The waters of the Sahara, the main obstacle to a delimitation agreement between Spain and Morocco

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The working group to delimit the waters between the two countries will meet in the coming days

MADRID, May 1. (EUROPE PRESS) –

Spain and Morocco are going to meet in the next few days the commission for the delimitation of their territorial waters on the Atlantic coast, one of the agreements reached during the visit of the President of the Government, Pedro Sánchez, to Rabat on July 7. Both countries thus seek to resolve one of the pending issues but they have before them a complicated obstacle, the waters of Western Sahara.

The need to delimit territorial waters became more pressing as a result of the fact that Morocco approved two laws in early 2020 by which it proceeded to delimit its territorial sea up to 12 nautical miles and the exclusive economic zone (EEZ) of 200 nautical miles, as well as its continental shelf, “to the outer edge
continental margin or up to 200 miles”.

Both texts collided with the delimitation of Spanish territorial waters in the Canary Islands, although up to now these laws have not been applied, due to the lack of a regulation for their execution. In any case, already then the Spanish Government assured that the two countries wanted to resolve the issue by mutual agreement and in accordance with the UN Convention on the Law of the Sea.

The joint declaration after the meeting in Rabat between Sánchez and Mohamed VI comes to put said will black on white. It announces that “the working group on the delimitation of maritime spaces on the Atlantic façade will be reactivated with the aim of achieving concrete progress”.

This week, the Minister of Foreign Affairs, José Manuel Albares, confirmed in the Senate that this working group, created in 2001 and which has not met for 15 years, will hold its first meeting in the coming days and assured that the Canary Islands will be able to participate in the process, given the particular interest that this region has in the outcome of the negotiation.

WILL THE WATERS OF THE SAHARA BE INCLUDED?

What Albares did not clarify, as a senator had asked him, is whether the waters of Western Sahara are also included in these discussions, which Morocco considers as its own although the General Court of the EU already warned it last September in a historic ruling of that this was not the case, by overthrowing the fishing agreement between the bloc and the kingdom. This ruling, however, has been appealed.

“Spain cannot negotiate a treaty with Morocco that includes the territorial waters of the Sahara because it would be violating International Law, since it is a non-autonomous territory,” Juan Francisto Soroeta, professor of Public International Law and International Relations, warns Europa Press. at the UPV.

In his opinion, “it is unthinkable that Spain negotiates a treaty of these characteristics with Morocco” despite the fact that the Government has said that the Moroccan autonomy plan for the Sahara is “the most solid, realistic and credible basis” to resolve this dispute. The letter in which Sánchez conveyed this position of the Government “has no legal consequences”, emphasizes Soroeta.

With this, he notes, the status of the territory is not changed. In this sense, he underlines that Spain has not gone as far as the United States did with Donald Trump in recognizing the Moroccan nature of the Sahara. “That decision was also a toast to the sun since it does not have any legal consequences either” and therefore the Sahara continues to be a territory to be decolonized.

If Spain reaches an agreement with Morocco on the delimitation of territorial waters in which the former colony is included, “it would be prosecutable before international courts”, insists the UPV professor, who is therefore convinced that the Government will not will go so far.

“Another thing is that it negotiates its maritime borders with Morocco, excluding the jurisdictional waters of Western Sahara from the negotiation,” he stresses, showing his doubts that Morocco will agree to leave out waters that it considers its own.

NEGOTIATION PROCESS

Leaving the Sahara aside, the negotiations for the delimitation of territorial waters are not always easy. The Geneva Convention on the Territorial Sea and Contiguous Zone, of 1958, contemplated the possibility of settling differences by means of an agreement or, in the absence thereof, opting for equidistance when delimiting them.

However, with the 1982 United Nations Convention on the Law of the Sea, to which both Spain and Morocco are party, this second option is suppressed, leaving only the possibility of agreement or non-delimitation of the waters, as occurs in these times between the two countries.

That agreement is what the working group of Spain and Morocco will try to find now. If it is not possible to achieve it, they could explore other ways, such as a diplomatic, non-binding solution, and seek, for example, a figure that would act as a mediator, although it is not something frequent, the professor of International Public Law Elena Conde, of the UCM.

This solution “is not legally binding” so that “no legal obligations derive from it, unless what has been agreed upon culminates in the approval of an international treaty,” he specifies.

The most normal thing before a controversy of this type is to go to arbitration. There are also different options here, from an arbitral tribunal or a figure chosen by the parties to seek a solution, through the International Court of the Law of the Sea, created by virtue of the aforementioned Convention and whose mission is precisely to settle this type of dispute, and reaching the International Court of Justice (ICJ), in charge of resolving disputes between states.

The key in the case of arbitration, Soroeta emphasizes, is that when it is resorted to, the two parties must agree that “they will abide by the solution that is issued.” “Here the solution is law, a legal norm, so if it is not complied with there is an international responsibility”, points out the UCM professor, who stresses that “in most cases of delimitation processes they end in a treaty or a legally binding decision.

MOROCCO PROSPECTIONS

On the other hand, the debate on the delimitation of the waters has been accompanied by the controversy caused by Morocco’s plans to carry out hydrocarbon prospecting off its coasts and near Lanzarote and Fuerteventura, which has generated criticism and concern in Canary Islands.

In this regard, Albares has assured that the Government will watch over the interests of the archipelago and that he follows this issue day by day and for the moment the data that there is is that the prospecting is in Moroccan territorial waters. Regarding the fear of the Canary Islands due to the environmental impact that this may have on the islands, the minister has indicated that it is one of the issues that the working group can deal with.

However, Conde does not believe that there is much the government can do on this issue. “Morocco can do what it wants a priori, within the provisions of the Convention on the Law of the Sea, on its continental shelf and its Economic Exclusion Zone (EEZ) although with some limits and depending on the obligations it has assumed internationally, especially in relation to the protection of the environment”, explains the UCM professor.

If during the prospecting “a spill or an accident occurs, there are possibilities of satisfaction and compensation”, acknowledges the expert in International Law, but warns that in general these depend “on the agreements that the companies that do the prospecting make with the insurers and the States that grant the permits”.

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