Argentina's Continental Shelf Claims Wholly Misleading
Argentina’s claim on 28 March that the recent statement of the Commission on the Limits of the Continental Shelf (CLCS) has lent weight to Argentina’s sovereignty claim over the Falkland Islands is wholly misleading. The CLCS is prevented by its own Rules of Procedure from ruling on areas under dispute and in its statement the CLCS made that clear. Whatever Argentina may claim, the territorial waters of the Falkland Islands remain completely unaffected.
The CLCS issued a statement in late March on its consideration of Argentina’s continental shelf submission, made in April 2009. The report has yet to be published but the Commission is understood to have confirmed Argentina’s technical argumentation that the continental shelf extends physically beyond Argentina’s 200 miles limit up to 350 miles from the continental coastline in a way that includes the Falkland Islands.
The Argentine Government reacted triumphantly, claiming that the Commission’s report in demarcating the extent of the continental shelf from their coastline had increased Argentina’s maritime territory by 35% and reinforced Argentina’s sovereignty claim over the Falkland Islands. The Argentine Foreign Minister, Susana Malcorra, welcomed the Commission’s finding as a reaffirmation of Argentina’s sovereignty rights over the Falkland Islands and its maritime resources.
But the CLCS is specifically restricted under its constitution and rules of procedure from considering or ruling on matters involving territorial or maritime disputes. Indeed the delimitation of a continental shelf between states is specifically excluded from its remit. Under its rules of procedure adopted in 2008, "the actions of the Commission shall not prejudice matters relating to the delimitation of boundaries between states” (Art. XI Rule 46.2) and "in cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute” (Annex I: Submissions in case of a dispute between States: paragraph 5a) and "…recommendations approved by the Commission thereon shall not prejudice the position of States which are parties to a land or maritime dispute” (paragraph 5b).
The UK and Falkland Islands Governments have responded by pointing this out, stressing that the Commission has no jurisdiction on sovereignty issues and no power to make any decision on the delimitation of maritime areas which are subject to competing claims. No report by the CLCS can therefore have implications for the Falkland Islanders’ right to develop the resources within their territorial waters. Any suggestions to the contrary by the Argentine Government are wholly misleading.
The CLCS was established in 1997 under Article 76 of the UN Convention of the Law of the Sea (UNCLOS) to advise on the limits of continental shelves. The Commission is made up of 21 experts in the field of geology, geophysics and hydrography from UNCLOS states parties. It is an advisory body only and its findings are not legally binding. Argentina submitted its continental shelf claim on 21 April 2009. The UK circulated an official Note on 6 August 2009 to the effect that the UK exercised control over the continental shelf up to 200 nautical miles from the coast of the Falkland Islands in accordance with the UK’s Declaration on Maritime Jurisdiction around the Falkland Islands of 29 October 1986. The UK rejected Argentina’s claim and asked the Commission not to examine that part of Argentina’s claim. The UK then submitted its own claim to the continental shelf around the Falkland Islands in May 2009, thus effectively freezing the position. Despite a further round of challenge and counter-challenge, that remains the position.