Commission on Limits of Continental Shelf issues recommendation over limits of Argentina's continental shelf

The United Nations Commission on the Limits of the Continental Shelf (the Commission or CLCS) has issued a press release referring to its adoption of certain recommendations in respect of submissions made by Argentina. It is understood that these refer, inter alia, to a 2009 submission regarding the extension of Argentina's rights over the continental shelf. The full recommendation is not currently available so the extent of the CLCS's recommendation is not yet known. 

Argentina's 2009 submission included claims to continental shelf areas extending from disputed territory, including the Falkland Islands (known by Argentina as the Malvinas). Certain press reports have cited the CLCS press release as suggesting that the recommendations may relate to some of these disputed areas.

However, under Annex I, Rule 5(a) of the CLCS's Rules of Procedure, "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."  In such cases, the CLCS may only consider a submission relating to a land or maritime dispute with the prior consent of all parties to the dispute.  The UK, through communications to the CLCS in 2009 and 2012, has made very clear its opposition to Argentina's claim to sovereignty over any of the disputed areas, including the Falkland Islands, and that it did not give its consent to the consideration by the CLCS of Argentina's submission over any disputed areas. 

In cases such as this, Annex I, Rule 5(b) of the CLCS's Rules of Procedure provides that "The submissions made before the Commission and the recommendations approved by the Commission thereon shall not prejudice the position of States which are parties to a land or maritime dispute."  No doubt for this reason, the CLCS press release recalls that "previously, the Commission had already decided that it was not in a position to consider and qualify those parts of the submission that were subject to dispute", suggesting that its Recommendation is appropriately limited to areas that are not in dispute.

The purpose of the CLCS is to implement the United Nations Convention on the Law of the Sea (UNCLOS) in respect of the establishment of the outer limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Under UNCLOS, a coastal State is to establish the outer limits of its continental shelf where it extends beyond 200 nautical miles on the basis of the recommendations of the CLCS. The recommendations of the CLCS have considerable influence and the limits of the continental shelf established by a coastal State on the basis of those recommendations are final and binding.

The CLCS Recommendation

In a press release dated 28 March 2016, the CLCS stated that it had adopted Recommendations in respect of the submissions made by Argentina. Argentina's Foreign Minister, Sra Susana Malcorra, has welcomed the press release as a "unanimous vote" resulting in an increase in Argentina's sovereign territory of 1.7km², equivalent to an expansion of the offshore continental shelf by 35%, "reaffirming our sovereign rights over the resources of our continental shelf: minerals, hydrocarbons and sedentary species".

Certain subsequent press reports have appeared to suggest that the CLCS's Recommendation includes areas disputed in particular by the United Kingdom.  This is not, however, evident from the press release itself, which also refers to a previous decision of the CLCS that it was not in a position to consider and qualify those parts of a submission that were subject to dispute.  Moreover, the Argentine Foreign Minister's statement did not mention the disputed territories at all. 

The UK Foreign & Commonwealth Office has stated that the UK will wait for the full report before giving its view, and referring to the established limits of the CLCS's jurisdiction with regard to claims relating to disputed territory. A similar position has been taken by the Falkland Islands Government, which also affirmed that the oil and gas activities in the Falklands' vicinity would not be affected.

Comment

Without public access to the CLCS Recommendation, it is too early to assess what impact there may be on the respective claims of Argentina and the United Kingdom in respect of disputed maritime and land territory.

However, given the clear and well-established limits of the CLCS's jurisdiction in relation to a submission where a land or maritime dispute exists, it seems very unlikely that there would be any such impact. Indeed, such an approach would seem wholly inconsistent with the approach adopted by the CLCS to date, including in relation to sovereignty disputes in which HSF have been involved and where we have assisted in the preparation of similar protests filed with the CLCS. 

It would also be inconsistent with the CLCS's treatment of the United Kingdom's own submission in relation to the continental shelf around the Falkland Islands and other disputed islands of 2009. In April 2010, the CLCS decided that, in accordance with its Rules of Procedure, it was not in a position to consider and qualify the UK's submission.  Notwithstanding the various press reports, it would be highly unusual if the CLCS had now departed from this settled approach.

As to undisputed areas within the Recommendation, the territorial increase may well give legal certainty both to Argentina and to entities operating, or who wish to operate, in those areas that are within the limits of Argentina's continental shelf and where Argentina now has uncontested sovereign rights.

Herbert Smith Freehills has advised on a number of disputes as to land and maritime sovereignty, including assisting with protest notices filed with the CLCS. For further information, please contact Dominic Roughton, Partner, Andrew Cannon, Partner, Hannah Ambrose, Professional Support Consultant, Maximilian Szymanski, Associate or your usual Herbert Smith Freehills contact.