Argentina and the United Kingdom both claim sovereignty over the Falkland/Malvinas Islands, South Georgia and the South Sandwich Islands, and assert a variety of overlapping maritime claims appertaining to these South Atlantic features. Several features currently occupied and administered by the United Kingdom and were the focus of an armed conflict between the two States in 1982. In the immediate aftermath of the conflict the United Kingdom declared a 150 nautical mile ‘Falkland Island Protection Zone’ (FIPZ) designed to restrict and control the navigation of Argentinean vessels in waters surrounding the Islands. In 1986 the United Kingdom supplemented its 3 nautical mile territorial sea claim around the Falkland Islands by (1) declaring an ‘Interim Conservation and Management Zone’ (FICZ) projected 150 nautical miles from a fixed point located in the center of the Islands, and (2) reiterating its claim to the continental shelf surrounding the Islands. The limits of the FIPZ and FICZ are illustrated in Figure. The primary concern influencing the declaration of the FICZ was the rapid and unsustainable escalation of commercial fishing in waters surrounding the Islands between 1982 and 1986. The declaration of the FICZ and reiterated continental shelf claim prompted Argentina to issue a protest note reaffirming its sovereignty claim to the Islands and ‘its rights of sovereignty and jurisdiction over the surrounding maritime waters, sea-bed and marine sub-soil, rights which it will continue to exercise in its capacity as a coastal State in accordance with international law.’ In 1989 both States entered into negotiations with a view to normalizing diplomatic relations after they were broken off during the 1982 conflict. Design features of provisional joint management frameworks:
Following talks held in Madrid in October 1989, both States issued a Joint Statement (1989 Joint Statement) concerning the sovereignty dispute, consular relations and several cooperative measures. Paragraph 2 of the 1989 Joint Statement contains a ‘formula on sovereignty’ (Madrid formula on sovereignty) reflecting an agreement to set aside and protect overlapping claims to sovereignty and maritime jurisdiction. It provides as follows:
Both Governments agreed that:
- Nothing in the conduct or content of the present meeting or of any similar subsequent meetings shall be interpreted as:
- A change in the position of the United Kingdom with regard to sovereignty or territorial and maritime jurisdiction over the Falkland Islands, South Georgia and the South Sandwich Islands and the surrounding maritime areas; a) A change in the position of the Argentine Republic with regard to sovereignty or territorial and maritime jurisdiction over the Falkland Islands, South Georgia and the South Sandwich Islands and the surrounding areas; b) Recognition of or support for the position of the United Kingdom or the Argentine Republic with regard to sovereignty or territorial and maritime jurisdiction over the Falkland Islands, South Georgia and the South Sandwich Islands and the surrounding maritime areas.
- No act or activity carried out by the United Kingdom, the Argentine Republic or third parties as a consequence and in implementation of anything agreed to in the present meeting or in any similar subsequent meetings shall constitute a basis for affirming, supporting, or denying the position of the United Kingdom or the Argentine Republic regarding the sovereignty or territorial and maritime jurisdiction over the Falkland Islands, South Georgia and the South Sandwich Islands and the surrounding maritime areas.
In accordance with the 1989 Joint Statement and a subsequent Joint Statement of 15 February 1990 (1990 Joint Statement on Diplomatic Relations), both States agreed to establish a number of cooperative measures, including: working groups to consider fisheries conservation and military-related incident avoidance; the replacement of the FIPZ with an ‘Interim reciprocal information and consultation system’; notice periods applicable to the movement of military vessels; rules concerning the conduct of naval and air force units operating in proximity to each other, adherence to international conventions concerning civil aviation and collisions at sea; co-ordination of search and rescue operations; and the exchange of information relevant to the enhancement of flight safety. Negotiations in the working group concerning fisheries conservation produced an agreement to exchange information on a wide range of relevant issues and culminated in the conclusion of another Joint Statement in November 1990. (1990 Joint Statement on Fisheries) Paragraph 1 of the 1990 Fisheries Joint Statement provides that both ‘this Statement and its results’ are subject to the Madrid formula on sovereignty. Paragraph 2 establishes two key cooperative measures and notes that their purpose is ‘to contribute to the conservation of fish stocks’ and to ‘open the way for cooperation in this field on an ad-hoc basis’.
The first measure is the establishment of the ‘South Atlantic Fisheries Commission’ composed of delegations from both States. The Commission is entrusted with several functions relating to the ‘conservation of the most significant offshore species’ in ‘waters between latitude 45°S and latitude 60°S’. Key functions include: collection and analysis of information received from both States concerning the operation of fishing fleets, catch and effort statistics, and the status of stocks; submission to both States of recommendations for the conservation of the most significant offshore species; and submission to both States of proposals concerning joint scientific work.
Operation of the South Atlantic Fisheries Commission resulted in the implementation several cooperative conservation measures including joint research cruises, reductions in the number of fishing licenses and the shortening of permitted fishing seasons.
The second measure is the temporary total prohibition of commercial fishing within a defined area for conservation purposes. This measure was intended to combat unregulated fishing taking place beyond the 150 nautical mile limit of the FICZ but within 200 nautical miles of the Falkland Islands. The ‘half-doughnut’ shaped defined area extends from the 150 nautical mile limit of the FICZ to a distance of 200 nautical miles from Falkland Islands, excluding areas within the 200 nautical mile zone of territorial sea claimed by Argentina. The prohibition was not renewed in 1993.
In December 1990 the United Kingdom designated an Outer Fishing Conservation Zone (OFCZ) corresponding to the area defined in the 1990 Joint Statement on Fisheries and extended its territorial sea claim around the Falkland Islands from 3 to 12 nautical miles. Responding to concerns regarding the overexploitation of fish stocks near the South Georgia and the South Sandwich Islands, the United Kingdom also declared a 200 nautical mile ‘maritime zone’ around those Islands. Within the maritime zone, jurisdiction was claimed:
… in accordance with the rules of international law over the exploration and exploitation and the conservation and management of the natural resources (whether living or non-living) and over the protection and preservation of the marine environment subject to such provisions as may hereafter be made by law for such matters.
The maritime zone claim around the South Georgia and the South Sandwich Islands prompted a protest from Argentina and a subsequent response note from the United Kingdom. A joint statement was also issued in which both States expressed a commitment to improve management of fish stocks surrounding the South Georgia and the South Sandwich Islands through the framework set in the Convention for the Conservation of Antarctic Living Marine Resources (CAMLR Convention).
In 1991 both States issued a Joint Statement establishing a cooperative framework for search and rescue operations in the South West Atlantic. Another Joint Statement concerning search and rescue operations was issued in 1993. In 1994, the OFCZ was extended into an area located within 200 nautical miles of the Falkland Islands but beyond the EEZ claimed by Argentina in 1991. Argentina issued a strongly worded protest in response, noting that ‘British action implies a departure from the Joint Statement and the bilateral understandings reached from 1990 until now regarding the South-West Atlantic’.
Despite this setback in diplomatic relations, both States issued a Joint Declaration in 1995 concerning the management of both States’ overlapping continental shelf claims. (1995 Joint Declaration) Paragraph 1 of the 1995 Joint Declaration sets out a ‘formula on sovereignty’ that ‘applies to this Joint Declaration and to its results’. The formula is identical to the Madrid formula on sovereignty but includes two additional sentences. The first additional sentence provides that the ‘areas subject to the controversy on sovereignty and jurisdiction will not be extended in any way as a consequence on this Joint Declaration or its implementation.’ The second stipulates that the Joint Declaration ‘does not apply to the maritime areas surrounding South Georgia and the South Sandwich Islands.’
The remainder of the Declaration sets out a detailed cooperative framework concerning the development of hydrocarbon resources within up to six defined ‘tranches’, the first of which were to be located in a defined area of ‘sedimentary structure’ located South West of the Falkland Islands. The focal point of cooperation is a Joint Commission composed of delegations from both States. Functions entrusted to the Joint Commission include: submission to both States of recommendations concerning protection of the marine environment of the South West Atlantic; coordination through subcommittees of several commercial and regulatory aspects of hydrocarbon development (including potential unitization of deposits, and health and safety requirements); collection and promotion of relevant scientific research; and recommendation to both States of additional tranches for hydrocarbon development. Paragraph 5 of the 1995 Joint Declaration provides that the arrangements developed in 1991 and 1993 concerning search and rescue operations, or any future arrangements on the same subject, will apply to ‘offshore activities’.
Paragraph 6 requires each State to take appropriate administrative measures concerning hydrocarbon development and to ‘abstain from taking action or imposing conditions designed or tending to inhibit or frustrate the possibility of carrying out hydrocarbon development’ in the relevant areas.
In 1999 both States issued a Joint Statement establishing several additional confidence-building measures, including further commitments concerning the cooperative management of fish stocks in the South Atlantic. The 1999 Joint Statement has been described as a ‘highpoint’ in relations between both States concerning their overlapping territorial and jurisdictional claims. With the exception of limited hydrocarbon licensing and exploration, the 1995 Joint Declaration was not implemented in subsequent years and the Kirchner administration in Argentina (elected in 2003) adopted a harder diplomatic stance than its predecessor. In March 2007 Argentina withdrew from several cooperative arrangements, including the 1995 Joint Declaration and cooperative measures concerning fisheries. Both States have also issued competing submissions to the CLCS regarding the outer limits of the continental in the South West Atlantic and the United Kingdom government has unilaterally authorised hydrocarbon development in waters to the North, East and South East of the Falkland Islands.
Comment concerning functional coverage:
The provisional joint management frameworks established by Argentina and the United Kingdom each focus on the cooperative management of specific resources or the cooperative exercise of coastal State jurisdiction in functionally-specific contexts, including hydrocarbon development, fisheries cooperation, and arrangements concerning navigational safety. Had they been implemented by the respective governments, and not fallen victim to a deteriorating bilateral relationship, they would have operated in tandem with one another to establish functionally-broad allocation of coastal State jurisdiction within the relevant OCA.