Although the British government has exercised effective control over the
Falkland Islands in the South West Atlantic since the 1830s, the Argentine
government’s claim to the Islands has been maintained to the present. It is
not intended here to examine the sovereignty issue over the Falkland Islands/Islas Malvinas.
The UK government claimed, as early as in 1950, the continental shelf
around the Falkland Islands. According to the Order in Council of that year, the continental shelf of the Falkland Islands was generally up to the 100 fathom isobath from the Islands.40 Note here that the Order of 1950 was
concerned only with the continental shelf and thus the extent of fisheries
jurisdiction around the Falkland Islands remained the three-mile territorial
sea until 1986. In 1986 the UK government established a Falkland Islands
Interim Conservation and Management Zone, which extended from a central
point in the Islands up to 150 N.M. seawards, but modified in the southwest
to reduce the area of potential overlap with Argentina’s then 200 N.M.
territorial sea. We will discuss this zone in detail at a later stage, when
we discuss fisheries issues in this area. Also in 1986 the British government
proclaimed that the Falkland Islands continental shelf extended to 200 N.M.
from the coasts or to such other limit as is prescribed by the rules of international
law. On 22 November 1991 the Governor of the Falkland Islands
issued a Proclamation thereby bringing the outer limits of the Falklands
continental shelf further out to the same limits as the outer limits of the
Falkland fisheries zone, which had been extended up to 200 N.M. from the
baselines of the Islands in 1990. Along with the Proclamation dated 22
November 1991, the Legislative Council of the Colony of the Falkland
Islands passed a Continental Shelf Ordinance to provide an interim framework
for preliminary exploration of the continental shelf.
The Falkland Islands Governor’s Proclamation of 22 November 1991
brought forth an immediate protest from the Argentine government. The
two governments began to explore the possibilities of accommodating
the positions of both sides over the continental shelf. Note here that a cooperation
scheme for fisheries management in the region took place in
1990. We will discuss this at a later stage. After many years of negotiation,
the two governments issued the “Joint Declaration on Co-operation over
Offshore Activities in the South West Atlantic” on 27 September 1995.
They agreed in the Declaration to establish a joint development zone, a socalled
“Special Area” to the south west of the Falkland Islands.
Method of Shaping the Joint Development Zone
Even though the Argentine government claims, in principle, sovereignty
over the whole of the Falkland Islands, the Special Area, whose coordinates
are shown in the Annex to the Joint Declaration, is limited to an
area situated to the south west of the Islands. The joint development zone,
which covers 20,000 km2 in area, is constructed by lines connecting 12
points. However, the possibility of establishing additional joint development
zones is not ruled out. Importantly, in this context, paragraph 4 (b)
refers to “additional trenches either within the sedimentary structure referred to in the Annex or in a further area to be agreed by the Governments on the recommendation of the Commission”.
Forms and Provisions
The joint development scheme between the United Kingdom and Argentine
Republic was agreed in the form of a Joint Declaration signed by the British
and Argentine Foreign Ministers. Paragraph 1 thereof provides a “withoutprejudice”
clause, based upon the so-called “Madrid Formula”. It stipulates,
inter alia, that, “nothing in the content of the Present Joint Declaration
or of any similar subsequent joint statements shall be interpreted as a change
in the position of the United Kingdom with regard to the sovereignty or
territorial and maritime jurisdiction over the Falkland Islands, South Georgia
and the South Sandwich Islands and the surrounding maritime areas”.
Despite this Joint Declaration, uncertainty regarding exploration and
exploitation activities on the continental shelf around Falkland Islands arose
when the Argentine government issued a statement, on the same day the
Joint Declaration was made, to the effect that it would introduce charges
on companies operating in the continental shelf around the “Islas Malvinas”.
However, responding to the Argentine statement, the British government
made a Declaration, stating that: “HMG do not accept any Argentine claim
to impose such charges on companies by reason of their activities on the
continental shelf around the Falkland Islands under Falklands license”.
Operational Mechanism and the Effectiveness of the Arrangement
Exploration for and exploitation of hydrocarbon deposits by the oil and gas
industry is to be carried out in accordance with sound commercial principles
and good oil field practice. Co-operation is to be furthered by means
of the establishment of a Joint Commission. The Joint Commission has a
mandate to promote exploration and exploitation of hydrocarbons in the
maritime areas of the South-West Atlantic by way of submitting recommendations
to the Parties on any related matter. The first meeting of the
Joint Commission was held in March 1996. The Joint Committee meets
at least twice a year and the Sub-Committee meets at more frequent intervals
in order to co-ordinate activities in the Special Area. The Sub-
Committee’s discussion aims to complete its preparations for a licensing
round in the Special Co-operation Area as soon as possible.