The extraterritoriality gap identified by the Canary Islands Prosecutor’s Office in the Organic Law on the Judiciary (LOPJ) extends beyond the humanitarian tragedy unfolding along migration routes. The procedural inability to prosecute serious crimes in Spanish courts when they are committed in international waters aboard vessels without a flag or without nationals involved establishes a precedent of impunity that casts a shadow over the environmental protection of the archipelago and sovereignty over its marine resources. The provisional dismissal of cases for lack of jurisdiction opens a regulatory breach that prevents the authorities from intervening directly in ecological offenses, pollutant discharges or attacks on the natural environment carried out beyond the 12-nautical-mile limit of the territorial sea.
The Atlantic precedent and the extraterritoriality vacuum
The legal controversy that led to the release of three people under investigation for sexual assault on an inflatable boat intercepted 131 kilometers northeast of Lanzarote exposed the strict formal barrier facing the courts. Case law establishes that, beyond territorial waters, Spanish criminal jurisdiction can only be activated if there are Spanish victims or perpetrators, if the accused reside in the country, or if the offense is committed aboard a vessel registered in Spain.
When this procedural criterion is applied to territorial and environmental protection, the gap is devastating. If a foreign or flagless vessel releases toxic bilge waste, causes an oil spill, engages in undeclared overfishing or destroys protected marine habitats in the Exclusive Economic Zone or in the international Atlantic near the islands, the archipelago’s examining courts are forced to decline jurisdiction for lack of territorial competence. The current legal framework leaves the Canary Islands’ Atlantic coastline unprotected against criminal acts affecting marine biodiversity carried out in international transit waters but with a direct impact on the island ecosystem.
The 2007 reformulation of the legal presumption
The Public Prosecutor’s Office points out that the criminal justice framework has already demonstrated its capacity to adapt when pressure from the cayuco crisis in 2006 forced Congress to amend the Criminal Code in 2007. That amendment empowered Spanish courts to prosecute the captains of clandestine vessels based on the presumption that their plotted course was headed for Spanish territory.
The proposal now submitted by the Canary Islands Prosecutor’s Office to the Cortes Generales seeks to extend that same broad logic to prevent the high seas from becoming a lawless space. In environmental and territorial matters, applying a similar presumption would allow Spanish judicial authorities to assume responsibility for criminal investigations into vessels, captains or corporations that carry out destructive acts in Atlantic waters, provided it is established that the environmental damage, discharge or ecological alteration directly threatens the coastline, marine reserves or fishing activities of the archipelago.
The challenge of safeguarding the islands’ environmental sovereignty
The demand for an urgent reform of the Organic Law on the Judiciary places the ball in the court of the Cortes Generales in Madrid, where the regional government is pressing for greater legal and budgetary protection. The lack of a procedural mechanism recognizing the territorial impact of crimes committed on the high seas perpetuates a defensive imbalance for the Canary Islands’ marine ecosystem against vessels in transit with no state affiliation.
Until the Congress of Deputies addresses an update to the provisions on universal jurisdiction and extraterritorial criminal jurisdiction, the Atlantic near the islands will continue to function as a procedural loophole. Impunity for crimes in international waters not only consigns attacks suffered aboard migrant boats to the archives, but also leaves the Canary Islands’ security forces and courts powerless to defend the islands’ natural heritage against attacks committed beyond the 12-mile boundary.
The article “Prosecutors call for review of legal loophole shielding impunity in non-Spanish waters off the Canary Islands” was first published on canarymaritime.com.
