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Falkland Islands—Maritime Jurisdiction and Co-Operative Arrangements with Argentina

Published online by Cambridge University Press:  17 January 2008

R. R. Churchill
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Extract

An earlier note in this series' gave an account of the normalisation of relations between the United Kingdom and Argentina and the establishment of co-operative arrangements relating to fisheries in 1990. The present note focuses on the establishment of co-operative arrangements for seabed resources in 1995. It also gives a brief account of the extension of maritime jurisdiction around South Georgia and the South Sandwich Islands in 1993. First, in order to set the co-operative arrangements for seabed resources in context, a brief recapitulation of the cooperative arrangements for fisheries and their operation in practice since 1990 will be given. The map appended to the article illustrates and enlarges on the text.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 46 , Issue 2 , April 1997 , pp. 463 - 477
Copyright
Copyright © British Institute of International and Comparative Law 1997

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References

1. M. Evans, “The Restoration of Diplomatic Relations between Argentina and the United Kingdom” (1991) 401.C.L.Q. 473.

2. British Government Declaration on the Conservation of.Fish Stocks and on Maritime Jurisdiction around the Falkland Islands, 29 Oct. 1986, and Proclamation No.4 of 1986 of the Governor of the Falkland Islands, Cm.1824 (1992), pp.5 and 6. Also reproduced in (1987) 9 Law of the Sea Bulletin (hereafter L.O.S.B.) 18 and 19. For further information on the background to and details of the FICZ see R. R. Churchill, “The Falklands FJshing Zone: Legal Aspects” (1988) 12 Marine Policy 343 and C. R. Symmons. “The Maritime Zones around the Falkland Islands” (1988) 371.C.L.Q. 283. See also G. A. Bisbal, “Fisheries Management on the Patagonian Shelf” (1993) 17 Marine Policy 213.

3. In 1987 income from licence fees was £12.5 million, more than twice the size of civilian budgets up to that time (Churchill, Idem, p.347). In 1994 income rose to £23 million (Guardian, 2 Sept. 1994). As a result of this increase in income, the Falklands are no longer dependent on British development aid.

4. Cm.1824 (1992), p.12. Also reproduced in (1991) 17 L.O.S.B. 22. For a fuller account of the background to the Joint Statement, see P. J. Beck, “Fisheries Conservation: A Basis for a Special Anglo-Argentine Relationship?” [1991] The World Today 102.Google Scholar

5. Cm.1824 (1992), p.7.Google ScholarAlso reproduced in Evans, op. cit. supra n.1, at p.477.Google Scholar

6. Joint Statement, para.2.

7. Idem, para.4(d).

8. E. Melzer, “Global Overview of Straddling and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries” (1994) 25 Ocean Development and Int.L. 255, 277. See also FCO Press Release. 23 Dec. 1992.

9. Guardian, 7 Apr. 1993 and 2 Sept. 1994.

10. Joint Statement, para.2.

11. Proclamation No.2 of 1990, reproduced in Cm.1824 (1992), p.15 and UKMIL (1991) 62 B.Y.I.L. 647. The Proclamation was shortly followed by the Fisheries (Outer Zone) Ordinance of 5 Jan. 1991.

12. Falkland Islands (Territorial Sea) Order 1989, S.I. 1989 No. 1993. The Order also extends the Falklands' territorial sea from three to 12 miles.

13. Melzer, loc. cit. supra n.8. See also FCO Press Releases, 6 Dec. 1991 and 23 Dec. 1992.

14. G. A. Bisbal, “The Southeast South American Shelf Large Marine Ecosystem” (1995) 19 Marine Policy 21, 34. See also FCO Press Releases of 30 Dec. 1993 and 22 Nov. 1995.

15. Proclamation No.l of 1994. Reproduced in UKMIL (1994) 65 B.Y.I.L. 657 and (1995) 27 L.O.S.B. 79.

16. Statement by FCO spokesman, 23 Aug. 1994. UKMIL (1994) 65 B.Y.I.L. 658.

17. Ibid, and Guardian, 2 Sept. 1994.

18. Proclamation, supra n.15. at para.2.

19. Note dated 22 Aug. 1994 from the Ministry of Foreign Affairs, International Trade and Worship of Argentina, addressed to the Embassy of the United Kingdom of Great Britain and Northern Ireland (1995) 27 L.O.S.B. 81.

20. Melzer, , op. cit. supra n.8, at p.274.Google Scholar

21. Act No.23.968 of 14 Aug. 1991, Art.5 (1992) 20 L.O.S.B. 20.

22. Cm.3125 (1995); (1995) 29 L.O.S.B. 25.

23. For commentary on what is a lengthy and detailed text see D. H. Anderson, “The Straddling Stocks Agreement of 1995—an Initial Assessment” (1996) 45 I.C.L.Q. 463 and D. A. Balton. “Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Species” (1996) 27 Ocean Development and Int.L. 125.

24. The existing FAO Regional Fisheries Advisory Commission for the South-West Atlantic, established in 1961, would not be a suitable body in its present form, first, because it has no regulatory powers and, second, because its membership is limited to States of the American continent having coasts bordering the Atlantic. In any case it is many years since the Commission has met.

25. (1996)30 L.O.S.B.34.

26. Agreement on Relations in the Sea Fisheries Sector (1993) OJ. L318/2.

27. This excludes Falklands vessels, as the Falkland Islands are outside the ambit of the EC Treaty.

28. Art.11.

29. Falkland Islands (Continental Shelf) Order 1950, S.I. 1950 No.2100.

30. Supra n.2.

31. Proclamation No.1 of 1991, Cm.1824 (1992), p.23. Also reproduced in UKMIL (1991) 62 B.Y.I.L. 645.Google Scholar

32. Guardian, 23 Nov. 1991.

33. UKMIL (1991) 62 B.Y.I.L. 550.

34. Reproduced in (1996) 30 L.O.S.B. 62, (1996) 35 I.L.M. 301 and (1996) 11 Int J. Marine and Coastal Law 113.

35. Introductory Note to the Joint Declaration by T. W. Waide and A. McHardy (1996) 35 I.L.M. 301, 301–302.

36. Joint Declaration, para. 1(2).

37. Idem, para.2.

38. Idem, para.4(c).

39. Cm.1824 (1992), p.19.Google Scholar

40. For a thorough study of existing joint development zones and the problems involved in the establishment and operation of such zones, see Fox, H. (Ed.), Joint Development of Offshore Oil and Gas, Vol.1 (1989), Vol.11 (1990).Google Scholar

41. Statement by the Argentine Government with regard to the Joint Declaration signed by the Foreign Ministers of Argentina and the United Kingdom on Exploration and Exploitation of Hydrocarbons (1996) 11 Int.J. Marine and Coastal Law 118.

42. Declaration of the British Government with regard to the Joint Declaration signed by the British and Argentine Foreign Ministers on Co-Operation over Offshore Activities in the South West Atlantic: Idem, p.117.Google Scholar

43. Guardian, 24 and 29 Oct. 1996.

44. South Georgia and the South Sandwich Islands Order 1985. S.I. 1985 No.449.

45. See e.g. the House of Commons Select Committee on Foreign Affairs. Fifth Report. The Falkland Islands. H.C. Paper (1983–1984) 268. Vol.1, paras.22–23: C. R. Symmons. “Who Owns the Falkland Islands Dependencies in International Law?” (1984) 33 I.C.L.Q. 726.Google Scholar

46. (1980)19 I.L.M.841.

47. Cmnd.8653(1982).p.81.Google Scholar

48. H.L. Hansard. Vol.481, col.744 (29 Oct. 1986).Google Scholar

49. H.L. Hansard. Vol.545.Google Scholar col.41(WA) (6 May 1993). It is interesting to compare the government's views at this time and in 1986 (see the previous note) with those of a recent authoritative academic study of CCAMLR. which concludes that CCAMLR did not begin taking effective conservation measures until the late 1980s and finds that there is some evidence of possibly wide-scale non-compliance with these measures. See K.-H. Kock, “Fishing and Conservation in Southern Waters” (1994) 30(172) Polar Record 3. Similar conclusions are reached in Joyner, C. C.. Antarctica and the Law of the Sea (1992), pp.239–241, 246–250.Google Scholar

50. Proclamation No.1 of 1993. Maritime Zone. Reproduced in UKMIL (1993) 64 B.Y.I.L. 678 and (1993) 24 L.O.S.B. 47.

51. See the South Georgia and the South Sandwich Islands (Territorial Sea) Order 1989. S.I. 1989 No.1995. As well as drawing baselines for the islands, the Order also extended their territorial sea from three to 12 miles.

52. Although in international law a continental shelf exists ipso facto and ab initio and does not need to be claimed (unlike a fishing zone or EEZ). the proclamation could be regarded as a continental shelf claim, although not necessarily a complete claim as the continental shelf can in international law extend beyond 200 miles. A press release issued by the Commissioner at the same time as the proclamation (reproduced in UKMIL (1993) 64 B.Y.I.L. 679) says that “the Proclamation has the effect of being both a fisheries zone Proclamation and a minerals zone Proclamation and can be regarded as having in relation to South Georgia and the South Sandwich Islands, a combined effect equivalent to the Falkland Islands own fisheries zone Proclamations and the Falkland Islands Continental Shelf Proclamation”. The press release added that there was no intention to enact minerals legislation in the near future.

53. For an analysis of the jurisdiction claimed by the UK within its 200-mile limit, see R. R. Churchill. “The United Kingdom's Decision to Defer Accession to the UN Convention on the Law of the Sea” (1997) 12 IntJ. Marine and Coastal Law 110.114.

54. Letter dated 7 May 1993 from the Chargé d'affaires a.i. of the Permanent Mission of Argentina to the United Nations addressed to the Secretary-General (1993) 24 L.O.S.B. 52.

55. Letter dated 12 May 1993 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary- General (1993) 24 L.O.S.B. 54.

56. Melzer, . op. cit. supra n.8, at p.278.Google Scholar

57. Churchill, , op. cit. supra n.53 at pp.113–114.Google Scholar

58. Symmons, C. R.. The Maritime Zones of Islands in International Law (1979). p.265.Google Scholar

59. Art.XXI.

60. According to Joyner. op. cit. supra n.49, at pp.245–246. this provision is deliberately vague, as through it “the sovereignty issue [in Antarctica] is finessed. Claimant States can conceivably exercise jurisdiction over foreign nationals in their claimed territory … Conversely, nonclaimant States interpret Article XXI as solely permitting self-policing by Member States.” Obviously, these considerations do not apply outside the area of the Antarctic Treaty.Google Scholar

61. (1980) 19 I.L.M. 837.

62. Final Act. I. para.5.

63. Text in (1990) O.J. L379/47.

64. Kock. op. cit. supra n.49. at pp.5 and 15.Google Scholar

65. The Times. 12 July 1996. The vessel was apparently the fifth to have been arrested off South Georgia.

66. After this was written it was reported that in November 1996 Russia proposed to Japan that they should jointly develop the fisheries and seabed resources around the Kurile Islands without prejudice to the question of sovereignty over the islands, which both States claim. The co-operative arrangements between the United Kingdom and Argentina in relation to the Falklands were cited as a precedent. See Financial Times 16–17 Nov. 1996 and (1996) 42 Keesing.'s Record of World Events 41372.