The United Nations Commission on the Limits of the Continental Shelf (the CLCS) has now published its full recommendations on the limits of Argentina's continental shelf. There was considerable press speculation following the issue of a preliminary CLCS press release in March 2016 that its recommendations may have impacted on areas of the continental shelf subject to the sovereignty dispute between the United Kingdom and Argentina relating to the Falkland Islands. This would have been a clear departure from its own rules of procedure, and its previous practice. For this reason, we suggested on our blog that the press speculation was likely to prove unfounded. The full recommendations available here have proved this correct – whereas the recommendations do clarify the limits of Argentina's continental shelf in uncontested areas, they make clear that the CLCS did not consider and qualify the parts of Argentina's submissions that were subject to the sovereignty dispute.
On 1 April we blogged about a number of press reports that had been issued in respect of the adoption of recommendations by the United Nations Commission on the Limits of the Continental Shelf (the CLCS) concerning submissions made by Argentina. At that time, the recommendations themselves had not been issued by the CLCS, only a summary press release. Certain press reports and political statements that followed suggested that the recommendations may have related to areas of the continental shelf that were the subject of the long-standing dispute over sovereignty of the Falkland Islands (known by Argentina as Las Malvinas), South Georgia (Georgias del Sur) and the South Sandwich Islands (Sandwich del Sur).
As we noted in our blog post, the Rules of Procedure of the CLCS preclude it from issuing recommendations in relation to submissions by any State in cases where a land or maritime dispute exists. The CLCS had previously declined to issue recommendations in relation to these disputed areas in connection with earlier submissions made by the United Kingdom. It would therefore have been extremely surprising had it made any such recommendations on this occasion in response to Argentina's submissions.
The full recommendations have now been published by the CLCS. They make clear that views were expressed by both Argentina and the United Kingdom in connection with Argentina's submissions concerning the existence of the dispute, and that the Commission accordingly "decided that, in accordance with its Rules of Procedure, it was not in a position to consider and qualify those parts of the Submission that were subject to dispute" (paragraph 5).
The CLCS also took the opportunity to reaffirm some of its key guiding principles, including that: "the Recommendations of the Commission … shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts, or prejudice the position of States which are parties to a land or maritime dispute, or application of other parts of the [UNCLOS] Convention or any other treaties" (paragraph 19).
This position was also confirmed by the UN Under-Secretary-General for Legal Affairs and UN Legal Counsel, Miguel de Serpa Soares, in a letter dated 7 April 2016. The letter was written in response to a letter from the UK Permanent Representative to the UN, Matthew Rycroft, likely prompted by the earlier speculation. In his reply, the UN Legal Counsel confirmed that, "as a group of independent experts issuing recommendations based on scientific and technical data and not a judicial body, the Commission naturally does not address issues concerning sovereignty over the land territory or cases of unresolved land or maritime disputes".
The full Recommendations of the CLCS, which set out the background to its conclusions as well as the detailed recommendations in uncontested areas including relevant maps and coordinates, are available here.
Further background on the role of the CLCS is available in our previous blog post.
For further information, please contact Andrew Cannon, Partner or your usual Herbert Smith Freehills contact.