western Saharan airspace and they said no, adds Juan Soroeta, a professor of public international law and international relations at the University of the Basque Country who has been dealing with the conflict for 30 years.
Two experts are contesting the latest decision of the Court of Justice of the European Union (CJEU), which annulled Morocco’s trade and fishing agreements with the EU in Saharan waters. For Soroeta, the Luxembourg court established jurisprudence in the dispute. For Berlanga, justice has made it clear that the Sahara is a people awaiting decolonization and that it has the right to hold a referendum on self-determination.
Both believe that discussion about this is inappropriate in the current scenario. “Spain will be able to negotiate with Morocco, but never at the moment when the latter presents the question of the waters of the Sahara,” explains Berlanga. “If they sign an agreement on this issue, they are violating international law. Legally, Spain could be in trouble,” Soroeta insists.
Despite this, Morocco has shown patience and a very good position in the Arab world, even counting on the support of the United States. The expansion of the continental shelf, including the waters of the Sahara, would run head-on against Spanish interests in Monte Tropic. In a hypothetical case, if the two countries move forward in their requests, they will be forced to negotiate again.
“It would be as if two neighbors were arguing the boundaries of two farms,” concludes Eloy Ruiloba, professor of public international law at the University of Malaga and author of one of the theses “Special circumstances and justice in the delimitation of maritime spaces.” “If there are economic interests, you will see how quickly they will agree,” not excluding the possibility of joint development of seamount resources by both countries.
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