The Moroccan Parliament adopted two draft laws on Morocco’s maritime border off the Atlantic coast on January 22.
Rabat – The Moroccan Parliament adopted two draft laws on Morocco’s maritime border off the Atlantic coast on January 22.
The law concerned the maritime zone, off the coast of Morocco’s Western Sahara, a zone that overlaps with the waters off the Canary Islands, so the parliamentary move did not go unnoticed by Spain.
Ever since the Committee on Foreign Affairs, Islamic Affairs, and Moroccans Residing Abroad adopted the bill in mid-December 2019, both Spanish politicians and the media have decried Morocco’s decision and urged Madrid to prevent Rabat’s policy.
As usual, a veritable multitude of Spanish media outlets turned their anti-Morocco rhetoric on the issue, stridently calling the move a second fait accompli against Spain after the Green March in 1975 while General Franco was dying.
All the while, there has been no calm and objective debate in Spain on why Morocco chose to update its maritime laws.
For economic reasons—linked to the existence of large deposits of rich minerals such as cobalt and tellurium—Spain has always had one tentacle in the maritime area off the Moroccan coasts in the Atlantic. For several years, Spain even tried to extend its sovereignty over this area beyond 200 nautical miles.
Meanwhile, Morocco has played a restrained game, biding its time. While emphasizing the sovereign character of the Moroccan decision, Moroccan Minister of Foreign Affairs Nasser Bourita showed his predisposition to negotiate a fair solution with his Spanish counterpart, protecting the interests of the two countries.
Morocco rejects fait accompli
Contrary to the rantings of the Spanish media, the Moroccan decision seeks above all to signal to the Spanish government that there is no policy of fait accompli between the countries, and any delimitation of maritime areas should happen through negotiations based on the principle of equity.
By adopting the two laws, Morocco is only making up for the delay in updating its legal arsenal to align with the UN’s 1982 Convention on the Law of the Sea (UNCLOS) .
In addition, Morocco seeks to prevent Spain from making itself the sole party entitled to delimit the continental shelf between the Canary Islands and the Moroccan coast.
Although the UNCLOS stipulates that the delimitation of exclusive economic zones and continental shelves beyond 200 nautical miles between two coastal states whose coasts are adjacent or face each other should only happen after negotiations, Spain submitted a surprising request to the Commission for the Limits of the Continental Shelf (CLCS). The European country sought to claim exclusive sovereignty over the continental shelf, at the expense of Morocco.
According to Article 4 of Annex II to the UNCLOS, a coastal state that seeks to establish the outer limits of its continental shelf beyond 200 nautical miles must submit supporting data to the CLCS within 10 years of ratifying the convention.
In May 2009, Spain submitted its project to the CLCS. Then, in 2014, Madrid made a partial presentation of scientific data supporting its claims. Spain subsequently made its oral presentation to the 38th session of CLCS in New York in 2015.
In both presentations, Spain acted in bad faith, denying the existence of any dispute with a third party. Naturally, Morocco had a different opinion.
Both in 2009 and in 2015, Morocco sent verbal notes reminding the UN that the area Spain had laid claim to in fact overlaps with the Moroccan continental shelf, and that the two countries disputed the subject.
Meanwhile, Morocco, which had ratified the UNCLOS in 2007, was supposed to submit its scientific dossier before May 30, 2017. When the deadline expired, Morocco sent another verbal note to the United Nations Secretariat in June 2017, urging it to consider the preliminary information annexed to the July 29, 2015, verbal note as meeting UNCLOS’ requirements.
Morocco foils Spain’s plan
If Morocco had not sent the verbal note in extremis, it would have lost the right to claim the continental shelf. Rabat avoided the scenario by taking advantage of an UNCLOS provision allowing developing countries to submit only preliminary information to the CLCS concerning their continental shelves, while indicating the date by which they intend to submit their final dossier.
By submitting a preliminary dossier in 2017, Morocco thwarted the Spanish ploy, aiming to bypass Morocco and make Spain the only party entitled to claim the continental shelf in question.
As soon as Rabat rejected the Spanish move, Spain lost all chances of seeing the CLCS make recommendations in its favor.
Indeed, in accordance with paragraph 5 of Annex I to the rules of procedure of the CLCS, “In cases where there is a land or maritime dispute, the Commission does not examine and qualify any communication presented by one of the States affected by the dispute.”
The adoption of the new laws is the prelude to Morocco’s presentation of a dossier to the CLCS, which should take place before June 2022.
Because of the territorial dispute over the Western not Sahara, CLCS will undoubtedly reject the Moroccan request. However, Morocco’s main goal was not to obtain a favorable opinion from the CLCS. It was, rather, to cause the commission to reject the Spanish request because of the existence of a dispute, so thwarting Spain’s move to lay claim to the zone by sidelining Morocco.
By adopting the new laws, Morocco is not seeking to impose a fait accompli on Spain, but to prevent Madrid from encroaching on its rights and strategic interests and to force it to reach a negotiated solution.
Morocco tests the waters with the new Spanish government
The timing of the laws reflects Morocco’s intention to test the waters with the new Spanish government.
Rabat seeks to find out to what extent Madrid is willing to maintain the same level of cooperation that has characterized bilateral relations over the past 15 years.
Morocco’s tactical decision was even more anticipated because the new Spanish government coalition includes the left-wing populist party Podemos. Podemos has repeatedly expressed support for the Polisario Front, the breakaway group that claims to represent the interests of the Sahrawi people.
Rabat’s strategy bore fruit: Madrid has not only stressed that a maritime border can only be achieved through negotiations, but also renewed its support for the political process led by the UN with regard to the Western Sahara.
Following a meeting with foreign minister Bourita, Spanish foreign Minister Arancha Gonzalez Laya stated that Morocco had the right to delimit its maritime borders. However, she also stressed the need to find a solution through negotiations due to the overlap between the continental shelves of the countries.
Regarding the Western Sahara, the Spanish official underlined the centrality of the political process led by the UN. Gonzalez Laya pointed out that Spain’s position does not change with the shifting of government coalitions, a statement clearly intended to reassure Morocco that Podemos will not impact Spain’s position.
Equidistance versus equity
One of the major obstacles to future negotiations will be which method should prevail in the delimitation of maritime zones. Spain advocates the equidistance method, while Morocco, and the majority of countries globally, advocates the equity method.
For Morocco, the Canary Islands’ unique geography calls for the equity method. The islands do not constitute an independent state, but are an archipelago geographically separated from the state they pertain to, and as such, justify the method of equity in Morocco’s view.
Given the disproportionality between Morocco’s coastline and that of the Canary Islands, an equidistant method would cause an inequitable narrowing of the Moroccan continental shelf, a scenario that Rabat categorically rejects.
From this point of view, the Moroccan position has the support of both international and international jurisprudence. Articles 76 and 83 of UNCLOS advocate the equity method and point out that any delimitation of the continental shelves should lead to an equitable solution.
International jurisprudence has also sanctioned the equity method.
The most emblematic case is the International Court of Justice’s verdict in 1985 on a dispute between Malta and Libya. Ever since this verdict, which ruled in Libya’s favor, the method used has been to take equidistance or median line as the as the starting point, then correct it by taking into account relevant circumstances. This applies perfectly to the case of Morocco and the Canary Islands.
The centrality of negotiations
In view of the political and legal implications of the delimitation of maritime borders, negotiations are essential. UNCLOS, moreover, stipulates that negotiation is the only way to resolve such disputes. Rabat and Madrid would be better off to move away from maximalist positions that do not consider each other’s interests.
The maturity of relations between the two countries over the last three centuries will certainly tip the scales in favor of negotiation.
The two countries also need each other be it at the economic, political, or security levels. Spain has become Morocco’s primary economic partner in the last six years ahead of France, with a favorable trade balance. In addition, Morocco plays a key role in the implementation of Spanish migration and security policy.
At the same time, Morocco has enjoyed tacit support from Spain over the past decade on the Western Sahara issue. For a long time, Spain insisted on the need to resolve the issue by means of the referendum of self-determination. It has, however, long abandoned such rhetoric.
What is more, Spain seems to be increasingly in favor of the need for the parties to the conflict to reach a mutually acceptable political solution, as advocated by all the Security Council resolutions since April 2007.
Spain, along with France, is Morocco’s main supporter within the European Union. Madrid has played a leading role in the EU’s decision to increase the amount it grants Morocco to help stem the flow of irregular immigration into Europe.
Following the verdicts of the European Court of Justice which invalidated the EU-Morocco fisheries and agriculture agreements on the pretext that the Western Sahara is not under Moroccan sovereignty, Spain put pressure on the EU to appeal its verdicts and include the Western Sahara in the new agreement signed in July 2019.
Consequently, neither of the two sides would benefit from tense relations because of the maritime border. Falling short of reaching a final settlement on the dispute, Rabat and Madrid must find a way to manage the dispute in a spirit of understanding and cooperation.
Samir Bennis is the co-founder of Morocco World News. You can follow him on Twitter @SamirBennis.