The Sovereignty of Islands : a Contemporary Methodology for The

TITLE: THE SOVEREIGNTY OF ISLANDS: A CONTEMPORARY METHODOLOGY FOR THE DETERMINATION OF RIGHTS OVER NATURAL MARITIME RESOURCES

NAME: Lieutenant Dominic Henley KATTER, RANR BA(Qld), LLB(Qld), LLM(Qld), MPhil(Cantab) MCIArb, MIAMA, ANZIIF(Mem), AIMM, FTIA Barrister at Law (Qld and the High Court of Australia) Barrister and Solicitor (Vic and NZ) Legal Practitioner (NSW, ACT and NT) Former Wakefield Scholar, Law Faculty, University of Cambridge Fellow of the Cambridge Commonwealth Trust

SCHOOL/FACULTY: Law

A dissertation submitted in partial fulfilment for the degree of Doctor of Juridical Science at the Queensland University of Technology

SUPERVISOR: ASSOCIATE PROFESSOR PHILIP TAHMINDJIS

ASSOCIATE SUPERVISOR: MS FRANCES HANNAH

DATE SUBMITTED FOR EXTERNAL EXAMINATION: 19 May 2003 (further submission 24 November)

STUDENT NUMBER: 02279754

COURSE: DOCTOR OF JURIDICAL SCIENCE – LW 50

Please do not copy this document without permission.

KEYWORDS

Sovereignty – Islands – maritime resources – Falkland Islands – customary international law – maritime zones – delimitation – law of the sea – UNCLOS – boundaries – resources

ABSTRACT

Once it was said that the law followed the flag. Now, international law is everywhere. Its influence increases.1

Sovereignty is no longer an intra-national concept within International Law. It now involves a greater consideration of issues concerning the global community. This thesis develops a practical methodology for the determination of sovereignty over maritime natural resources.

Customary international law regarding the use of resources within the maritime zones of islands on the high seas is rapidly developing. Traditional tests, such as the discovery and occupation of islands, are no longer the primary focus of the determination of sovereignty. The methodology expressed in this thesis is an application and adaptation of the current state of the international laws regarding islands within the high seas.

This argument has its foundation in the new international treaties, recent decisions of the International Court of Justice, the Permanent Court of Arbitration and the International Tribunal for the Law of the Sea. It unifies the latest determinations and theoretical legal perspectives of these bodies to produce a single methodology. This work provides an original and substantial contribution to the knowledge and understanding of sovereignty issues within International Law.

The Chapters of this thesis and their sub-headings progressively illuminate the individual elements of a distinctive formula for determining the sovereignty of islands within the high seas. The Chapters form a template for this methodology, which is applied to the Falkland Islands. Thus, each chapter is a step towards the determination of sovereignty. This modus operandi can be applied to new disputes in this realm, such as those filed with the International Court of Justice.

Since 1982, the definitive ownership of the Falkland Islands proper has been determined, if not by International Law, then by warfare. However, conflict over the use of natural resources in the maritime zones continues.

1 Kirby, Visions of the Legal Order in the 21st century: essays to honour His Excellency Judge C J Weeramantry Ed. Sturgess and Anghie) The Growing Rapprochment Between International Law and National Law. Parts of this contribution appeared in an earlier form in the paper by the author "The Impact of International Human Rights Norms: 'A Law Undergoing Evolution'" (1995) 25 Western Australian Law Review 1. TABLE OF CONTENTS

i. Front Page of Thesis ii. Certificate recommending acceptance iii. Keywords iv. Abstract v. Table of Contents vi. List of Illustrations vii. Statement of Original Authorship viii. Acknowledgements

1. INTRODUCTION

2. GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS

3. CONCISE HISTORY OF THE FALKLAND ISLANDS

4. HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW

5. EVALUATION OF RESPECTIVE CLAIMS

6. THE GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION

7. THE MARITIME ZONES OF THE FALKLAND ISLANDS

8. THE USE OF MARITIME NATURAL RESOURCES

9. NATURAL RESOURCES AROUND THE ISLANDS

10. CONCLUSION

BIBLIOGRAPHY

LIST OF ILLUSTRATIONS

Chapter 2

Map of the South-West Atlantic Ocean page 2-16

Map of the Falkland Islands page 2-17

Chapter 6

Legal Regimes of Oceans and Airspace Area page 6-87

Archipelagic Maritime Delimitation page 6-96

Chapter 7

The Patagonian Shelf page 7-108

The Special Co-Operation Area page 7-120

Chapter 9

Tranch licences page 9-169

The work contained in this thesis has not been previously submitted for a degree or diploma at any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made.

Signed:

Date:

ACKNOWLEDGEMENTS

There are a number of people to whom I owe sincere thanks.

I have been honoured by the interest shown in this work from three of the world’s leading public international lawyers:

Firstly, the Emeritus Whewell Professor of International Law of the University of Cambridge, Sir Derek Bowett CBE, QC, LLD, FBA who gave his valuable time in reading and commenting on the draft chapters of this thesis. I am honoured by the fact that Sir Derek has agreed to write a forward on publication of this thesis.

I owe special thanks to Dr Richard Plender QC, LLD, Barrister at Law and Bencher of the Inner Temple, who took time away from his busy practice to provide a meticulous commentary on the draft chapters.

Finally, I would like to thank the former President of the International Court of Justice, Emeritus Whewell Professor of International Law of the University of Cambridge, Sir Robert Jennings QC. Despite wishing to protect his neutrality (having at one time been a counsel for Argentina in their disputes with Chile) he provided useful written comments after reading a draft of the thesis.

I am greatly indebted to my father and mother, Dr Norman and Mary Josephine Katter, for their wisdom and direction in the preparation of this thesis. For the generosity of their time and effort in reviewing this document, I owe a debt of gratitude to: Professor Stephen Corones, Professor John Devereux, Dr Michael White QC, Mr Joseph Crowley, Mr Miles Dickson, Ms Susan Anderson, Mr Brendan Cronin, Ms Anna Dunbar, Mr Cory Kao and Christopher Taufatofua.

Special mention should also be made of the assistance of my Supervisor, Associate Professor Philip Tahmindjis and Associate Supervisor, Ms Frances Hannah.

The further assistance provided by Ms Frances Hannah, Dr Barbara Hocking and Dr Edgar Gold CM, QC at the final review on 8 April 2003 was invaluable.

This research was supported by an Australian Postgraduate Award from the Commonwealth Government and a Queensland University of Technology Faculty Based Award. Further, the Royal Australian Navy provided me with financial assistance for this research.

Dominic Katter 24 November 2003

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INTRODUCTION

INTRODUCTION

CONTENTS

BACKGROUND – HISTORICAL ...... 2 BACKGROUND – LEGAL ...... 3 AIM...... 4 METHODOLOGY ...... 6 STRUCTURE ...... 7 BACKGROUND – CONTEXT ...... 8 LITERATURE REVIEW ...... 9

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INTRODUCTION

Background – Historical

During the 20th century, the growth in the world’s population and improvements in technology have resulted in a greater demand for natural resources. One of the by-products of this increase in consumption has been the potential for the over-utilisation and subsequent degradation of the natural environment. The oceans play a significant and critical part in our global eco-system comprising over 70 per cent of the surface of the earth.1 Oceans are the primary method of trade between nations2 as well as being a major supplier of natural resources.3 In the not too distant future, the floor and the substratum of the seabed are likely to provide a more significant proportion of the world’s mineral resources.

It is the responsibility of all nations, especially coastal states, to ensure that the resources of the oceans are utilised in an environmentally acceptable manner. National responsibilities extend to the atmosphere above the oceans, to the seabed below and to the coastal zones. Article 192 of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS III”) clearly states these responsibilities: “States have the obligation to protect and preserve the marine environment”.4 That convention defines national responsibilities over maritime areas. This allocation of responsibilities raises questions of sovereignty and delimitation of territory and zones of national jurisdiction.

Traditionally, nations claimed a limited jurisdiction over the maritime environment adjacent to their coastlines. During the last two centuries there has been a shift from maritime boundaries being determined for political reasons to being delimited for economic reasons. The increased use of oceanic resources has resulted in jurisdictional claims over greater maritime areas. The result has been that some nations have claimed areas that they may be unable or perhaps unwilling to utilise.5 A consequence of

1 See http://www.thevillage.ie/resources/articles/sean_mcdonagh.html. 2 During the 20th century, merchant shipping underwent rapid developments, especially with the introduction of larger, faster and more specialised vessels. 3 Such as fish, fish-meal and fish-oil. 4 As contained in Part XII — Protection and Preservation of the Marine Environment. 5 Often underdeveloped countries extend their maritime zones in the hope that in the future they may have the economic resources: for example, Eritrea with a GDP of

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INTRODUCTION these jurisdictional extensions has been the reduction of the area that is legally viewed as the “high seas”. Therefore, the concept of the high seas as mare omnium has been steadily weakened and diminished.6

Background – Legal

Territories and boundaries are part of our everyday lives. Disputes over land boundaries ‘fill’ the history texts. Maritime boundaries are more elusive. Ownership of the high seas has become an increasingly important question within international law in recent years. New discoveries above and below the seabed of minerals, oil and natural gas reserves, as well as the desire by many countries to increase the limits of their exclusive fishing areas, have made the delimitation of maritime boundaries an important issue within international law.

Sovereignty is no longer an intra-national concept within International Law. International Law is evolved and determined between governments, whereas national laws are usually established and enforced from above, by the governments and institutions that formulate them. The determination of sovereignty now involves a greater consideration of issues concerning the global community. The demarcation and delineation of maritime territorial claims and zones of national jurisdiction must be acceptable, not only to the negotiating states, but also to the international community. Although states are not compelled to delineate any maritime boundaries, it is important that they do so to settle the question of the ownership of the ocean resources. States also have a responsibility for the care of the marine environment and

$2.9 billion retained the entire coastline of Ethiopia along the Red Sea upon independence from Ethiopia on 24 May 1993. Its maritime zones are in a strategic geopolitical position along one of the world's busiest shipping lanes: see The World Factbook at http://www.cia.gov/cia/publications/factbook/geos/er.html. 6 The theory of mare liberum stated that on the high seas there was a freedom of navigation. A concept of a closed sea, mare clausum, existed for a brief period during the 18th Century where a few maritime powers, such as Britain and Spain, proposed a seaward extension of the territorial sea. These powers proposed this seaward extension beyond the customary international law of a three-nautical-mile limit, varying to as much as 100 or more nautical miles from their coastlines. The principle of the free use of the seas has existed for well over three centuries: see, for example http://54.1911encyclopedia.org/M/MA/MARE_CLAUSUM_AND_MARE_LIBERUM. htm.

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INTRODUCTION for the conservation of its renewable and non-renewable resources. It is reasonable to expect that the increased usage of the oceans for purposes other than traditional fishing and navigation practices will create a greater need for regulatory control of national and international sea space.

The extensions of maritime jurisdiction erode the internationally accepted perception of the freedom of the high seas. However, such an extension offers a sovereign nation additional security from ‘naval attack’ and the protection and use of the maritime resources within the proclaimed zones. For these reasons, the delimitation of the high seas has been disputed in many parts of the world.

The rate of change in concepts relating to the law of the sea (and especially to the use of resources) has been so swift and the potential for conflict so great, that international bodies have actively and systematically co- ordinated the formulation of new laws of the sea, promoting change within International Maritime Law. The development of these new areas of international law and their application to a case study of the Falkland Islands provide the scope for this dissertation.

Aim

There are two inter-related questions in determining this issue of sovereignty over the maritime zones around islands in the high seas:

1. Who has the legitimate claim to territorial sovereignty over the islands? 2. If any nation is able to claim sovereignty over the islands within International Law, what natural maritime resources are they able to exploit?

One of the many problems in the delimitation of boundaries, and in particular maritime boundaries, is the complex issue of the ownership of lands adjacent to those boundaries. It is not possible to answer question 2

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INTRODUCTION without first answering question 1.7 In answering the first question, this thesis argues that the basis for a territorial claim within International Law has changed since the conclusion of the Second World War. Traditional tests are no longer the only principles by which sovereignty is determined. This thesis argues that it is now necessary to use a multi-disciplinary approach when determining sovereignty over a land-mass, such as the Falkland Islands. A determination of maritime boundaries must now consider a greater number of multi-disciplinary principles such as, self- determination, geography, history, proximity, as well as the more traditional tests of cession, annexation and accretion. The traditional tests regarding the acquisition of state territorial sovereignty are no longer the sole determining factors under international legal opinion.8 The principle of self- determination of peoples has been enunciated within the United Nations Charter.9 Additionally, there are political issues, such as economic recession in both Argentina and the United Kingdom, that have stimulated the competing claims for sovereignty between those nations. However, the legal precepts on which maritime sovereignty is based are the focus of this dissertation.

With regard to the second question, the evolution of international opinion was codified by the three-fold regime for the Law of the Sea agreed upon at the UNCLOS III in 1982.10 The provisions of UNCLOS III attempt to ensure that no nation can erode the acknowledged freedom of the high seas. However, UNCLOS III legitimised jurisdictional extension, providing nations with a greater area of exclusive economic control. This newly created concept of an Exclusive Economic Zone (“EEZ”) disrupted the traditional

7 See the methodology used in the decision of the Permanent Court of Arbitration in Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm. 8 See Starke, Introduction to International Law (9th ed) (1984) at 154-156. 9 In 1945, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organization to draw up the United Nations Charter. Those delegates deliberated on the basis of proposals worked out by the representatives of China, the Soviet Union, the United Kingdom and the United Deleted: t States at Dumbarton Oaks, United States, in August–October 1944. The Charter was signed on 26 June 1945 by the representatives of the 50 countries. Poland, Deleted: - which was not represented at the Conference, signed it later and became one of Deleted: the original 51 Member States. The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other signatories: see the website of the United Nations, UN History at http://www.un.org/aboutun/history.htm. 10 This Convention entered into force in 1994.

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INTRODUCTION understanding of territorial and high seas maritime sovereignty. Different legal rules apply to these maritime zones as created by UNCLOS III. The problem of maritime boundary determination and the use of resources within those created boundaries is one of the most disputed questions in International Law.11 The thesis will define specific steps for determining the sovereignty around islands in the high seas. The thesis enumerates simple, practically applicable principles that can be applied to new disputes; such as those filed with the International Court of Justice.

Methodology

The methodology used in this thesis will be an analysis of new international treaties, decisions of the International Court of Justice, the Permanent Court of Arbitration and the International Tribunal for the Law of Sea, with a view to elucidating and articulating an amalgam of historical and contemporary principles for determining sovereignty as to the natural maritime resources around islands in the high seas.

The thesis utilises a deductive research methodology that can be applied to novel disputes involving the sovereignty of islands and their maritime zones in the high seas. Each substantive Chapter (Chapters 2-9) and the sub- headings within the Chapters articulate this combination of principles regarding the determination of sovereignty over maritime zones around islands in the high seas. Once sovereignty of the island itself is determined, the extent of the maritime jurisdiction and the usage of resources within the zones of the island can then be determined. The rate at which International Law in this area is developing necessitates a thorough succession through each and every step in this thesis.

From the outset it must be stated a number of matters are outside the scope of this thesis. The pure application of International Law is affected by non-legal factors, such as evolving concepts of conservation of

11 There are many examples of delimitation, including: The Anglo-Norwegian Fisheries Case, 1951; North Sea Continental Shelf (FRG v Denmark and FRG v The Netherlands) 1969; The lan Mayen Continental Shelf 1981; Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985.

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INTRODUCTION resources and political issues. Additionally, International Law is constantly changing. An attempt to codify principles for the determination of maritime natural resources is impacted upon by this evolution. No codified set of principles can satisfy all of the issues or concerns in the determination of sovereignty regarding natural resources around islands. However, this thesis advances a functional approach, providing a degree of predictability and certainty in future determinations.

Structure

Part I of the dissertation examines the description, history and international legal principles relating to the Falkland Islands.

The demographics and geography of the Islands are described within Chapter Two.

Chapter Three analyses the Islands historically in terms of sovereignty, covering such issues as discovery, occupation, Spanish control, the Argentinean claim and possession, and British colonisation.

The historical legal precedents regarding islands on the high seas within International Law are discussed in Chapter Four.

Chapter Five is an evaluation of the sovereignty of the Falklands. This Chapter discusses the extent of territory, cession, occupation, annexation or conquest, prescription, contiguity and self- determination. Chapter Five concludes with an answer to the question as to who has sovereignty over the landmass of the Islands. This answer allows for the general and specific analysis that constitutes the four steps in the remainder of the thesis.

Part I concludes with the answer in Chapter Five to the question as to who has sovereignty over the land-mass of the Islands. This answer provides

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INTRODUCTION

Comment [TR1]: ‘ makes the basis for the general and specific analysis that constitutes the four allowance for ’? --‘takes into account the general ’? ‘Allows’ steps in part II. also = ‘permits’ which seems to indicate that the analysis permission came after the answer had been formulated. Chapter Six provides the general legal framework for the Law of the Sea.

The way in which the maritime zones around the Islands have been delimited is examined in Chapter Seven.

Chapter Eight considers the current International Law principles on the use of natural resources within maritime zones.

Chapter Nine concludes with an analysis of the Falkland’s case study by addressing the current decisions made by its government as well as by the United Kingdom and Argentina concerning the use of major resources within the maritime zones.

Background – Context

This thesis applies the methodology to the case study of the Falkland Islands for a number of reasons: a dispute persists between Argentina and the United Kingdom as to the sovereignty of the Islands and their maritime zones; there was a significant conflict there in 1982, involving the United Kingdom (a permanent member of the United Nations Security Council) and Argentina; self-determination is clear; and the islands are outside the territorial sea of Argentina and therefore in the High Seas. Further, the Falkland Islands are an apposite case study for this thesis, as they are a modern exemplar of long-established and evolving concepts of sovereignty.

The Islands lie at the southern base of South America. Historically, they were situated on an important shipping lane and were thus of great strategic significance.12 From the early 19th century, the United Kingdom

12 The Panama Canal was constructed by the United States and opened in 1914. The canal was built to avoid the need for ships in the Atlantic ocean having to sail

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INTRODUCTION has claimed the territory of the Islands. An english-speaking settlement has existed on the Islands since that time. Using force, Argentina occupied the Islands for a brief period during 1982. The United Kingdom then reclaimed the Islands by force. That 1982 conflict between Argentina and the United Kingdom was fought on traditional notions of military power.

The importance of the Islands now lies in the economic potential of their natural wealth. The maritime zones around the Falklands are some of the richest in the world.13 As the ownership of the Islands has more or less been determined (if not by law, then by war), there has been, since 1982, a concern for the delimitation of the maritime zones. These rich marine and mineral resources have been the subject of claims by both the United Kingdom and Argentina. Despite the obvious abundance of natural resources in these maritime areas, prior to 1986 the Falkland Islands possessed only a three-mile area of territorial sea. The determination of legal rights assists with the prevention of conflict.

Literature Review

The primary sources of information for the case study of the Falkland Islands are contained in the official documents and legal instruments of the United Kingdom, the Falkland Islands and Argentina. Supplementing these documents are the published works of researchers and specialists in the disciplines of International Law, political geography and the marine sciences.

In understanding and preparing the history and evaluating the sovereignty of the Islands, three books were particularly useful. The writings of Boyson (1924), Goebel (1927) and Perl (1983) are important secondary sources.

long distances around Cape Horn, the ‘tip’ of South America, in order to reach areas bordering on the Pacific Ocean, and vice versa. The Panama Canal was under U.S. control until 31 December 1999. After that date, Panama assumed full ownership and control of the canal. The canal stretches some 50 miles from Panama City, on the Pacific side, to Colón, on the Atlantic side. More than 12,000 vessels per year pass through the canal, ranging from oil tankers to cruise ships. 13 Symmons, “The Maritime Zones around the Falkland Islands” (1988) 37 International and Comparative Law Quarterly, April at 283.

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INTRODUCTION

Miss V. F. Boyson’s, The Falkland Islands (1928)14 is a legal and political analysis of 400 years of primary documents.15 This monograph and Julius Goebel’s, The Struggle for the Falkland Islands (1927), were the two most significant publications regarding sovereignty until the conflict of 1982 increased the international focus. It is curious that these two authors, on opposite sides of the globe and presumably with no knowledge of each other, published the pre-eminent works on the Islands within a three-year period in the 1920’s. Despite the effluxion of time both remain excellent summaries and analyses of four hundred years of primary materials.

Perl’s 1983 book, entitled The Falkland Islands Dispute in International Law and Politics, was produced in response to the increased media attention resulting from the conflict between the United Kingdom and Argentina in 1982. It is predominantly a compilation of over 700 pages of primary documents. Perl provides a useful summary of much of the material reproduced within his book. His concise review of the long and chequered history of the Falklands was invaluable.

Even after the 1982 conflict, there have been very few monographs dealing specifically with the Islands in a legal sense.

Anthony Arend and Alberto Coll edited a 252-page text titled, The Falklands War: Lessons For Strategy, Diplomacy and International Law. This was published in 1985 and is a compilation of 15 separate essays on relevant issues. It was of limited use to this thesis. None of the essays added to the contributions of Boyson and Goebel because their focus was more on strategy and diplomacy than on International Law.

The book by Gustafson written in the aftermath of the conflict16 (1988) is a careful compilation of earlier primary studies. It is a broad and dispassionate study of the causes of the South Atlantic conflict of 1982. Gustafson shows how nationalists in Argentina, the Falklands and the United Kingdom, first differed in their interpretations of International Law

14 With notes on the natural history by Rupert Vallentin. 15 Miss V. F. Boyson also edited Fairbridge, Kingsley Ogilvie. The Autobiography of Kingsley Fairbridge, preface by L S Amery, epilogue by Arthur Lawley (London: Oxford University Press, H. Milford, 1928). 16 Gustafson, Sovereignty Dispute over the Falkland (Malvinas Islands) (1988).

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INTRODUCTION concerning the dispute. However, it does not significantly add to the literature on the Islands. His summary of the outcomes of the 1982 conflict amounts to little more than an updating of the books produced by Boyson and Goebel.

During the 1990’s the research of Clive Symmons,17 a Senior Lecturer in Law at the University of Bristol, was at the vanguard of discussions following the extension of the maritime zones of the Islands. His research develops the academic theme that current maritime boundaries are the result of international negotiation and planning but not necessarily the product of conquest or historic claim. His journal articles “Maritime Zones around the Falkland Islands” and “Who Owns the Falkland Islands Dependencies, International Law?” developed the research and commenced the consideration of sovereignty with regard to those new zones.

There has been significant literature generated in the post-1982 period. Prominent among this literature is Warbrick and McGoldrick’s 1997 study of the Maritime Jurisdiction and the co-operative arrangements with Argentina that followed the creation of a Falkland Island Conservation Zone (“FICZ”). In the absence of previous research, Warbrick and McGoldrick presented an appraisal of the question of sovereignty of the zones. They discussed the concept of the territorial sea, the EEZ and the FICZ. Furthermore, they looked at the contentious issues of the exclusive fishing zones claimed by the Islands and emphasised the need for careful management of the resources.

One of the most recent studies of the use of resources within the maritime zones of the Falkland Islands is the thesis of Roel Hans Bethlehem, “Fisheries Conflicts in the South West Atlantic: a Case Study on the

17 Clive Ralph Symmons, LLB (Bristol), Dip Ed (Oxon), PhD of Grays Inn, Barrister-at- Law, is a former Senior Lecturer at the University of Bristol. Dr Symmons is currently a Research Associate in Law in Trinity College, Dublin. He has written extensively on the Law of Tort, various aspects of International Law, particularly the Law of the Sea, also Anglo-Irish legal relations and Irish law. His two books are in the area of the Law of the Sea (The Maritime Jurisdiction of Islands in International Law (1979); and Ireland and the Law of the Sea (2nd edition 2000). His research interests are public International Law, particularly the Law of the Sea and the application of international law in Ireland; Anglo-Irish legal relations and the Law of Tort: http://www.tcd.ie/Law/Contacts.html#Clive Symmons.

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INTRODUCTION

Falkland Islands and Straddling Stocks”. It provides a clear summary and a commentary on the numerous concepts relating to the Illex Squid and other straddling stocks on the Patagonian shelf. However, this Master’s level thesis does not develop the legal consequences involved in the use and protection of maritime resources.

By the 1960’s, the high seas were being considered as the last remaining frontier, whose rational use required intellectual effort and tolerance not only on the part of statesmen but also by social scientists throughout the world. The Legal Regime of Islands in International Law (1979) by Bowett provides the foundation of legal scholarship in this area.18 Bowett formulates the principles that determine the basis of island sovereignty. He assesses the scope of decisions of the International Court of Justice and international arbitrations and submits them to critical analysis. He reflects upon the trends of the developing law of maritime boundary delineation, identifies the directions in which the law is heading and offers some suggestions as to desirable developments. Sir Derek was active in developing methods of defining maritime boundaries during the years when the International Law Commission was preparing for the 1958 Geneva Convention.19

Van Dyke (1999) offers a global overview of maritime boundaries that have been delineated.20 He briefly reviews the state of international competition regarding the sovereignty of islands since the 1982 Convention. He concentrates on an analysis of the development of international law relating to maritime boundaries since 1945 and describes those situations where conflicting claims have created international tension.

Similar studies addressing island sovereignty have been recently published by authors such as Monique Chemillier-Gendreau. Her work, Sovereignty

18 Sir Derek Bowett CBE QC, Whewell Professor of International Law at Cambridge and counsel before the International Court of Justice for a number of governments in international litigation including maritime boundary delimitation. For example, see: Case concerning Passage through the Great Belt Request for the Indication of Provisional Measures (Finland v Denmark) CR 91/10; Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) CR 93/1. 19 See the discussion of this book in Chapter 4. 20 Van Dyke J, Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony (1999).

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INTRODUCTION over the Paracel and Spratly Islands (2000), though examining island sovereignty does not develop a legal methodology for determining sovereignty over maritime resources.

The thesis examines the continuous flow of journal articles and conference proceedings that have proliferated following the conclusion of UNCLOS III. The articles of UNCLOS throughout this research are referred to and quoted in full, where relevant. Other sources include the proceedings of conferences on maritime law and ocean development, and reports produced by the various government and non-government authorities and related literature on maritime boundary delimitation. Specific reference has been made to the numerous international agreements on the delimitation of the maritime zones on the Patagonian Shelf.

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GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS

CHAPTER TWO

GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS

CONTENTS

MAP OF THE FALKLAND ISLANDS...... 17 GOVERNMENT ...... 18 ECONOMY ...... 18 THE DEPENDENCIES AND THEIR SEPARATE SIGNIFICANCE ...... 20 BRITISH ANTARCTIC TERRITORY ...... 22 SOUTH GEORGIA ...... 22 SOUTH SANDWICH ISLANDS...... 23

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GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS

That little ice-cold bunch of land down there.1

An Island thrown aside from human use.2

Determining sovereignty over the Falkland Islands’ maritime resources requires a clear, brief description of the physical location, area, population and economic resources. This is the first step in the methodology used by international tribunals in the determination of sovereignty over an island’s maritime resources. The description is a logical starting point for any determination of respective claims to sovereignty.

The Falkland Islands are in the South-west Atlantic Ocean, on the extreme edge of the Patagonian Shelf.3 The islands are about 480 miles north of Cape Horn consisting of 200 islands,4 the largest being West and East Falkland. They are an archipelago5 forming an arc beginning some five

1 Attributed to President Ronald Reagan: Freedman, Britain and the Falklands War (Blackwell, Oxford: 1988) at 14. 2 Calvert, The Falklands Crisis: The Rights and the Wrongs (St Martin’s Press, New York: 1982) at 1. 3 The name of the Patagonian Shelf derives from the Patagonian region. Before the arrival of the Spaniards, several indigenous groups populated the Patagonian region: the Yámanas, and Onas or Selknam were in Tierra del Fuego. The South American continent was populated with the Pehuenches, Mapuches and Tehuelches. The region owes the name to the Tehuelches. Apparently they were very tall and with a well-developed physique so the Spaniards called them "Patagones", relating them to a giant called "Patagón", a very popular character in a number of novels of that period. Another version related to the origin of the word Patagonia also making reference to the Tehuelches, but in this case it says that the name comes from the huge tracks they left on the snow, in part because of their physique and also the fact that they covered their feet with skins. Today, most Patagonian aborigines live in reserves or work in estancias. The Mapuches constitute the most numerous community, with some 35,000 people. The Argentine Patagonia is located in the south of the South American continent. It extends from the Colorado River to Tierra del Fuego. Its topography can be compared to gigantic stairs with the highest step being the Andean Range, then descending to a terraced plateau that culminates in the Atlantic Ocean, generally with cliffs. This particular terrain has three well-differentiated zones: the Andean Patagonia, the Atlantic Patagonia and the Central Patagonia. It is one of the least populated regions in the world, with a density in some places of 1 inhabitant per square kilometre. The climate is generally cold: http://www.patagonia- argentina.com/i/content/historia.htm. 4 See http://www.army.mod.uk/royalsignals/jcufi/. In contrast, the Falkland Islands Government claims that there are over 700 Islands: http://www.falklands.gov.fk/5.htm. 5 The Oxford English Dictionary defines the term as: “Any sea, or sheet of water, in which there are numerous islands; a group of islands. [1529 PARMENTIER in Jal Gloss. Nautique, “Et me faisois près de l'Archypelague d'auprès de Calicut.] 1600 HAKLUYT Voy. (1810) III, These broken lands and Islands being very many in number, do seem to make there an Archipelagus. 1633 H. COGAN Pinto's Voy. x. (1663) 32 The Seas of China, Sunda, Banda, and the Molucques … that great Archipelage. 1830 LYELL Princ. Geol. I. 122 The numerous archipelagos of the polar ocean. 1845 DARWIN Voy. Nat. xviii. (1873) 417 Within the archipelagoes.

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GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS hundred kilometres from the Argentinean shoreline and ending about 2000 kilometres away in an inhospitable region bordering the Antarctic.6 As Viscount Bryce7 stated when he visited the Falklands Islands in the early years of last century: “ … a land without form or expression”.8 The climate of the islands is maritime, with an average annual temperature of 5–6°

Celsius.9

Map of the South-West Atlantic Ocean10

1857 B. TAYLOR North. Trav. xx. 206 A Skärgaardarchipelago, or ‘garden of rocks,’ as it is picturesquely termed in Norsk”. See http://dictionary.oed.com/cgi/entry/00011555. 6 Dabat and Lorenzano, Argentina: The Malvinas and the end of Military Rule (1984) at 42. 7 James Bryce, Viscount Bryce of Dechmont (1838–1922) was educated in Glasgow and at Trinity College, Oxford. He was elected to a fellowship at Oriel College, Oxford, in 1862 and in 1863 won the Arnold Historical Essay Prize with The Holy Roman Empire, which was published in 1864. He became assistant commissioner of the Schools Enquiry in 1866 and in 1867 was called to the Bar (Lincoln's Inn) where he practised until 1882, also lecturing on law at Owens College, Manchester. In 1870, he became Regius Professor of Civil Law at Oxford and held the post until 1893. Meanwhile, he stood unsuccessfully as the Liberal candidate for Wick in 1874, and successfully for Tower Hamlets, 1880–1885, and South Aberdeen, 1885–1906. He established himself as an authority on Eastern matters, especially Armenia, and was the founder and first president of the Anglo-Armenian Society. He wrote The American Commonwealth (1888). After holding posts as Chancellor of the Duchy of Lancaster, 1892–1894; President of the Board of Trade, 1894; chairman of the Royal Commission on Secondary Education, 1894–1895; Chief Secretary for Ireland, 1905–1906; he was made British Ambassador to Washington in 1907 and remained there until 1913. On his return, he was created Viscount in 1914, and in the same year presided over the committee on alleged German outrages. In 1917 he was chairman of the Second Chamber conference: see http://www.bodley.ox.ac.uk/dept/scwmss/wmss/online/1500-1900/bryce/bryce.html. 8 See Gravel, The Struggle for the Falkland Islands (1927). 9 See http://www.worldtravelguide.net/data/flk/flk500.asp.

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GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS

Approximately 2800 people live on the Islands,11 the largest settlement and capital is Stanley on East Falkland with over 1200 people. Towns and settlements such as Goose Green on East Falkland are much smaller in size.12 The land area of the Islands constituting the Falklands is 12,137 square miles, consisting of a few trees, great areas of open grassland with an abundance of marine mammal life, but no native land mammals.13

The Islands are approximately 8,000 miles from Britain (7,000 nautical miles) and nearly two-thirds the size of Wales.14 The Islands are the only major island group in the South Atlantic and are 300 miles to the east of the Straits of Magellan. They are therefore close to one of the most historically important sea lanes in the world, linking the Atlantic Ocean to the Pacific.

Comment [TR1]: Map Heading required.

Map of the Falkland Islands15

10 See http://www.naval-history.net/F12argentina.htm. 11 The population in July 2001 was 2895: see the CIA World Fact Book at http://www.cia.gov/cia/publications/factbook/geos/fa.html. 12 See Perl, A Documentary Source Book: The Falkland Islands Dispute in International Law and Politics (1983). 13 See Hezlet, “Geographical Fact Sheet on the Falkland Islands, South Georgia Island and Sandwich Islands“ (1992) United States Department of State. 14 See http://gosouthamerica.about.com/cs/falklandislands/. 15 See Ladaco Tours: http://www.ladatco.com/fk-map.htm.

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Government

The Islands are a dependency of Great Britain but are autonomous in many ways. The official name of the colony is “Falkland Island”. The Legislative Council is based in Stanley.

The Constitution of the Falkland Islands came into force on 3 October 1985.16 The Governor represents Queen Elizabeth II as President of the mainly nominated and advisory executive council. The Legislative Council presently consists of ten members, of whom eight are elected by universal suffrage. The Constitution states that the people of the Falkland Islands can freely determine their own political status and seek economic, social and cultural developments as they wish.17 The Falkland Islands Constitution (Amendment) Order 1997 made a number of amendments to the Constitution of the Falkland Islands following a constitutional review of that territory and a report on that review by a Select Committee of the Legislative Council of the Falkland Islands.18 The Islands have their own Courts system as created by the Constitution and a number of Ordinances.19

Economy

Most of the islanders are of British extraction20 and are engaged in farming the 600,000 sheep that occupy much of the land. In 1980, prior to

16 Statutory Instrument 1985/444 (UK). 17 See the Falkland Islands portal: http://www.falklandislands.com/. 18 See the website of the Stationary Office of the United Kingdom, Her Majesty’s Stationary Office: http://www.hmso.gov.uk/si/si1997/97086401.htm#note2. 19 The Falkland Islands Courts (Overseas Jurisdiction) Order 1989 (No 2399 — came into force on 30th January 1990) confers jurisdiction on the courts of the Falkland Islands to deal with certain civil and criminal proceedings in respect of matters arising under the law of the British Antarctic Territory and South Georgia and the South Sandwich Islands. The Islands have a Court of Appeal as established by s 78 of the Constitution; a Magistrate's Court as established by the Administration of Justice Ordinance [Laws of the Falkland Islands, Cap 3] as amended by the Administration of Justice (Amendment) Ordinance 1970 [Falkland Islands Ordinance No 1 of 1970 (Falkland Islands Gazette Vol. LXXIX at page 87)]; and a Supreme Court as established by s 77 of the Constitution: see http://www.hmso.gov.uk/si/si1989/Uksi_19892399_en_1.htm#tfnf003. 20 Due to the fact that many of the residents of the Falkland Islanders retain United Kingdom citizenship it has been necessary to pass legislation on the Islands to prevent, for example, double taxation. The Double Taxation Relief (Taxes on Income) (Falkland Islands) Order 1997 [Statutory Instrument 1997 No 2985] was made on 17 December 1997. It is an arrangement between the government of the United Kingdom and the Government of the Falkland Islands for the avoidance of

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GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS the war, exports to Britain of wool and hides and imports including food, manufactured goods, timber and machinery, exceeded two million 21 Comment [TR2]: Verb pounds. After the 1980’s, the Falkland Islands economy was mainly missing – ‘reached’ or ‘were worth two million pounfs’? -- dependent on sheep farming. However, since the late 1980’s, vast schools also ‘two million pounds’? Perhaps ‘pounds two millions’ is of marine resources have been discovered within the Falkland Islands an import? ☺ internal conservation zone (“FICZ”).22 In particular, vast schools of squid with a very high market value exist within the FICZ. The subsequent sale of fishing licenses has made the Falklands economically self-sufficient with almost half the revenue of the Falkland Islands relying on the sale of these licenses.

The economy is primarily based on agriculture, which directly or indirectly employs most of the workforce and yet there is a labour shortage on the island. Out of a labour force of approximately 1100, 85 per cent are involved in agriculture.23

Export revenue relies on shipments of high-grade wool to the United Kingdom. There is also a significant revenue associated with the export and sale of rare postage stamps and coins.24 The Islanders do not directly exploit the rich fishing stocks from the surrounding waters whilst efforts to establish a net fishing industry have been unsuccessful. Fishing licences and licence fees total more than 40 million US dollars per year and support the Islands’ health, education and welfare system.25 The Islands are attempting to encourage tourism. The Islands are now self-financing except for the defence budget.26

double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains. 21 1 Falkland pound (£F) = 100 pence: the Falkland pound is at par with the British pound: http://www.worldlanguage.com/Countries/FalklandIslands.htm. See also the CIA World Fact Book 1992: http://www.umsl.edu/services/govdocs/wofact92/wf930081.txt. 22 The Falkland Islands internal conservation zone is a fishery conservation zone that stretches for 150 nautical miles off the Falkland Islands coasts. This is fully discussed in Chapter 7 below. 23 The Falkland Islands web site lists the population growth rate at 2.4–3 per cent as at 1994. 24 See the Falkland Islands Portal: http://www.falklandislands.com/. 25 See the Falkland Islands Government home page: http://www.falklands.gov.fk/home.htm. 26 It is hoped that the combination of historical significance, abundant wild life and rich trout fishing will attract tourists. To encourage visitors, the Falkland Islands Development Corporation has built three lodges for those visitors attracted by the abundant wildlife and trout fishing: see the Falkland Islands Portal: http://www.falklandislands.com/.

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The British Geological Survey announced a 200-mile oil exploration zone around the islands in 1993 and early seismic surveys suggested substantial reserves capable of producing 500,000 barrels per day.27 However, recent exploration has not proved as successful in terms of the productive oil reserves28 (see Chapter 9).

The Dependencies and their separate significance

It is important to distinguish at the outset the “Falkland Islands proper” from “the Dependencies” when considering the issue of the title of the Islands and the maritime zones within International Law.29 This thesis Comment [TR3]: This work, deals exclusively with the Falkland Islands proper. The Dependencies were this thesis? set up by Letters of Patent in 1917.30 In 1962, a statutory instrument further created a British Antarctic Territory.31 This was accomplished to conform with the new internationalised status of Antarctica brought about by Article 432 of the 1959 Antarctic Treaty.33 The territories have been treated as dependencies of the Falkland Islands purely for reasons of administrative

27 See the Falkland Islands Portal – Mineral Resources: http://www.falklandislands.com/. 28 Oil exploration is discussed in greater length in Chapter 9. 29 Colonies are dependencies. For example, in Australia prior to federation, the States as colonies were dependencies of Britain: see Bonser v La Macchia (1969) 122 CLR 177 at 222; [1969] ALR 741 per Windeyer J. 30 Falkland Islands Letters of Patent of 21 July 1908 (1912), 101 British and Foreign State Papers 76 (1907–1908) as amended by the Letters of Patent of 28 March 1917 (1912) 111 British and Foreign State Papers 16 (1917–1918). 31 British Antarctic Order in Council, 1962, issued on 26 February 1962, Statutory Instrument No. 400, 1962 and Great Britain, Colonial Office List, 1966 at 82. See also British Antarctic Territories Report for the years 1961 to 31 March 1967, 1 (London, 1967). It is also interesting to note that by means of a very similar Act Argentina established the “National Territory of Tiera del Fuego, Antarctica and South Atlantic Islands”. The Falklands, Georgias and the South Sandwich Islands: Decree Law No 2.191, Official de la Republica Argentina 19/iii/57 (1957). 32 “Nothing contained in the present Treaty shall be interpreted as: a. a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica b. a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise c. prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's rights of or claim or basis of claim to territorial sovereignty in Antarctica. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.”

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GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS convenience. From the Argentinean perspective, the linking of the Dependencies was a foundation for the weak claim to sovereignty over the Islands by the United Kingdom.34

As Halsbury’s Laws of Australia states:35

In ordinary usage a dependency is a dependent or subordinate place or territory and includes a country or province subject to the control of another of which it does not form an integral part.36 “Dependency” has no definite technical meaning but describes a wider class of governmental relationship than the word “colony”.37 It often implies some civil and political relationship borne by one country to another as its superior, different from that of a mere possession. A territory distinct from the country in which sovereign power resides but belonging rightfully to it and subject to the laws and regulations which that country may prescribe, is a dependency.38

Before 1985, the Dependencies were not, in themselves, colonies of Great Britain. The word “dependencies” has no specific technical meaning and essentially describes a wider class of governmental relationship than the word “colony”.39 In the international law context, the use of the word dependency usually requires some civil and/or political relationship formed by one country to another as its superior, a different relationship from that of a mere possession.40 Usually it is a territory distinct from the country in

33 Symmons, “Who Owns The Falkland Island Dependencies In International Law? An Analysis of Certain Recent British and Argentinean Official Statements” (1984) 33 International And Comparative Law Quarterly, July at 727–29. 34 Symmons, “The Maritime Zones Around the Falkland Islands” International and Comparative Law Quarterly Vol 37 (1988) at 283–284. See also Symmons, “Who Owns the Falkland Islands Dependencies in International Law? An Analysis of Certain Recent British and Argentinean Official Statements” International and Comparative Law Quarterly Vol 33 (1984) July at 727. 35 Halsbury’s Laws of Australia (1998) at 155. 36 The Oxford English Dictionary, 2nd ed (Oxford University Press, Oxford, 1989). The Macquarie Dictionary, 2nd ed, (3rd edition first printed 1997) Macquarie Library Pty Ltd, Sydney, 1991 defines “dependency” as a subject territory which is not an integral part of the ruling country. 37 See Re Maryon-Wilson’s Estate [1912] 1 Ch 55 at 62 per Cozens-Hardy LJ, at 66 per Farwell LJ; Re Brassey’s Settlement; Barclays Bank Ltd v Brassey [1955] 1 All ER 577 at 578; [1955] 1 WLR 192 at 193 per Danckwerts J. 38 United States v The Nancy 27 Fed Cas 69 (1814) at 71. More precise definition is elusive, as illustrated by the cases cited. See also Roberts-Wray K, Commonwealth and Colonial Law, Stevens & Sons (London, 1966) at 60; Duncan-Hall H, Mandates Dependencies and Trusteeships, Stevens & Sons for the Carnegie Endowment for International Peace (London, 1948) at 40–41. 39 See Re Brassey’s Settlement; Barclays Bank Ltd v Brassey [1955] 1 All ER 577 at 578; [1965] 1 WLR 192 at 193 per Danckworths J. 40 Halsbury’s Laws of Australia (1998) at 155.

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GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS which the sovereign power resides but rightfully belonging to it and subject to the laws and regulations which that country may prescribe to the dependencies.41

British Antarctic Territory

The principal territories of the Islands are the South Orkneys, the South Shetlands, the mainland peninsula of Graham Land and a segment of the Antarctic mainland delineated according to the sector principle. They have been defined as including all land and islands south of latitude 58o South between longitudes 50o and 80o West.42

As Perl states43

… the … islands are entirely antarctic in character, although none of the islands lies within the Antarctic circle. The five territories listed above were formerly designated by the United Kingdom as the dependencies of the colony of the Falkland Islands in 1908 and 1917.44

Therefore, prior to 1985, the Dependencies were incorporated into two groups: South Georgia and South Sandwich Island; and the British Antarctic Territory, which includes the South Orkneys, South Shetlands, the main peninsula of Graham Land and the segment of Antarctica allocated to 45 Comment [TR4]: Which the United Kingdom. sector?

South Georgia

South Georgia lies 900 miles east-southeast of East and West Falkland. It is a 100-mile-long island, mountainous and covered with

41 On this point see also Roberts-Wray v Commonwealth and Colonial Law, Stevens and Sons, London, (1956) at 60; Duncan-Hall, Bandaid dependencies and trust issues, Stevens and Sons, London (1948) at 40–41. See Halsbury’s Laws of Australia (1998) at 155-156. 42 Falkland Islands Letters of Patent of 21 July 1908 (1912), 101 British and Foreign State Papers 76 (1907–1908) as amended by the Letters of Patent of 28 March 1917 (1912) 111 British and Foreign State Papers 16 (1917–1918). 43 Perl, A Documentary Source Book: The Falkland Islands Dispute in International Law and Politics (1983) at 3. 44 Great Britain, Colonial Office List, 1966, 102 (London). Great Britain, Reference Services, Central Office of Information, “The Falkland Islands and Dependencies” No 7 (April 1982). 45 See Perl, A Documentary Source Book: The Falkland Islands Dispute in International Law and Politics (1983) at 4.

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GEOGRAPHY AND DESCRIPTION OF THE FALKLAND ISLANDS glaciers.46 It has been likened to a partly submerged stretch of the Swiss Alps, with an area of 1450 square miles.47 Its only regular population is the 20 or so staff of the British Antarctic survey based at King Edward point near the old whaling station at Grygeiken.48

South Sandwich Islands Comment [TR5]: South? This 150-mile long island chain starts 350 miles further South from (041002) South Georgia and continues down to Southern Thule. Normally uninhabited and actively volcanic, the islands are totally Antarctic in climate.49

46 See Harrison Matthews, South Georgia – The British Empire’s Sub-Antarctic Outpost (1931). 47 See McIntosh and Walton, Environmental Management Plan for South Georgia (2000). 48 See Harrison Matthews, South Georgia – The British Empire’s Sub-Antarctic Outpost (1931). 49 See Burton, South Georgia, The Commissioner, South Georgia and South Sandwich Islands (1997).

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CHAPTER THREE

CONCISE HISTORY OF THE FALKLAND ISLANDS

Deleted: ¶ CONTENTS TABLE OF

DISCOVERY ...... 28 OCCUPATION...... 31 SPANISH CONTROL ...... 32 ARGENTINEAN CLAIM AND POSSESSION ...... 35 BRITISH COLONISATION...... 37

Deleted: Last saved 27 November 2001 at 1300

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1 Deleted: Introduction¶ … like two bald men fighting over a comb. ¶ Deleted: “ An analysis of historical events is relevant in determining Deleted: ” sovereignty within the maritime zones of the Falkland Islands. Sovereignty Formatted is primarily established by the State that establishes the better title to the Formatted Deleted: … …to… … Islands. Disputed title may be ascertained by an examination of historical ... [1] events from discovery until the present day. The International Court of Justice uses this methodology to determine sovereignty and to delimit borders.2 For example, the Court recently considered the case of Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain)3 that questioned the maritime boundaries of adjacent island nations.

The agreement on 14 June 1982 of General Mario Menendez4 to an un- Deleted: -…,…g… negotiated cease fire was the most tangible act by the Argentinean ... [2] Government in relinquishing its claim over the Falklands in 200 years.

1 This quote is attributed to Jorge Lewis Borges: Jorge Luis Borges was born in Deleted: … … … …for... [3] Buenos Aires, Argentina on August 24, 1899. Shortly after his birth, his family relocated to Buenos Aires. His father was a lawyer and a psychology teacher. His parents both spoke and read English, because his paternal Grandfather, Colonel Francisco Borges, had married an Englishwoman and spent several years in Deleted: from Staffordshire Geneva, followed by a period in Spain. His career as a writer commenced when he named Francis Haslam. returned to Argentina in 1921. His first book, Fervor de Buenos Aires, appeared in 1923. He continued to write prolifically, producing more poetry, essays examining a Deleted: wide variety of topics, and the incomparable short stories for which he became Deleted: Borges … before especially well known. Commencing with themes of local interest, Borges turned 1918 ... [4] rapidly to matters of universal culture, utilizing paradox, ambiguity, and scepticism Deleted: … … … … …,… to illustrate his lines of thought. Toward the end of his life he returned to subjects ,… … … … … … … ... [5] more specifically Argentinean. He became blind in middle age just at the time he was named Director of the National Library of Argentina. He returned to Geneva shortly before his death in 1986: see Lennon, Jorge Luis Borges (New York: Chelsea House, 1992); Monegal, Jorge Luis Borges: A Literary Biography (New York: Paragon House, 1978); Sorrentino, Seven Conversations with Jorge Luis Borges (NY: Whitson, 1981); Sturrock, "Introduction to Ficciones" (NY: Knopf Everyman's Library, 1993) and Woodall, Borges: A Life (NY: Basic Books/HarperCollins,1996). Deleted: ). 2 See, for example: Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment of 15 June 1962, ICJ Reports 1962 at page 27; North Deleted: Sea Continental Shelf Federal Republic of Germany/Denmark; Federal Republic of Deleted: //Interesting – but is Germany/Netherlands), Judgment ICJ Reports 1969 at page 3; The case all of it relevant?// concerning the Maritime Delimitation (Tunisia/Libyan Arab Jamahiriya) Judgement Deleted: ICJ Reports 1981 at page 3; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) Merits, Judgment ICJ Reports 1984 at page 3; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) Judgment ICJ Reports 1999 at page 3. Deleted: -… ... [6] 3 The historical context was discussed in pars 36–69 of the judgment: [2000] 22 ICJ (29 June 2000) at www.icj_cij.org/icjwww/idocket/iqb/iqbframe.htm. Deleted: 4 Commander of the occupation forces in the Falkland Islands (Las Islas Malvinas) Deleted: Last saved 27 during the Falklands war and cousin of Luciano Benjamín Menéndez, who was the November 2001 at 1300

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Comment [TR1]: Spelling?

During the conflict over the Islands in 1982, Ambassador Jeane Deleted: “… … ... [7] Kirkpatrick,5 representing the United States at the United Nations, outlined Deleted: …” ... [8] Deleted: c… ... [9] the history and disputed title over the Islands in an address to the Security Deleted: -… ... [10] 6 Council of the United Nations: Deleted: c…s ... [11] Deleted: …-…-… … … We have all come to appreciate how deep the roots of ... [12] the conflict are. Britain, in peaceful possession of the Deleted: Falkland Islands for 150 years, has been passionately Deleted: devoted to the proposition that the rights of the Deleted: inhabitants should be respected in any future Deleted: disposition of the Islands. No one can say that this attitude, coming from a country that has granted Deleted: independence to more than 40 countries[7] in a Deleted: generation and a half, is a simple reflex to retain Deleted: possession. Deleted: … Deleted: Yet we know, too, how deep is the Argentine commitment to recover islands they believe were Deleted: taken from them by illegal force. This is not some Deleted: sudden passion, but a long sustained national concern Deleted: that also stretches back 150 years, heightened by the Deleted: sense of frustration at what Argentina feels were Deleted: nearly 20 years of fruitless negotiation … Deleted: //Anything to go in here?(041002)// The issue of sovereignty over the Falkland Islands became an issue in the Deleted: United Nations in 1964 when it was debated by the UN Committee on Deleted: Deleted: Deleted: Commander of the Argentinean 3rd Army Corps in Cordoba during 1976: see Deleted: http://www.yendor.com/vanished/junta.html. 5 Deleted: Dr Kirkpatrick served as the United States Ambassador to the United Nations (1981–85) and is presently a Senior Fellow at the American Enterprise Institute. Deleted: She has received numerous honours, including: the Presidential Medal of Freedom Deleted: (1985), the French Prix Politique (1984), the Hubert H. Humphrey Award (American Political Science Association, 1988), the Morgenthau Award (American Council on Deleted: Foreign Policy), the Gold Medal of the Veterans of Foreign Wars, and the Defender Deleted: of Jerusalem Award. Dr Kirkpatrick also holds honorary degrees from Georgetown University, Tel Aviv University, St John's University, Hebrew University and other Deleted: institutions. Deleted: 6 Ambassador Jeane Kirkpatrick, Question Concerning the Situation in the Falkland Islands (Islas Malvinas). Deleted: 7 For example (in the following list, the date of British colonisation and the date of Deleted: independence are listed after the name of the British colony and the modern name or the country it became a part of): Anglo-Egyptian Sudan (1898) – Sudan (1956); Deleted: Basutoland (1868) – Lesotho (1966); Bechuanaland (1885) – Botswana (1966); Deleted: British Cameroons (1919) – Cameroon (1961); Egypt (1914) – Egypt (1922); The Gambia (1661) – The Gambia (1965); Gold Coast (1662) – Ghana (1957); Kenya Deleted: (1887) – Kenya (1963); Mauritius (1810) – Mauritius (1968); Nigeria (1861) – Deleted: Nigeria (1960); Northern Rhodesia (1889) – Zambia (1964); Nyasaland (1889) – Malawi (1964); Seychelles (1810) – Seychelles (1976); Sierra Leone (1787) – Deleted: Sierra Leone (1961); Southern Rhodesia/Rhodesia (1888) – Zimbabwe (1980); Deleted: 1963. Somaliland Protectorate (1884) – Somalia (1960); Swaziland (1890) – Swaziland (1968); Tanganyika (1917) – Tanzania (1961); Togoland (1919) – Ghana (1957); Deleted: Uganda (1888) – Uganda (1962); Zanzibar (1890) – Tanzania (1963). Deleted: Last saved 27 ... [13]

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Deleted: z Decolonisation.8 On 21 May 1996, Argentina warned Britain not to pursue Deleted: a UN resolution recognizing the right of Falkland Islanders to self- Deleted: 21 determination, saying that any change of status (of the British colony) Deleted: , would lead to the freezing of fishing and oil talks with London.9 The UK Deleted: i responded by claiming that Argentina should not be surprised by their Deleted: Deleted: action. Mr Di Tella, Argentina's foreign minister,10 was reacting to Deleted: z suggestions that the UN Committee on Decolonisation might consider Deleted: including a self-determination clause in a Falklands resolution. The Deleted: committee had previously rejected pressure from the UK and the Falklands s Deleted: i to include a clause on the Islanders' right to self-determination, instead passing a resolution that merely encouraged dialogue between London and Buenos Aires.11

Yet the genesis of the war in 1982 between the United Kingdom and Argentina was the last in almost four centuries of disputed possession of Deleted: the Islands. Countries such as Spain, France and the United States have Deleted: all discovered, settled or claimed an interest in the Falklands. As such, it is Deleted: best to begin an analysis of this complex history with the discovery of the Deleted: - Islands. Deleted: - Deleted: 2 Deleted: 8 When the United Nations was established in 1945, 750 million people  almost a Deleted: third of the world's population  lived in Territories that were non-self-governing, Deleted: , dependent on colonial Powers. Today, fewer than two million people live in such Territories. After the Second World War, the major Powers generally favoured Deleted: in moves that would give peoples living under foreign domination the right of self- Deleted: , government. The Organization's founding Members, wanting to ensure the well- being of dependent peoples living in Territories administered previously under Deleted: Mandates of the League of Nations and in colonies separated from countries Deleted: defeated in the War, empowered the United Nations to monitor progress towards self-determination in these and other Non-Self-Governing Territories. The Charter Deleted: of the United Nations established  Chapter XI (Articles 73 and 74)  the Deleted: principles that continue to guide United Nations decolonisation efforts, including Deleted: - respect for the equal rights and self-determination of all peoples, without distinction as to sex, language, race or religion: see a history of the United Nations Deleted: Decolonisation Committee at Deleted: - http://www.un.org/Depts/dpi/decolonization/history.htm. 9 “Argentina warns UK over Falklands”, Financial Times, 22 May 1996 at 8. See also Deleted: http://www.american.edu/TED/FALKOIL.HTM. Deleted: 8 10 Dr Di Tella has been Argentina's Foreign and Trade Minister since 1991. From 1989–1991 he was the Argentine Ambassador Extraordinary and Plenipotentiary in Deleted: 7 Washington. Dr Di Tella was National Deputy for the Justicialist Party, Province of Deleted: Buenos Aires, 1988–1989. During the 1970s and 1980s, Dr Di Tella pursued his academic career and co-authored a number of books with leading academics, Deleted: including C P Kindleberger, D C M Platt, and R Dornbusch: see Australian Deleted: Department of Foreign Affairs and Trade Press Release, 23 August 1995. “Visit by Argentine Foreign and Trade Minister”. Reproduced at: Deleted: http://www.dfat.gov.au/media/releases/foreign/1995/m96.html Deleted: Last saved 27 11 “Argentina warns UK over Falklands”, Financial Times, 22 May 1996 at 8. November 2001 at 1300

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Deleted: n This Chapter provides an historical background for demonstrating that Deleted: Britain has sovereignty over the land-mass that constitutes the Falklands. Chapter 5 applies this historical analysis, together with the principles in Chapter 4, to argue that counter-assertions are untenable under Deleted: international law. Deleted: Deleted: ¶ Discovery 12 As Julius Goebel states in his important historical monograph on the Islands in Deleted: ¶ 13 1927: Deleted: ¶

The tale of early discoveries in these regions was one Deleted: “ of hardship, shipwreck and suffering; none but the more intrepid navigators who sought a direct passage westward to the rich lands of the east ventured southward, and they, indeed, lingered no longer than they were obliged to do. All of these factors explain the Deleted: singular sparsity of records that have been left us. Deleted: Nations were interested in the new world primarily for material gain, and hence, although we have a wealth of documents relating to the development of the land to the north, our accounts of these economically less productive territories are few. It was only later, when Deleted: the devastating wars of the 17th and 18th centuries had stripped France of her colonies, and had threatened the control of Spain over her own possessions that the accordance of protecting trade routes by all possible means led to appreciation of the strategic importance of the South Atlantic regions. As it was, the Deleted: chancelleries made hasty excursions into the records of the early voyages in search of evidence to support their claims to sovereignty, and the shadowy and incomplete accounts of the resultant state papers have been the chief reliance of historians from these times forth. Deleted: ”

14 Different authors disagree as to the first sighting of the islands. As Deleted: 15 Goebel states: Deleted:

Navigators of four different nations have been credited Deleted: “ with having first sighted these islands; the claims of all

12 Research regarding the identity of Professor Julius Goebel Sr has not provided many bibliographical details. His son Julius Goebel Jr is also a professor of law Deleted: who has written a number of published monographs: Law and Practice of Alexander Hamilton (Columbia Univ Press 1964); Antecedents and Beginnings to Deleted: 1801 (MacMillan Library Reference 1973). 13 Goebel, The Struggle for the Falkland Islands (1927) at 1. Deleted: //check URL 14 See Chronicle of the Falkland Islands History and War: (014102)// http://www.yendor.com…ed/falklands_war.html. Deleted: Last saved 27 15 Goebel, The Struggle for the Falklands (1927) at 2. November 2001 at 1300

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of them have been subjected to the casual scrutiny of statesmen and to more dispassionate investigation of historians; but to this day there has been no careful Deleted: examination of the records, no sifting of the proof, no trustworthy exposition of the relative merits of Deleted: ” conflicting claims. Deleted: ly Deleted: The Islands were probably first sighted by a Portuguese sea captain, Deleted: Amerigo Vespucci,16 in April 1502. In a letter by Vespucci to the Governing Deleted: g Deleted: Magistrate of Florence, Piero Francesco Soderini,17 he refers to the Comment [TR2]: Magellan Islands.18 In the official position of the Argentinean Government, the not Majellan? Deleted: j discovery of the archipelago was made by the Spanish ship San Anton in Deleted: 19 1520. The ship was commanded by Esteban Gomez, a member of the Deleted: 20 Magellan expedition. The abbreviated and slightly modified name of Deleted: “Islas Sanson” (Sampson Islands) appears in several Spanish maps Deleted: Deleted: between 1522 and 1590, as well as in the map of the Italian, Agnese, who Deleted: Deleted: due 16 Boyson, The Falkland Islands (1924) at 15. Vespucci was born in 1454 to a Deleted: prominent family in Florence, Italy. As a young man he read widely, collected books and maps, and even studied under Michaelangelo. He began working for local Deleted: bankers and was sent to Spain in 1492 to look after his employer's business Deleted: for interests. While in Spain, be began working on ships and ultimately went on his first expedition as a navigator in 1499. This expedition reached the mouth of the Deleted: Amazon River and explored the coast of South America. Vespucci was able to Deleted: calculate how far west he had travelled by observing the conjunction of Mars and the Moon. On his second voyage in 1501, Vespucci sailed under the Portuguese Deleted: 5 flag. After leaving Lisbon, it took Vespucci 64 days to cross the Atlantic Ocean Deleted: owing to light winds. His ships followed the South American coast to within 400 miles of the southern tip, Tierra del Fuego.Vespucci was named Pilot Major of Deleted: Spain in 1508. Vespucci's third voyage to the New World was his last because he Deleted: contracted malaria and died in Spain in 1512 at the age of 58: see http://geography.miningco.com/library/weekly/aa050498.htm. Deleted: 17 The Soderini family was prominent in the political affairs of Florence. Piero’s father, Deleted: Tommaso Soderini was appointed Gonfalonier (governing magistrate) of Florence five times, and in 1502 his son, Piero Soderini was given that title for life. Deleted: Tommaso's brother Francesco was a Catholic Cardinal during the time of Pope Deleted: Julius II, a close friend and protector of Michelangelo: Deleted: http://www.beringerwineestates.com/wineries/gabbiano.html. 18 The Vespucci Reprints, Texts and Translations, issued by the McCormick Fund of Formatted Princeton University. The translation of the Soderini letter by Professor G T Formatted Northum contains what purports to be the first critical examination of the extent of the Vespucci texts and consequently throws light on the controversies that have Formatted arisen over places and dates, not to speak of the influence that various careless Formatted translations have on the cartographers. See Perl, A Documentary Source Book: The Falkland Islands Dispute in International Law and Politics (1983) at 4. Formatted 19 Esteban Gomez was a Portuguese black explorer who sailed for King Charles of Formatted Spain. It is notable that he sailed to what is now New York and named San Antonio: see http://www.cheapnewyorkhotels.com/guide/new_york_history.html. Formatted 20 Ferdinand de Magellan was born in about 1470 of noble parents, and probably Formatted spent his boyhood as a page of the Queen of Portugal. As a young man he was in the East India service, then lived in Morocco. After a slight from King Manuel, he Formatted enlisted under the Spanish king and set forth his project for a trip round the world. Formatted His expedition set sail on 10 August 1519. Magellan was killed in April 1521 at Zebu in the Philippines, but the expedition had already reached the eastern edge of Formatted the known world and his men completed the voyage to Spain: Deleted: Last saved 27 http://www.fordham.edu/halsall/mod/1519magellan.html. See footnote 29 below. November 2001 at 1300

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Deleted: j in 1536 indicated Magellan’s route.21 It was the view of Bougainville22 that Deleted: Vespucci was the first to sight and therefore discover the islands. As Deleted: Goebel notes23 Humboldt24 was the first of the modern writers to raise a Deleted: doubt regarding Vespucci’s discovery. He states that the Patagonian coast Deleted: may have been what Vespucci sighted.25

Deleted: However, it is not important in the context of this thesis to determine who , Deleted: first discovered the Islands (or sighted them unknowingly). Even in the 16th century, discovery did not create legal title within customary international Deleted: law.26 It is not vital in determining the sovereignty over the Islands to know Deleted: who discovered them.27

Other sightings were subsequently recorded and it is certain that by the end of the 16th century the Islands of the Patagonian coast were known to Deleted: Spanish, Portuguese and English navigators.28 Other than Vespucci, it is 29 possible that the expeditions of either Ferdinand Magellan in 1520, Deleted: Deleted: Deleted: a Deleted: m 21 Commission of the Churches on International Affairs, World Council of Churches, Conflict in the South Atlantic: Documents on the Falklands/Malvinas Crisis (1983). Deleted: 22 Bougainville, Voyage Autour du Monde (1771) at 47. See Deleted: http://pages.quicksilver.net.nz/jcr/~boug2.html: “The French Sailor, Soldier, Deleted: ; Statesman and Mathematician, Louis-Antoine de Bougainville, was one of the most interesting characters of the Eighteenth Century. Born in Paris in 1729, he started Deleted: he the first settlement in the Iles Malouines (Falkland Islands); he led a voyage around Deleted: and the world in the 1760s; he fought in the American War of Independence, wrote mathematical treatises and was elected to scientific academies; he survived a duel Deleted: o and the French Revolution to become a friend of Napoleon and grow roses. After Deleted: his death in 1811 he had islands, mountains and plants named after him.” 23 Goebel, The Struggle for the Falkland Islands (1927) at 4. Deleted: // If original quotation 24 Humboldt, Examen Critique de l’Histoire de la Geographie (1839) Vol 5. is confirmed correct, delete 25 Humboldt arrives at this conclusion by reference to the Medici letter where corrections// Vespucci states that he has been considering a port voyage; “ … and I may apply Deleted: ha myself to discovery of new regions to the south along the eastern side following the wind-route called Africus”: Goebel, The Struggle for the Falklands (1927) at 5. Deleted: g 26 See Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 Deleted: The Notre Dame Law Review 616 at 624. Deleted: 27 However, discovery can form the basis for a claim of sovereignty. See Gravelle, The Falkland (Malvinas) Islands: An International Law Analysis of the Dispute Deleted: Between Argentina and Great Britain (1985) 107 Military Law Review 5 at 11. Deleted: 28 See Perl, A Documentary Source Book: The Falkland Islands Dispute in International Law and Politics (1983) at 4. Deleted: - 29 Fernao De Magalhaes (1480–1521) was born into the Portuguese upper classes Deleted: , where, when and was about seventeen years old when the Portuguese explorer, Vasco de Gama, sailed around the Cape of Good Hope to India. When he was about 25 Deleted: //Check location – years old, he enlisted in the army and travelled to India. Later when fighting Morocco in Africa?// against the Moors in Morocco, he was wounded and made lame for life. His travels Deleted: Magellan, convinced him that a westerly route to the Far East was possible, and he was prepared to back up his notion with an expedition. Christopher Columbus had the Deleted: same vision but unlike Columbus, Magellan found the route: see Deleted: Last saved 27 http://www.magellan-group.com/ferdy.htm. See footnote 20 above. November 2001 at 1300

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Captain John Davis in 159230 or the Dutchman, Sebald de Weert in 1598 (who plotted the westerly adjacent islands) may have sighted the Falklands for the first time.31

As Goebel states:32

It is by no means incomprehensible that, even if a Deleted: “ voyager had sighted the Falklands, he might have Deleted: i believed them to be part of the great austral continent, particularly if his charts bore out such a view; and this was actually the case where we have accounts of voyages in the Tierra del Fuego region. This Deleted: circumstance is a very striking illustration of how the maps influenced the voyagers’ views of what they discovered and how, as we shall presently see, the maps themselves simply added confirmation to what was already known when the cosmographers came to 33 interpret new material. Deleted: ”

Deleted: Goebel devotes 46 pages of his book to the discovery of the Islands. His Deleted: work is unparalleled in terms of its detail and research. In this research it is not necessary to analyse discovery in the same detail.

Occupation Deleted: ¶ Formatted British sources maintain that the first recorded landings occurred on the Falklands in 1690 by Captain John Strong,34 who named the islands Deleted: after Viscount Falkland,35 then Treasurer of the Royal Navy.36 The islands

30 The English claim that the island chain was sighted in 1592 by John Davis, the Deleted: commander of a ship named the Desire. This report, the basis of later British claims of sovereignty, is disputed by Argentina. The description of the islands by one of Deleted: Davis' crew is filled with factual errors and may be a complete fake, written to Deleted: enhance Davis' reputation: http://www.ehistory.com/world/amit/display.cfm?amit_id=1702.According to the Deleted: Encyclopaedia Britannica, the English navigator, Captain John Davis, on the Desire Deleted: (1592) may have been the first person to sight the Falklands: see http://www.yendor.com/vanished/falklands-war.html. Deleted: 31 Dutch Captain Sebald de Weert in the Het Gheloove sighted the Jason Islands Deleted: naming them the Sebaldines. This was an expedition of five ships from Rotterdam to the South Seas. One survived, commanded by Sebald De Weert. Deleted: 32 Goebel, The Struggle for the Falkland Islands (1927) at 11. Deleted: 33 Goebel, The Struggle for the Falkland Islands (1927) at 11. 34 His ship HMS Welfare was blown off course in 1690. Deleted: 35 Lucius Cary, Viscount Falkland (1610?–1643) born at Burford in 1610, educated at Deleted: - Trinity College, Dublin. His father was Lord Deputy of Ireland. Falkland was an English statesman and literary figure. He entered Parliament in 1640, where he Deleted: e opposed the exaction of ship money and spoke in favour of the attainder of the Earl Deleted: Last saved 27 of Strafford. However, he objected to the abolition of the episcopacy and in 1642 November 2001 at 1300

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HISTORY OF SOVEREIGNTY have never been settled by the Argentineans, although for a brief period, during the war of independence from Spain, Argentina did plant a garrison Deleted: on the islands. The islands were deserted until 1764 when the French Deleted: established Port Louis on East Falkland.37 Port Louis was named in Deleted: homage to the sovereign by Antoine de Bougainville. As is asserted by the Foreign and Commonwealth Office,38 most of the settlers came from the Deleted: port of Saint Malo, in Brittany. The French named the Islands, “Les Iles Deleted: l Malouines” after the port of Saint Malo.39 The French formally took Deleted: i 40 possession of the islands in the name of Louis XV. The French Deleted: presumably decided to colonise the islands because of their strategic Deleted: position on the route to the Pacific Ocean.41

Deleted: In 1765, one year after the French settlement was established, the British O Deleted: in 1765, Commodore Byron, disembarked in another remote place on West Falkland Deleted: and took possession of the same on behalf of the United Kingdom Crown.42 In 1766, Captain MacBride was sent by the British Government to settle a British population on West Falkland at Port Egmont. Deleted: ¶ Spanish Control It was always argued by the Spanish that the Papal Bull, inter caetera divinae,43 of 4 May 1493 placed the Falklands within a zone Formatted Deleted: allocated to Spain.44 As Arend and Coll state:45

became an adviser to Charles I. He represented the King in attempts to make Deleted: peace with Parliament in September 1642 and was with Charles at Edgehill and the siege of Gloucester. In despair at the prospect of the civil war continuing, he is Deleted: supposed to have deliberately allowed himself to be killed at the battle of Newbury. A poet in his own right, Falkland was also a liberal patron of many of his literary Deleted: contemporaries: see the biography by J.A.R. Marriott (1907). Deleted: 36 See Perl, A Documentary Source Book: The Falkland Islands Dispute in International Law and Politics (1983) at 4. Deleted: 37 Koshy, Documents on the Falklands Malvinas Crisis: Conflict in the South Atlantic Deleted: (1983) Background information: Commission of the Churches on International Affairs at 12. Deleted: 38 British Reference Services Note 7 at 2 and Great Britain, Foreign and Commonwealth Office, the Falkland Islands, No 2, (London May 1982). Deleted: 39 British Reference Services Note 7 at 2 and Great Britain, Foreign and Deleted: Commonwealth Office, the Falkland Islands, No 2, (London May 1982). 40 Gravelle, The Falkland (Malvinas) Islands: An International Law Analysis of the Deleted: Dispute Between Argentina and Great Britain (1985) Vol 107 Military Law Review 5 Deleted: at 11. 41 Freedman, Britain and the Falkland Islands (1988) at 18. Deleted: 42 Reginold and Elliot, Tempest in a Teapot: The Falkland Islands War (The Borgo Deleted: - Press, California: 1983) at 19; Freedman, Britain and the Falklands War (Blackwell, Oxford, UK: 1988) at 18; Hoffman, F and Hoffman, O. Sovereignty in Dispute: The Deleted: - Falklands/Malvinas, 1493–1982 (Westview Press, Colorado: 1984) at 39–43. Deleted: Last saved 27 43 Pope Alexander VI (1430? - 1503; Pope 1492 - 1503). November 2001 at 1300

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Deleted: ¶

The war itself did not purport to grant sovereignty to Deleted: “ Spain against any adverse claim, only the right to non- Christian princes and others to acquire territory within the Spanish zone to the exclusion of equivalent Portuguese rights. Moreover, this was the outcome of Deleted: an arbitration to which only Spain and Portugal were parties. England and France were not involved, and it Deleted: would be a serious misunderstanding of the politics of the time to suppose that the Catholic monarchs of those two countries, which had not yet entered the competition for overseas empire, considered themselves bound, or were considered by anyone else to be bound, by the results of that arbitration. Spain Deleted: and Portugal relatively quickly relegated the secular aspects of the rule to the background by concluding in 1494 the Treaty of Tor des Illas which moved the line Deleted: i drawn by the Pope some 270 leagues westward. Deleted: ”

Although the Papal Bull and the subsequent treaty46 of the 15th century divided title to all discovered territory in the western half of the known world,47 the Treaty of Madrid signed by Great Britain and Spain in 1670 did Deleted: i not mention the Islands.48

The Treaty of Utrecht of 1713 confirmed Spain’s continued control of her Deleted: traditional territories in the Americas, including the off-shore islands.49 The

44 Coll and Arend, The Falklands War (1985) at 10. 45 Coll and Arend, The Falklands War (1985) at 10. 46 Treaty of Tor des Illas of 1494. Formatted 47 Perl, A Documentary Source Book: The Falkland Islands Dispute in International Law and Politics (1983) at 6. Deleted: : A Documentary 48 Gravelle, The Falkland (Malvinas) Islands: An International Law Analysis of the Source Book Dispute Between Argentina and Great Britain, Vol 107 (1985) Military Law Review 5 at 11. Deleted: 49 In 1713, Queen Anne of England and King Louis XIV of France signed the Treaty of Utrecht in the Netherlands. The treaty ended hostilities between the two nations both in Europe and North America. Under the terms of the treaty, England gained the Hudson Bay Territory, Newfoundland and Acadia from France. France maintained control of Cape Breton Island, the St. Lawrence Islands, and fishing rights in Newfoundland. The hostilities between the French and English in North America were over land and the fur trade. In the late 1690s, the French had forced the English out of the Hudson Bay Territories and had destroyed most of the English forces in Newfoundland. In 1702, after five years of peace, England and France battled once again. In Europe, the war was called the War of Spanish Succession, while in North America it was referred to as the Queen Anne War. The French were successful in attacking the English in Newfoundland, while the British captured Acadia. However, English victories in Europe signalled the end of both wars. King Louis XIV of France, bankrupted by the war, agreed to give up French land in North America under the treaty. The treaty brought three decades of peace between the English and French. However, it did not end the fight over territory in North America. Both Deleted: Last saved 27 countries spent time fortifying their territories. The French began construction of November 2001 at 1300

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50 Comment [TR3]: To cede is Spanish purchased the French settlement of Port Louis on East Falkland ‘to yield or formally resign and 51 surrender to another; make for 618,198 lires and renamed it in April 1767. The new colony Puerto over, as by treaty.’ This is an opposite of ‘purchase’. Soledad had a Spanish Governor appointed by the Governor-General of Deleted: (ceded) mainland Buenos Aires. Deleted: Deleted: French In 1770, Spain forced Britain to abandon Port Egmont on Saunders Deleted: Island.52 Orders were received from Buenos Aires. Spanish vessels with Deleted: via over 1000 soldiers on board removed the small royal marine garrison at Deleted: Port Egmont.53 This forcible removal was reversed by a declaration made in the name of Spain on 22 January 1771, allowing the British to re- Deleted: establish the settlement at Port Egmont. The declaration contained the condition that the restoration of the settlement was not in any way to affect Deleted: the question of prior sovereign rights over the Islands.54 In 1874, the British i Deleted: settlement at Port Egmont was abandoned, allegedly because the Deleted: settlement was a financial burden. Goebel believes that there may have Deleted: been some agreement in the 1771 declaration that the settlement would be ill Deleted: abandoned at this time.55

Deleted: y When the British left, the British claimed the territory and placed a plaque at Deleted: Port Egmont. The wording of the plaque is in dispute. The Argentineans Deleted: claim that it referred to “Falkland Island” in the singular, however, Julius Goebel maintains in his definitive work that the plural, “Falkland Islands”

Fort Louisbourg on Cape Breton Island in 1713. Meanwhile, the English repaired their fortifications in Newfoundland. In 1744, England and France would be at war again in the King Georges War, and in 1754, in the French-Indian war. The French- Indian war would eventually conclude with a British victory and the Treaty of Paris, giving England control of North America. The Treaty of Utrecht signalled a major victory for England, in the fight for territory in North America. The territory won by the British gave them a significant portion of Atlantic Canada that would benefit them financially and strategically in the battle for North America: http://www.canadiana.org/citm/treaties/1713.html. 50 In contrast to cede. To cede is ‘to yield or formally resign and surrender to another; Deleted: make over, as by treaty. 51 See Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 Deleted: : A Documentary The Notre Dame Law Review 616 at 624. Source Book 52 Located 3 miles off the northwest coast of West Falkland, Saunders Island was the Deleted: site of the first British settlement in 1765. Its ruins can be seen about a 30 minute walk away from the settlement: see http://www.ladatco.com/fk-sdr.htm. Deleted: - 53 See Perl, A Documentary Source Book: The Falkland Islands Dispute in Deleted: International Law and Politics (1983) at 5. 54 For text of the Declaration of Independence, see 22 British and Foreign State Deleted: Papers 1387 (1832–1834). Deleted: Last saved 27 55 See Goebel, The Struggle for the Falkland Islands (1927). November 2001 at 1300

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Deleted: …¶ was used.56 The Spanish withdrew their settlement on East Falkland in ... [14] 1811.

Argentinean Claim and Possession Formatted In the Declaration of Independence of 9 July 1816, the united Deleted: By … …g…i…... … [15] provinces of Rio de la Plata, with its seat of government at Buenos Aires, declared their independence from Spain.57 In 1820, the new Buenos Aires Argentinean Government sent a ship to the Islands to proclaim sovereignty over them and in 1823 appointed a governor over the Islands.58 In 1823, a fishery and livestock concession was granted to Don Jorge Pacheco59 and a Mr Luis Vernet.60 In 1826, a settlement was established under the leadership of Vernet61 and in June 1829 Vernet was appointed

56 Goebel, The Struggle for the Falkland Islands (1927) 410: “Be it known to all Deleted: … …b… ... [16] nations that the Falkland Islands, with this fort, the storehouses, wharves, harbours, bays and creeks thereunto belonging are the sole right and property of His Most Sacred Majesty George III, King of Great Britain, France and Ireland, Defender of the Faith. In witness whereof this plaque is set up, and his Britannic Majesty’s colours left flying as a mark of possession by S W Clayton, Commanding Officer at Falkland Islands, AD 1774.” 57 Bryson, The Falkland Islands (1924) at 77–82. Deleted: - 58 Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 The Notre Dame Law Review 616 at 618–623. Deleted: … …- ... [17] 59 In 1823 General Martín Rodriguez, the Governor of Buenos Aires, with the purpose Formatted ... [18] of giving impulse to the colony of the island Solitude, granted thirty leagues of earth and exclusive rights of fishing to Don Jorge Pacheco: ar.geocities.com/laperlaaustral/LaSoberania. 60 See Perl, A Documentary Source Book: The Falkland Islands Dispute in International Law and Politics (1983) at 6. During the period of abandonment prior Deleted: : A Documentary to 1823 sealers and whalers were the only inhabitants of the place. Equine, bovine Source Book … … … … … and hog cattle increased in number, although they were hunted by the occasional who was … … … … … …: inhabitants. There were also a number of wild animals that were hunted. In 1823 and …invested … ... [19] the merchant Jorge Pacheco presented the Government of Buenos Aires with a request to exploit the Malvinas Islands. He owned a salting house in Pedriel and in association with Luis Vernet (32 years old at the time) he wanted to exploit bovine, equine cattle and sealions from the Malvinas. In exchange, they had to re-build the prison for the Government. They signed a contract with the English Robert Schofield for him to engage in the hunting and slaughtering for which he bought two vessels. Pablo Areguay was sent to control the exploitation. He was also the Commander of Isla Soledad. Emilio Vernet, Luis' brother, went with him. The enterprise was a complete failure  all ships were lost as was all the invested capital (1824): http://www.tierradelfuego.org.ar/museomar/Ushuaia/Malvinas/malvinas02-I.htm. 61 Goebel, The Struggle for the Falkland Islands (1927) at 434–436 note 14. In 1825, Deleted: -… …who was … Vernet (a German residing in Buenos Aires) decided to go on with the exploitation u… … …9…9… … ... [20] personally. For this purpose, he went on a series of voyages and as a conclusion he presented to the government a report about the possibilities in Malvinas, Isla de los Estados, San Gregorio Bay in the Magellan Strait and the islands near Cape Horn. From 1826, when Vernet arrived at Port Luis (ex port Soledad), there was a register of the ships’ entrances. In 1826, nine ships entered (from July); 22 vessels in 1827; 11 in 1828; 16 ships in 1829 (nine of them sealers); in 1830, 23 (14 of them were sealers). Most of them belonged to American and British sealers, except for some Argentinean and other merchants. Vernet's leasing was similar to Deleted: Last saved 27 Pacheco's and consisted of all the vacant plots of Soledad Island. Ten square November 2001 at 1300

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HISTORY OF SOVEREIGNTY commandant of the newly created political and military protectorate of the Deleted: Islands.62 In 1827, the Government of Buenos Aires issued a proclamation i Deleted: claiming it had succeeded to all rights over the islands. This proclamation Deleted: g 63 received a protest from the British Government. Deleted:

64 As Coll and Arend state, the: Deleted:

Incidents of 1831–1833 are complex but can be Deleted: “ quickly summarised. Vernet’s authority was disputed Deleted: - by some American sailing vessel captains. He seized Deleted: three American vessels, one of which escaped and made its way back to the United States”. Vernet had Deleted: notified the masters any vessels found seal fishing in Deleted: the area of the new regime and asked them to cease Deleted: that operations under penalty of being sent to Buenos Deleted: . Aires for trial.65 Deleted: ”

Deleted: 66 As Coll and Arend state: Deleted: “

Deleted: President Andrew Jackson did not suffer inhibitions of Formatted the American activities gladly; he dispatched a Naval Deleted: N vessel, The USS Lexington, to the Falkland/Malvinas. Vernet, having sailed to Buenos Aires on one of the Deleted: arrested vessels to pursue admiralty proceedings Deleted: against both, found himself instead charged by Deleted: Captain Davison, the American Commander, Deleted: . answerable for the conduct of both, with “piracy” and Deleted: ” the subject of spurious complaint by United Stated Consul Slacen and the British Diplomatic Charge de Deleted: s Affaires Woodbine Parish. Around this time, in Deleted: , once deducted//Meaning not clear. // December 1831, [Officers of the USS Lexington] ‘ … from which were deducted entered the Buenos Aires court in the those granted to Pachero.’? the Falkland/Malvinas under a false (French) flag and … ones granted to Pacheco removed Vernet’s Lieutenant, an Englishman named Deleted: 67 Matthew Cook. Commander Duncan of the USS Deleted: Lexington declared the islands, before his departure, Deleted: i free of all government.68 Deleted: Deleted: leagues were reserved in the San Carlos Strait and the Isla de los Estados: Deleted: l http://www.tierradelfuego.org.ar/museomar/Ushuaia/Malvinas/malvinas02-I.htm. 62 The text of the decree establishing Vernet’s appointment was as follows: 81 page 6 Deleted: of Perl’s book. See also Fitte, la Agresion nort Americana a Las Islas Malvinas, Deleted: Cronica Documental 17 (Buenos Aires, 1966). 63 Gravelle, The Falkland (Malvinas) Islands, An International Law Analysis of the Deleted: - Dispute Between Argentina and Great Britain (1985) Vol 107 Military Law Review 5 Deleted: at 14. 64 Coll and Arend, The Falklands War (1985) at 14. Deleted: 65 Goebel, The Struggle for the Falkland Islands (1927) note 14 at 434–436. Deleted: 66 Coll and Arend, The Falklands War (1985) at 14. 67 See also Mueller, The Falkland Islands: Will the Real Owner Please Stand Up Deleted: - (1983) 58 The Notre Dame Law Review 616 at 621. Deleted: Last saved 27 68 Goebel, The Struggle for the Falkland Islands (1927) at 454–454. November 2001 at 1300

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In December 1832 Argentina attempted to establish a penal colony and Deleted: appointed a new Governor. However, the convicts and settlers mutinied Deleted: mutineered and killed the new governor. Deleted: ¶ ¶

British Colonisation

It was the frustration of the English dream of a great Deleted: “ overseas commerce carried on under the Rose that Deleted: r led to the adoption of a policy of territorial acquisition which included the first seizure of the Falkland 69 Islands. Deleted: ” Deleted: The British dispatched two warships to the Falklands. One, the HMS Clio, Deleted: arrived at Port Egmont on 20 December 1832 and made repairs to the old Deleted: d Deleted: fort and affixed a notice of possession. On 3 January 1833 the HMS Clio Deleted: arrived at Port Louis, the former Port Soledad.70 On 4 January 1833 a force was landed from the Clio and a British flag was raised but against the protests of the Commander of the Argentinean armed schooner the Sarandi Deleted: who had just quashed a revolt of the colonists on the island.71 The Sarandi Comment [TR4]: Sarandin? departed several days later, her departure having been delayed by stormy Sarandi? See previous line. weather.72 On 3 January 1833 a second British ship the HMS Tyne visited Deleted: Sarandn Port Egmont and a symbolic flag-raising took place.73 Argentina protested Deleted: Deleted:

69 Goebel, The Struggle for the Falkland Islands (1927). Deleted: 70 See Perl, A Documentary Source Book: The Falkland Islands Dispute in International Law and Politics (1983) at 7. Deleted: : A Documentary 71 Goebel, The Struggle for the Falkland Islands (1927) at 454–455. See also Boyson, Source Book The Falkland Islands (1924) at 96–98. In 1839 The Argentine Government wanted Deleted: to “make the islands a presidio” having a double significance with a garrison and - penal settlement; and the men were, for the most part, importees serving a term of Deleted: punishment. However, the penal settlement was insufficiently guarded, the Deleted: - prisoners revolted in December 1832. 72 On 2 January 1833 the British arrive at Port Louis (Soledad) and take possession Deleted: of the Islands (HMS Clio under Captain Onslow and HMS Tyne). The Argentine Deleted: g armed schooner Sarandi under Don Jose Maria Pinedo was in port. Onslow gave Pinedo written notice that he had been ordered to exercise British rights of Deleted: , sovereignty and that the next morning he would raise the British flag and requested Formatted that Pinedo lower the Argentine flag and depart. Pinedo waited upon Onslow and protested refusing to lower the Argentine flag. However the next morning the British landed raised the British flag and lowered the Argentine flag, which was subsequently delivered to Pinedo. Sarandi left the islands taking aboard the Formatted Argentine soldiers that were on the islands. William Dickson, who was Vernet's book-keeper, was left in charge of the settlement: Formatted http://www.geocities.com/little_chay/hisintro.htm. Deleted: Last saved 27 73 Boyson, The Falkland Islands (1924) at 98. November 2001 at 1300

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Deleted: to strongly at this action, diplomatically,74 to the Royal Naval Officer in charge Deleted: of Port Louis in January 1834. Deleted:

Deleted: The Islands remained under the control of the British Admiralty until i Deleted: January 1842 when a Lieutenant Governor, appointed by the Colonial who was Deleted: Office in August 1841, reached Port Louis.75 In 1843, an Act of the British Deleted: Parliament put the Islands’ administration on a permanent footing. Under this Act of 1843, the Letters of Patent were issued in June 1844 and the Deleted: Falkland Islands became a colony of the Crown of the usual type with a in Deleted: governor, legislative council and executive.

Deleted: Deleted: - 74 See 22 British and Foreign State Papers, 1384 (1832–1834). See also Argentine Republic, Protestation Au Gauberne des Provinces Unites du Rio de la Plata par Deleted: son Ministre Plenipotentiaire a Londres (ATP 3). Deleted: Last saved 27 75 See the United Kingdom, Foreign Office Handbook No 138 at 16 fn 25. November 2001 at 1300

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW

CHAPTER FOUR

HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW

CONTENTS

THE CONCEPT OF SOVEREIGNTY...... 40 CLIPPERTON ISLAND ARBITRATION ...... 47 ISLAND OF PALMAS ARBITRATION ...... 48 EASTERN GREENLAND CASE...... 51 MINQUIERS AND ECREHOS CASE...... 51 GULF OF FONSECA CASE...... 52 CURRENT DISPUTES ...... 54 ANALYSIS ...... 57

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In the absence of justice, what is sovereignty but organized robbery?1

Any discussion regarding the sovereignty of the Falkland Islands has to be framed within the context of historical, International Law precedent. There are a significant number of examples that provide precedent for the determination of sovereignty of Islands. This Chapter analyses each of these examples within the context of the change in the methodology of determining the sovereignty of islands. This chapter examines the historical precedents used to describe the general principles that provide guidance regarding the rules that govern the ability of a nation to claim sovereignty over islands.

The Concept of Sovereignty

The traditional English view of sovereignty was described by Sir William Blackstone2 in the 18th Century as deriving of necessity from one “supreme, irresistible, absolute, uncontrolled authority”.3 Sovereignty, was described by the great American Judge Joseph Story4 as a term used in

1 This quote has been attributed to Saint Augustine: Aurelius Augustinus [more commonly “St Augustine of Hippo”] (354–430 CE) rhetor, Christian Neoplatonist, North African Bishop, Doctor of the Roman Catholic Church. See http://plato.stanford.edu/entries/augustine/. 2 Blackstone, Sir William (1723–1780) English jurist. At first unsuccessful in legal practice, Sir William turned to scholarship and teaching. He became (1758) the first Vinerian Professor of Law at Oxford, where he inaugurated courses in English Law. British universities had previously confined themselves to the study of Roman Law. Blackstone published his lectures as Commentaries on the Laws of England (4 vol, 1765–1769), a work that reduced to order and lucidity the formless bulk of English law. It ranks with the achievements of Sir Edward Coke and Sir Matthew Hale, Blackstone's great predecessors. Blackstone's Commentaries, written in an urbane, dignified, and clear style, is regarded as the most thorough treatment of the whole of English Law ever produced by one man. It demonstrated that English law as a system of justice was comparable to Roman Law and the civil law of the Continent. Blackstone has been criticized, notably by Jeremy Bentham, for a complacent belief that, in the main, English law was beyond improvement and for his failure to analyse exactly the social and historical factors underlying legal systems. Blackstone's book exerted tremendous influence on the legal profession and on the teaching of law in England and in the United States. In his later life, Blackstone resumed practice, served in Parliament, was Solicitor General to the Queen, and was a judge of the Court of Common Pleas: see http://www.encyclopedia.com/articlesnew/01546.html. 3 See Suanzes, Sovereignty in British Legal Doctrine at http://www.murdoch.edu.au/elaw/issues/v6n3/suanzes63_text.html. 4 1779–1845, American jurist, Associate Justice of the Supreme Court (1811–45). He served briefly in the US Congress in 1808–9. Story's legal scholarship quickly earned him great prominence, and in 1811 (at the age of 32) he was appointed by President Madison to the U.S. Supreme Court, the youngest person ever to hold

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW different senses in different contexts – leading to a “confusion of ideas, and sometimes to very mischievous and unfounded conclusions”.5 Externally, the description of a nation as “sovereign” imports its recognition as an independent political entity, with what Story called “the absolute right to govern” within its own territory.6 Sovereignty in the external sense is an attribute of the nation itself as a single entity – in international law, a ‘juristic person’.7 In Britain external sovereignty was symbolically vested in the crown.8

Sovereignty often relies upon circular notions.9 Sovereignty of an island is determined by recognition by the international community. Yet, international law was traditionally the expression of domestic notions beyond national boundaries. “Thus national sovereignty depends on recognition by an international community made up of nation states which both seek and confer that recognition”.10

The legal concepts of “tenure”,11 “ownership”12 and “possession”13 have changed. At the time of Britain’s acquisition of the Falkland Islands, the

that position. One of the most important opinions Story wrote for the Supreme Court was Martin v Hunter's Lessee (1816); it established the power of the federal court to review issues of constitutional law raised in state cases. In 1829, Story became the first Dane Professor of Law at Harvard. Story's texts include Commentaries on Bailments (1832), the US Constitution (3 vol, 1833), Conflict of Laws (1834), Equity Jurisprudence (2 vol, 1836), Equity Pleading (1838), Agency (1839), Partnership (1841), Bills of Exchange (1843) and Promissory Notes (1845). All his books appeared in several editions; that on equity jurisprudence (14th ed. 1918) perhaps retained its utility longest. See Life and Letters of Joseph Story, ed. by his son, W. W. Story (1851); studies by J. McClellan (1971) and R. K. Newmyer (1985). 5 Story, Commentaries on the Constitution of the United States (1833) vol 1 at par 207. 6 See The Commonwealth v Mewett (1997) 191 CLR 471 per Gummow and Kirby JJ. 7 See Crawford, The Creation of States in International Law (1979). 8 See Evatt, “The Acquisition of Territory in Australia and New Zealand” in Alexandrowicz (ed), Grotian Society Papers 1968 (1970) 16. 9 See Van Dyke, Legal Status of Islands – with reference to Article 121(3) of The UN Convention on the Law of the Sea, Presentation made 9 December 1999 at Seoul, Korea: http://www.hawaii.edu/law/facpubs/KoreanPaper- Islands12999.htm#_endref5 10 See Blackshield, Coper and Williams (Eds), Oxford Companion to the High Court of Australia (2001) at 632. 11 “ … possession of land in fief from another Lord, who held of another, and so on directly to the King. Simple ownership of land merely made one free, but not always noble. The manner in which lands or tenements are holden. According to the English law, all lands are held mediately or immediately from the king, as lord paramount and supreme proprietor of all the lands in the kingdom. The idea of tenure; pervades, to a considerable degree, the law of real property in

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW notion of sovereignty depended upon consensual agreement among European nations. At this time the right to claim land seen as 'waste' or 'uninhabited' was established by Biblical authority:14

And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.

Since World War II, the attempt to formulate international “norms” has been part of a wider effort to set universal standards for acceptable government treatment of individuals and subject peoples.15 As a legal concept sovereignty remains artificial and malleable, open to interpretation by the legal imagination.16

The Legal Regime of Islands in International Law17

Despite the changing concept of island sovereignty, the legal notions which underpin the historical legal precedents were expressed by Bowett18 in The Legal Regime of Islands in International Law (1979). Even though this monograph was written prior to UNCLOS III it continues to provide the theoretical foundation.

the several states; the title to land is essentially allodial, and every tenant in fee simple has an absolute and perfect title, yet in technical language, his or her estate is called an estate in fee simple, and the tenure free and common socage”: http://www.lectlaw.com/def2/t019.htm. 12 The right recognised by the law in respect of a particular piece of property to exercise with respect to that property all such rights as by law are capable of being exercised with respect to that type of property against all persons including the right to possession of the property and any proceeds of its sale: Gatward v Alley (1940) 40 SR (NSW) 174 at 178. 13 Effective physical or manual control or occupation: Horsley v Phillips Fine Art Auctioneers Pty Ltd (unreported SC (NSW) Santow J 3211/92, 31 July 1995). 14 Genesis 1:28, The Bible, King James Version. On Line Bible and Concordance V5.0, Woodside Bible Fellowship, 1991 quoted in Ogleby, Terra Nullius, the High Court and Surveyors: http://www.sli.unimelb.edu.au/research/cad_anthology/article/artic7.htm. 15 See El Deas, “Some Considerations on the Right of Indigenous Peoples to Self- Determination” (1993) 3 Transnational Law and Contemporary Problems 1. 16 See Blackshield, Coper and Williams (Eds), Oxford Companion to the High Court of Australia (2001) at 632. 17 Bowett, The Legal Regime of Islands in International Law (1979). 18 Sir Derek Bowett CBE, QC, FBA, LLD, Honorary Fellow  Queens' College, University of Cambridge; Honorary Bencher of the Middle Temple.

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Generally, there is no difference between islands and continental land territory so far as the acquisition or loss of sovereignty is concerned.19 Therefore, a determination of sovereignty must be made in accordance with the customary International Law in force at the time of the dispute:20

Whatever the validity of rights over territory at the time of their purported acquisition (a question which must necessarily be resolved by reference to the rules of law then prevailing), their validity at the present time must be governed by the rules of law now prevailing. This, in essence, was the notion of “inter-temporal” law developed by Judge Huber in the Island of Palmas case … 21

Where an island lies within the territorial sea of a nation, the presumption is that the island is under the sovereignty of that nation.22 This presumption would apply to islands “long-established” and those which might suddenly appear as a result of volcanic action23 or even gradually appear as a result

19 Bowett, The Legal Regime of Islands in International Law (1979) at 45. 20 Bowett, The Legal Regime of Islands in International Law (1979) at 45. 21 "As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called inter-temporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law: UNRIAA, Vol II at 845. See generally Jennings, The Acquisition of Territory in International Law (1963) at 28–31. 22 Bowett, The Legal Regime of Islands in International Law (1979) at 48: “It would seem likely that this presumption operated to give the disputed island of Kachchativu to Sri Lanka under the India/Sri Lanka Agreement of 8 July 1974: IBS, Limits in the Seas, No 66. The agreed boundary places this island on the Sri Lanka side, although the waters of Palk Bay are technically ‘historic’, and therefore internal waters not territorial waters. Note the preservation of rights of access for Indian fishermen and pilgrims under Article 5 of the Agreement. Conversely, however, in the Argentina/Uruguay Agreement of 19 November 1973 (Ibid, No 64), the disputed Martin Garcia island [sic] was allocated to the further State, Argentina, but this concession of sovereignty by Uruguay was ‘neutralised’ by Article 45 which required the island to be constituted a nature reserve.” 23 Bowett, The Legal Regime of Islands in International Law (1979) at 49 fn 7: “Lindley, The Acquisition and Government of Backward Territory in International Law (1926) at 7: the case referred to is Secretary of State for India v Chelikani Rama Rao, 43 Indian Appeals 192. In the Rao case, three small islands appeared off the coast of Madras between 1840–1860. The Privy Council relied on Hale's De Juris Maris and awarded the islands to the Crown because they lay within the Territorial Sea and were thus formed from the seabed which belonged to the Crown. See also the eruption of a volcanic island off Iceland on 15 November 1963, rising to 130 feet and 1,500 feet in length, some few miles off the Vestmann Islands and claimed by Iceland and named Surtsey: Keesing's Contemporary Archives (1963) at 48. The presumption of sovereignty over islands close to the mainland is consistent with the tendency to regard such islands as part of the mainland, as an island ‘fringe’ (see The Dusseldorf (1920) AC 1034; Annual Digest (1919–1922) at 101–102; concerning the Norwegian Skjaargaerd. See the Anglo-Norwegian Fisheries Case ICJ Reports (1951) at 116 discussed at 70–73)

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW of alluvial deposits from a river estuary.24 There is the presumption that if an island lies within the territorial waters it can be presumed to be sovereign territory of that state.25 This presumption can be displaced legally by another sovereign state.26 Due to historical reasons islands under the sovereignty of one state can lie within the territorial sea of another state.27

With regards to islands, such as the Falkland Islands, lying within the High Seas there is no rational presumption of sovereignty based upon contiguity:28

Indeed, the instances of islands belonging to one State but lying nearer to the mainland of another are so numerous as to defeat any idea that sovereignty could, or should, be based on contiguity per se. Thus sovereignty will depend upon the same criteria as are applied to any land territory and, whether title is claimed to derive from some good root of title (as by a treaty of cession) or from occupation of a res nullius, the claimant State must demonstrate a continuous and peaceful display of sovereignty over the island territory.29

or, indeed, to measure territorial waters of the coastal State from the seaward side of such islands (see The Anna (1805) 5 C Rob 373; Rex v Conrad, Supreme Court of Nova Scotia (1941) 1 DLR 313; 9 Annual Digest (1938–1939) 127–128; Ministere Public v Mallegui, France, Criminal Court of First Instance, Ajaccio, 15 Annual Digest (1948) 71 and the contemporary rule of International Law discussed at … 16–17.” 24 Bowett, The Legal Regime of Islands in International Law (1979) at 48. 25 Lindley, The Acquisition and Government of Backward Territory in International Law (1926) at 7: “An uninhabited island within territorial waters is under the dominion of the Sovereign of the adjoining mainland. Not only the sovereignty over, but also the property in, certain islands which arose from the sea within the territorial waters of the Indian Empire were held by the Judicial Committee of the Privy Council in 1916 to belong to the Crown.” 26 Bowett, The Legal Regime of Islands in International Law (1979) at 48. 27 For example, the Channel Islands (UK) lying off the French coast or St Pierre et Miquelon (France) lying off the Canadian coast. 28 Bowett, The Legal Regime of Islands in International Law (1979) at 50. 29 For example, see The Mediation over the Caroline Islands (1885) Germany/Spain where, given very slight evidence of actual occupation by Spain, the Mediator awarded to Spain on condition that Spain do "render her sovereignty effective engages to establish as quickly as possible in that archipelago a regular administration with sufficient force to guarantee order": Moore Digest, V 5043. Also the Award over the Aves Islands (1866) Holland/Venezuela where the Arbitrator, unimpressed by the occasional nature of occupation by Dutch fishermen, awarded to Venezuela on the basis of succession to Spain.

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To prove its claim of sovereignty over an island, a state must demonstrate that its acts30 were done with the intention of establishing or manifesting sovereignty (á titre de souverain).31 This principle is demonstrated by the Minquiers and Ecrehos Case (France v UK).32 A state does not have to manifest an intention to establish sovereignty if a second state consents to the sovereignty based upon prescription and acquiescence.33

Acts by persons with prior authorisation of a recognised state to occupy in its name or annex will establish or manifest sovereignty.34 Sovereignty can be established by subsequent ratification by a recognised state of acts of occupation or annexation.35 However, acts by private persons autonomously, will not have legal effect in establishing sovereignty.36 Bowett confirms the statements of Waldock that:37

30 For example, acts by State officials such as formal declarations of sovereignty, the exercise of criminal jurisdiction or taxation. 31 Bowett, The Legal Regime of Islands in International Law (1979) at 54–57. 32 Minquiers and Ecrehos Case (France v UK) [1953] ICJ 47. There the conduct of hydrographical surveys, by both parties, was regarded by the International Court of Justice as inconclusive. A French buoy lying outside the reefs was positively rejected by the Court: … such acts can hardly be considered as sufficient evidence of the intention of that Government to act as sovereign over the islets; nor are those acts of such a character that they can be considered as involving a manifestation of State authority in respect of the islets. Obviously, with considerable navigational use and fishing by French vessels in the area, the placing of buoys was explicable in terms of the desire to assist those vessels and there was no necessary implication of a claim to sovereignty. The matter might well be different where the buoying occurs inside territorial waters, for the “sovereign” might well be expected to protest against such acts without consent: Bowett, The Legal Regime of Islands in International Law (1979) at 55. 33 There are numerous examples of establishment by consent. North Borneo established and paid for the Taganak Island Lighthouse on US territory, subsequently becoming Philippine territory: see Abad Santos and Lennhoff, "The Taganak Island Lighthouse Dispute" 45 AJIL (1951) at 680. 34 See McNair, International Law Opinions (1956) Vol I at 314–325, citing a number of opinions concerned with occupation. 35 “The position of more ordinary entities or individuals is therefore different and, whether they be naval officers, or private persons, the significance of their acts would depend upon prior authorisation or subsequent ratification by a state.” 36 In Jones v United States 137 US 202, 11 SCt 80, 34 L Ed 691 (1890); Deak 3 American International Law Cases 242 the issue was whether a killing on the island was a murder subject to the jurisdiction of the United States. Sovereignty over Navassa Island in the Carribean was asserted by the United States on the basis that the US Department of State in 1859 issued a proclamation noting the discovery of guano on the island by a US citizen and according him privileges over its exploitation. This proclamation was issued under an Act of Congress of 1856 which specifically provided that the “granting of exclusive rights of exploitation to a citizen of the United States who had filed a claim of discovery of guano on any island, rock or key, not within the lawful jurisdiction of any other government and not occupied by the citizens of any other government … should be preceded by an assertion of United States sovereignty’”. Thus, the assertion of sovereignty was essentially a ratification of the act of discovery of the citizen. The United States claim to sovereignty over Navassa is disputed by the Republic of Haiti, which protested the US annexation in 1859. Haiti did not mention the island by name in its

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The acquisition of sovereignty is a state act and if the act of a discoverer is to have any validity in International Law it must be endorsed by the state; the animus occupandi ultimately must be that of the state, not of the individual …

This intention and will to establish sovereignty over territory is not open to individuals or groups of individuals who have instituted themselves on an island or islands38 which are terra nullius.39

The determining principles elucidated in The Legal Regime of Islands in International Law remain as a significant starting point for any determination of sovereignty regarding islands in the high seas. Despite the fact that Sir Derek’s book was published in 1979, before later developments in International Law (such as UNCLOS III in 1982), the general principles he espoused have been applied in later examples after its publication. The United Nations Convention on the Law of the Sea (1982) in Part VIII creates a “Regime of Islands”. Relevantly, Article 121 states:

“Regime of islands 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance

territorial claims before then, but its early constitutions claimed all adjacent islands. The United States has never formally recognized that a dispute exists with Haiti over Navassa. See also Whiton v Albany City Insurance Co, 109 Mass 24 (1871): Bowett, The Legal Regime of Islands in International Law (1979) at 54–59. 37 Waldock, "Disputed Sovereignty in the Falkland Islands Dependencies" 25 BYBIL at 323. 38 See the Opinion of the Law Officers of 9 January 1854 (TO 83 2292: Holland) cited by McNair, 26 BYBIL (1949) at 30. 39 Bowett, The Legal Regime of Islands in International Law (1979) at 54–57: The expression terra nullius, literally translates as 'land belonging to nobody'. It comes from the Latin terra for earth or land, and nullius being no one or nobody. The expression can be used in two contexts and can be seen to have two meanings: a. A land where there is no sovereign (law, social order), and b. A land where there is no recognisable tenure in land. At times it is difficult to determine where the distinction between the two interpretations lies. The first construction is that a land could be seen to be terra nullius where there was no established political system or no existing code of law: see James Simsarian, "The Acquisition of Legal Title to Terra Nullius", Political Science Quarterly (vol LIII, No 1, 1938 at 111-128).

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with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

However, an assessment of that Article requires a re-examination of earlier precedents available to Bowett, having regard to later developments in International Law.

Clipperton Island Arbitration

The Arbitration over Clipperton Island40 held that occupation was a primary determinant of occupation. Clipperton Island is 1300 kilometres South-West off the Mexican Coast.41 It is a desolate atoll but has significant deposits of guano. France claimed sovereignty of the Island in 1858.42 However, France did not utilise any of the Island either for settlement or commercial purposes.43 In the late 19th Century Mexico asserted its sovereignty over the Island. France and Mexico invited an Arbitration by the Italian Emperor, Victor Emmanuel.44 Emperor Emmanuel

40 Arbitral Award Rendered in Conformity with the Special Agreement Concluded on 23 January 1925, between the United States of America and the Netherlands Relating to the Arbitration of Differences Respecting Sovereignty over the Island of Palmas (Miangas), 4 April 1928, reprinted in 22 American Journal of International Law 867, 909 (1928). 41 Clipperton Island was originally discovered by Ferdinand Magellan in 1521, but was later named after John Clipperton, an English pirate who led a mutiny against William Dampier in 1704. It has been rumoured that Clipperton hid some treasures on the atoll. In 1708, two French ships “Princess” and “Découverte” reached the island and named it 'Ile de la Possession', and annexed it for France. The first scientific expedition took place in 1725 by Frenchman M. Bocage, who lived on the Island for several months: see http://www.qsl.net/clipperton2000/history.html. 42 Guano, a natural fertilizer made from bird droppings, was a prized commodity during the 19th Century and heavily traded by European and American traders. Guano is made up of bird droppings amassed over hundreds of years caused by weather and ocean currents. Peru’s guano was highly sought after owing to the unique weather conditions found along Peru's coast. The combination of cold water and warm air provided an environment that minimised nitrogen evaporation, thus making an excellent fertiliser. The guano reserves on the islands off the coast of Peru proved to be a plentiful resource owing to the abundance of fish-eating birds in the regions: see Gugliotta, "Dropping Anchor to Claim Fortune in Government Guano." Washington Post. 11/12/1996 at A15; Skaggs, The Great Guano Rush. (New York: Saint Martin's Press, 1994); Coker, "Peru's Wealth-Producing Birds" The National Geographic Magazine (June 1920) at 537–566. 43 For a discussion of the history of and current status of the island see http://www.qsl.net/clipperton2000/history.html and http://www.cia.gov/cia/publications/factbook/geos/ip.html. 44 Victor Emmanuel 1869–1947, King of Italy (1900–1946), Emperor of Ethiopia (1936–1943), King of Albania (1939–1943), son and successor of Humbert I. In 1896, he married Princess Helena of Montenegro. Though involved with Germany

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW provided his award some thirty years later (in 1931) in favour of France.45 The Emperor acknowledged in the decision that United States citizens had explored the Island and Mexico had established a garrison there.46 However, the Emperor held that France had manifested its intention to control the Island. At that time ‘effective’ occupation usually meant the establishment of some governmental structure capable of enforcing law.47 The French had not occupied the island to the extent that it was "at the absolute and undisputed disposition of that state”48 of France. However, French sovereignty was not extinguished by the later actions of the United States and Mexico.

Island of Palmas Arbitration

The Island of Palmas Arbitration49 reinforced the principle that less is required to acquire ownership of uninhabited places. The dispute concerned two uninhabited islands, Miangas and Nanusa,50 proximate to

and Austria-Hungary in the Triple Alliance, he sought cordial relations with France and Great Britain. He favoured the war of 1911–1912 against Turkey, thus acquiring Libya. Though first advocating neutrality, he finally joined (1915) the Allies in World War I. He was unable to handle the confused internal situation of Italy after the war, refused to oppose the Fascist march on Rome and in 1922 asked Mussolini to form a government. Under the Fascist regime he was King in name only, but Mussolini's conquests added to his list of titles. During World War II, when the Fascist Grand Council voted in 1943 against continued support of Mussolini, the king dismissed the dictator, placed him under arrest and named Pietro Badoglio Premier. German troops occupied Rome after Italy surrendered to the Allies and Victor Emmanuel fled to South Italy. Unpopular because of his long association with Mussolini, in 1944 he was obliged to transmit his royal prerogatives to his son, Humbert II, in whose favour he abdicated in 1946. He died in exile in Egypt: see http://www.encyclopedia.com/articlesnew/1355.html. 45 Arbitral Award of the Emperor of Italy on the Subject of the Difference Relative to the Sovereignty over Clipperton Island (France v Mexico) January 28 (1931) 26 American Journal of International Law 390 (1932); see generally Van Dyke and Brooks, Uninhabited Islands and the Ocean's Resources: The Clipperton Island Case, in Law of the Sea: State Practice in Zones of Special Jurisdiction 351 (Thomas A Clingan, ed, 1982); and Jon M. Van Dyke and Robert A Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans' Resources, 12 Ocean Development & International Law Journal 265 (1983). 46 Van Dyke and Brooks, Uninhabited Islands and the Ocean's Resources: The Clipperton Island Case, in Law of the Sea: State Practice in Zones of Special Jurisdiction (Thomas A Clingan, ed, 1982) at 357–360. 47 The International Court of Justice agreed that less in the way of formal displays of sovereignty are required for uninhabited or thinly populated areas in the Advisory Opinion on Western Sahara (1975) ICJ 12, 43. 48 Clipperton Island (France v Mexico) January 28 (1931) 26 American Journal of International Law 390 (1932) at 393-394. 49 See Scott, Hague Court Reports 2d 83 (1932) (PCA, 1928), 2 UN Rep Intl Arb Awards 829. 50 Palmas, (also referred to as Miangas), is an island about two miles long by three- fourths of a mile wide which, at the time of this case, had a population of about 750

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW the Philippines (then a colony of the United States) and the Netherlands Indies.51 The Islands were discovered by the Spanish, who had colonised relevant parts of the territory now known as the Philippines52. The Arbitrator, Judge Max Huber,53 held that the Netherlands demonstrated that they had peaceful and continuous authority over the Island of Palmas. Further, this authority was demonstrated by agreements between the Netherlands and local rulers.54 This authority usurped claims based upon initial authority.55

The Arbitrator rejected the concept of proximity argued by the United States. Judge Huber concluded that International Law of the time did not

and was of little strategic or economic value. It is, however, within the boundaries of the Philippines as defined by Spain and thus ceded to the United States in 1898. In 1906, an American General, Leonard Wood, visited Palmas and discovered that the Netherlands also claimed sovereignty over the island. An agreement was signed on 23 January 1925, between the United States and the Netherlands to submit the dispute to binding arbitration. The Swiss jurist, Max Huber, was the selected Arbitrator acting for the Permanent Court of Arbitration. Huber was charged to determine "whether the Island of Palmas (or Miangas) in its entirety forms a part of territory belonging to the United States of America or of Netherlands territory". See Gaubatz, The Island of Palmas: http://www.gwu.edu/~jaysmith/Island.html. 51 The Dutch administration of Indonesia began in 1799 and ended when the Republic of Indonesia first saw light on 17 August 1945, when its independence was proclaimed just days after the Japanese surrender to the Allies. Pancasila became the ideological and philosophical basis of the Republic, and on 18 August 1945 the Constitution was adopted as the basic law of the country: http://www.indonesia-ottawa.org/indonesia/general/history.html#dutch. 52 The Philippines were ceded by Spain to the US in 1898 following the Spanish- American War. They attained their independence in 1946 after being occupied by the Japanese in World War II: http://www.cia.gov/cia/publications/factbook/geos/rp.html. 53 Max Huber of Switzerland was a Professor at Zurich University, with historical and sociological leanings, before being called to the bench of the PCIJ (1921–1930). He was its President from 1925–1927 and its Vice-President during the following term, and left a deep and lasting imprint on the Court. He was a long-standing member of the PCA, known for his impartiality, and President (1928–1944) of the International Red Cross: Eyffinger, The International Court of Justice, Kluwer Law International (1996) at 85. 54 To Judge Huber’s mind a decisive factor in the case was the agreements between the Dutch East India Company and the ruler of the Island of Palmas, Prince of Tabukan: In 1602, a number of small, independent trading companies, all operating out of the Netherlands, joined to form a coalition known as the "Verenigde Oostindische Compagnie" (in English, the "United East India Company") and nowadays more generally called the "Dutch East India Company", or simply the "VOC". The main purpose of the VOC was to promote trade with Asia, and the new company was given extensive powers by the government of the Netherlands to help it achieve this. These powers included the rights to enter into treaties, to maintain military forces and to produce coinage, as well as powers of government and justice: see http://www.uct.ac.za/depts/age/resunact/voc.htm. 55 The Island of Palmas (Miangas), 4 April 1928, reprinted in 22 American Journal of International Law 867–909 (1928) at 867.

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW support such an argument.56 As this remains a primary argument for the Argentine in the Falkland conflict, it is important to consider the reasons of Huber:57

Although States have … maintained that islands relatively close to their shores belonged to them by virtue of their geographical situation, it is impossible to show the existence of a rule of positive International Law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule of International Law, but the alleged principle itself is by its very nature so uncertain and contested that even Governments of the same State have on different occasions maintained contradictory opinions as to its soundness. The principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one State rather than another, either by agreement between the Parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure[58] the presumption of sovereignty in favour of a particular State, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other States from a region and the duty to display therein the activities of a State. Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead to arbitrary results. This would be especially true in a case such as that of the island in question, which is not relatively close to one single continent, but forms part of a large archipelago in which strict delimitations between the different parts are not naturally obvious.

… It has been explained above that in the exercise of territorial sovereignty there are necessarily gaps, intermittence in time and discontinuity in space. This phenomenon will be particularly noticeable in the case of colonial territories, partly uninhabited or as yet partly unsubdued. The fact that a State cannot prove display of sovereignty as regards such a portion of territory

56 The Island of Palmas (Miangas), 4 April 1928, reprinted in 22 American Journal of International Law 867–909 (1928) at 893–94. 57 The Island of Palmas (Miangas), 4 April 1928, reprinted in 22 American Journal of International Law 867–909 (1928) at 854–855. 58 By the operation of the law itself: www.butterworths.com.au/legalwords/html/00072.htm

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cannot forthwith be interpreted as showing that sovereignty is inexistent. Each case must be appreciated in accordance with the particular circumstances.59

Eastern Greenland Case

In the Eastern Greenland Case60 the International Court of Justice held that Denmark, although it had not colonised the Island, had a sufficient claim. The dispute arose due to a Declaration by Norway “officially confirming” its taking of possession of an un-colonised part of the Island.61 Denmark asked the International Court of Justice to invalidate the Norwegian declaration.62

Although Denmark had never colonised Eastern Greenland, the Court held that there had been sufficient “exercise of state authority” over multiple centuries to confirm that it had established title at the relevant date.63 This Court held that the exercise of state authority was embodied by treaties applying to Greenland as a whole, the granting of concessions for trading in Eastern Greenland and legislation relating to the territorial sea. Exploration and the erection of buildings by Norway was discounted by the Court.64

Minquiers and Ecrehos Case

The International Court of Justice65 in the Minquiers and Ecrehos Case66 determined the significance of the exercise of state functions. In that

59 See Bowett, The Legal Regime of Islands in International Law (1979) at 45 where Sir Derek Bowett CBE QC quotes this passage from the Arbitral decision of Judge Huber. 60 PCIJ Rep, Series A/B, No 53 (1933). See the discussion of this case in the Western Sahara case in Shaw (1978) 49 BYIL 119. 61 10 July 1931. See Harris, Cases and Materials on International Law (5th ed, 1998) at 203. 62 PCIJ Rep, Series A/B, No 53 (1933). 63 See Harris, Cases and Materials on International Law (5th ed, 1998) at 203. 64 See Harris, Cases and Materials on International Law (5th ed, 1998) at 203. 65 The Court consisted of Vice-President (acting President) Guerrero; President Sir Arnold McNair; Judges Alvarez, Basdevant, Hackworth, Winiarski, Klaestad, Badawi, Read, Hsu Mo, Levi Carneiro and Armand-Ugon. 66 The United Kingdom submitted evidence that the Jersey courts had exercised criminal jurisdiction over the Ecrehos and Minquiers islets during the 19th and 20th centuries, that the few habitable houses on the islets had been required to pay property taxes, that deeds conveying property had been registered in Jersey, that

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW dispute France and the United Kingdom sought title to a groups of islets and rocks between the British island of Jersey and the coast of France.67 The Court awarded title over the islets to the United Kingdom.68 Both nations relied upon historical documents from the middle ages as a basis for their sovereignty.69 However, the Court considered these primary documents to be unconvincing and focused on actual displays of authority during the 19th and 20th centuries.70 The Court held that France had not established any state functions over the Islands, but that the United Kingdom had manifested administrative functions71 over the Islands during the relevant period.72 The Court held “that the Minquiers group was a ‘dependency’ of the Channel islands (Jersey and Guernsey) and therefore should be subject to the same sovereign authority”.73

Gulf of Fonseca Case

In the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening),74 the International Court of

custom-houses had been established by Jersey officials in both islet groups, and that Jersey officials visited the islets on occasion to license boats, collect census data, and supervise construction of maritime safety facilities The Minquiers and Ecrehos Case (France/United Kingdom) 1953 ICJ 53 at 65–66 and 69. 67 Each group contains "two or three habitable islets, many smaller islets and a great number of rocks". The Minquiers and Ecrehos Case (France/United Kingdom), 1953 ICJ 53. See Van Dyke, Legal Status of Islands – with reference to Article 121(3) of The UN Convention on the Law of the Sea, Presentation made 9 December 1999 at Seoul, Korea: http://www.hawaii.edu/law/facpubs/KoreanPaper- Islands12999.htm#_endref5. 68 The Minquiers and Ecrehos Case (France/United Kingdom), 1953 ICJ 53, 67 and 72. 69 See Van Dyke, Legal Status of Islands – with reference to Article 121(3) of The UN Convention on the Law of the Sea, Presentation made 9 December 1999 at Seoul, Korea: http://www.hawaii.edu/law/facpubs/KoreanPaper- Islands12999.htm#_endref5. 70 "What is of decisive importance, in the opinion of the Court, is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the Ecrehos and Minquiers groups." The Minquiers and Ecrehos Case (France/United Kingdom) 1953 ICJ 53 at 57. 71 The Court referred to the exercise of criminal jurisdiction, the holding of inquests, the collection of taxes and to a British Treasury Warrant of 1875 including the “Ecrehos rocks” within the Port of Jersey: see Harris, Cases and Materials on International Law (5th ed, 1998) at 206 72 See Van Dyke, Legal Status of Islands – with reference to Article 121(3) of The UN Convention on the Law of the Sea, Presentation made 9 December 1999 at Seoul, Korea: http://www.hawaii.edu/law/facpubs/KoreanPaper- Islands12999.htm#_endref5. 73 The Minquiers and Ecrehos Case (France/United Kingdom), 1953 ICJ 53 at 71. 74 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (The Gulf of Fonseca Case), 1992 ICJ 351.

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Justice75 held that title over islands is established by recognition and acquiescence of the occupation of another competing state. The islands the subject of the dispute are in a Gulf where the maritime boundaries of Honduras, El Salvador and Nicaragua convene.76 The land area had been governed by Spain until 1821,77 when the Federal Republic of Central America was established.78 In 1839 the States of Honduras, El Salvador, Nicaragua, Costa Rica, and Guatemala were created when the Federal Republic of Central America dissolved. Despite the argument that the Islands were terra nullius the Court held that they were inherited by these new nation states from Spain.79 The Court held that occupation and acquiescence by other states was evidence of their recognition as to whether proper title existed.80 The judgment interprets whether the individual nations occupied the Islands and the specific actions that

75 Constitution of the court: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra- Aranguren, Kooijmans, Rezek, Buergenthal; Registrar Couvreur. 76 See Van Dyke, Legal Status of Islands – with reference to Article 121(3) of The UN Convention on the Law of the Sea, Presentation made 9 December 1999 at Seoul, Korea: http://www.hawaii.edu/law/facpubs/KoreanPaper- Islands12999.htm#_endref5. 77 The Court noted that "even if the Kings of France did have an original feudal title" to the adjacent Channel Islands, "such a title must have lapsed as a consequence of the events of the year 1204 and following years." Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening )(The Gulf of Fonseca Case), 1992 ICJ 351 at 56. "To revive its legal force today by attributing legal effects to it after an interval of more than seven centuries seems to lead far beyond any reasonable application of legal considerations." Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (The Gulf of Fonseca Case), 1992 ICJ 351 at 566–570 pars 348–355. 78 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (The Gulf of Fonseca Case), 1992 ICJ 351 at 380–81 par 29 and 558, par 333. 79 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (The Gulf of Fonseca Case), 1992 ICJ 351at 380–81 par 29. 80 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (The Gulf of Fonseca Case), 1992 ICJ 351 at 566 par 347.

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW manifested authority.81 Further, the decision determined the extent of the acquiescence by other nations as to the occupation and authority.82

Current disputes

The historical precedents are applied in determining and resolving similar island sovereignty disputes elsewhere in the world. Precedents other than those discussed above of relevance to the case study of the Falkland Islands are referred to elsewhere in this thesis. This Chapter has only selected specific precedents of significant relevance to the case study and the determination undertaken in Chapter 5.

Current disputes elsewhere in the world assist an evaluation of sovereignty, regardless of whether they have been determined fully. Agreements and principles applicable to delimitation and resolution can be gleaned from these disputes; specifically, the disputes regarding the Spratly Islands, Senkaku/Diaoyu Islands, Indo-Bangladeshi Maritime Dispute and sovereignty over the islands within Japan’s Northern Territories.

In the South China Sea approximately 44 of the 51 small islands and reefs, known in the English-speaking world as the Spratly Islands,83 have overlapping sovereignty claims by China, the Philippines, Vietnam, Taiwan,

81 Based on these principles, the Chamber awarded the island of El Tigre to Honduras because of its occupation of this island for more than 100 years, accompanied by some evidence of recognition by El Salvador that Honduras was authorised to exercise authority over the island. The Chamber then turned to Meanguera Island (1586 hectares and long inhabited) and Meanguerita Island (26 hectares and uninhabited, lacking fresh water). The Chamber found evidence of occupation ("effective possession and control") of these islands by El Salvador since 1854, and found no effective protests by Honduras. The Chamber's conclusion was thus that "Honduras was treated as having succeeded to Spanish sovereignty over El Tigre, and El Salvador to Spanish sovereignty over Meanguera and Meanguerita," with Meanguerita being viewed as an "appendage" to or "dependency" of Meanguera: Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (The Gulf of Fonseca Case), 1992 ICJ 351 at 579 par 368. 82 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (The Gulf of Fonseca Case), 1992 ICJ 351at 565 par 345. See Van Dyke, Legal Status of Islands – with reference to Article 121(3) of The UN Convention on the Law of the Sea, Presentation made 9 December 1999 at Seoul, Korea: http://www.hawaii.edu/law/facpubs/KoreanPaper- Islands12999.htm#_endref5. 83 The Islands are known in China as the Nansha Islands: http://www.middlebury.edu/SouthChinaSea/scs-intro-t5.html.

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Malaysia and Brunei.84 The Islands are the subject of disputed claims to their potential natural resources of oil, natural gas and marine life.85

The second of these involves a dispute between Japan, China and Taiwan over the Senkaku/Diaoyu Islands.86 These Islands in the East China Sea have been in contention, like the Falklands, for centuries.87 Changes in technology regarding mineral resources has added a further dimension to

84 See ICE Case Studies, Spratly Islands dispute (1997): http://www.american.edu/projects/mandala/TED/ice/spratly.htm. 85 See Townsend-Gault, Legal and Political perspectives on sovereignty over the Spratly Islands: http://www.sum.uio.no/southchinasea/Publications/pdf- format/Townsend-Gault.pdf. Sovereignty and exploration disputes were thought to be resolved with the drafting of ASEAN's 1992 declaration which committed members to resolve disputes peacefully and to consider joint exploration of the territory: http://www.american.edu/projects/mandala/TED/ice/spratly.htm. 86 “The most recent flare-up was ignited when a Japanese ultranationalist group built a makeshift lighthouse on one of the islets, which are controlled by Japan. Diplomatic notes, popular demonstrations, convoys of protest boats, and the death of one protester, who drowned near the islands, inflamed passions. Recent events brought the long-simmering dispute to a boil on 14 July 1996, when the Japan Youth Association landed on one of the disputed islets. It built a 5-metre high, solar-powered, aluminium lighthouse, and requested that the Japanese Maritime Safety Agency designate it an official navigational signal. In 1988, the group had set up a similar structure on the western shore of Uotsuri/Diaoyu Island to reinforce Japan’s sovereignty claim: see Sankei Shimbun (Tokyo) (17 July 1996) at 1, translated in FBIS, Daily Report: East Asia (hereafter FBIS, East Asia) (19 July 1996). Taiwanese and Hong Kong Chinese responded with demonstrations and flotillas of boats, which were intercepted by Japanese vessels. One Hong Kong activist died near the islands on 26 September, when he attempted to swim from the protest boats to an islet. On 7 October, protesters briefly landed on Uotsuri/Diaoyu Island and raised the PRC and ROC flags, which were later removed by the Japanese. Diplomatic protests were lodged. Japan claimed that it could not act against the lighthouse because it was built on private land, but Foreign Minister Ikeda met with his Chinese counterpart and told him that Japan had no plans to recognize the lighthouse. Chinese Premier Li warned Japan about provoking China, but all the concerned governments began to caution protesters and call for calm. Private negotiations between Tokyo and Taipei to permit Taiwanese fishermen to fish outside the 12-nautical mile territorial sea of the disputes islands failed to progress, but the sides agreed to meet again”: “Chronology of Events”, Kyodo (Tokyo) broadcast in English, 26 September 1996, transcribed in FBIS, East Asia (27 September 1996); “Protester Dies in Defence of Disputed Asian Islands”, Washington Post (27 September 1996) at A32; Yuri Kageyama, “Asian Land Fight Heats Up,” AP (Tokyo) 25 September 1996; Kyodo (Tokyo) broadcast in English, 7 October 1996, transcribed in FBIS, East Asia (8 October 1996); “Premier of China Joins Fray,” Washington Post (1 October 1996) at A15; Chiang Ching-ling, “Special Dispatch”, Chung-kuo Shih-pao (Taipei) (6 October 1996) at 2, translated in FBIS, China (10 October 1996). 87 See Tao Cheng, “The Sino-Japanese Dispute over the Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition”, Virginia Journal of International Law 14 (1973–1974) at 248–260; Li, “China and off-Shore oil: The Tiao-yü Tai Dispute”, Stanford Journal of International Studies 10 (Spring 1975) at 151–53; Jiang Kun, “Japan Cannot Claim Sovereignty over the Diaoyu Islands by Citing the ‘Pre- emption’ Principle”, Zongguo Tongxun She (Hong Kong) broadcast 1309 GMT, 12 September 1996, translated in FBIS Daily Report: China (17 September 1996); “China Will Never Yield an Inch of Territory”, Wen Wei Po (Hong Kong) (12 September 1996) at A2, translated in FBIS China (16 September 1996).

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HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW the dispute. The potential for oil exploration and production is linked to the sovereignty over the continental shelf and EEZ area of the Islands.88

The third current island sovereignty dispute involves the demarcation of two islands between India and Bangladesh.89 These islands were created by volcanic activity in 1974 and were called New Moore by India and South Talpatty by Bangladesh.90 The main resolution method in the dispute currently involves the application on physical equidistant delimitation rather than on issues of occupation or acquiescence.91

The final existing dispute relates to Russian claims over territories north of Japan:92 the Islands of Etorofu, Kunashir, Shikotan, and Habomai. After the defeat of Japan at the conclusion of World War II, the former Soviet Union ceded the Islands. Prior to that conflict there had been a number of agreements in the 19th Century between the nations.93 As with the Falkland

88 There are five small volcanic islands and three rocky outcroppings in the Senkaku/Diaoyu group. They have a total land area of some seven sq km. Most of the islets are clustered around the largest island, Uotsuri/Diaoyu, which covers roughly eight hectares and lies 170 km northeast of Taiwan and 410 km west of Okinawa. Two outlying islets, Kobi-sho/Huangwei Yu and Akao-sho/Chiwei Yu, are located 31 km and 108 km from Uotsuri/Diaoyu Island, respectively. None of the islets is inhabited. All the features lie within the 200-metre isobath, at the edge of the Asian geologic continental shelf. The 2,270-metre-deep Okinawa Trough lies seaward of the Senkaku/Diaoyu Islands, separating them from the nearest undisputed Japanese islands: see Dzurek, The Senkaku/Diaoyu Islands Dispute: http://www-ibru.dur.ac.uk/docs/senkaku.html.. 89 Roy-Chaudhury, Trends in the Delimitation of India's Maritime Boundaries at http://www.idsa-india.org/an-jan9-5.html 90 They are mud-flats with no human or animal life that lie at the mouth of the Hariabhanga River which separates the two countries. Bangladesh claims that in May 1979 Prime Minister Morarji Desai agreed with the Deputy Prime Minister of Bangladesh, who had called on him, to hold a joint survey. However, on 9 April 1980, Indira Gandhi claimed that the islets belonged to India. In 1974, India and Bangladesh signed an agreement on the demarcation of the land boundary between the two countries. A maritime boundary agreement is yet to be concluded. It will define Bangladesh's Exclusive Economic Zone (“EEZ”), sandwiched as the country is between India and Myanmar. For a thorough commentary on the issue, see Jacques, Bangladesh, India and Pakistan: International Relations and Regional Tensions in South Asia (Palgrave, England 1999). 91 Roy-Chaudhury, Trends in the Delimitation of India's Maritime Boundaries at http://www.idsa-india.org/an-jan9-5.html 92 As a result, there is also no peace treaty between the Russian Federation, which is the identical state retaining continuity with the Soviet Union, and Japan. 93 “Japan and Russia first established diplomatic relations in 1855. In that year, the Treaty of Commerce, Navigation and Delimitation (The Shimoda Treaty), which provided for an agreement on national boundaries between the two nations, was concluded. … These peaceful negotiations resulted in the Kurile Islands becoming Japanese territory and Sakhalin Island becoming Russian territory. … Japan and the Soviet Union negotiated for the conclusion of a separate peace treaty between June 1955 and October 1956. During these negotiations,

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Islands in 1982, conflict over regional island and regional sovereignty between Japan and Russia resulted in war in 1904.94

Analysis

Without an analysis of the historical legal precedents relating to sovereignty of islands, a full understanding of the current state of the law in this area is not possible. Therefore, this Chapter has limited its analysis to specific precedents of relevance to the case study in this dissertation.

Japan reportedly claimed territorial rights to Etorofu, Kunashir, Shikotan, and Habomai, and demanded the return of these islands, but the position maintained by the Soviet Union was that they would return Shikotan and Habomai, but could not return Etorofu and Kunashir. Thus, the negotiations did not reach a conclusion. Consequently, in place of a peace treaty, the Japan-Soviet Joint Declaration was concluded. This is a treaty providing for the termination of the state of war and the resumption of diplomatic relations. This treaty stipulates in Article 9 that after diplomatic relations have been established, the peace treaty negotiations shall be continued and the Soviet Union shall hand over the Habomai and Shikotan Islands to Japan after the conclusion of a peace treaty, according to the Ministry of Foreign Affairs of Japan. In principle, the issue of Habomai and Shikotan Islands had already been resolved by this Declaration. Thus, it is considered that only the question of Etorofu and Kunashir Islands remain as an issue to be resolved in the peace treaty negotiations”: see Foreign Ministry, Japan’s Northern Territories: http://www.mofa.go.jp/region/europe/russia/territory/index.html. 94 In April 1991, at the time of the visit of then Soviet President Mikhail Gorbachev to Japan, the Japan-Soviet Joint Communique issued expressly mentioned the Islands of Habomai, Shikotan, Etorofu, and Kunashir. Furthermore, in the Communique, it was agreed that the peace treaty should be the document marking the final resolution of war-related issues, including the territorial issue and that work to conclude the preparation of a peace treaty would be accelerated. In September 1992, the Joint Compendium of Document on the History of Territorial Problems between Japan and Russia was released simultaneously in both countries. In October 1993, Russian President Boris Yeltsin visited Japan, and after negotiating with the Japanese Prime Minister Morihiro Hosokawa, the Tokyo Declaration was signed. The Declaration established the clear basis for negotiations toward an early conclusion of a peace treaty through the solution of the territorial issue on the basis of historical and legal facts and based on the documents produced with the two countries' agreement as well as on the principles of law and justice. Since then, the Tokyo Declaration has been repeatedly confirmed as the basis of the development of bilateral relations between the two countries. At the time of visit of First Deputy Prime Minister of Russia, Oleg Soskovets, to Japan in November 1994, both sides confirmed the intention of the two countries to proceed consistently even further for the early conclusion of a peace treaty, based on the Tokyo Declaration. In April 1996, on the occasion of the Moscow Nuclear Safety Summit, Prime Minister Ryutaro Hashimoto and President Boris Yeltsin had a meeting to discuss bilateral questions, Russia' s reform course and international issues, which was successful in creating a political impetus for advancing the overall relations between the two countries in a balanced manner. As for the territorial issue, the two leaders confirmed that bilateral relations be developed further on the basis of the Tokyo Declaration, and agreed that it was important to revitalize the peace treaty negotiations at the Foreign Minister level. For this purpose, they also agreed to restart Peace Treaty working Group after Russia's presidential election: See Foreign Ministry, Japan’s Northern Territories: http://www.mofa.go.jp/region/europe/russia/territory/index.html and http://www.american.edu/TED/ice/KURILE.HTM.

4-58

HISTORICAL LEGAL PRECEDENTS WITHIN INTERNATIONAL LAW

The historical precedents provide principles that remain the foundation for delimitation and dispute resolution regarding islands within the high seas. Traditionally, there are a number of ways in which a nation can claim sovereignty. A state must demonstrate actual or effective control at the appropriate time. This control can be confirmed by the acquiescence of other disputing nations.

These historical precedents affirm that discovery does not of itself create title.95 Such symbolic acts are displaced if another state can demonstrate effective occupation.96 Sufficient presence in combination with formal and practical acts by nations and their representatives demonstrate occupation and control. Geographical proximity is not determinative of title. That argument remains relevant legally only in situations where discovery and occupation are not conclusive.

With the advent of the United Nations, International Law has become far more sophisticated. An analysis of the historical precedents in this Chapter was necessary to provide the background from which current international law on determination of sovereignty of islands is based. However, new principles have been integrated into the determination of sovereignty relevant to the case study. These are analysed in Chapter 5.

95 In the Clipperton Island Case (Mexico/France) (1931) UNRIAA, Vol II at 1108 the Mexican navy planted the Mexican flag (removing an American flag), but the Arbitrator had no doubt that it was France which had asserted effective possession “ ... la prise de possession matrielle et non fictive est un condition necessaire de l’occupation”. See Bowett, The Legal Regime of Islands within International Law (1979) at 42-50. 96 See Dzurek, “Southeast Asian Offshore Oil Disputes” (1994) 11 Ocean Yearbook 157 at 170.

5-59

EVALUATION OF RESPECTIVE CLAIMS

Comment [TR1]: Consider CHAPTER FIVE chapter ident here?

EVALUATION OF RESPECTIVE CLAIMS TO THE FALKLAND ISLANDS WITHIN INTERNATIONAL LAW

CONTENTS Deleted: TABLE OF

...... Comment [TR2]: Consider an Introduction? EXTENT OF TERRITORY ...... 61 CESSION ...... 61 Deleted: ¶ OCCUPATION...... 63 ANNEXATION OR CONQUEST ...... 65 PRESCRIPTION ...... 66 THE CONTIGUITY CLAIM OF ARGENTINA ...... 69 SELF-DETERMINATION ...... 70 ANALYSIS ...... 75 5-60

EVALUATION OF RESPECTIVE CLAIMS

All mankind have an equal right to things which have not yet fallen into the Comment [TR3]: Consider possession of anyone1 an Introduction?

Deleted: “

This Chapter is an application of the International Law of Deleted: sovereignty (as analysed in Chapter 4) to the historical background of the Deleted: ” Deleted: l Islands (as analysed in Chapter 3). The legal position of the sovereignty of Deleted: c the Islands can only be determined by taking into account the location and Deleted: c population of the Islands (as described in Chapter 2). This evaluation is a Deleted: necessary prerequisite to the determination of the entitlement to the use of Deleted: Deleted: c the maritime natural resources surrounding the Falkland Islands. Deleted: Deleted: Sovereignty is a relative concept involving the balancing of relative claims.2 Deleted: Sovereignty is considered to be one of the fundamental principles of Deleted: International Law.3 However, sovereignty has been defined as the right to Deleted: Deleted: i exercise state functions over territory to the exclusion of any other state Deleted: l and is described as follows in the words of Huber J in the Island of Palmas Deleted: 4 case: Deleted: s

… [S]overeignty in relation to a portion of the surface Deleted: “ of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular state … sovereignty in the relations between states signifies independence. Independence in regard Deleted: to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of a state. Deleted: ”

Gamboa calls sovereignty “the freedom of a state from outside control in Deleted: the conduct of its internal and external affairs”.5 Korowicz regards sovereignty as the “supreme power of the state over its territory and inhabitants, and independence of any external authority”.6 There is no unanimous opinion as to the acquisition of sovereignty within Deleted: International Law.7 Academic authors in this area have traditionally set out i Deleted: l determinants by which a state acquires sovereignty over a territory: Deleted: Deleted: 1 De Vattel, Le Droit des Gens (1758) as quoted in Gustafson, The Sovereignty Dispute over the Falkland (Malvinas) Islands (1988) at 4. 2 Mueller, The Falklands Islands: Will the Real Owner Please Stand Up (1983) 58 Deleted: The Notre Dame Law Review at 617. 3 Schwartzenberger, A Manual of International Law (1976) at 35–36. Deleted: - 4 Island of Palmas, 2R International ARB 829, 838 (1928) per Huber J. 5 Gamboa, A Dictionary of International Law and Diplomacy (1973) at 244. 6 Korowicz, “Some Present Aspects of Sovereignty in International Law” 102 RPCUTIL Des Cours (1961) 1 at 108. 5-61

EVALUATION OF RESPECTIVE CLAIMS discovery, erosion, avulsion, abandonment, cession, annexation or Deleted: conquest, occupation and prescription.8 Any determination of the sovereignty of the Falkland Islands involves (requires) the use of four of Deleted: these determinants of sovereignty in particular, cession, annexation or : Deleted: conquest, occupation and prescription. Deleted:

Extent of Territory Formatted It is important to note, at this stage, that the sovereignty over the Islands is but a preliminary question to the main question as to who can legally establish binding rules to exploit the natural resources of the seas Deleted: surrounding the Falkland Islands. Obviously, to claim a territorial sea or an exclusive economic zone, the sovereign state must have title over the land Deleted: or lands that border these waters. This is due to the fact that the state's territory comprises its land mass within its boundaries, including islands, its internal waters, its territorial seas and the air space above its land and sea territory. Formatted Deleted: Deleted:

Deleted: Cession Deleted:

Deleted: The Falkland Islands, Cession title is acquired by one state through the transfer of a documentary source book; 9 sovereignty over territory by the owner state to another state. Often the Deleted: t title passes by treaty.10 Cession has frequently been the outcome of a war, Deleted: d Deleted: i the result of a gift, sale or exchange. For example, Australia acquired title to Deleted: w 11 some of its external territories through cession from Great Britain. As Deleted: r Deleted: in

7 Perl, The Falkland Islands Dispute in International Law and Politics: a Documentary Deleted: p Source Book (1983) at 13. Deleted: A Documentary 8 See Perl, The Falkland Islands Dispute in International Law and Politics: a Source Book: Documentary Source Book (1983) at 13–18; Mueller, The Falkland Islands, Will the Deleted: Real Owner Please Stand Up (1983) 58 The Notre Dame Law Review at 621; Gravelle, “The Falkland (Malvinas) Islands: An International Law Analysis of the Deleted: - Dispute between Argentina and Great Britain” (1985) Military Law Review Vol 107 Deleted: at 21. 9 See, The Falkland Islands Dispute in International Law and Politics: a Documentary Deleted: Source Book. (1983) at 13. Deleted: Perl 10 For cession there must be an agreement, for example, see the Treaty of Waitangi 1840 (NZ) between Britain and indigenous people of New Zealand: Treaty of Deleted: A Documentary Waitangi Act 1975 (NZ). Source: 11 See the Commonwealth Constitution of Australia, s 122 which states that the Deleted: Commonwealth Parliament may legislate with respect to any territory placed by the Queen under the authority of and accepted by the Commonwealth. A number of Deleted: territories were ceded to the Commonwealth of Australia under this provision: Deleted: 5-62

EVALUATION OF RESPECTIVE CLAIMS pointed out in the Islands of Palmas case (see Chapter 4), the transferor may not transfer more rights than were possessed at the time of transfer.

The question is therefore whether the Papal Grants, that is the Papal Bull of Pope Alexander VI12 of 4 May 1493, which divided sovereign title to lands between Spain and Portugal and provided Spain with legitimate sovereignty over the relevant territory, provides Argentina with sovereign title to the Deleted: Falkland Islands.13 There is no doubt that a valid cession treaty did occur Deleted: when Spain purchased the Port Luis settlement from France in April 1767.14 Deleted: Once Spain paid consideration to France, then sovereignty was acquired. Deleted: These sovereign rights that Spain acquired predated British rights, given , Deleted: following the fact that Port Egmont was only established in 1765 one year after the Deleted: purchase. Therefore, in 1765 Spain held a better sovereign title to the Islands than the United Kingdom.

The question, then, is whether Argentina legally acquired the sovereign title Deleted: from Spain. The only possible basis for that succession of rights is the Deleted: doctrine of uti possedetis.15 According to this doctrine, since the Falkland Islands were included in Argentina’s administrative division from Spain, Deleted:

Papua Act 1905 (Cth) (repealed); Norfolk Island Act 1913 (Cth) (repealed); Deleted: Australian Antarctic Territory Acceptance Act 1933 (Cth); Cocos (Keeling) Islands Deleted: Act 1955 (Cth); and the Christmas Island Act 1958 (Cth). The first are more accurately seen as transfers of administrative authority within the British Empire, Deleted: but the last two were acquired through cession to Australia after it had acquired full Deleted: international personality. The cession of both the Cocos (Keeling) Islands and Deleted: Christmas Island were authorised by legislation of the United Kingdom (UK): Cocos Islands Act 1955 (UK); Christmas Island Act (1958) upon the request and consent Deleted: of the Commonwealth Parliament of Australia: Cocos (Keeling) Islands (Request Deleted: - and Consent) Act 1954 (Cth); Christmas Island (Request and Consent) Act 1957 (Cth): Halsbury’s Laws of Australia (1998) at 215. Deleted: - 12 Alexander VI, 1431?–1503, Pope (1492–1503), a Spaniard named Rodrigo de Deleted: Borja. He took Borja as his surname from his mother's brother Alfonso, who was Pope Calixtus III. He became Cardinal (1456), vice-chancellor of the Roman Deleted: Church (1457) and Dean of the Sacred College (1476). The foreign relations during Deleted: his papacy were dominated by the increasing influence of France in Italy, which culminated in the invasion of Charles VIII in 1494. Alexander prevented Charles Deleted: d from taking the church property in Rome, but he turned over to the French the Deleted: s Ottoman hostage Djem, brother of Sultan Beyazid II: http://www.encyclopedia.com/articles/00314.html. Deleted: c 13 See Symmons, “Who Owns the Falkland Islands Dependencies International Law? Deleted: An Analysis of Certain Recent British and Argentinean Official Statements”, International and Comparative Law Quarterly (1984) Vol 33, July at 731. Deleted: 14 See Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 Deleted: The Notre Dame Law Review at 626. 15 As you possess you shall continue to possess. See Symmons, “Who Owns the Deleted: Falkland Islands Dependencies in International Law? An analysis of certain recent Deleted: British and Argentina Official Statements” (1984) International and Comparative Law Quarterly, Vol 33 July at 732; see also Mueller, The Falkland Islands: Will the Deleted: Real Owner Please Stand Up (1983) 58 The Notre Dame Law Review. Deleted: 5-63

EVALUATION OF RESPECTIVE CLAIMS

Deleted: Argentina acquired the rights to the islands.16 However, Mueller argues that Argentina’s entitlement to Spanish title arises more from Argentina’s independence from and conquest over Spanish rule than anything else.17

Occupation Formatted Occupation is the acquisition of territory which is not at the relevant Deleted: time under the sovereignty of another state (res nullius). It is usually territory susceptible of acquisition but not presently under the ownership or Deleted: sovereignty of any legal person.18 The Falkland Islands were uninhabited Deleted: As t prior to colonisation or settlement therefore the methodology of the thesis does not require, within the word limit of this thesis, significant discussion of the issue of terra nullius.19 Formatted Deleted:

Deleted: N The new discovery of unoccupied land, as opposed to its occupation (as Deleted: has been discussed), is not sufficient to establish title over the Falklands.20 A discovery coupled with a formal declaration of title, as was the case in 1774 when Britain left the islands, may be held to be a sufficient mode of acquisition of territory, but usually acts of effective occupation are normally Deleted: required. As was stated in the Island of Palmas case the state must usually, Deleted: peacefully and continuously, administer the territory.21 As was held in the Clipperton Island case, the extent and nature of the authority asserted

16 Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 The Deleted: Notre Dame Law Review at 616–618. 17 Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 The Deleted: Notre Dame Law Review at 626. Deleted: - 18 Western Sahara case (1975) ICJ 12 pars 7981 (ABD Op 16 October 1975). 19 As was examined by the High Court of Australia in Mabo v Queensland (No 2) Deleted: (1992) 175 CLR 1; 107 ALR 1; 66 ALJR 408. In Australia the power to acquire Deleted: unoccupied territory is under the royal prerogative and does not require statutory Deleted: - authority: R v Gomez (1880) QSCR 179 (Torres Strait Islands); Cantley v Queensland (1973) 1 ALR 329; 47 ALJR 538 (with respect to Lizard Island). See Deleted: also the Heard Islands and the MacDonald Islands Act 1953 (Cth) and the Coral Deleted: Sea Islands Act (Cth). 20 Island of Palmas Case (US v The Netherlands) (1928) 629 (award of 4 April). For a Deleted: nation to claim sovereignty by the acquisition of territory on the basis of the Deleted: discovery of individuals it is necessary for governments to show that the individuals acted in pursuance of authority bestowed by the government, or that the Deleted: government has a certain jurisdiction through the Acts of the individuals: Anglo- Deleted: Norwegian Fisheries (UK v Norway) 1951 ICJ 116 at 184 per Lord McNair (judgment of 18 December 1951). 21 Island of Palmas case (US v The Netherlands) (1928) (Award of 4 April). 5-64

EVALUATION OF RESPECTIVE CLAIMS depends upon the circumstances, in particular the physical nature of the territory in question.22

Occupation of the Falklands by British settlement on 20 December 1832 at Port Egmont and on 21 December 1832 at Port Luis (the former Port Deleted: Soledad) was a valid acquisition of sovereignty at law. It was the Deleted: occupation of territory that was uninhabited at the time. In Cooper v Stuart in the Privy Council, Lord Watson noted that there is a:23

… great difference between a colony acquired by Deleted: “ conquest or cession, in which there is an established system of land, and a colony which consisted of a Territory practically unoccupied, without settled inhabitants or settled law, at the time when it is 24 peacefully annexed to British dominions. Deleted: ”

Occupation establishes sovereignty over territory that is not under another state’s authority. In the Eastern Greenland Case the International Court of Deleted: Deleted: : Justice stated that effective occupation required two elements; an intention or will to act as sovereign and the actual exercise or display of Deleted: sovereignty.25 As with anything subjective, a state’s intention is very hard Deleted: to prove. Mueller argues that a state itself must exercise nothing less than a Deleted: permanent intention to share control.26 In determining the second element, it is usually necessary for a state to establish an organisation to administer Deleted: and enforce its laws within the relevant sovereign territory. The state need not immediately establish complete sovereignty and may exercise its control gradually as in the case of Luis Vernet’s occupation of the Falkland Islands.27

22 Clipperton Island Case (France v Mexico) (1931) at 1105 (judgment of 28 January); Deleted: see also the Legal status of Eastern Greenland (Denmark v Norway) (1933) ICJ 53 (judgment of 5 April); and Island of Palmas Case (US v Netherlands) (1928) II Deleted: RLAA 829 (Award of 4 April). 23 (1889) 14 AC 286 at 291 [60 lt 875]. Deleted: - 24 Until the decision of Mabo in Queensland (No 2) (1992) 175 CLR 1 at 41–44 Formatted Brennan J [107 ALR 1; 66 ALJR 408] (with whom Mason CJ and McHugh J agreed) it had been asserted that Australia, as can be argued with regard to the Deleted: Falkland Islands, was a land terra nullius. Under English common law, all English Deleted: were laws are applicable in an occupied colony while the laws of a conquered country continue in force until they are altered. For the English Law: Campbell v Hall (1774) Deleted: 98 ER 1045 at 1047 per Lord Mansfield CJ. Deleted: 25 Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 The Notre Dame Law Review at 624–625. Deleted: 26 Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 The Deleted: - Notre Dame Law Review at 621. 27 Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 The Deleted: Notre Dame Law Review 616 at 624. Deleted: 5-65

EVALUATION OF RESPECTIVE CLAIMS

Argentina did not acquire the territory of the islands by any acts of Deleted: occupation. Effective occupation cannot be claimed when another state or Deleted: states already exercises sovereignty over the area. Great Britain Deleted: established Port Egmont in 1765. The issue therefore, is whether, when the Deleted: British left in 1774, they abandoned the Islands. Britain argues that they did not have an intention to withdraw and demonstrated this intention to preserve the claim by leaving behind a proclamation of British sovereignty Deleted: (as has been quoted already).28 As Symmons argues, the lack of continual Deleted: n settlement has been considered in a number of cases in the International Court of Justice to be non-vital to establish effective occupation within International Law, especially where the territories are geographically Deleted: remote and climatically unfavourable for colonisation.29

It has been argued that flags and markers do not describe or maintain title Deleted: over Islands.30 Even if Argentina occupied the islands with valid title in Deleted: 1828, their claim was later usurped. Even if Great Britain lost one adverse possession in 1774 another acquisition or sovereign title through occupation occurred in 1833.

Finally, it is important to note in the context of the dependencies of the Islands, that occupation of the primary territory does not necessarily extend Deleted: the territorial sovereignty to the neighbouring territories.31 ¶

Annexation or conquest Formatted Conquest alone does not confer sovereignty on the conqueror. The Deleted: conqueror only gains sovereign title by conquest followed by subjugation

Deleted: 28 Mueller, The Falkland Islands: Will the Real Owner Please Stand Up (1983) 58 The Notre Dame Law Review 616 at 623. Deleted: 29 Symmons, “Who Owns the Falkland Island Dependencies in International Law? An Deleted: Analysis of Certain Recent British and Argentinean Official Statements” (1984) International and Comparative Law Quarterly vol. 33, 726 at 731. Deleted: V 30 See Starke, Introduction to International Law (1984) at 157; and Westlake, Deleted: International Law (1910) Vol I at 113. 31 The “Hinterland – Doctrine” stipulates that if a nation has created a settlement it Deleted: has a title of sovereignty to all adjacent vacant land: see Harris, DJ, Cases and Formatted Materials on International Law. However, Lord Palmerston in 1834 appears to have suggested that the proximity of Lobos Island to Peru gave Peru prima facie title to Deleted: it: British and Foreign State Papers 1097 (1842–1843). Deleted: - 5-66

EVALUATION OF RESPECTIVE CLAIMS

Deleted: and then later annexation. Until the twentieth century and the development of the League of Nations and the United Nations, subjugation was a widely Deleted: recognised form of acquisition of territory.32 In order for subjugation to take effect, there must be an end to the state of war, either by a formal peace Deleted: treaty, or by the simple conclusion of hostilities. An annexation that does occur during a state of war does not establish conquest if there is subjugation, which is a necessary prerequisite for acquisition.33

Any delimitation situation that involves conquest and transfer of sovereignty also involves determining any effects that the transfer might have on the Deleted: international rights and duties possessed by the previous state.34 The personality of the change in the state is the key to a state’s secession Deleted: problem, such as that involving the Falkland Islands. It is necessary to separate the rights and obligations personal to the state from the rights of Deleted: the annexed territory. Argentina was granted independence from Spain. Deleted: That situation involved a partial secession, since Spain’s international Deleted: personality was not completely absorbed. Argentina did not secede to Spain’s rights to the Falklands through conquest and therefore the Papal Bull35 provided no basis for sovereignty.36

Prescription Formatted Change of title by prescription arises when one state extinguishes Deleted: P another state’s title through adverse possession. Therefore, acquiring Deleted: sovereign title by prescription refers to acquiring title to territory subject to Deleted: , Deleted: another states sovereignty.37 In general, acquiring title by prescription Deleted: requires four elements: the state must recognise possession without Deleted: recognising that another state possesses sovereignty over the area; possession must be peaceful and uninterrupted (that does not mean the Deleted: territory cannot originally be acquired by force); diplomatic protests are not

32 See Oppenheim (Lauterpacht, H) International Law (1955) 456 at 563. 33 Oppenheim (Lauterpacht, H) International Law (1955) 546 at 570. 34 See Mueller, The Falkland Islands, Will the Real Owner Please Stand Up (1983) 58 The Notre Dame Law Review 616 at 621–627. Deleted: - 35 See Chapter 3 at 8-9. 36 Mueller, The Falkland Islands, Will the Real Owner Please Stand Up (1983) 58 The Notre Dame Law Review 616 at 622. 37 Gravelle, “The Falkland (Malvinas) Islands: An International Law Analysis of the Deleted: Dispute between Argentina and Great Britain” 107 Military Law Review at 4. 5-67

EVALUATION OF RESPECTIVE CLAIMS enough to prevent acquiescence; and the possession must be publicly identifiable.38

Deleted: Prescription, in International Law, may therefore be defined as the i Deleted: l acquisition of sovereignty over a territory through continuous and Deleted: , undisturbed exercise of sovereignty over it during such a period as is necessary to create, under the influence of history, the general conviction Deleted: that the present condition is in conformity with International Law. Thus i Deleted: l prescription in International Law has the same rational basis as prescription Deleted: 39 in municipal law – namely, consideration of stability and order. The length Deleted: i of time necessary to constitute prescription usually depends on the facts of Deleted: l the case in question.40 Deleted:

Schwarzenberger does not place any emphasis on recognition as a means Deleted: of establishing the validity of a new title in relation to other states.41 Deleted: Schwarzenberger states in his Manual of International Law (1976) that:42

A state may perfect a title to a territory by exercising Deleted: “ peaceful and effective jurisdiction over the territory for Deleted: a

38 Mueller, The Falkland Islands, Will the Real Owner Please Stand Up (1983) 58 The Notre Dame Law Review 616 at 621. 39 Arkansas v Tennessee 310 US 563 at 570 (1940). Deleted: 40 See Perl, The Falkland Islands Dispute in International Law and Politics: a Documentary Source Book. (1983) at 16. See also Oppenheim, (aided by Deleted: Lauterpacht, H) International Law 1 (1955) 546 at 575–576. Deleted: A Documentary 41 Georg Schwarzenberger has achieved considerable fame in international legal Source Book, circles. See, for example, D 'Amato, International Law - Content and Function: A Deleted: Review (1967) 11 Journal of Conflict Resolution 504: “The theoretical infrastructure helps to convince readers that the author is not inserting his own Deleted: - biased ideas but is simply following the dictates of his theory. … Schwarzenberger's self-styled ‘inductive’ approach is at first glance closer to current conceptions of what an unbiased theoretical structure should be than Kelsen's framework. It appears more ‘scientific’. Schwarzenberger adroitly criticizes previous approaches, calling them oversimplified, eclectic, unverifiable, intuitive, capricious, and purportedly based on deductions from God and Reason: Georg Schwarzberger, The Inductive Approach to International Law (1965) note 3, at 4- 7,13. Yet if we look closely at Schwarzenberger's suggested antidote, we find a peculiar notion of the idea of inductivism. … In addition, with respect to all his writings, Schwarzenberger assigns a central and crucial role to a statue of the International Court of Justice that lays down a description of the ‘sources’ of international law. These sources include international treaties, custom, general principles of law, judicial decisions, and the writings of publicists. Not only is this a non-inductive approach (for although many states recognize the Court's statute as authoritative, there is nothing to stop them from departing from it) (See D'Amato, The Inductive Approach Revisited (1966) 6 Indian Journal of International Law 509-14) but it also fails to take into account Deleted: A Documentary recent important ‘sources’ of international norms such as UN resolutions or drafts Source Book, of the International Law Commission”. 42 A Manual of International Law (1976) at 98 cited in Perl, The Falkland Islands Deleted: t Dispute in International Law and Politics: a Documentary Source Book (1983). Deleted: 5-68

EVALUATION OF RESPECTIVE CLAIMS

a prolonged period. By virtue of the rules governing Deleted: the principle of good faith, prolonged inaction on the part of third states which, at one time, might have been in a position to contest the claims of the state in effective occupation, gradually comes to be viewed as acquiescence. Then, such states are stopped from Deleted: contesting the occupants’ title. This title to territory, Deleted: known traditionally as acquisitive prescription, is actually a title with multiple roots and is based on the interplay of the rules underlining the principles of sovereignty, consent and good faith. Deleted: ”

It is necessary to note that in the context of the South American republics, in particular those with Spanish heritage, that there has been the adoption Deleted: of a principle directly related to prescription.43

Normal territorial integrity (uti possidetis) does not require occupation as a Deleted: basis for a claim to sovereignty. South American territories that were never occupied by Spain or any of the other Latin American states were Deleted: considered to be occupied by a legal fiction by these states.44 As an example of this, the Spanish theologian and jurist de Victoria stated in 1532 that neither imperial nor papal authority could justify Spanish domination over the American Indians, and that the discovery of their land alone could not confer title in Spain, “any more than if it had been they who had Deleted: discovered us”.45 That statement by the jurist de Victoria is placed into the Deleted: context of the Falklands by the following quote from Whiteman:46

On winning independence from Spain, Argentina Deleted: “ automatically became heir to all Spanish dominions within the area which had been the vice-royalty of Rio Deleted: de la Plata. As the southern limits of this vice-royalty Deleted: have never been specified, Argentina claims her Deleted: dominion towards the south is unlimited. Deleted: ” Therefore, it is difficult to create a general rule that can be binding as to the length of time or other circumstances necessary to create a title by Deleted: prescription. Such prescription depends upon individual merit and Deleted: consideration. For example, in the treaty between Great Britain and

43 Whiteman M M, Digest of International Law 2 (1963) 1061 at 1068. 44 Whiteman M M, Digest of International Law 2 (1963) 1061 at 1068. Deleted: 45 De Victoria F, “De indis et de ivre belli relectiones” in Nye E (ed.), The Classics of Deleted: International Law (Washington: Carnegie Institute of Washington, 1917) at 139. 46 Whiteman, 2 Digest of International Law (1963) 1061 at 1060 as quoted in Perl, Deleted: , A Documentary The Falkland Islands Dispute in International Law and Politics: a Documentary Source Book Source Book (1983). Deleted: : 5-69

EVALUATION OF RESPECTIVE CLAIMS

Venezuela of 2 February 1987, it was agreed that:47 “adverse holding or Deleted: prescription during a period of 50 years shall make good Title”.48

The possession of the Falkland Islands by Great Britain has been, with the Deleted: exclusion of the 1982 war, predominantly peaceful. Argentina has done little more than occasionally protest British presence, and then only at times Deleted: “convenient to her interests”.49 The military attack of 1982 by Argentina Deleted: does not make up for Argentinean inactivity of over a century. For example, Argentina did not protest against the Letters Patent, issued in 1908, that Deleted: created the original dependencies of the Islands.50 This “extinctive prescription” is probably the strongest claim to sovereignty that Britain Deleted: has.51 Argentinean nationals, along with the nationals of other nations, have also abided by the rules set out in the Whaling Ordinance Act 1906 (UK) which, together with other acts of the United Kingdom Parliament, have in the past regulated the licenses over the natural resources within Falkland waters.

The administration of the Falkland Islands by Britain has now continued for Deleted: over 160 years, interrupted only briefly by the conflict in 1982.52 In 1993, over a decade after the conclusion of the war, the Argentineans reiterated their claim to the Falkland Islands by inserting a statement to that effect in Deleted: their Constitution.53

The Contiguity Claim of Argentina

47 Perl, The Falkland Islands Dispute in International Law and Politics: a Documentary Deleted: A Documentary Source Book (1983) at 14. Source Book: 48 Perl states with regard to prescription that, “the actual exercise of sovereignty over the territory is not undisturbed nor is there any prerequisite conviction that the status quo is in conformity with international order”: Perl, The Falkland Islands Deleted: Dispute in International Law and Politics: A Documentary Source Book (1983) at 14. Deleted: A Documentary 49 Gravelle, “The Falkland (Malvinas) Islands: An International Law Analysis of the Source Book: Dispute between Argentina and Great Britain” (1985) 107 Military Law Review 5 at Deleted: 30. 50 Symmons, “Who Owns the Falkland Island Dependencies in International Law? An Deleted: Analysis of Certain Recent British and Argentinean Official Statements” (1984) vol. 33 International and Comparative Law Quarterly, July 726 at 729. Deleted: Vol 51 Gravelle, “The Falkland (Malvinas) Islands: An International Law Analysis of the Deleted: Dispute between Argentina and Great Britain” (1985) 107 Military Law Review 5 at 32. 52 United Kingdom, House of Commons Hansard Debates, 22 March 1995 at col 263. 53 United Kingdom, House of Commons Hansard Debates, 22 March 1995 at col 263. 5-70

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Argentina occupies most of the southern part of South America; a Deleted: total of 2300 miles from Bolivia in the north to near Cape Horn in the south. Deleted: Just A little smaller than India and the eighth largest country in the world, Argentina totals 1,080,000 square miles.54

Deleted: to The Argentineans have continued impliedly to raise a contiguity principle Deleted: with regard to the Islands even though customary International Law does i Deleted: l not recognise it. The primary basis for this contiguity claim by Argentina is Deleted: the fact that the islands are on the continental shelf of the south-east coast Deleted: of South America.55 This continental shelf is referred to as the Patagonian Deleted: Shelf.56 However, even if contiguity was relevant in a customary Deleted: international law sense, the Islands are still 500 miles off the mainland.57 In the 1955 British Application to the International Court of Justice, British title was claimed to be based upon “historical British discoveries” and “long continued and peaceful display of British sovereignty from the date of those discoveries”.58

Self-Determination Formatted In the nineteenth and early twentieth century, the interests of European colonial expansion prevented the development of the self- Deleted: determination of many peoples. The “ideological deformations” that occurred within International Law during the last phases of colonialism have Deleted: i Deleted: l no bearing on the position of customary International Law in the twenty first Deleted: i 59 century. The principle of inter-temporal law requires that all acts and Deleted: l situations be judged in accordance with the international legal norms Deleted:

54 See the Argentina-Falklands War 1982: http://www.naval- history.net/F12argentina.htm. 55 See the three-dimensional model of the Patagonia shelf developed by Aaron Davies (1997) on the Internet at http://www.nbi.ac.uk/appl/patagonia.html. 56 See Gloriosa & Flather, A Barometric Model of the Currents off South East South Deleted: m America (1995) Journal of Geophysical Research at 100. 57 Gravelle, “The Falkland (Malvinas) Islands: An International Law Analysis of the Deleted: c Dispute between Argentina and Great Britain” (1985) 107 Military Law Review 5 at Deleted: 27. 58 Symmons, “Who Owns the Falkland Island Dependencies in International Law? An Deleted: Analysis of Certain Recent British and Argentinean Official Statements” (1984) Vol 33 International and Comparative Law Quarterly, July 726 at 728. 59 Crawford J, Aboriginal Self-government in Canada: Research Report for the Deleted: s Canadian Bar Association (1988) at 21. Deleted: 5-71

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Deleted: enforced at the relevant time.60 Today, as never before within International Deleted: i Law, the principle of self-determination is a primary determinative of Deleted: l sovereignty. Deleted:

Self-determination of peoples is one of the central themes of the United Deleted: Nations Charter (“Charter”) of 1945. Within Article 1(2)61 of the Charter, Deleted: there is the goal to provide for the self-determination of peoples. The Deleted: principle is also espoused in Articles 55,62 73,63 74,64 and 76.65

60 In the Netherlands v United States (Island of Palmas case), Arbitrator Huber J noted that a “judicial fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute arises or falls to be settled”. In the Netherlands v United States (Island of Palmas case) (1928) 2 RIAA Deleted: 829 at 845. See also Elias, “The Doctrine of Inter-temporal Law” (1980) 74 AJIL 285. This application of the inter-temporal law principle was implicit in the analysis Deleted: by the international Court of Justice on the status of the Western Sahara upon the Deleted: acquisition of sovereignty by Spain in 1884: Western Sahara Advisory Opinion [1975] ICJ 12, majority opinion at 39. Deleted: 61 “We the peoples of the United Nations are determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of International Law can Deleted: i be maintained … ”. 62 “With a view to the creation of conditions of stability and well-being which are Deleted: l necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” 63 “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses; b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c. to further international peace and security; d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which 5-72

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Respect for the principle of self-determination has become a fundamental principle within international relations and in the safeguarding of international peace and 66 security. The principle of self-determination is recognised in a number of Deleted: international instruments such as the Declaration on the Granting of Independence to Colonial Countries and Peoples, Resolution 1514 adopted by consensus in the United Nations General Assembly in 1970. That resolution contained an entire Deleted: section on “the principle of equal rights and self-determination of peoples” stating that “all people have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every state has the duty to respect this right in accordance with the provisions 67 of the charter”. That General Assembly resolution established a set of obligations Deleted: for non-self-governing territories which were not covered by trusteeship arrangements. That resolution provides that “all peoples have the right to self- Deleted: determination” and that “repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence”, and that: Deleted: ¶

[i] immediate steps shall be taken … to transfer all Deleted: “ powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom. Deleted: ”

they are respectively responsible other than those territories to which Chapters XII and XIII apply.” 64 “Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighbourliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.” 65 “The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be: a. to further international peace and security; b. to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement; c. to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and d. to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their nationals, and also equal treatment for the latter in the administration of justice, without prejudice to the attainment of the foregoing objectives and subject to the provisions of Article 80.” 66 Koshy, “Documents of the Falklands Malvinas Crisis: Conflict in the South Atlantic” Deleted: Background information: Commission of the Churches on International Affairs (1983) at 19. Deleted: 67 Note also that the Commission of European Communities, by a statement of 6 April 1982, condemned Argentine actions as “ … an intervention committed in violation of international law and the rights of the inhabitants of the Falkland Islands”. Deleted: 5-73

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The common Article 1 of the International Covenants on both civil and political rights and of economic, social and cultural rights states that: “all peoples have the right to self-determination. By virtue of that right they Deleted: ¶ freely determine their political status … ”.The term “peoples” is defined by ¶ “all peoples have the right to General Assembly Resolution 1514. Paragraph 6 of that Resolution states self-determination. By virtue of that right they freely determine that: “any attempt aimed at the partial or total disruption of the national unity their political status … ”.¶ ¶ and the territorial integrity of a country is incompatible with the purposes …six … ... [1] and principles of the Charter of the United Nations”.68

Deleted: i…l… … … … … Furthermore, customary International Law has, at different times, ... [2] addressed the processes by which title to the territories of peoples can be acquired.69 The Falkland Islands are rare in that they were totally uninhabited prior to settlement. As Hoffman and Hoffman state in their monograph: “There are no people who can claim them as their homeland”.70 That is, there were no indigenous inhabitants on the Islands prior to settlement.

68 Perl, The Falkland Islands Dispute in International Law and Politics: a Documentary Deleted: “A Documentary Source Book, (1983) at 37. See also Franck and Hoffman, “The Right of Self- Source Book: … … … …six determination of Very Small Places” 8 New York University Journal of International i…d…- ... [3] Law and Politics 333 (1976); Mustafa, “The Principle of Self-determination in International Law” 5 International Law 479 (1971); and for a discussion on the meaning of paragraph 6 specifically to the Falklands situation see Gerard: CLH, “Les Isles Falkland (Nalouines) 18 Annuaire Francais de Dorit International 249– 254 (1932). 69 See Anaya, “The Rights of Indigenous Peoples and International Law in Historical Deleted: r…i…p…i…l…h…c… and Contemporary Perspective” (1990) Harvard Indian Law Symposium; Crawford, p…-…d…r…w…l…t… … Aboriginal Self-government in Canada (1988) Research Report for the Canadian e…g…i…r…i…l…-… … … Bar Association at 16–22; Henderson, “The Doctrine of Aboriginal Rights in s…r…s…i…p…i…l…-… Western Legal Tradition” in The Quest for Justice: Aboriginal Peoples and l…p… …t…r…s…i…p… … Aboriginal Rights, Boldt, Long and Little Bear (eds), (Toronto: University of Toronto -… …r…i…q…i…l…-… … m…o…w…l…t… Press, 1985) at 185; Lawrey, “Contemporary Efforts to Guarantee Indigenous ... [4] Rights under international Law” (1990) 23 Vand JTL 703 at 708–12; Lindley, The Acquisition and Government of Backward Territory in International Law (London: Longmans, Green & Co, 1926); Morris, “In Support of the Rights of Self- determination for Indigenous Peoples under International Law” (1986) 29 Germ YBIL 277 at 280–293; Morris, “International Law and Politics: Towards a Right to Self-determination for Indigenous Peoples” in Jaimes (ed.), The State of Native America: Genocide, Colonization and Resistance (Boston: South End Press, 1992), 55 at 55–86; Sanders, “The Re-emergence of Indigenous Questions in International Law” (1983) 1 Can Hum Rts YB 3 at 4–5; Snow, The Question of Aborigines in the Law and Practice of Nations (London: Putnam & Sons, 1921); Williams, “The Medieval and Renaissance Origins of the American Indian in Western Legal Thought” (1983) 57 So Cal LR 1; Anaya, Indigenous Peoples in International Law (New York: OUP, 1996). 70 Hoffman, F and Hoffman, O. Sovereignty in Dispute: The Falklands/Malvinas, 1493–1982 (Westview Press, Colorado: 1984) at 17. See also Calvert, The Deleted: -… … … … ... [5] Falklands Crisis: The Rights and the Wrongs (St. Martin’s Press, New York: 1982) at 4. 5-74

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There has been also been a specific United Nations Resolution relating to the Falkland Islands. General Assembly Resolution 2065(XX), entitled “Question of the Falklands”, encouraged compromise between Argentina and Great Britain, whilst taking into account the interests of the population of the Islands.71 It should be noted that this Resolution did not take into account the wishes of the population. This General Assembly Resolution stated that a colonial situation existed on the Falkland Islands.72

In addition, in 1961, the United Nations created a special committee to assume the responsibilities of assisting non-self-governing territories, such as the Islands (as had been exercised by the Trusteeship Committee with Deleted: regard to trust territories).73 Both Gibraltar and the Falkland Islands have Deleted: been classified as non-self-governing territories.74 As Professor Crawford75 a Deleted: has stated, applying these principles espoused by the United Nations:76 Deleted:

International practice applies the principles of self- Deleted: “i determination to colonial enclaves, which are ethnically and economically parasitic upon or derivative of that state, and which cannot be seen in any legitimate sense to constitute separate territorial limits. Such a category would include Gibraltar … it Deleted: would not include islands and territories – which are by definition not enclaves. The General Assembly has Deleted: given only lukewarm support to Argentina’s claim to the Falkland Islands. Deleted: ” Deleted: The facts confirming the self-determination claim of the Islanders are clear. Deleted: Seventy-five per cent of the Islanders were born on the Islands and most Deleted: are from families established there for well over a century.77 The islanders

71 See A/RES/39/6, 1 November 1984, Meeting no 46: http://www.un.org/documents/ga/res/39/a39r006.htm. 72 See A/RES/39/6, 1 November 1984, Meeting no 46: http://www.un.org/documents/ga/res/39/a39r006.htm. 73 A special committee on the situation with regard to the implementation of the declaration of the granting of independence to colonial countries and peoples established by General Assembly Resolution 1654 (16 United Nations GAOR Supplement 17 at 65  United Nations Document A/5100) (1961). Deleted: – 74 Crawford, The Creation of States in International Law (1979) 381 at 358. See also Gunter, “Self-determination in the Recent Practice of the United Nations” 137 World Deleted: Affairs 155 (1974). Deleted: r 75 James R. Crawford is the Whewell Professor of International Law and Director of Deleted: p the Lauterpacht Research Centre of International Law at the University of Cambridge: see http://ijgls.indiana.edu/archive/08/02/aman1.shtml. Deleted: 76 Crawford, The Creation of States in International Law (1979) 381 at 384. 77 Koshy, “Documents on the Falklands Malvinas Crisis: Conflict in the South Atlantic” Deleted: (1983) Background Information: Commission of the Churches on International Affairs at 21. Deleted: 5-75

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Deleted: have their own constitution and are largely autonomous. The Constitution states that the people of the Falkland Islands can freely determine their political status and seek economic, social and cultural development as they Deleted: wish. Technically and culturally, the people of the Islands are closely Deleted: i related to the United Kingdom and not to Argentina. A poll of the eighteen Deleted: hundred people (in 1987) showed that 94.5 per cent of the Islanders wished Deleted: % to remain a British dependency.78 Deleted: i

The concept of self-determination has gained and continues to gain greater Deleted: i acceptance through within the academic literature of International Law.79 Deleted: l The status of the Falkland Islands as a dependency of the United Kingdom Deleted: does not imply any loss of the right to self-determination. The United Deleted: Kingdom Parliament in accepting and passing the Falkland Islands Deleted: Constitution Order 1985 (UK) has confirmed its commitment to the right of Deleted: the people of the Islands to determine their own sovereignty.80 The Deleted: Constitution of the Islands states that the people of the Islands: “have the right of self-determination and by virtue of that right they freely determine Deleted: their political status … ”.81

Analysis

Transferring the sovereignty of the territory of the Islands to Deleted: Argentina would only “replace one colonial ‘master’ with another”.82 Any

78 The Falkland Islands and South Georgia and Sandwich Islands, Foreign and Commonwealth Office, November 1991. 79 As the recent referendums in Scotland and Wales have shown, the rights of peoples to determine their own future is not diminished by their position within a larger nation state. 80 Both of the main political parties in the United Kingdom have affirmed their commitment to the right of the Falkland Islanders to determine their own sovereignty. As the then Foreign Office Minister of the United Kingdom, the Deleted: Honourable Tony Lloyd MP, stated in a letter to the Sunday Telegraph newspaper on 15 December 1996 when he was the opposition spokesman, “ … Labour's Deleted: … position [is] that the sovereignty of the islands is a matter for the people who live on the Islands”: http://www.upaz.edu.uy/procesos/pamerica/malvinas/atlsur1.htm. Deleted: i 81 Chapter One, Falkland Islands Constitution, 1985. 82 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart/~bethlehem/endnotes.htm#bearing. 5-76

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GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION

CHAPTER SIX

GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION

CONTENTS

UNCLOS I...... 82 UNCLOS II...... 83 CONTINENTAL SHELF ...... 83 UNCLOS III...... 87 TERRITORIAL SEA ...... 92 TERRITORIAL SEA BASELINES...... 93 ARCHIPELAGIC BASELINES AROUND THE FALKLAND ISLANDS ...... 96 LOW TIDE ELEVATIONS ...... 98 INNOCENT PASSAGE THROUGH THE TERRITORIAL SEA ...... 99 RIGHTS AND OBLIGATIONS OF COASTAL STATES...... 100 JURISDICTION WITHIN THE TERRITORIAL SEA ...... 101 ANALYSIS ...... 103

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No man is an Island, entire of itself; everyman is a piece of the Continent, a part of the main; if a clod be washed away by the sea … as well as if a promontory were, as well as if a manor of thy friends or of thine own were; any man's death diminishes me, because I am involved in Mankind; And therefore never send to know for whom the bell tolls; It tolls for thee.1

Before analysing the specific maritime zones of the Falkland Islands it is first necessary to examine the general legal framework governing the delimitation of maritime zones. This Chapter provides the general legal framework for the following Chapters that deal specifically with the zones that have been created around the Islands and the usage of the maritime resources within those zones.

Traditionally, scholars and statesmen assumed that the resources of the sea were infinite and that the sea could not be appropriated, as “man” was not capable of controlling the resources of the seas. The classical assumption proposed by the Dutch scholar, Hugo Grotius,2 and derived from natural law3 was that the seas are open to all. Grotius developed the

1 Meditations XVII (John Donne, Anne Donne, Undone letter to his wife): http://sites.netscape.net/barbier840louis/colon. 2 1583-1645 - Grotius defined natural law as a perceptive judgement in which things are good or bad by their own nature. This was a break from Calvinist ideals, in that God was no longer the only source of ethical qualities. The Dutch Republic had been founded on principles of religious toleration but had become a Calvinist theocracy. Although most famous for his theories of natural law, Grotius was also considered to be a great theologian. While occasionally writing about Christianity and religion, his intention for law was to write of it as independent of religious opinions. Grotius' conception of the nature of natural law is set forth in his works De Jure Praedae (Commentary on the Law of Prize and Booty) and De Jure Belli ac Pacis (On the Law of War and Peace). On the Law of War and Peace, which was published in 1625, is a seemingly expanded version of On the Law of Prize and Booty, which was written in the late months of 1604 and the early months of 1605. On the Law of Prize and Booty was not published until 1868 when it was discovered at a book sale by several professors from the University of Leyden. Although this manuscript was not found until the late 19th century, Chapter Twelve of the book was published separately in 1609 as Mare Liberum (The Freedom of the Seas). Mare Liberum talks about the rights of England, Spain, and Portugal to rule over the sea. If these countries could legitimately control the seas, this would prevent the Dutch from sailing, for example, into the East Indies. Grotius argued that the liberty of the sea was a key aspect in the communications amongst peoples and nations. No one country can monopolize control over the ocean because of its immensity and lack of stability and fixed limits: http://www.orst.edu/instruct/phl302/philosophers/grotius.html. 3 See Buckle S, Natural Law and the Theory of Property: Grotius to Hume, Oxford: Clarendon Press; New York: Oxford University Press (1991). See also the general work by Finnis J, Natural Law, Aldershot, England (1991) International library of

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GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION mare liberum theory in the 17th century.4 His theory assisted the Dutch Republic in its trade in the East Indies. Grotius later modified his theory that a sovereign State could claim jurisdiction and exclusive rights over part of the High Seas.5 The mare liberum theory, as developed by Grotius, provides the foundation for the ‘freedoms’ of the High Seas:

1. The freedom to navigate 2. The freedom of overflight 3. The freedom to fish 4. The freedom to lay cables and pipelines.6

This theoretical development of the freedoms of the seas assisted the seagoing Dutch Republic. English scholars were dissatisfied with the development of the theory of mare liberum as it allowed Dutch fishing vessels to fish in waters adjacent to English territory. John Selden,7 an

essays in law and legal theory. These essays were originally published separately in various publications. 4 Grotius H, The Freedom of the Seas, or, The Right which Belongs to the Dutch to Take Part in the East Indian Trade: a dissertation by Hugo Grotius; translated with a revision of the Latin text of 1633 by Ralph van Deman Magoffin; edited with an introductory note by Scott, New York: Oxford University Press (1916). This book discusses Grotius' theories on maritime law and the freedom of the seas. It has Latin and English on opposite pages and is paged in duplicate. At the head of the title it states: Carnegie Endowment for International Peace. Division of International Law. See also (with regard to his international law theories): Grotius H, De jure belli ac pacis libri tres: in quibus jus naturae & gentium, item juris publici praecipua explicantur: editio nova cum annotatis auctoria, ex postrema ejus ante obitum cura multo nunc auctior. Accesserunt & annotata in epistolam Pauli ad Philemonem, Washington: Carnegie Institution of Washington (1913–1925) Classics of International Law vol 2 (books 1–3 are translated by Kelsey F W). 5 Grotius H, The Freedom of the Seas, Translation by Ralph Van Deman Magoffin, Oxford University Press, London (1916). See also the Grotius Reader, TMC Asser Instituut at 14. 6 Report of the International Law Commission to the General Assembly, Document a/3159, printed in Yearbook of the International Law Commission 1956, Vol II, 253 at 259. (Also issued as Official Records of the General Assembly, Eleventh Session, Supplement No 9.) As recognised by the First Committee during UNCLOS I. See Ordering the Oceans: The Making of the Law of the Sea at 16. 7 John Selden was born on 16 December 1584. He was educated at the Free School of Chichester and Hart Hall, Oxford. He came to London in 1602 to study law, and was employed by Sir Robert Cotton to copy records. Cotton also trained him to become an antiquary. Selden's England's Epinomis and Jani Anglorum (1610) secured his place as the father of legal antiquarianism. Selden was called to the Bar in 1612, and soon became keeper of the records at Inner Temple. In 1613, he contributed annotations to the first 18 cantos of Drayton's Polyolbion. Selden had gained a reputation with his Titles of Honour (1614), and De Diis Syris (1617) by the time his History of Tithes (1618) appeared. This work infuriated the Church authorities, and was suppressed by the King's command. Selden next authored Mare Clausum (1618, but not published until 1635), which disputed Hugo Grotius' Mare Liberum and the principle of sovereignty on the high seas. Selden also helped prepare the protestation of Commons in

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English scholar, developed the mare clausum theory.8 Selden argued that the coastal state could extend sovereignty over an area of the High Seas. A coastal state was able to appropriate that area of the sea adjacent to its territory and could exert exclusive jurisdiction over it. Royal Naval Sea power assisted the development of Selden’s theory.

Economic interest has remained the backdrop for the application of these theories until the present day. Bynkershoek,9 who elaborated on the theoretical work of Grotius, later developed the theoretical basis for exceptions to mare liberum. He argued that, notwithstanding mare liberum, a small part of the territorial sea could be appropriated.10 Bynkershoek 11 Comment [TR1]: Length? A placed the boundary of the territorial sea at the length of a cannonshot. ‘width’ would be up to about 12 inches?

1621, further alienating himself from the King's good graces. The protestation asserted the Parliament's rights in affairs of state, and Selden was briefly imprisoned. In 1623, Selden entered parliament, and continued to be a staunch supporter of parliamentary rights, and a steady opponent of the crown's prerogative. He took part in the trial of George Villiers, 1st Duke of Buckingham, and co-authored the Petition of Right (1628). He was imprisoned for his part in the Parliament of 1629. Selden represented Oxford University in the Long Parliament from 1640 to 1649, and died at his house of White Fryars on November 30, 1654. Selden was an erudite, learned man, now best remembered for the posthumous Table Talk: Being the Discourses of John Selden, Esq ... Relating Especially to Religion and State (1689), collected and by his secretary, Richard Milward. He was also a prodigious collector of manuscripts, and some 8000 of his collection now reside in the Bodleian Library, Oxford: http://www.luminarium.org/encyclopedia/selden.htm. 8 Selden J, Mare clausum, seu, De domino maris: Libri duo quorum argumentum pagina versa … Londinense: Will. Stanesbeii pro Richardo Meighen (1636). At the head of the title of the book it has the name: Ioannis Seldeni. The text deals with Maritime Law and Territorial waters. 9 Cornelius van Bynkershoek (1673—1743) Dutch jurist, was born at Middleburg in Zeeland. He studied law and was later President of the Dutch Supreme Court. He reformed the legal system, with the new system based upon the principles of the ancient Roman law. His works are very voluminous. The most important of them are De foro legatorum (1702); Observationes Juris Romani (1710), of which a continuation in four books appeared in 1733; the treatise De Dominio Mans (1721); and the Quaestiones Juris Publici (1737). Complete editions of his works were published after his death; one in folio at Geneva in 1761, and another in two volumes folio at Leiden in 1766: http://96.1911encyclopedia.org/B/BY/BYNKERSHOEK_CORNELIUS_VAN.htm. 10 See Bynkershoek, De dominio maris dissertatio, New York: Oxford University Press (1923) Publications of the Carnegie Endowment for International Peace. Division of International Law, Classics of International Law; no 11. This is a photographic reproduction of the 2nd edn (1744); with an English translation by Ralph Van Deman Magoffin, and an introduction by Scott J B. Also with regard to his international law theories see: Bynkershoek, Quaestionum juris publici libri duo, Oxford: Clarendon Press; London: Milford (1930) Publications of the Carnegie Endowment for International Peace. Division of International Law, Classics of International Law; no 14. 11 See further discussion in Churchill R, The Law of the Sea, Manchester University Press, Manchester (1999) at 77–79. See also Schrijver N, Sovereignty over Natural Resources at 190.

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The conflict between the theories of mare clausum and mare liberum continued into the 20th Century. Many sovereign states claimed different widths of territorial sea and some claimed contiguous and fishery zones, ranging from a classical three-mile territorial sea12 to a 200-mile territorial sea. There were a number of important developments in the period following World War II, the Truman Proclamation13 and in 1952 the ensuing unilateral declaration of a 200-mile sovereign zone by Peru, Costa Rica, Chile and Ecuador, also known as the Declaration of Santiago.14 These

12 This is the distance described by Bynkershoek as the distance a cannonshot would travel when shot from shore. The theory was that a territorial sea should be no wider than a state could defend: Bynkershoek C V, De dominio maris dissertatio, New York: Oxford University Press (1923) 13 Presidental Proclamation No 2667 of 28 September 1945 Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf. Whereas the Government of the United States of America, aware of the long range world-wide need for new sources of petroleum and other minerals, holds the view that efforts to discover and make available new supplies of these resources should be encouraged; and Whereas its competent experts are of the opinion that such resources underlie many parts of the continental shelf off the coasts of the United States of America, and that with modern technological progress their utilisation is already practicable or will become so at any early date; and Whereas recognized jurisdiction over these resources is required in the interest of their conservation and prudent utilisation when and as development is undertaken; and Whereas it is the view of the Government of the United States that the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just, since the effectiveness of measures to utilise or conserve these resources would be contingent upon cooperation and protection from shore, since the continental shelf may be regarded as an extension of the land mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a seaward extension of a pool or deposit lying within the territory, and since self-protection compels the coastal nation to keep close watch over activities off its shores which are of their nature necessary for utilisation of these resources; NOW THEREFORE I, HARRY S. TRUMAN, President of the United States of America, do hereby proclaim the following policy of the United States of America with respect to the natural resources of the subsoil and sea bed of the continental shelf. Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United states, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another States, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected. 14 Armas Pfirter F M, Straddling Stocks and Highly Migratory Stocks in Latin American Practice and Legislation, Ocean Development and International Law, vol 26 at 127–150.

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UNCLOS I

The United Nations called upon its members to attend the first United Nations Conference on the Law of the Seas (“UNCLOS I”) held in 15 Comment [TR2]: ‘ … to be 1958. The goal of UNCLOS I was to codify the International law of the held in 1958.’? I assume the ‘calling to attend’ took place Sea; it did more than that. In preparation, the UN recommended that the earlier, rather than in 1958. International Law Commission16 (“ILC”) address four interrelated areas simultaneously.17 The ILC was established by the General Assembly of the United Nations in 1947 to promote the codification and progressive development of international law.18 As a result of their work, the ILC drafted four treaties, The Convention on the High Seas, The Convention on the Territorial Sea and the Contiguous Zone,19 The Convention on Fishing and the Conservation of Living Resources, and The Convention of the Continental Shelf. These treaties formed the basis for discussion at UNCLOS I.20

UNCLOS I failed to establish the exact width of the territorial sea and contiguous zone.21 Participating states made claims during the conference from three-miles, to twelve and even a 200-mile territorial sea.22 However, none of these proposals obtained a two-thirds majority. As a result, the Convention on the Territorial Sea and Contiguous Zone is silent on the

15 UN Resolution 1105 (XI): 21 February 1957  International Conference of Plenipotentiaries to examine the law of the sea. 16 The ILC consists of 34 highly respected international legal scholars appointed by their nations to serve in their individual capacity to identify and codify principles of international law in various areas. 17 UN Resolution 798 (VIII): 7 December 1953  Regime of the High Seas. 18 See the UK Statement to the Sixth Committee of the General Assembly, 12 November 1996, (1996) 67 BYBIL 703. 19 UNTS No 7477, Volume 516 at 205–225: Geneva, 29 April 1958. 20 These treaties will be discussed in greater detail below and in later Chapters. See Halsbury’s Laws of Australia (1998) at 215–195. 21 This was largely due to the “anarchy” which existed with regard to state practice. Many delegates at the Convention pointed out that there was no uniform state practice indicating the breadth of the territorial sea (Yearbook of the ILC, 1956 Vol I at 170 par 44–47; 176 par 29–31; 179 par 53–54; at 182 par 117). 22 For example, The United States proposed a six-mile territorial sea with a six-mile exclusive fishing zone which received 45 votes in favour to 33 against with 7

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GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION issue of the outer-most extent of territorial seas.23 However, the ILC recognised during the conference that International Law did not permit the extension of the territorial sea beyond twelve miles.24 Claims of up to twelve miles did not meet with protest. The majority of states claimed a territorial sea of twelve miles or less at UNCLOS I.25 Claims beyond twelve miles by some Latin American states were opposed by a number of other nations.26 The failure to codify the exact width of the territorial sea at UNCLOS I fostered uncertainty as to width of the territorial sea and the nature of any contiguous zones.27

UNCLOS II

As a result of this uncertainty, the second United Nations Conference on the Law of the Sea (“UNCLOS II”) was convened in 1960.28 This Conference was an unsuccessful attempt to establish a maximum limit to a state’s territorial sea. This failure reflected the conflict between maritime powers, who were attempting to limit claims to sovereignty over the high seas and developing nations who struggled to protect resources adjacent to their coasts from continued exploitation by the maritime powers.

Continental Shelf

Continental shelves extend out from most of the continents and some of the large Islands all around the world. They vary in width. From the shore they gradually tilt away to about depths of 110 to 200 metres on the average, although some drop to 800 metres. They meet a steeper slope,

abstentions (United Kingdom, Report on the First United Nations Conference on the Law of the Sea, Misc No 15 (1958) Cmnd 584 at 6.) 23 See Halsbury’s Laws of Australia (1998) at 215. 24 Yearbook of the International Law Commission (1956) Vol 2 at 256 commentary on draft article 3. 25 Yearbook of the International Law Commission (1956) Vol I at 161–182. Twenty- five states claimed a 12-mile territorial sea, 54 claimed less than 12 and only six claimed a territorial sea of greater than 12 miles. See table in O’Connell, International Law, Vol I, Oceana Publications Inc, London at 531–532. 26 Yearbook of the International Law Commission (1956) Vol I at 169 par 35–36. 27 See Halsbury’s Laws of Australia (1998) at 215. 28 UN Resolution 1307 (XIII): 10 December 1958  Convening the conference.

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GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION called the continental slope, down which the transition from shelf to deep sea is quite sudden.29

Article I on the Convention on the Continental Shelf, opened for signature in Geneva on 29 April 1958 defined the Continental Shelf as follows:

For the purposes of these articles, the term continental shelf is used as referring – a. to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; b. to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.30

The complex definition of the continental shelf was brought about by international concerns and fears that the strong and rich nations participating in the negotiating processes would gain an advantage over the weaker and poorer states whose total interests may not have been adequately represented at UNCLOS I. In essence, there was a greater input and a concerted effort by all concerned to produce a legal text and a political document for a new Law of the Sea.

This definition fails to avoid the very problem that the use of the continental shelf as a maritime boundary might have been expected to solve; that is, to establish a clearly defined outer limit for the continental shelves.31 Unfortunately, the characteristics of the continental shelf vary considerably from place to place. Consequently, the 200-metre isobath bears very little relation to the natural prolongation and geological extension of the land- mass32 which, in geologic terms, forms the continental shelf.

29 See Halsbury’s Laws of Australia (1998) at 215. 30 Article 1, Geneva Convention on the Continental Shelf (1958). 31 This definition includes the idea that if a country were capable of exploiting resources at a depth of greater than 200 metres in an area adjacent to its coast, then the state would be able to claim that that area formed a part of its continental shelf. 32 As an example, under the current regime, Australia can claim an area of about 662,000 square nautical miles as the legal continental shelf. As redefined in UNCLOS III, however, Australia may claim a shelf area of over 3,000,000 square nautical miles: www.biodiv.org/doc/meetings/mar/temcpa-02/ other/temcpa-02-bfn- en.pdf.

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The continental shelf generally ends at the extreme drop off of the submerged land; however, it appears there are exceptions to this rule. The ILC in its commentary on the draft of Article 1 stated that:

In the special cases in which submerged areas of a depth less than 200 metres, situated fairly close to the coast, are separated from the part of the continental shelf adjacent to the coast by a narrow channel deeper than 200 metres, such shallow areas could be considered as adjacent to that part of the shelf. It would be for the State relying on this exception to the general rule to establish its claim to an equitable modification of the rule. In case of dispute, it must be a matter for arbitral determination whether a shallow submarine area falls within the rule as here formulated.33

The 1958 Convention definition created an inequitable distribution of shelf area because of the variations in the shelf gradient. Coastal states with gently sloping continental shelves qualified for areas of maritime jurisdiction stretching hundreds of nautical miles out to the 200m isobath, whereas countries such as the East African littoral states, whose coasts have steep continental shelves, had extremely limited area jurisdiction over the adjacent waters.34 In the 1958 Convention, the term continental shelf was not used in a geological sense, only in a legal sense.

Furthermore, there are other difficulties with the 1958 definition. For example, the term 'exploitation' is ambiguous.35 May a state claim the sea-floor out to the limit capable of being exploited by the most advanced technology anywhere in the world or only by the technology available to the claimant state?36 If the latter concept were universally accepted, many of the less developed states would be at an obvious disadvantage.37 On the

33 Yearbook of the ILC, 1956, Vol II at 297, ¶ 8. 34 See Francalanci and Scovazzi, Lines in the Sea, Martinus Nijhoff Publishers, Dordrecht, (1994) at 154–179 for identification of sizes of continental shelves. 35 See Starke, Introduction to International Law (1984) at 239-244. 36 See Halsbury’s Laws of Australia (1998) at 215. 37 See Harris, Cases and Materials on International Law (1998) at 455-462.

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GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION other hand, developed nations would stand to gain vast areas of sea-space by virtue of the advanced marine scientific technology available to them.38

The claims to continental shelves did not interfere with the freedom of the High Seas above the shelf.39 Even during the negotiations of this Convention, it was clear that this definition of the Continental Shelf could lead to an expansion of the shelf as technology made it possible to exploit resources at greater and greater depths.40 The definition, in fact, was so ambiguous that it was unclear if exploitation needed to be by the coastal state or any other state.41

Under the four Conventions of 1958, the traditional freedoms of the High Seas remained in force.42 Primarily, it is the flag-state that takes care of the enforcement of measures, such as conservation, over its own nationals.43 The 1958 Conventions did not recognise the interest of the coastal state to natural resources in the maritime area adjacent to its coast.44 However, the 1958 Convention failed to recognise a biological unity between the territorial sea and the adjacent High Sea. The 1958 Convention further complicated the matter by remaining silent on the boundaries of the territorial sea. These ambiguities left space for interpretation. The gaps in the Convention led to “ever-increasing” jurisdictional claims by coastal states.45

This Convention has largely become irrelevant now because the continental shelf and exclusive economic zone regimes have been recognised as forming a part of customary International Law.46

38 See Halsbury’s Laws of Australia (1998) at 215. 39 See Article 3. 40 Churchill R R and Lowe A V, The Law of the Sea, 3rd Ed, Juris Publishing (1999) at 147–148. 41 See The 1982 United Nations Law of the Sea Convention and subsequent developments In International Fisheries Law: http://www.fao.org/docrep/X1051E/x1051E03.htm. 42 See Starke, Introduction to International Law (1984) at 239-244. 43 See Halsbury’s Laws of Australia (1998) at 215. 44 See Starke, Introduction to International Law (1984) at 239-244. 45 See Halsbury’s Laws of Australia (1998) at 215. 46 North Sea Continental Shelf Cases [1969] ICJ Rep 3 at 23; Libya/Malta Continental Shelf case [1985] ICJ Rep 13 at 33; See also discussion in Churchill and Lowe at 141–157.

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UNCLOS III

The 1982 Law of the Sea Convention (UNCLOS III) established a number of important changes. It entered into force after obtaining 60 ratifications in 1994.47 UNCLOS III provided some important changes from the 1958 Conventions, especially in respect to the limitation of zones. UNCLOS III created a constitution for the oceans which is depicted by the following diagram:

Legal Regimes of Oceans and Airspace Area48

Its provisions have established three maritime zones. Each of these is subject to a specific juridical regime:

• Territorial Sea: the area in which a state has full sovereignty49

47 See Oceans Law & Policy – Master List: http://www.sils.org/find/find-ocean- masterlist.htm. 48 Moore, C. The Law of the Sea. Paper presented by LEUT Cameron Moore RAN to the RAN College, HMAS Creswell, 2001. 49 UNCLOS III Articles 2 through 7: Article 2: Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil

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• Exclusive Economic Zone: the area in which a state has sovereign rights50

1. The sovereignty of a coastal state extends, beyond its land territory and internal waters and, in the case of an archipelagic state, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of International Law.

Article 3: Breadth of the territorial sea Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

Article 4: Outer limit of the territorial sea The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.

Article 5: Normal baseline Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state.

Article 6: Reefs In the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by the appropriate symbol on charts officially recognized by the coastal State.

Article 7: Straight baselines 1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. 2. Where, because of the presence of a delta and other natural conditions, the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal sState in accordance with this Convention. 3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. 4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition. 5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage. 6. The system of straight baselines may not be applied by a state in such a manner as to cut off the territorial sea of another state from the high seas or an exclusive economic zone. 50 UNCLOS 55 through 66: Article 55: Specific legal regime of the exclusive economic zone The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal state and the rights and freedoms of other states are governed by the relevant provisions of this Convention.

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Article 56: Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 1. In the exclusive economic zone, the coastal state has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention. 2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastals shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.

Article 57: Breadth of the exclusive economic zone The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Article 58: Rights and duties of other States in the exclusive economic zone 1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of International Law apply to the exclusive economic zone in so far as they are not incompatible with this Part. 3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.

Article 59: Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction … in the exclusive economic zone In cases where this Convention does not attribute rights or jurisdiction to the coastal state or to other states within the exclusive economic zone, and a conflict arises between the interests of the coastal state and any other state or states, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

Article 60: Artificial islands, installations and structures in the exclusive economic zone 1. In the exclusive economic zone, the coastal state shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: (a) artificial islands (b) installations and structures for the purposes provided for in article 56 and other economic purposes (c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.

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• High Seas: that part of the ocean in which a flag-state has jurisdiction only over its own vessels.51

2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. 3. Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. Any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standard established in this regard by the competent international organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other states. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed. 4. The coastal state may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures. 5. The breadth of the safety zones shall be determined by the coastal state, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around them, measured from each point of their outer edge, except as authorized by generally accepted international or as recommended by the competent international organization. Due notice shall be given of the extent of safety zones. 6. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, tructures and safety zones. 7. Artificial islands, installations and structures and the safety zones around them may not established where interference may be caused to the use of recognized sea lanes essential to international navigation. 8. Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the sea, the exclusive economic zone or the continental shelf. 51 Article 94: Duties of the Flag State 1. Every state shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2. In particular every state shall: (a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. 3. Every state shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: (a) the construction, equipment and seaworthiness of ships (b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments (c) the use of signals, the maintenance of communications and the prevention of collisions. 4. Such measures shall include those necessary to ensure: (a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and … instruments as are appropriate for the safe navigation of the ship (b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship

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The continental shelf has been redefined in Part VI of UNCLOS III in Article 76(1) as follows:

The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

More distant shelf areas may be claimed by the coastal state in certain circumstances as prescribed in the remaining paragraphs of Article 76. The new definition is based on technical criteria and clearly reflects the current technological advances and technical capability to explore and exploit mineral resources from the seabed.52

Under UNCLOS III, coastal states can have sovereign rights. These sovereign rights limit the classical freedoms of the High Seas of other states. States have agreed on the limits of the territorial sea. Article 353 of UNCLOS III allows states to establish a territorial sea extending for 12 miles from the maritime baseline. Article 254 confirms the sovereignty of the

(c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio. 5. In taking the measures called for in paragraphs 3 and 4 each state is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance. 6. A state which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag state. Upon receiving such a report, the flag state shall investigate the matter and, if appropriate, take any action necessary to remedy the situation. 7. Each state shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another state or serious damage to ships or installations of another state or to the marine environment. The flag state and the other state shall cooperate in the conduct of any inquiry held by that other state into any such marine casualty or incident of navigation. 52 See Starke, Introduction to International Law (1984) at 261. 53 Article 3 reads: “Every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” 54 Article 2 reads: (1) The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic state, its

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GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION state over all the resources within the area including in the air and subsoil beneath the sea. The Exclusive Economic Zone, as defined in UNCLOS III, extends 200 miles from the coastal state’s maritime baseline.55 In this zone the coastal state has sovereign rights regarding the natural resources found there.56 If all coastal states claimed an EEZ, the High Seas would only constitute 21 per cent of the total surface of the earth.

Territorial sea

UNCLOS III, in Article 2, confirms the sovereignty of a state over its land territory and internal waters to the belt of sea adjacent to its coast called the territorial sea.57 Sovereignty extends to the air space above the territorial sea and to its bed and subsoil.58 Sovereignty over the territorial sea is not absolute, but is subject to the principles of customary International Law.59 The most significant exception is the right of all states to enjoy innocent passage through other states’ territorial seas.60 In the

archipelagic waters, to an adjacent belt of sea, described as the territorial sea. (2) This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. (3) The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law. 55 Article 55, Convention on the Law of the Seas (1982). 56 Article 56, Convention on the Law of the Seas (1982). See the discussion in the Continental Shelf Case (Tunisia v Libya) ICJ Report 1982 18 par 73: It should first be recalled that exclusive rights over submarine areas belong to the coastal state. The geographic correlation between coast and submerged areas off the coast is the basis of the coastal state’s legal title: Halsbury’s Laws of Australia (1998) at 215. 57 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 LTNTS 205) article 1 par 1; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 2. Australia claims sovereignty over the territorial sea and seabed through the Seas and Submerged Lands Act 1973 (Cth) s 6, upheld as Constitutional by the High Court of Australia in New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337; 8 ALR 1; 50 ALJR 218. As to the constitutional position with respect to the Australian States, see the Coastal Waters (State Title) Act 1980 (Cth); Coastal Waters (State Powers) Act 1980 (Cth); Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340; 88 ALR 12; 63 ALJR 671: Halsbury’s Laws of Australia (1998) at 215. 58 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 2; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ILM 1261 (1982)) Article 2 par 2: Halsbury’s Laws of Australia (1998) at 215. 59 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 1 par 2; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 2 par 3: Halsbury’s Laws of Australia (1998) at 215. 60 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ILM 1261 (1982)) article 17. Articles 18–26 define and limit this right for the protection of the coastal state. For example, the

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Corfu Channel Case,61 the International Court of Justice recognised that it was in accordance with general international custom that “States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorisation of a coastal state, provided that the passage is innocent.62 In that case, the straits comprised a portion of the territorial sea of Albania. As previously stated, states have the right to establish the breadth of the territorial sea up to 12 nautical miles from the baselines from which the territorial sea is measured.63

Territorial sea baselines

The normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast”.64 A state may draw straight

coastal state may establish lanes for foreign vessels to travel in (article 22) and may take steps to prevent passage which is not innocent (Article 25). 61 Corfu Channel Case (UK v Albania) (Merits) ICJ Rep 1949 4. 62 Corfu Channel Case (UK v Albania) (Merits) ICJ Rep 1949 4. 63 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ILM 1261 (1982)) Article 3. The Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) contained no provision on the breadth of the territorial sea. There was also failure to reach agreement on this question at the reconvened Geneva Conference in 1960. “For example, Australia previously had a three-nautical-mile territorial sea: see Hansard, House of Representatives (Cth), 16 April 1970 at 1278; Bonser v La Macchia (1969) 122 CLR 177. On 20 November 1990, the territorial sea was extended to 12 nautical miles by Proclamation under the Seas and Submerged Lands Act 1973 (Cth) s 7: Cth Gaz S297, 13 November 1990. See also Opeskin B and Rothwell D, “Australia's Territorial Sea: International and Federal Implications of its Extension to Twelve titles” (1991) 22 Ocean Development and International Law at 395–431. The territorial sea remains at three nautical miles in the area around the islands in the Torres Strait, in accordance with the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters (Torres Strait Treaty) (Sydney, 18 December 1978; Aust TS 1985 No 4) Article 3(2). As to the production of charts in court showing Australia's territorial seas, see Seas and Submerged Lands Act 1973 (Cth) s 9(3)”: Halsbury’s Laws of Australia (1998) at 215. 64 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 3; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ELM 1261 (1982)) Article 5. “For example, with regards to the Australian situation, See: Chen Yin Ten v Little [1976] WAR 161; (1976) 11 ALR 353, SC(WA) (upheld Li Chia Hsing v Rankin (1978) 141 CLR 182 at 195; 23 ALR 151 per Gibbs J). The Australian baselines were proclaimed by the Governor-General under the Seas and Submerged Lands Act 1973 (Cth) s 7: Cth Gaz S29, 9 February 1983 at 217. The normal baseline is the low-water mark on the coast, which is defined as the lowest astronomic tide, see, for example, Cth Gaz S29, 9 February 1983; Cth Gaz S57, 31 March 1987. See Maritime Legislation Amendment Bill 1993 (Cth) s 9, Sch 2 which

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GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION baselines where the coastline is deeply indented, or where there is a fringe of islands along the coast in its immediate vicinity as is the case with the Falkland Islands.65 These straight baselines must not depart (to any appreciable extent) from the general direction of the coast. The seas lying within the baselines must be sufficiently closely connected to the coast to be regarded as internal waters.66

The International Court of Justice in the Anglo-Norwegian Fisheries Case confirmed the principle of allowing States to draw straight baselines for a deeply indented coast.67 In that case Norway was justified in drawing a straight baseline of 51 kilometres across a bay on the grounds that the coast was deeply indented and fringed by islands. Particular reliance was placed by the Court on the geographical configuration of the coast, the vital interests of the population68 and the fact that no other nation objected to the way the baselines had been drawn.69 This case is generally accepted as being declaratory of the customary International Law rule regarding drawing

will alter provisions for the drawing of territorial sea baselines”: Halsbury’s Laws of Australia (1998) at 215. 65 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 4 par 1; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 7 par 1. A state may combine the methods for determining baselines according to different conditions. On the drawing of straight baselines see the Fisheries Case (UK v Norway) 1951 ICJ 116 (Judgment of 18 December). For example, Australia has proclaimed straight baselines: Cth Gaz S29, 9 February 1983; Australia's Territorial Sea Baseline, AGPS, Canberra, 1988. For the map of these baselines, see ”Straight Baselines Constituting Part of Emer Limit of Australia's Territorial Sea” (1983) 54 Australian Foreign Affairs Record at 70–71: Halsbury’s Laws of Australia (1998) at 215. 66 “Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 LTNTS 205) Article 4 par 2; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ILM 1261 (1982)) Article 7 par 3. For the drawing of straight baselines across the mouth of a river see the Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 LTNTS 205) at 13; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 HM 1261 (1982)) Article 9. These Conventions both provide that if a river flows directly into the sea, the baseline is a straight line across the mouth of the river between points on the low-water or low-tide line of its banks: Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 13; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 62/122; 21 ILM 1261 (1982)) at 9”: Halsbury’s Laws of Australia (1998) at 2. 67 [1951] ICJ Reports 116. 68 These interests have been considered by the International Court of Justice in several cases including the Fisheries Jurisdiction Case (UK v Iceland) (Jurisdiction) 1973 ICJ Rep 3 and the Gulf of Maine Case (Canada v USA) 1984 ICJ Rep 246. 69 Anglo-Norwegian Fisheries Case [1951] ICJ Reports 116 at 139–143.

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GENERAL LEGAL FRAMEWORK FOR MARITIME ZONE DELIMITATION baselines. The inclusion of a “12 mile” rule in UNCLOS I and UNCLOS III is evidence of this.70

The 12-mile rule states that straight baselines may be drawn between the natural entrance points of a bay, if the distance between those points is less than 12 nautical miles.71 This rule only applies where the entire coastline of the bay belongs to a single state.72 The waters inside the baselines can then be described as internal waters.73 Where the distance between the two natural entrance points is more than 24 nautical miles, a straight line of 24 nautical miles may be drawn within the bay so as to enclose the maximum area that is possible with a line of that length.74 Exceptions have been made for historic bays.75

70 “Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 7 par 4; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ILM 1261 (1982)) Article 10 par 4”: Halsbury’s Laws of Australia (1998) at 215. 71 “United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ELM 1261 (1982)) Article 7 par 1. A bay is a ”well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast”. An indentation is not a bay ”unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation: Article 7 par 2”: Halsbury’s Laws of Australia (1998) at 215. 72 “In Australia in the Commonwealth Government’s Proclamation of Straight Baselines, under the Seas and Submerged Lands Act 1973 (Cth) s 7 (see Cth Gaz S29, 9 February 1983) Australia refers to the Treaty Provisions for determining bays. In the Australian jurisdictions it has been argued that these provisions for bays are not self-executing and that the views of Mason and Murphy JJ on this point are incorrect: see A Raptis & Son v South Australia (1977) 138 CLR 346 at 384–385 per Mason J, at 396 per Murphy J; 15 ALR 223. Compare Chen Yin Ten v Little [1976] WAR 161; (1976) 11 ALR 353; 28 FLR 480, SC(WA); Li Chia Hsing v Rankin (1978) 141 CLR 182 at 194–195; 23 ALR 151 per Gibbs J”: Halsbury’s Laws of Australia (1998) at 215. 73 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 7 par 4; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 10 par 4. 74 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 7 par 5; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 10 par 5. 75 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 7 par 6; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ELM 1261 (1982)) Article 10 par 6. For example, in Australia, Shark Bay in Western Australia has been cited as an historic bay, but the claim may also be justified under the straight baseline principles. Under the Seas and Submerged Lands Act 1973 (Cth) s 8 the Governor- General proclaimed certain historic bays in South Australia in 1987: see Cth Gazette S 57, 31 March 1987. The United States made a formal protest against these historic bays in April 1991: United States Responses to Excessive National Maritime Claims, vol No 112 of limits in the Seas, United States Department of State, Washington DC (1992) at 6. See also A Raptis & Son v South Australia

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Archipelagic baselines around the Falkland Islands

The Falkland Islands can be described as an Archipelago under the definition applied by Bowett76 which is the “location of a number of islands belonging to the same State in such proximity to each other as to be described as a ‘group’”.77 An example of Bowett’s description is depicted in the following diagram:

Archipelagic Maritime Delimitation78

In this context, Halsbury’s Laws of Australia states that:79

(1977) 138 CLR 346 at 373–379 where the waters of Investigator Strait as a part of Gulf of St. Vincent were not included as a part of South Australia: per Stephen J: Halsbury’s Laws of Australia (1998) at 215. 76 Bowett, D, The Legal Regime of Islands in International Law, Oceana Publications, New York, 1979 at 73. 77 See also: Evensen, “Certain Legal Aspects Concerning the Delimitation of the Territorial Waters of Archipelagos” in Preparatory Documents for 1958 UN Conference on the Law of the Sea, A/CONF. 13/37 at 289; Sorensen, “The Territorial sea of Archipelagos”, Varia Juris Gentium, Liber Amicorum JPA Prancois (1959) at 315; O’Connell, “Mid Ocean Archipelagos in International Law”, 45 BYBIL (1971) at 1. 78 Moore, The Law of the Sea. Paper presented by LEUT Cameron Moore RAN to the RAN College, HMAS Creswell, 2001. 79 Halsbury’s Laws of Australia (1998) at 215–195.

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Archipelagic states80 may draw straight baselines joining the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.81 The territorial sea, contiguous zone, exclusive economic zone and continental shelf are measured from these baselines.82

The sovereignty of the Archipelagic State extends to all the waters enclosed by the archipelagic baselines, their bed and subsoil and airspace above.83 There is a right of innocent passage through archipelagic waters.84 Archipelagic states may designate sea lanes and air routes85 through archipelagic waters in which all states enjoy the right of passage.86

80 An archipelagic state is “constituted wholly by one or more archipelagos and may include other islands”: United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ELM 1261 (1982)) Article 46(a). An archipelago is a “group of islands … interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such”: ibid. Article 46(b). The Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) contains no provisions on archipelagic states: Halsbury’s Laws of Australia (1998) at 215. This definition would include a group of islands such as the Falkland Islands. 81 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ELM 1261 (1982)) Article 47 par 1. For further details of the lines see ibid art 47 pars 2–9. The Philippines and Indonesia had measured their territorial sea from straight baselines since 1955 and 1957 respectively, prompting protests from other states. For a complete legislative history of Part IV of the Convention see: The Law of the Sea: Archipelagic States, United Nations Publication, New York, 1990. For commentary on the development of Part IV. See Nordquist, MH (ed) United Nations Convention on the Law of the Sea: A Commentary, Dordrecht, Nijhoff, Vol. II, (1993) at 399–406. 82 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 48. 83 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ELM 1261 (1982)) Article 49 pars 1 and 2. The Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) contains no provisions on archipelagic states. 84 See Starke, Introduction to International Law (1984) at 245. Ibid Article 52 par 1. As to the right of the archipelagic state to temporarily suspend the right of innocent passage see ibid Article 52 par 2. 85 Ibid Article 53 pars 1–12. For the declaration made by the Philippines under ibid article 310 with respect to archipelagic waters, see the ”Declarations Made By States Upon Ratification of the United Nations Convention on the Law of the Sea” (1987) 26 ILM 11 at 13–14. For Australia's objection to this declaration and the Philippines' response see Brown J (ed) ”Australian Practice in International Law 1988 and 1989: VI Law of the Sea” (1992) 12 Australian Yearbook of International Law at 384.

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Low Tide Elevations

An island is a naturally-formed area of land, surrounded by water and which is above water at high-tide.87 The territorial sea of an island is measured in the same way as the territorial sea of the land mass.88 A low- tide elevation is a naturally-formed area of land, surrounded by water and which is above water at low-tide, but submerged at high-tide.89 Where a low-tide elevation is within the territorial sea of an island, the low-water mark of the elevation may be used as a baseline for measuring the territorial sea.90 Where a low-tide elevation is situated outside the territorial sea of an island, it has no territorial sea of its own.91

The coastal state has the exclusive right to construct artificial islands in the exclusive economic zone,92 but such islands or other installations have no territorial sea of their own.93

86 See Starke, Introduction to International Law (1984) at 258. United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ILM 1261 (1982)) at 53. 87 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 10 par 1; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; LJN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 121. “See Chen Yin Ten v Little [1976] WAR 161; (1976) 11 ALR 353; 28 FLR 480 SC(WA) where the Supreme Court of Western Australia defined ‘island’ in this way and went on to hold that baselines exist, if not drawn on a chart, at the low water mark which identifies the territorial limit of Australia”: Halsbury’s Laws of Australia (1998) at 215. 88 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 10 par 2; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; LIN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 121 pars 2, 3. 89 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 11; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 62/122; 21 ILM 1261 (1982)) Article 13. 90 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 11; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 62/122; 21 ILM 1261 (1982)) Article 13. 91 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 11 par 2; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 13 par 2. 92 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ILM 1261 (1982)) Article 60 par 1. See Halsbury’s Laws of Australia (1998) at 215: The coastal state has exclusive jurisdiction over such artificial islands: Article 60 par 2. 93 Ibid at 60 par 8.

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Innocent passage through the territorial sea

Coastal states must allow and not hamper94 the right of innocent95 passage96 in territorial seas to the ships of all other states. Article 19 of the UNCLOS III97 states that passage of a foreign vessel is considered prejudicial to the peace, good order or security of the coastal state if the vessel engages in:

(1) the use or threat of force against the coastal state (2) exercise or practice with weapons (3) any act aimed at collecting information to the prejudice of the coastal state (4) any act of propaganda against the coastal state (5) launching, landing or taking on board of aircraft (6) launching, landing or taking on board of any military device (7) loading or unloading any thing or person contrary to the customs, fiscal, immigration or sanitary laws of the coastal state (8) any act of pollution (9) fishing (10) research activities

94 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 14; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ELM 1261 (1982)) Articles 17, 24. 95 Passage is innocent provided it does not prejudice the peace, good order or security of the coastal state: United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ELM 1261 (1982) Article 19 par 1; Geneva Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 14 par 4: Halsbury’s Laws of Australia (1998) at 215. 96 “‘Passage’ is the navigation through the territorial sea for the purpose of traversing the territorial sea without entering internal waters, or of proceeding to or from internal waters: Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 LTNTS 205) Article 14 par 2; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ELM 1261 (1982)) Article 18 par 1(a), 1(b) (which includes in the definition of passage, calling at a port facility outside internal waters). Passage must be continuous although it includes stopping and anchoring as part of ordinary navigation, or as required by force majeure or by distress: Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 LTNTS 205) Article 14 par 3; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; LTN Doe A/Conf 621122; 21 ILM 1261 (1982)) Article 18 par 2 (which includes in the definition of passage, stopping or anchoring for the purpose of rendering assistance to persons, ships or aircraft in danger or distress)”: Halsbury’s Laws of Australia (1998) at 215.

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(11) any act aimed at interfering with communications systems or facilities of the coastal state (12) any other activity not having a direct bearing on passage.

Innocent passage does not include the right to fish.98 Submarines are required to navigate on the surface and show their flag.99

In the Corfu Channel Case,100 Royal Navy warships were damaged and lives were lost when they struck mines in the Corfu Channel.101 As this Chapter has already alluded, the Court held that Albania was responsible because they must have been aware of the danger and failed to warn the UK that it existed.102 Additionally, the Court found that the United Kingdom’s minesweeping operation103 was a violation of Albanian sovereignty.104

Rights and obligations of coastal states

97 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ELM 1261 (1982) Article 19 par 2. 98 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 LINTS 205) Article 14 par 5; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; LTN Doe A/Conf 62/122; 21 ELM 1261 (1982)) Article 19 par 2(i). 99 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 14 par 6; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 RA 1261 (1982)) Article 20. 100 (UK v Albania) Merits 1949 ICJ 4 (Judgment of 9 April). 101 Note that the North Corfu Channel was considered by the court and by States generally to be not only a part of Albanian territory, but also to constitute a ‘international highway’ through which the coastal state could not prevent passage in peace time: see Starke, Introduction to International Law (1984). 102 (UK v Albania) Merits 1949 ICJ 4 (Judgment of 9 April) at 23. 103 “Operation Retail” was carried out just before the mines were struck by UK ships. This aided in pin-pointing the time the mines were laid. 104 (UK v Albania) Merits 1949 ICJ 4 (Judgment of 9 April) at 35.

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The coastal state must respect the right of innocent passage105 and ensure that the territorial seas are free from navigational hazards.106 It may adopt laws and regulations on many aspects of navigation through the territorial seas,107 which must be given due publicity108 and must be complied with by foreign shipping.109 The coastal state may designate sea lanes and traffic separation schemes for the regulation of shipping through its territorial seas.110

Jurisdiction within the Territorial Sea

The territorial state has jurisdiction over foreign merchant vessels in internal waters,111 and over crimes112 committed on board such vessels.113

105 “Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 15 par 1; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 62/122; 21 ELM 1261 (1982)) Article 24 par 1. The coastal state may take the necessary steps to prevent a ship that is proceeding to internal waters from violating any of the conditions of admission to internal waters: Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 16 par 2; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 62/122; 21 ILM 1261 (1982)) Article 25 par 2”: Halsbury’s Laws of Australia (1998) at 215. 106 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 LINTS 205) Article 15 par 2; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 62/122; 21 ILM 1261 (1982)) Article 24 par 2. Corfu Channel Case (UK v Albania), Merits 1949 ICJ 4 (Judgment of 9 April), 107 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 17; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 621122; 21 ILM 1261 (1982)) Article 21 par 1. See Halsbury’s Laws of Australia (1998) at 215: “The latter explicitly authorises legislation and regulations with respect to: (1) safety of navigation and maritime traffic (2) protection of navigational aids and facilities, and other facilities (3) protection of cables and pipelines (4) conservation of living resources of the sea (5) prevention of infringement of the coastal state's fisheries regulations (6) preservation of the environment and control of pollution (7) marine scientific research (8) prevention of infringement of the customs, fiscal, immigration, sanitary laws and regulations of the coastal state”. 108 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ELM 1261 (1982)) Article 21 par 3. 109 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Article 17; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 62/122; 21 ILM 1261 (1982)) Article 21 pars 3 and 24. 110 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 62/122; 21 ILM 1261 (1982)) Article 22. There are no equivalent provisions in the Geneva Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1982; 516 UNTS 205). 111 “See, for example, R v Anderson (1868) LR 1 CCR 161; 11 Cox CC 198; Wildenhus's Case 120 US SC 1, 30 L. Ed. 565 (1887). This is an example of territorial jurisdiction. For the immunity of warships, see, The Schooner Exchange v

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This jurisdiction is concurrent with that of the flag state.114 Foreign ships that enter in distress may not be subject to the jurisdiction of the coastal state.115

In the Queen v Anderson,116 an American citizen was indicted for a murder he committed on board a vessel belonging to the Port of Yarmouth, in Nova Scotia.117 At the time of the offence the vessel was in the River Garonne, within the Boundaries of the French Empire.118 The Court for Crown Cases

M’Faddon (1812) 7 Cranch 116 SC (US) where a public vessel owned by Napoleon as the reigning Emperor of the French was claimed by two Americans as having been forcibly taken by Napoleon’s agents. As a result of their claim the vessel was arrested in the port of Philadelphia. The court held that the vessel was a public one commissioned and armed by the French Government for public purpose. As such, the vessel enjoyed the right to free passage. However, the court noted that were a sovereign to descend from the throne to become a merchant, he submits to the law of the country. Thus, a public vessel used for commercial purposes has no immunity: at 121”: Halsbury’s Laws of Australia (1998) at 215. 112 These rules apply to merchant ships and government ships operated for commercial purposes: Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958; 516 UNTS 205) Pt I Section Ill Subsection B, Article 21; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doe A/Conf 621122; 21 ELM 1261 (1982)) Pt II Section 3 Subsection B. See Halsbury’s Laws of Australia (1998) at 215: “Warships enjoy full immunity: The Schooner Exchange v McFaddon (1812) 7 Cranch 116 SC(US). For the application of the Customs Act 1901 (Cth) in cases of smuggling, see R v Bull (1974) 131 CLR 203”. 113 The local authorities may arrest persons on board foreign ships in internal waters: R v Garrett; Ex parte Sharf [1917] 2 KB 99; (1917) 5 BILC 95; Wildenhus's Case 120 US S Ct 1, 30 L. Ed. 565 (1887). For arrest on board a foreign ship for the purposes of extradition see the Eisler Case: Jeniungs R, Extradition and Asylum (1949) 26 British Yearbook of International Law 468. 114 R v Anderson (1868) LR 1 CCR 16 1; 11 Cox CC 198; Wildenhus's Case 120 US S. Ct. 1, 30 L. Ed. 565 (1887). In Re Sutherland (1922) 39 (NSW) 108 an application for habeas corpus in respect of people detained as convicts under French law on board a French ship in Sydney harbour was refused because their detention was justified under French law. The United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; LTN Doe A/Conf 62/122; 21 ILM 1261 (1982)) Article 218 provides that the coastal state may take action against a vessel that is voluntarily within a port with respect of any discharge from the vessel outside the internal waters, territorial sea or exclusive economic zone. 115 The Creole (1853) IV Moore, Int Arb 4375 at 4377. As to the meaning of distress, see, The May v R [1931] SCR 374 at 381; [1931] 3 DLR 15 at 23, SC (Canada) where an American fishing vessel was seized after having anchored 2.5 miles from the Canadian coast. The court determined that entry by a foreign vessel into Canadian waters cannot be justified on the ground of 'stress of weather' unless the weather is such as ‘to produce in the mind of a reasonably competent and skilful master, possessing courage and firmness, a well grounded bona fide apprehension that if he remains outside the territorial waters he will put in jeopardy his vessel and cargo. In this case the Court held that the Captain simply wanted to be more comfortable than he would have been outside the three-mile limit. This was an insufficient reason for entering Canadian waters. 116 (1868) LR 1 CCR 161; 11 Cox CC 198. 117 A British ship registered in London. 118 Note that the court discussed whether the ship was actually within the territory of France giving rise to Admiralty jurisdiction. This has become irrelevant as a result of the 1958 and 1982 conventions which delineate internal waters. Referred to in:

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Where a nation allows a vessel to sail under her flag, and the crew have the protection of that flag, common sense and justice require that they should be punishable by the law of that flag … .119

Mr Anderson was convicted of manslaughter and the court upheld that conviction.

In the Wildenhus Case120 a treaty between the United States and Belgium granted each state jurisdiction necessary to maintain order on board merchant vessels located in internal waters. In that case a murder below decks committed on board a Belgian ship in a US port was enough to found that jurisdiction.121 Generally, the jurisdiction of the coastal state is not exercised unless the offence disturbs the peace, dignity or tranquillity of the port.122

Analysis

This Chapter examined the general International Law principles governing the delimitation of maritime zones. The Chapter has illuminated the legal framework used by the United Kingdom and Argentina to delimit the maritime zones around the Falkland Islands (as described in Chapter 7).

Republic of Bolivia v Indemnity Mutual Marine Assurance Company, Limited (1909) 1 KB 785 at 790, 793. 119 R v Anderson (1868) LR 1 CCR 161 at 170; 11 Cox CC 198. 120 120 US (S Ct) 1, 30 L Ed 565 (1887). 121 120 US (S Ct) 1, 30 L Ed 565 (1887) at 569. 122 In this case the jurisdiction arose by virtue of the Treaty, when there was a disturbance.

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CHAPTER SEVEN

THE MARITIME ZONES AROUND THE ISLANDS

CONTENTS

MARITIME ZONES PRIOR TO 1986 ...... 110 FISHING INTERIM CONSERVATION ZONE ...... 111 EXCLUSIVE ECONOMIC ZONE EXTENSION ...... 118 THE ARGENTINE EXCLUSIVE ECONOMIC ZONE ...... 119 SPECIAL CO-OPERATION AREA...... 120 ANALYSIS ...... 122

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And the sea will grant each man new hope … as sleep brings dreams of home.1

This Chapter will examine the historical development and current status of the maritime zones around the Falkland Islands. As explained in the previous Chapter, a coastal State exercises full sovereignty over its territorial sea2 which has a maximum breadth of 12 nautical miles.3 That state has only certain "sovereign rights" over the continental shelf and EEZ,4 namely, to explore and exploit,5 conserve and manage the natural resources.6 It also has jurisdiction to protect and preserve the marine environment and to undertake marine scientific research.7

1 This quote has been attributed to Christopher Columbus. 2 This sovereignty is subject to the right of innocent passage afforded to other vessels: See The Grisbadarna Case, 11 RIAA 147 (1909) and the Beagle Channel Case, HMSO 1977 52 ILR 93. See also Judge McNair, Anglo-Norwegian Fisheries Case, ICJ 1951 116 at 160; 18 ILR 86 at 113. 3 UNCLOS III - Article 3 Breadth of the Territorial Sea: every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention. 4 UNCLOS III - Article 55 Specific Legal Regime of the Exclusive Economic Zone: the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal state and the rights and freedoms of other states are governed by the relevant provisions of this Convention. Article 57 Breadth of the Exclusive Economic Zone: the exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. 5 UNCLOS III - Article 193 Sovereign Right of States to exploit their Natural Resources: States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment. 6 UNCLOS III - Article 56 Rights, Jurisdiction and Duties of the Coastal State in the Exclusive Economic Zone 1. In the exclusive economic zone, the coastal state has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures (ii) marine scientific research (iii) the protection and preservation of the marine environment (c) other rights and duties provided for in this Convention. 2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal state shall have due regard to the rights and duties of other states and shall act in a manner compatible with the provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI. Article 58 Rights and duties of other states in the exclusive economic zone 1. In the exclusive economic zone, all states, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms

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referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of International Law apply to the exclusive economic zone in so far as they are not incompatible with this Part. 3. In exercising their rights and performing and their duties under this Convention in the exclusive economic zone, states shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. 7 UNCLOS III - Article 194: Measures to Prevent, Reduce and Control Pollution of the Marine Environment 1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection. 2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other states and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention. 3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping (b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels (c) pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices (d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices. 4. In taking measures to prevent, reduce or control pollution of the marine environment, states shall refrain from unjustifiable interference with activities carried out by other states in the exercise of their rights and in pursuance of their duties in conformity with this Convention. 5. The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. Article 195 - Duty not to transfer damage or hazards or transform one type of pollution into another In taking measures to prevent, reduce and control pollution of the marine environment, states shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.

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The Patagonian Shelf covers approximately two million square-kilometres of ocean in the South-West Atlantic.8 The shelf stretches out from the mainland of South America as far as 600 miles into the Atlantic Ocean.9 The Falkland Islands lie between latitude 51° and 53°S and longitude 57° and 62°W  about the same latitude south as London lies north.10 They are 300 miles (483 km) from the South American mainland. Of the Patagonian Shelf, more than 800,000 square-kilometres is beyond the outer limit of the Argentine maritime boundaries.11

8 The Patagonian Shelf has been modelled by the Proudman Oceanographic Laboratory. It is part of the Natural Environment Research Council of the United Kingdom. The model contains information on sea surface elevation and currents (3D barotropic), including tides. It is based on the three-dimensional (3D) model developed by Alan Davies and on Roger Flather's depth-integrated 2D model. The model includes the tides, the Falkland Current and wind-driven currents, and has a resolution of 1/6° in longitude and 1/8° in latitude (approximately 13 km at 45° South). The main motivation for the modelling was to assist in offshore operations related to oil and gas exploration off the Falkland Islands and also to conduct studies related to the fisheries associated with the Falkland Current (along the shelf slope) and tidal fronts (on the Patagonian Shelf). It is a bathymetric map: see http://www.nbi.ac.uk/appl/patagonia.html. Information from the model helped to understand the tidal regime and its interaction with the Falkland Current, the response of the shelf to the regional winds, the localized high dissipation rates of tidal energy by bottom friction, and the formation of shelf sea fronts The references used by the Proudman Oceanographic Laboratory for the development of the modelling were as follows: Davies, Kwong and Flather, Formulation of a Variable- function Three-dimensional Model, with Applications to the M2 and M4 Tide on the North-West European Continental Shelf (1997) Continental Shelf Research at 17, 165–204; Glorioso, Temperature Distribution Related to Shelf-sea Fronts on the Patagonian Shelf (1987) Continental Shelf Research at 7, 27–34; Glorioso and Simpson, Numerical Modelling of the M2 Tide on the Northern Patagonian Shelf (1982) Continental Shelf Research at 14, 267–278; Glorioso and Flather, Barotropic Model of the Currents off SE South America (1995) Journal of Geophysical Research at 100, 13427–13440; Glorioso and Flather, The Patagonian Shelf Tides (1997) Progress in Oceanography at 40, 263–283; Evans, Pereyra, Black, Glorioso and Cavill, An Environmental Desk Study of the Special Co-operation Area. (1997) British Geological Survey Technical Report at WB/97/28C; Glorioso and Davies, The Influence of Eddy Viscosity Formulation, Bottom Topography, and Wind/wave Effects upon the Circulation of a Shallow Bay (1995) Journal of Physical Oceanography at 25, 1243–1264. 9 The situation is comparable to Canada, where the Grand Bank also stretches beyond the 200-mile limit into the ocean. 10 See the Homepage of the Falkland Islands Government: http://www.falklands.gov.fk/5.htm. 11 Argentina and Uruguay are the two South American countries bordering the Patagonian shelf. The two countries both have 200-mile zones. An area held in common by both Argentina and Uruguay is the Rio de la Plata: http://na.nefsc.noaa.gov/lme/text/lme14.htm.

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Argentina

Patagonian Shelf

The Patagonian Shelf12

Both the Falkland Islands and Argentina have a shared interest, namely, an economic interest that coincides with the valuable natural resources on the Patagonian Shelf.13 The fish and the mineral wealth on the Patagonian Shelf create significant sovereignty issues.14

Article 6 of the Geneva Convention on the Continental Shelf 195815 provided that in the absence of an agreement and unless there were special circumstances, the boundary is the medial line, every point of which is equidistant from the nearest points of the baselines from which the

12 The bright waters off the east coast of Argentina mark the convergence of the Malvinas and Brazil Currents. The interaction of the two currents brings nutrients from the dark ocean depths to the sunlit surface, resulting in dense blooms of phytoplankton, especially in the spring and early summer. The Sea-viewing Wide Field-of-view Sensor (SeaWiFS) imaged the area on November 29, 2001: http://earthobservatory.nasa.gov/Newsroom/NewImages/images.php3?img_id=527 0. 13 Meltzer E, Global Overview of Straddling and Highly Migratory Fish Stocks, Volume 25 Ocean Development and International Law at 274. 14 The question of sovereignty has to be considered in the light of UNCLOS III as signed at Montego Bay 1982 and other conservation treaties. The situation with the Falklands is similar to that in the Senkaku/Diaoyu Islands dispute. There, the islands lie in a similar position to the Falklands on the edge of the Japanese continental shelf. However, unlike the Falklands, there has been no continued occupation by the Japanese; see http://www.ibru.dur.ac.uk/docs/senkaku.html where the dispute is discussed. 15 Geneva Convention on the Continental Shelf (Geneva, 29 April 1958); Aust TS 1963 No 12; 499 UNTS 311) Article 6; United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 62/122; 21 ILM 1261 (1982) Article 83.

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This chapter will not discuss in detail the maritime zones around South Georgia and the South Sandwich Islands (“SGSSI”). They are no longer dependencies of the Falkland Islands; they have been separate UK overseas territories since 1985, although the Governor of the Falkland Islands is also the Commissioner of SGSSI.18

Where the baselines of opposite States are less than 400 nautical miles apart, as is the case for Argentina and the Falkland Islands, EEZ and continental shelf claims may accordingly overlap and it then becomes necessary to delimit maritime boundaries in order to provide certainty of jurisdiction and thus a secure basis for the resources of the maritime zones to be exploited. Under Articles 7419 and 8320 of UNCLOS III, delimitation

16 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart.nl/~bethlehem/endnotes.htm. 17 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart.nl/~bethlehem/endnotes.htm. 18 The Government of SGSSI has contracted the Falkland Islands Government (Fisheries Department) to provide a number of services in relation to the management of the SGSSI fishery. Fisheries protection is included on an ad hoc basis: see http://www.falklands.gov.fk/home.htm. 19 UNCLOS III – Article 74 Delimitation of the Exclusive Economic Zone between States with Opposite or Adjacent Coasts 1. The delimitation of the exclusive economic zone between states with opposite or adjacent coasts shall be effected by agreement on the basis of International Law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV. 3. Pending agreement as provided for in paragraph 1, the states concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. 4. Where there is an agreement in force between the states concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement. 20 UNCLOS III - Article 83 Delimitation of the Continental Shelf between States with Opposite or Adjacent Coasts 1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of International Law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. 2. If no agreement can be reached within a reasonable period of time, the states concerned shall resort to the procedures provided for in Part XV.

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"shall be effected by agreement on the basis of International Law as referred to in Article 3821 of the Statute of the International Court of Justice in order to achieve an equitable solution".22

Maritime Zones prior to 1986

Prior to the conflict in 1982, the jurisdiction of the Falkland Islands extended only as far as the territorial sea three-mile limit.

During the 1982 conflict23 the United Kingdom declared a two-hundred mile exclusion zone around the islands.24

3. Pending agreement as provided for in paragraph 1, the states concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. 4. Where there is an agreement in force between the states concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement. 21 Statute of the International Court of Justice, Article 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states b. international custom, as evidence of a general practice accepted as law c. the general principles of law recognized by civilized nations d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. 22 For example, Australia and Indonesia have conducted a series of maritime boundary delimitation negotiations over a period of more than 25 years since the late 1960s. In that period, three treaties were concluded: May 1971, a treaty was signed settling the seabed (continental shelf) boundary in the Arafura Sea from west of Cape York to the north of Arnhem Land  the treaty entered into force in November 1973; October 1972, a further treaty was signed settling the seabed boundary from the end-point north of Arnhem Land in the previous treaty to a point to the south of West Timor but leaving a gap in the area of what was then Portuguese Timor – this treaty also entered into force in November 1973; and December 1989, the Treaty between Australia and the Republic of Indonesia was signed on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (the Timor Gap Treaty), which deals provisionally with the gap in the seabed area not covered by the second (1972) treaty  this entered into force in February 1991. 23 26 March 1982 until 20 June 1982. The conflict lasted for 72 days; see http://www.yendor.com/vanished/falklands-war.html. 24 McSmith, Belgrano families to sue Britain (30 June 2000) Electronic Telegraph at http://www.spaceship- earth.de/Letters/Editor/Belgrano_families_to_sue_Britain.htm: “The torpedoing of the Belgrano on May 2 1982, with the loss of 323 Argentine lives, was seen as the moment when the confrontation in the South Pacific turned into a shooting war. It was the largest single loss of life in the 10-week war, in

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At the conclusion of the Falkland Islands conflict on 20 June 198225 the United Kingdom established a 150-mile Protection Zone around the Islands in an attempt to minimise the risk of conflict between vessels. The United Kingdom requested that Argentina ensure its warships and aircraft did not enter this zone and that civilian vessels and aircraft seek permission from the Government of the United Kingdom before entering the 150-mile zone.26 As this zone was already being patrolled by the Royal Navy during the conflict, an effective enforcement mechanism was already in place for the later declaration of fisheries zones.27

Fishing Interim Conservation Zone

In April 1986, the United Kingdom stated that a multilateral agreement regarding the maritime zones around the Falkland Islands was the best method for meeting the needs of all parties involved.28 However,

which about 1,000 people were killed. The relatives' lawyers argue that the Belgrano was outside the theatre of operations when it was sunk and that the act violated wartime conventions set down in The Hague in 1907, ‘The sinking of this ship was outside of the 200-mile exclusion zone’ established by the British around the archipelago, said Jorge Antonio Olivera, who is handling the lawsuit with his partner, Jorge Humberto Appiani. The lawyers also claim that the warship was sailing away from the Falklands when it was hit. Britain has always maintained that it was on a zigzag course and represented a potential threat to the Task Force dispatched to reclaim the islands, which had been occupied by Argentine troops. Argentina still claims sovereignty over what it knows as the Malvinas but has never pursued any claim that the attack on the Belgrano was a war crime. Diplomatic relations between the two countries were restored in 1990, and in 1994 the Argentine Defence Ministry released a report calling the Belgrano's fate ‘a legal act of war’. The ship's captain, Hector Bonzo, was quoted in a book by the war historian Martin Middlebrook, The Fight for the Malvinas, as saying: ‘I realised from the outset that the 200-mile limit did not exclude danger or risks. It was the same in or out.’ Mr Olivera said his lawsuit, which he has spent five years preparing, was given the go-ahead by a federal judge in Ushuaia, the world's southernmost city at the tip of Argentina. Any financial damages to the relatives would depend on the European courts.” 25 On 14 June 1982, the large Argentine garrison at Stanley was defeated, effectively ending the conflict. The Argentine commander Mario Menendez, agreed to "an un- negotiated cease fire ... with no other condition than the deletion of the word unconditional" from the surrender document which he signed. 9800 Argentine troops put down their weapons. On 20 June 1982, a British force re-occupied the South Sandwich Islands. Britain formally declares an end to hostilities, and the two- hundred mile exclusion zone established around the islands during the war is replaced by a Falkland Islands Protection Zone (FIPZ) of 150 miles: see http://www.naval-history.net/NAVAL1982FALKLANDS.htm. 26 Hansard (House of Commons), Vol 28 at col 235. 27 Symmons CR, The Maritime Zones Around the Falkland Islands, (1988) Volume 37, International and Comparative Law Quarterly at 290. 28 Hansard (House of Lords), vol. 481 at col 740.

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Argentina’s suspicion of British motivations29 and the problems associated with the overuse of natural resources led to a declaration by the United Kingdom that the Falkland Islands were entitled to establish a Fishing Interim Conservation Zone (“FICZ”) of 150 nautical miles, in the absence of international agreements to conserve fishing reserves against overexploitation.30 This 150-mile FICZ was declared on 29 October 1986.31

29 Caputo, Guardian, 25 November (1986), suggested that the UK wanted a multilateral agreement “to obtain a recognition of its purported rights at sea.” 30 The 1982 Convention on the Law of the Sea Part XII provided for conservation, however, it was not until 1995 that an agreement was reached for the implementation of that part. “The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks sets out principles for the conservation and management of those fish stocks and establishes that such management must be based on the precautionary approach and the best available scientific information. The Agreement elaborates on the fundamental principle, established in the Convention, that States should cooperate to ensure conservation and promote the objective of the optimum utilization of fisheries resources both within and beyond the exclusive economic zone. The Agreement attempts to achieve this objective by providing a framework for cooperation in the conservation and management of those resources. It promotes good order in the oceans through the effective management and conservation of high seas resources by establishing, among other things, detailed minimum international standards for the conservation and management of straddling fish stocks and highly migratory fish stocks; ensuring that measures taken for the conservation and management of those stocks in areas under national jurisdiction and in the adjacent high seas are compatible and coherent; ensuring that there are effective mechanisms for compliance and enforcement of those measures on the high seas; and recognizing the special requirements of developing states in relation to conservation and management as well as the development and participation in fisheries for the two types of stocks mentioned above. The Agreement was adopted on 4 August 1995 by the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks and opened for signature on 4 December 1995. It remained open for signature until 4 December 1996 and was signed by 59 States and entities. The requirements for the entry into force of the Agreement were met on 11 November 2001, when the Minister for Foreign Affairs of Malta deposited an instrument of accession to the Agreement with the Secretary-General. The instrument was the thirtieth instrument of ratification or accession deposited. The Agreement entered into force on 11 December 2001, i.e. 30 days after the date of deposit of the thirtieth instrument of ratification or accession, in accordance with Article 40 (1) of the Agreement; see http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_sto cks.htm.” Therefore, in 1986, the best method for conservation and management of joint resources was through bilateral agreements. For example: The International Pacific Halibut Commission, originally called the International Fisheries Commission, was established in 1923 by the governments of Canada and the United States of America. Its mandate is to study and preserve the stocks of Pacific halibut (Hippoglossus stenolepis) within the territorial waters of both nations. The Commission answers to the Federal Governments of Canada and the United States. The Commission is advised by the Conference Board and the Processor Advisory Group (PAG). This is an example of successful joint management of straddling stocks through a bilateral agreement. See: http://www.iphc.washington.edu/halcom/about.htm 31 Evans, The Restoration of Diplomatic Relations between Argentina and the United Kingdom (1991) vol. 40 International and Comparative Law Quarterly at 473.

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Security considerations were a primary factor in the declaration of a 150- mile zone rather than a 200-mile exclusion zone.32 The 150-mile zone matches that established for the Protection Zone established during the 1982 conflict. The 150-mile zone tracks the limit of the Patagonian shelf.33 The declaration of a 150-mile zone is therefore a “restrained approach”.34 Article 74 of UNCLOS III provides that:35

The States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and during this transitional period, not to jeopardise or hamper the final agreement.

With the implementation of the FICZ, the United Kingdom introduced the requirement to obtain a licence to fish within the 150-mile zone.36 FICZ licences were awarded to vessels from Chile, France, Greece, Honduras, Italy, Latvia, Lithuania and Ukraine. The introduction of fishing licenses led to a sharp decrease from 600 to 200 in vessels fishing these waters.37 This licensing system had a significant effect on the revenue of the Islanders.38 In the 1990/1991 season, revenue from the sale of fishing licences rose to 25 million (GB) pounds out of a total revenue of 41 million pounds for the

32 Symmons CR, The Maritime Zones Around the Falkland Islands (1988) Volume 37 International and Comparative Law Quarterly at 289: issues relating to the sovereignty of the Falkland Islands are and were sensitive to Argentina; therefore, any movement by the United Kingdom that may offend the Argentinean Government could prove to be counter-productive to the longer-term goal of peaceful relations regarding the Islands. 33 The edge of the shelf is approximately 200 miles from the mainland. Churchill RR, The Falklands Fishing Zone: Legal Aspects (1988) 12 Marine Policy at 343; Symmons CR, The Maritime Zones around the Falkland Islands (1988) 37 ICLQ at 283; Bisbal GA, Fisheries Management on the Patagonian Shelf, (1993) 17 Marine Policy at 213. 34 The Fifth Report from the Defence Committee, Session 1986–1987: Defence Commitments in the South Atlantic, 13 May 1987, HC 408 (1986–1987) at xi par 42. 35 See Symmons CR, The Maritime Zones Around the Falkland Islands, (1988) Volume 37, International and Comparative Law Quarterly at 291; and Lagoni, Interim Measures Pending Maritime Delimitation Agreements, (1984) 78 AJIL 345 at 358. 36 A Fisheries Conservation Zone and licensing system was established in 1986 to control the level of fishing in Falklands waters and create economic benefit to the Islands. Each year 250,000–300,000 tonnes of fish are taken. The fishery generates around £20m per annum in licence fees of which £5 million is spent on policing, research and administration. This income is entirely dependent on the state of the fish stocks. However, the policy is always to conserve stocks and in some years the fisheries have been closed early in order to meet conservation targets: See http://www.falklands.gov.fk/2e.htm 37 Global Overview of Straddling and Highly Migratory Fish Stocks, Ocean Development and International Law, Volume 25 at 274. 38 General Assembly document: A/AC 109/1168, 13 July 1993 at par 26–27.

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Islands. In the 1992/1993 season the revenue from fishing licences dropped to 13.7 million (GB) pounds. This decline in licence revenue prompted the need for further conservation of the natural maritime resources around the Islands.39

Argentina complained that the establishment of the FICZ in 1986 was a violation of General Assembly Resolution 31/49 of 1979,40 which calls upon parties “to refrain from taking decisions that would imply introducing unilateral modifications in the situation”.

39 Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart.nl/~bethlehem/endnotes.htm. 40 United National General Assembly Resolution 31/49 of 1979.

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The Falkland Islands (Territorial Sea) Order 1989 (UK)41 came into force on 1 January 1990. It established a straight baseline system that includes almost all the coast of the Colony of the Falkland Islands, from Cape Carysfort to MacBride Head.42 The order extended the boundaries of the Falkland Islands, so as to include as territorial sea, the sea within twelve

41 United Kingdom, Statutory Instruments, 1989, No 1993: “Her Majesty, in pursuance of the powers conferred upon Her by the Colonial Boundaries Act 1895 (1895 c. 34) and all other powers enabling Her in that behalf, is pleased by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: 1. This Order may be cited as the Falkland Islands (Territorial Sea) Order 1989 and shall come into force on 1st January 1990. 2. The boundaries of the Colony of the Falkland Islands are hereby extended to include, as Territorial Sea, that part of the sea which is situated within 12 nautical miles measured from the baselines as established by Article 3 of this Order, together with the seabed of the territorial sea and its subsoil. 3. (1) Except as otherwise provided in paragraphs (2) to (4) of this article, the baseline from which the breadth of the territorial sea adjacent to the Falkland Islands is measured shall be the low- water line along the coast of all islands comprised in the Colony of the Falkland Islands. (2) For the purposes of this article a low-tide elevation which lies wholly or partly within the breadth of sea which would be territorial sea if all low-tide elevations were disregarded for the purpose of the measurement of the breadth thereof and if paragraphs (3) and (4) of this Article were omitted shall be treated as an island. (3) The baseline from which the breadth of the territorial sea is measured between Cape Carysfort (East Falkland), Cape Percival (West Falkland) and MacBride Head (East Falkland) shall consist of the series of loxodromes drawn so as to join successively, in the order in which they are there set out, the points identified by the coordinates of latitude and longitude in the first column of the Schedule to this Order, each being a point situate on the low-water line on or adjacent to the feature named in the second column of that Schedule opposite to the co- ordinates of latitude and longitude of the point in the first column. (4) The provisions of paragraph (3) of this Article shall be without prejudice to the operation of paragraph (2) of this Article in relation to any island or low-tide elevation which for the purposes of that paragraph is treated as if it were an island, being an island or low-tide elevation which lies to seaward of the baseline specified in paragraph (3) of this Article. 4. In this Order— (a) "island" means a naturally formed area of land surrounded by water which is above water at mean high-water spring tides (b) "low-tide elevation" means a naturally formed area of drying land surrounded by water which is below water at mean high-water spring tides (c) "nautical miles" means international nautical miles of 1,852 metres.” 42 “The baseline from which the breadth of the territorial sea is measured between Cape Carysforth (East Falkland), Cape Percival (West Falkland) and MacBride Head (East Falkland) shall consist of the series of loxodromes drawn so as to join successifely in the order in which they are there set out, the points identified by the coordinates of lititude and longitude in the forst column of the Schedule to this Order, each being a point situate on the low-water line on or adjacent to the feature named in the second column of that Schedule opposite to the coordinates of latitued and longitude of the point in the first column.”

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THE MARITIME ZONES AROUND THE ISLANDS nautical miles of the baselines, together with its seabed and subsoil.43 In particular, it defines the baseline from which the breadth of the territorial sea is measured as generally the low-water line, except that a series of straight baselines joining specified points is provided for.44 Therefore, the effect of the Order is to establish around all of the Falkland Islands (including Beauchene Island)45 a territorial sea extending to 12 nautical miles from the appropriate baselines.

In 1986, Argentina had taken initiatives of its own with regard to the delimitation of the maritime zones around the Islands by creating bilateral agreements with the USSR and Bulgaria with regard to fishing.46 Written into these agreements is a claim of Argentinean sovereignty over the Falkland Islands. The Argentinean Government has sought to use the dispute over the maritime zones as a basis for its sovereignty claim over the Islands. In an official note of protest to the United Kingdom, dated 31 October 1986, Argentina reaffirmed its sovereignty not only over the Islands but also over surrounding maritime waters, seabed and sub-soil.47

43 Statutory Instrument 1989 No 1993  The Falkland Islands (Territorial Sea) Order 1989  Explanatory Note: see http://www.hmso.gov.uk/si/si1989/Uksi_19891993_en_3.htm#exnote. 44 Statutory Instrument 1989 No 1993 — The Falkland Islands (Territorial Sea) Order 1989 — Explanatory Note: see http://www.hmso.gov.uk/si/si1989/Uksi_19891993_en_3.htm#exnote. 45 The Beauchene Island is the most far offshore Island in the Falkland-Group, located about 46 miles south-south-west of the southeast end of Falkland on a position of 52S55 and 59W12. The Island consists of two parts, the southern part with a hill of an elevation of 82 meters and a north-eastern part with bare, steep-to rocks. Both rocks are connected by a sandy promotion. It is about 1.5 miles long and 0.7 miles wide. The island is only inhabited by about 6000 sea lions and 4000 penguins. The Island is a nature-reserve. A group of ruined concrete houses stands on the west side of the Island, which was inhabited between 1834 and 1837. The settlement was abandoned due to the difficult landing situation. The Island was first discovered by Gauin de Beauchene, a France whaler in 1701 and named. Later on several sea lion hunters tried to stay on the Island, but landing was reported to be impossible. In 1834 the American McArther landed and settled 100 people on the island, but 2 years later no more sea lions were found here. The first scientific expedition took place in 1951, landing by Helicopter and staying for 1 month on the island. During the Falkland Islands War, in 1982, an Argentinian military ship, run aground on the Mintary Rock, a submerged reef, about 2 miles further south. In April 1982 a group of Great Britain soldiers climbed the Island, and lived for about 4 weeks on the Island. For more details see W. Schippke, Der historische Hintergrund des Falklandkrieges von 1982, München 1982. 46 Symmons CR, The Maritime Zones Around the Falkland Islands, (1988) vol. 37, International and Comparative Law Quarterly at 298. 47 Symmons CR, The Maritime Zones Around the Falkland Islands, (1988) vol. 37, International and Comparative Law Quarterly at 301.

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While the FICZ achieved its immediate objective of bringing some order to the conservation of the natural resources around the Islands, it also had a major impact on the Falklands’ economy48 owing to the increase in revenue from the sale of licences to fish in the FICZ.

Under The South Georgia and South Sandwich Islands (Territorial Sea) Order 198949 made on 1 November 1989, South Georgia is totally included within a straight baseline system. That Order extended the boundaries of South Georgia and the South Sandwich Islands, so as to include as

48 1987 income from license fees was £12.5 million (GB). 49 United Kingdom, Statutory Instruments, 1989, No 1995: Her Majesty, in pursuance of the powers conferred upon Her by the Colonial Boundaries Act 1895 (1895 c. 34.) and all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: 1. This Order may be cited as the South Georgia and South Sandwich Islands (Territorial Sea) Order 1989 and shall come into force on 1st January 1990. 2. The boundaries of the Territories of South Georgia and South Sandwich Islands are hereby extended to include, as territorial sea, that part of the sea which is situated within 12 nautical miles measured from the baselines as established by Article 3 of this Order, together with the seabed of the territorial sea and its subsoil. 3. (1) Except as otherwise provided in paragraphs (2) to (4) of this Article, the baseline from which the breadth of the territorial sea adjacent to South Georgia and South Sandwich Islands is measured shall be the low-water line along the coast of all islands and territories comprised in South Georgia and South Sandwich Islands by virtue of the South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) (2) For the purposes of this Article a low-tide elevation which lies wholly or partly within the breadth of sea which would be territorial sea if all low-tide elevations were disregarded for the purpose of the measurement of the breadth thereof and if paragraphs (3) and (4) of this Article were omitted shall be treated as an island. (3) The baseline from which the breadth of the territorial sea is measured around the island of South Georgia and the islands in its immediate vicinity shall consist of the series of loxodromes drawn so as to join successively, in the order in which they are there set out, the points identified by the co-ordinates of latitude and longitude in the first column of the Schedule to this Order, each being a point situate on the low-water line on or adjacent to the feature named in the second column of that Schedule opposite to the co-ordinates of latitude and longitude of the point in the first column: Provided that the baseline between points 19 and 20 in that Schedule shall be the low water line as laid down in paragraphs (1) and (2) of this Article. (4) The provisions of paragraph (3) of this Article shall be without prejudice to the operation of paragraph (2) of this Article in relation to any island or low-tide elevation which for the purposes of that paragraph is treated as if it were an island, being an island or low-tide elevation which lies to seaward of the baseline specified in paragraph (3) of this Article. 4. In this Order - (a) "island" means a naturally formed area of land surrounded by water which is above water at mean high-water spring tides (b) "low-tide elevation" means a naturally formed area of drying land surrounded by water which is below water at mean high-water spring tides

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THE MARITIME ZONES AROUND THE ISLANDS territorial sea, the sea within twelve nautical miles of the baselines, together with its seabed and subsoil.50 In particular, it defines the baseline from which the breadth of the territorial sea is measured as generally the low- water line, except that around South Georgia and other islands in its immediate vicinity a series of straight baselines joining specified points is provided for.51 Therefore, the effect of the Order is to establish around South Georgia (including Shag Rocks,52 Black Rock,53 Clerke Rocks54 and the Office Boys) and all islands in the South Sandwich Islands a territorial sea extending to 12 nautical miles from the appropriate baselines.55

Exclusive Economic Zone Extension

On 22 August 1994, the Falkland Islands Government extended its Exclusive Economic Zone to 200 miles. This extension created an area known as “the Gap” or “Special Co-operation area”. That gap is where the maritime baselines of the Islands and Argentina overlap. The Falklands Islands stated that this extension of the EEZ was intended as a conservation measure.56 The Argentine Government protested officially

(c) "nautical miles" means international nautical miles of 1,852 metres.” 50 Statutory Instrument 1989 No 1995 — The South Georgia and South Sandwich Islands (Territorial Sea) Order 1989 Explanatory Note: see http://www.hmso.gov.uk/si/si1989/Uksi_19891995_en_3.htm#exnote. 51 Statutory Instrument 1989 No 1995 - The South Georgia and South Sandwich Islands (Territorial Sea) Order 1989 Explanatory Note: see http://www.hmso.gov.uk/si/si1989/Uksi_19891995_en_3.htm#exnote. 52 Joseph de la Llana discovered the Shag Rocks in 1792, and originally named them the Aurora Islands. James Sheffield found the Shag Rocks while searching for the Auroras. The first landing was only made in 1956, when an Argentine geologist was lowered by a helicopter to spend a few hours collecting samples. The Shag Rocks are the smallest of the sub-Antarctic islands, and consist of six islands all together. The islands are part of South Georgia and the South Sandwich Islands territory. Reaching a peak elevation of only 71m, the Shag Rocks are 240km west of South Georgia, and cover only 20 hectares. The main wildlife found on the islands are the eponymous shags, prions and wandering albatrosses: Antarctica, Jeff Rubin, Lonely Planet, 2000 (ISBN 0 86442 772 7). 53 “Here, a 100 mile spine of the Scotia Ridge breaks through a storm swept ocean in a paradise of lofty white spires and black rock, its rivers of ice tumbling into the sea, its rugged beaches alive with seals, penguins and albatross”: http://www.pelagic.co.uk/sgeo2.html. 54 The Clerke Rocks, is a group of approximately 15 islets 75 km southeast of Cooper Island, are composed of granites: http://www.ndsu.edu/subantarctic/southgeorgia.htm. 55 Statutory Instrument 1989 No 1995 — The South Georgia and South Sandwich Islands (Territorial Sea) Order 1989 Explanatory Note: see http://www.hmso.gov.uk/si/si1989/Uksi_19891995_en_3.htm#exnote. 56 Bethlehem R H, Fishery Conflicts around the Falkland Islands, http://www.user.bart.nl/~bethlehem/endnotes.htm, endnote 70 refers to the FCO Spokesman: Tuesday 23 August 1994.

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THE MARITIME ZONES AROUND THE ISLANDS that this was an extension of the sovereign jurisdiction of a formerly undisputed maritime area. Argentina claimed a violation of General Assembly Resolution 31/49 of 1976.57

The extension also allowed the establishment of an Outer Fisheries Conservation and Management Zone (“FOCZ”)58 of 200 nautical miles.59 This area is to be administered by the Falkland Islands Government. However, because of the disputed sovereignty over the maritime area, Argentina is entitled to exercise flag State jurisdiction over its own vessels within that theoretical zone.60

The Argentine Exclusive Economic Zone

Based upon its claim over the Islands, Argentina established straight baselines around the Islas Malvinas (Falklands) and the Islas Georgias del Sur (South Georgia) in 1991.61

Argentina ratified UNCLOS III on 1 December 1995. The Argentine claim to a territorial sea of 200-miles was withdrawn and was replaced with a 200- mile EEZ claim.62 The Argentinean claim to a territorial sea is only twelve miles.63 Argentina declared before the Security Council of the United Nations that it had already established its maritime baselines in Law 17.094, claiming a 200-mile Exclusive Economic Zone off its coast,

57 General Assembly Resolution 31/49 of 1 December 1976: Question of the Falkland Islands (Malvinas). 58 Proclamation extending the Falkland Islands Outer Conservation Zone, 22 August 1994 The Acting Governor this morning signed Proclamation No. 1 of 1994 which will have the effect of extending the north-western limit of the Falkland Islands Outer Conservation Zone so as to include certain waters which are within 200 miles of Falkland Islands baselines. The reason for this section is to prevent uncontrolled fishing taking place in that area to the prejudice of the stocks of fish and, in particular, of Illex squid. The Proclamation will come into effect on 1 September 1994. 59 See the Falkland Islands Government website: http://www.falklands.gov.fk/10e.htm. 60 See the Summary of the Report of the Joint FAO/IMO ad hoc Working Group on Illegal, Unreported and Unregulated Fishing and Related Matters - Rome, 9-11 October 2000. 61 Annex I to Law No 23968 of 14 August 1991. 62 Bethlehem R H, Fishery Conflicts around the Falkland Islands, http://www.user.bart.nl/~bethlehem/endnotes.htm. 63 Orrega Vicuna, Trends and Issues in the Law of the Sea as Applied in Latin America, Ocean Development and International Law, vol. 26 at 94.

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THE MARITIME ZONES AROUND THE ISLANDS including the Falklands Islands (or Malvinas). Law 23.968 describes the extent of the zones and fisheries regulation applying to the Argentine EEZ. In addition, Argentina claimed an EEZ around the Falkland Islands dependencies of South Georgia and the Sandwich Islands. These actions by the Argentine Government constituted an official retaliation to the unilateral extension from 12 to 200-miles of the zones around the dependencies of South Georgia and the South Shetland Islands64 by the United Kingdom.65

In 1992, Argentina opened its fishing areas up to exploitation by foreign flag vessels. Initially, Argentina issued only fishing licenses for catching squid which can only be caught by using jiggers.66 Argentina attempted to resolve the problem of overfishing of the straddling stocks on the High Seas in Article 5 of Law 23.968, dated 14 August 1991, which extends jurisdiction to stocks outside the Argentine EEZ that form part of the food chain on the Patagonian shelf. That law states clearly that conservation measures apply to the straddling stocks.67

Special Co-operation Area

Under a Joint Declaration on Co-operation over offshore activities in the South-West Atlantic executed by the United Kingdom and Argentine

64 The South Shetland Islands consist of four main island groups: Clarence and Elephant islands; King George and Nelson islands; Robert, Greenwich, Livingston, Snow and Deception islands; and Smith and Low islands. They are part of the British Antarctic Territory. The islands cover 3687 sq km and are about 80% glaciated. The South Shetland Islands (61° 00' to 63° 37'S, 53° 83' to 62° 83'W) were discovered by William Smith on 19 February 1819, but he didn't make a landing. He returned later that year, however, and landed on King George Island on 16 October 1819, claiming the islands for the British King George III: see http://www.70south.com/resources/islands/shetland. 65 The extension by the United Kingdom of the territorial sea around those islands was protested officially by Argentina. Security Council Document: A/48/162; S/25742 of 7 May 1993. 66 Squid jiggers are a gear preventing innocent by catch. 67 The circumstances with the Argentine EEZ are similar to the situation that existed with Canada in 1994. In 1994 Canada amended its Coastal Fisheries Protection Act to seize foreign vessels outside its EEZ, which violated NAFO rules Strengthening the New Law of the Sea. See on this point, Balton, D A, The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, Ocean Development and International Law, vol. 27 at 127.

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Governments in September 1995, an area to the South-West of the Islands has been set aside as an area of Special Co-operation.68

Comment [TR1]: Title required for this map

The Special Co-Operation Area69

This Special Co-operation Area is administered by a Joint Commission composed of delegations representing the United Kingdom and Argentine Governments with officials from the Falkland Islands Government participating on the UK side.70 The Joint Commission meets at least twice a year and a Sub-Committee, charged with co-ordinating activities in the Special Co-operation Area, meets at more frequent intervals.71 Discussions are progressing in the Sub-Committee with a view to completing preparations for a licensing round in the Special Co-operation Area as soon as is practicable.72

68 See the Falkland Islands Government website: http://www.falklands.gov.fk/oildept.htm. 69 See the Falkland Islands Government website: http://www.falklands.gov.fk/oildept.htm. 70 The Falkland Islands have a Department of Mineral Resources located at Stanley on the Falkland Islands. 71 See http://www.falklands.gov.fk/9ap-rendell.htm. 72 See the website of the Falkland Islands Government: http://www.falklands.gov.fk/oildept.htm.

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Analysis

In spite of their continuing claims to territorial sovereignty over the Islands, Argentina and the United Kingdom have agreed to co-operate in the area where their exclusive economic zones overlap. As a result of this delimitation, the issue has now become the usage of natural maritime resources within those zones. The next two Chapters examine this usage.

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CHAPTER 8

THE USE OF MARITIME NATURAL RESOURCES

CONTENTS

USAGE OF NATURAL MARITIME RESOURCES BY A SOVEREIGN POWER 123 THE DEVELOPMENT OF INTERNATIONAL ‘ENVIRONMENTAL’ LAW...... 124 UN CONFERENCE ON STRADDLING STOCKS AND HIGHLY MIGRATORY SPECIES...... 133 THE FAO CODE OF CONDUCT FOR RESPONSIBLE FISHERIES...... 136 INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA ...... 139 THE ST PIERRE AND MIQUELON ARBITRATION ...... 145 ERITREA/YEMEN ARBITRATION ...... 147 ANALYSIS ...... 150

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[T]he growing ascendancy of man over the forces and secrets of nature has put into his hands instruments that he can use to violate his pledges just as much as for the common good of all; the risk of an evil use has so far not led to subjecting the possession of these means of action to the authorization of the states which may possibly be threatened.1

This Chapter is an elucidation of the international law principles and precedents regarding the use of natural resources within maritime zones claimed by sovereign islands. Chapter 9 then applies to the case study these principles and rules. This Chapter focuses on the particular issues of relevance to the case study (as developed in Chapter 9): overfishing and mineral exploitation within the claimed maritime zones. The definition of what constitutes natural resources has been broadly delineated in this Chapter. While this chapter does not seek to examine in detail all aspects of the use of natural resources, it surveys the relevant current principles of the international legal system as they relate to the environment in the context of the case study of this thesis. By necessity a number of principles and precedents have been selected to provide a “coherent picture of the remarkable developments in international law”.2

Usage of natural maritime resources by a sovereign power

While geopolitical tension over natural resources has long been dominated by the struggle over the world’s petroleum resources, there are a number of new resource issues that have developed recently. The increasing importance of natural resources in international affairs has escalated conflict among nations.3 International recognition of the importance of natural resources in international relations and the need for co-operation in developing, as well as protecting these resources has resulted in an international effort by the International Law Commission (“ILC”).4

1 Lac Lanoux Case (France-Spain); MacChesney, The American Journal of International Law (1959) Vol 53 at 162–163. 2 Birnie and Boyle, International Law and the Environment (1992) at v. 3 See Chemillier-Gendreau, Sovereignty of the Paracel and Spratly Islands (2000) Klewer Law International, The Hague at 142. 4 The International Law Commission was established by the General Assembly of the United Nations in 1947 to promote the progressive development of International Law and its codification. The Commission, which meets annually, is composed of 34 members (of which the United Kingdom and Argentina have representation),

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It has become increasingly clear that environmental issues do not respect national boundaries. Nations are searching for the legal and institutional mechanisms that appreciate, protect and manage resources which traverse their maritime boundaries.5 There is no distinct body of law with its own sources and methods of law-making deriving principles peculiar or exclusive to this area. Rather, such relevant law as does now exist originates from the application of principles generated by classical international law and its sources.6

The development of international ‘environmental’ law

International Law governing environmental issues and specifically, the use of shared resources, has developed appreciably over the past 100 years. The first principle regarding the use of international resources was declared by the United States in 1895. This principle, known as the Harmon Doctrine, was one of absolute territorial sovereignty. The then United States Attorney-General Harmon7 applied this idea of absolute sovereignty to a dispute between the United States and Mexico over the use of water from the Colorado River.8 The United States contended that the context of International Law placed no obligation or responsibility upon the United

who are elected by the General Assembly for five-year terms and who serve in their individual capacity, not as representatives of their governments. Most of the Commission’s work involves the preparation of drafts on topics of International Law. Some topics are chosen by the Commission and others referred to it by the General Assembly or the Economic and Social Council. When the Commission completes draft articles on a particular topic, the General Assembly usually convenes an International Conference of Plenipotentiaries to incorporate the draft articles into a convention which is then open to states to become parties. The Argentinean representative is Enrique J.A. Candioti. The United Kingdom representative is Professor Ian Brownlie CBE QC (Barrister, 1958; Gray's Inn; QC 1979; commenced practice 1967; Fellow of the British Academy 1979; Chichele Professor of Public International Law, University of Oxford 1980–1999). See the website of the International Law Commission: www.un.org/ilc. 5 Forbes, The Maritime Boundaries of the Indian Ocean Region (1995) at xv. 6 For example, Brownlie, Principles of International Law (4th ed, Oxford 1990) has no chapter on this topic. 7 Judson Harmon was a Cincinnati lawyer who was the Attorney-General of the United States between 1895 and 1897. He gained notoriety through his questioning of the United States Supreme Courts jurisdiction in the case of Ed Johnson, Appellant v The State of Tennessee. In 1908, he was elected as Governor of Ohio. He was re-elected in 1910, defeating Warren Harding: see http://www.law.umkc.edu/faculty/projects. 8 Blake, International Boundaries and Environmental Security: Frameworks for Regional Cooperation (Kluwer Law International, 1997) at 333.

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States and, therefore, the dispute was a political as opposed to a legal question to be resolved between the nations.9

Under the Harmon Doctrine, an upstream State10 could freely deplete or utilize a river’s flow within its boundaries without considering the effect of its actions on a downstream State.11 In the context of the Falkland Islands, over-fishing within the maritime zones could permanently deplete the resource. However, this legal doctrine was viewed unfavourably as an anachronistic and narrow view unlikely to reconcile differences among opposing States where a shared natural resource was at issue.12

Today, these customary law concepts are evolving as the international community, through its various institutions,13 recognises the trans-boundary issues of natural maritime resources.

After the Harmon Doctrine, International Law adopted the principle of “good neighbourliness” or the sic utere tuo ut alienum non laedas14 doctrine. This principle recognises the reality that the use of international natural resources must be governed for the good of all.15 The sic utere doctrine states that rights should be used so as to avoid harming the rights of

9 In the end, the United States did not apply this doctrine. The sharing of water resources is reflected in its treaties with its neighbours including: the 1909 USA- Canada Boundary Treaty, the 1961 Columbia Water treaty, the 1973 USA-Mexico Treaty on the Colorado River and the 1978 Great Lakes Water Quality Agreement between the USA and Canada. 10 In the case of the Falkland Islands, a state controlling large maritime natural resources. 11 This doctrine has been applied by India with regard to the Indus River and its tributaries. Like the US, India has softened its stance by conceding certain rights to Pakistan in the interest of smoother relations. 12 See the decision of the Permanent Court of Arbitration in the Eritrea/Yemen Arbitration: www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm. 13 Bodies such as the United Nations General Assembly, the United Nations Security Council, the PCIA, and, the ICJ have recognised this change in their decision- making processes. 14 Defined by the United Nations: “use your own property so as not to injure the property of another”: International Law Commission Report, 1996 Annex I Report of the Working Group on International Liability for injurious consequences arising out of acts not prohibited by International Law. See http://www.un.org/law/ilc/reports/1996/annex1.htm 15 This maxim was supported by Judge Lauterpacht of the International Court of Justice. He said that a: “State is bound to prevent such use of its territory as, having regard to the circumstances, is unduly injurious to the inhabitants of the neighbouring State”: Oppenheim, International Law (8th Ed by H Lauterpacht, 1955) at 290–291 and Oppenheim, International Law (9th Ed by Sir Robert Jennings QC and Sir Arthur Watts KCMG QC, 1992) at 391–393.

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THE USE OF MARITIME NATURAL RESOURCES others.16 The doctrine originated as a common law principle applied in nuisance actions.17

The principle was recognised as forming a part of customary international law by the arbitrators in the Trail Smelter Case.18 In that case an aluminium smelter on the Canadian side of the joint US/Canada border was causing pollution, which the United States claimed was causing damage to property in the United States.19 In that case the tribunal concluded that:20

… under principles of International Law … no state has the right to use or permit the use of its territory in such a manner as to cause injury … to the territory of another or the properties or persons therein …

This doctrine has been incorporated into several international instruments including Principle 21 of the Stockholm Declaration on the Human Environment 1972,21 Principle 2 of the Rio Declaration on Environment and Development 1992,22 as well as Article 196 of the UNCLOS III.23 The

16 Oppé A, Wharton’s Law Lexicon, 14th Edn (1938) Stevens and Sons Ltd, London. 17 William Aldred’s Case (1611) 9 Coke 57b [77 ER 816] and Rylands v Fletcher 1868 ELR 330 at 341. See also, in the Australian context, Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 (1994) Aust Torts Reports 81–264, (1994) 120 ALR 42, (1994) 68 ALJR 331 FC 94/011. 18 Trail Smelter Case (US v Canada) (1941) 2 RIAA 1905. This concept was later recognised in cases such as the Meuse Diversion see Smith, 1931: 217, Corfu Channel Case 1949 ICJ 22, Lake Lanoux Arbitration 24 ILR 1957. 19 Trail Smelter Case (US v Canada) (1941) 2 RIAA 1905, 1965 (1949). The Consolidated Mining and Smelting Company Limited of Canada operated a zinc and lead smelter along the Columbia River at Trail, British Columbia about 10 miles north of the international boundary with the State of Washington. During the period between 1925 and 1935, the US Government objected to the Canadian Government that sulphur dioxide emissions from the operation were causing damage to the Columbia River valley in a 30-mile stretch from the international boundary to Kettle Falls, Washington. The two governments resorted twice to legal arbitration, once from 1928 to 1931 and again from 1935 to 1941, in an attempt to resolve the dispute. The outcome of each decision involved some payment by the Canadian Government for damages caused to the State of Washington. The latter decision also prescribed a set of operational guidelines under which the smelter at Trail should conclude its operations for at least a year-and-a-half. The main concern of the United States was that the smelter's sulphur dioxide emissions were harming the land and the trees of the Columbia River Valley which were used for logging, farming, and cattle grazing; the three industries crucial to the area. The main species affected were yellow pines, Douglas firs, larch and cedar. Affected harvests included alfalfa, wheat and oats: for further discussion of this see http://www.american.edu/ted/TRAIL.HTM. 20 See Gaubatz and Kane, The Trail Smelter Case at http://www.gwu.edu/~jaysmith/Trail.html. 21 “2. The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments.” 22 “Principle 2

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International Court of Justice has also applied this principle in the Corfu Channel Case.24 In that case, the Court held that a nation could not use its territory for activities that were likely to cause harm to the territory of another state.25

These principles lead to the development of a “community of interests” concept. This approach treats the oceans as one hydrological unit that should be managed and viewed as an integrated whole.26 This principle implies that states have a duty to co-operate in the use and management of natural resources.27 Thus, each state within the area has a right of action against any other state, such that no state may affect the resources without the co-operation and permission of its neighbours. State practice is guided primarily by considerations of territorial sovereignty rather than hydrology or geography, thus the development of a workable definition has vacillated over time. Individual states are able to use a general structure and guide for creating separate bilateral or multilateral agreements that take into account the geographical and political realities of the region.28 While this concept of managing a resource based upon its hydrological features as opposed to its political boundaries would be a positive step forward in protecting natural resources, relations among states have not yet evolved to a similar level.29

States have, in accordance with the Charter of the United Nations and the principles of International Law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” 23 “Use of technologies or introduction of alien or new species 1. States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto. 2. This article does not affect the application of this Convention regarding the prevention, reduction and control of pollution of the marine environment.” 24 UK v Albania, Merits 1949 ICJ 4 at 22. 25 See also Lac Lanoux Arbitration (Spain v France) (1950) 53 AJIL 156; ILR 101. 26 Blake, International Boundaries and Environmental Security: Frameworks for Regional Cooperation (Kluwer Law International, 1997) at 334. 27 Birnie and Boyle, International Law & The Environment (Clarendon Press, Oxford 1992) at 94. 28 See Topkaya, Water Resources in the Middle East: Forthcoming Problems and Solutions for Sustainable Development of the Region: http://www.akdeniz.edu/muhfak/publications/gap.html. 29 See Topkaya, Water Resources in the Middle East: Forthcoming Problems and Solutions for Sustainable Development of the Region: http://www.akdeniz.edu/muhfak/publications/gap.html.

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Since the beginning of this century, legal scholars and diplomats have attempted to develop a mechanism for regulating the use of international areas, such as those around the Falkland Islands. In 1910, the Institute of International Law30 (“IIL”) proposed a framework for regulating international waterways now know as the Helsinki Rules.31 Unfortunately, however, the enforceability of the Helsinki Rules has been undermined by the IIL’s status as an unofficial organization. As such, the IIL’s resolutions are not legally binding under International Law unless they are adopted in the form of a multilateral convention or followed by states as state practice.

Drafters of “frameworks” such as the Helsinki Rules readily acknowledge that they cannot possibly take into account all of the scientific, political, and economic variables of individual disputes.32 Instead, the drafters focused on creating the procedural guidelines for notification and consultation and for codifying the customary law of international law; thereby leaving the task of application to the negotiation process among the particular states and experts involved in that region.33 A related and possibly more significant requirement is that states must not only co-operate, but must also notify and inform another state when events on its own territory might affect that other state.34 This responsibility arises out of customary international law, which requires notification when a state is planning an activity involving a shared resource that could have an adverse effect on another state.35

Crucial to an assessment of the current state of international law in this arena is an understanding of the sources from which it derives. Since international law on this subject can be assumed to be the aggregate of all the rules and principles aimed at protecting the global environment and

30 The Institute of International Law is a private organisation formed in the aftermath of the Franco-Prussian War in 1873. The Institute’s mission is to promote the progress of International Law. The organisation was awarded the Nobel Peace Prize in 1904. 31 The Helsinki Rules relate primarily to internal waterways and not the maritime zones territorially acquired by a coastal state such as the Falkland Islands. However, in the context of this chapter they are relevant. 32 Starke, Introduction to International Law (1984) at 187-188. 33 Harris, Cases and Materials on International Law (1998) at 407-408. 34 Starke, Introduction to International Law (1984) at 187-188. 35 Starke, Introduction to International Law (1984) at 187-188.

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THE USE OF MARITIME NATURAL RESOURCES controlling activities within national jurisdiction, it involves questions of sovereignty, jurisdiction, regulation and state responsibility and liability.36

Treaties and custom have traditionally been the main methods of creating binding international law. However, these sources were augmented in 1920 in the Statute of the Permanent Court of International Justice, subsequently replicated in Article 38(1) of the Statute of the International Court of Justice.37

Further development of international environmental law occurred in 1963, when the Treaty Banning Nuclear Weapons Testing in the Atmosphere, Outer Space, and Underwater entered into force.38 This was followed in 1967 by the Treaty for the Prohibition of Nuclear Weapons in Latin America.39 Additionally, the Treaty on the Prohibition on the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea Bed was opened for signature in 1971.40

There has been increasing development regarding the disposal of toxic and hazardous wastes within International Law.41 In 1989 the Organisation for Economic Co-operation and Development (OECD)42 adopted a recommendation43 that the state responsible for pollution is liable for

36 See Brazil, International Environmental Law, Australian IL News (1985) at 315-326. 37 See generally Brownlie, Basic Documents in International Law (3rd ed, Oxford 1983). 38 The United Kingdom signed the treaty on 8 May 1963 and ratified it on 10 October 1963. Argentina signed the treaty on 8 August 1963. 39 This Treaty was signed by Argentina. 40 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil thereof, 955 UNTS 115, entered into force 18 May 1972. Argentina signed the treaty on 21 March 1983. The United Kingdom signed on 18 May1972. 41 See Principle Six of the Stockholm Declaration 1972 and Principle 14 of the Rio Declaration 1992. The Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft 1972 provided for a ban on the dumping of certain substances. Also in 1972 the London Convention on the prevention of Marine Pollution by the Dumping of Wastes and Other Matter prohibited the dumping of hazardous waste. 42 The OECD groups 30 member countries sharing a commitment to democratic government and the market economy. With active relationships with some 70 other countries, Non-government Organisations and civil society, it has a global reach. Best known for its publications and its statistics, its work covers economic and social issues from macroeconomics, to trade, education, development and science and innovation. Argentina is not a member of the OECD, however, the United Kingdom is: see http://www.oecd.org/oecd/pages/home/displaygeneral/0,3380,EN- about-0-nodirectorate-no-no-no-0,FF.html. 43 Organisation for Economic Cooperation and Development, Document Number: C (89) 88.

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THE USE OF MARITIME NATURAL RESOURCES accidents involving hazardous substances. Further, the OECD has adopted a number of other recommendations and decisions concerning the movement of hazardous materials around the world.44 The Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal 198945 prohibits the export of hazardous and other wastes to parties that have prohibited the import of such wastes and have communicated that prohibition to the other state.46 During its first Decade (1989–1999), the Convention was principally devoted to setting up a framework for controlling the “trans-boundary” movements of hazardous wastes, that is, the movement of hazardous wastes across international frontiers. It also developed the criteria for “environmentally sound management”. A Control System, based on prior written notification, was also put into place.47

Other International Agreements such as The Convention on the Protection of the Underwater Cultural Heritage (adopted during the UNESCO General Conference that concluded on 3 November 2001) continue to globalise the use of resources within sovereign maritime zones.48 The Convention defines underwater cultural heritage as "all traces of human existence having a cultural, historical or archaeological character which have been

44 See, for example, Organisation for Economic Cooperation and Development: Council Decision and Recommendation on Trans-frontier Movements of Hazardous Waste. Adopted by the Council at its 598th meeting on 1 February 1984: OECD Document Number [C (83) 180 (Final)] Reproduced at 23 ILM 1984 at 214; Organisation for Economic Cooperation and Development: Council Decision  Recommendation on Exports of Hazardous Wastes form the OECD Area. Adopted by the Council at its 644th meeting on 5 June 1986: OECD Document Number [C (86) 64 (Final)]. Reproduced at 25 ILM 1986 at 1010; Organisation for Economic Cooperation and Development: Council: Decision of the Council on the Trans- frontier Movements of Hazardous Wastes. Adopted by the Council at its 685th Session on 27 May 1988: OECD Document Number C (80) 90 (Final). Reproduced at 28 ILM 1989 at 259. Organisation for Economic Cooperation and Development: Council Decision  Recommendation Concerning Provisions of Information to the public and public participation in the decision-making process related to the prevention of, and response to, accidents involving hazardous substances. Adopted by the Council 8 July 1988. Reproduced at 28 ILM 1989 at 277. 45 Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal. This convention had 149 signatories as at 10 November 2001. The United Kingdom assented to the treaty on 7 February1994 and Argentina on 27 June1991. See http://www.basel.int/pub/basics.html#intro. 46 A tightening of environmental regulations in industrialized countries led to a dramatic rise in the cost of hazardous waste disposal. Searching for cheaper ways to get rid of the wastes, “toxic traders” began shipping hazardous waste to developing countries and to Eastern Europe. When this activity was revealed, international outrage led to the drafting and adoption of the Basel Convention. 47 See http://www.basel.int/pub/basics.html#intro. 48 See http://www.unesco.org/culture/legalprotection/.

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THE USE OF MARITIME NATURAL RESOURCES partially or totally under water, periodically or continuously”, for at least one hundred years, including sites, structures, vessels, aircraft, and human remains.49 It requires parties to co-operate in the protection of the underwater cultural heritage, and prohibits its commercial exploitation. The Convention provides for the recovered underwater cultural heritage to be "deposited, conserved and managed" in a manner that ensures its long- term preservation. It awards an exclusive right to parties to regulate and authorize activities directed at underwater cultural heritage in their internal and archipelagic waters, and territorial sea.50 Activities directed at underwater cultural heritage within their contiguous zone are authorized, but they must be in accordance with provisions of the UNCLOS III, Article 303(2). Further, the Convention provides specific rules on reporting, notification, and protection of underwater cultural heritage in the exclusive economic zone and on the continental shelf.51

On 19 June 2001, the Permanent Court of Arbitration52 (“PCA”) Administrative Council adopted by consensus the Optional Rules for Arbitrating Disputes Relating to the Environment and/or Natural Resources (Environmental Rules). These rules result from the efforts of the International Bureau together with a working group and drafting committee of experts in environmental law and arbitration, under the chairmanship of Professor Philippe Sands.53 The Environmental Rules seek to address the

49 See http://www.unesco.org/culture/legalprotection/. 50 See http://www.unesco.org/culture/legalprotection/. 51 At the time of conclusion of this chapter, the final text of the Convention, as adopted by the UNESCO General Conference, was still not officially available. Consideration has been given to the text of the Draft Convention (UNESCO doc 31 C/24 of 3 August 2001) that had been submitted to the UNESCO General Conference for adoption: see http://www.unesco.org/culture/legalprotection/. 52 The century-old Permanent Court of Arbitration (PCA) was established by the Convention for the Pacific Settlement of International Disputes, concluded at The Hague in 1899, during the first Hague Peace Conference. The Conference was convened at the initiative of Czar Nicolas II of Russia "with the object of seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments". The most concrete (and therefore important) achievement of the Conference was the establishment of the PCA  the first global mechanism for the settlement of inter-state disputes. The 1899 Convention, which provided the legal basis for the PCA, was revised at the second Hague Peace Conference in 1907. 53 Professor of International Law at London University and Global Professor of Law at NYU Law School. His practice includes public international, EU, natural resources and environmental law, appearing before English and international courts (including ECJ, ICJ, ITLOS, ICSID). His publications include Butterworths Manual of International Courts and Tribunals (1999) and Principles of International Environmental Law (1995).

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THE USE OF MARITIME NATURAL RESOURCES principal lacunae54 in environmental dispute resolution identified by the Working Group. These environmental conciliation rules will provide the international community (including the United Kingdom and Argentina) with procedural machinery not currently available for addressing environmental disputes.

The development of these general principles has been confirmed in a number of agreements and decisions of relevance to the case study.

Sustainability, protection and conservation of maritime resources has become an international issue. In the waters around the Falkland Islands there are many highly migratory species and straddling stocks. In June 1992 the United Nations Conference on Environment and Development55 adopted Agenda 21 - the global action plan for sustainable development for the 21st century. The issue of straddling stocks was inserted into the Agenda 21 programme.56 Chapter 17 of the Agenda 21 programme called for the United Nations Intergovernmental Conference to address the problem of straddling stocks and highly migratory stocks.57 The objective being to ensure the sustainable use of straddling fish stocks and highly migratory fish stock. The Agreement on Straddling and Fish Stocks and Highly Migratory Species was adopted on 4 August 1995.58

54 Oxford English Dictionary at http://dictionary.oed.com: 1. In a manuscript, an inscription, the text of an author: “A hiatus, blank, missing portion: 1663 SIR R. MORAY in Lauderd. Papers (Camden) I. 181 ‘You do well to leave no Lacunas in your letters. 1694 GIBSON in Lett. Lit. Men (Camden) 228 The lacuna of his behaviour in Holland, Dr Gregory perhaps may be able to make up. 1851 D. WILSON Preh. Ann. IV. v. (1863) II. 326 The context fills up the numerous lacunae of the time-worn inscription. 1875 MAINE Hist. Inst. ix. 256 The description given … is followed by a lacuna in the manuscript. 1892 ZANGWILL Bow Myst. 147 There were various lacunæ and hypotheses in the case for the defence.” 55 “Principle 2 States have, in accordance with the Charter of the United Nations and the principles of International Law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” 56 Kiss & Shelton, International Environmental Law (1994) Supplement at 27. 57 International Legal Materials, Background/Content Summary 34 ILM 1542 (1995); Text of the Agreement on Straddling and Fish Stocks and Highly Migratory Species is reproduced at 34 ILM 1547 (1995). 58 International Legal Materials, Background/Content Summary 34 ILM 1542 (1995); Text of the Agreement on Straddling and Fish Stocks and Highly Migratory Species is reproduced at 34 ILM 1547 (1995).

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UN Conference on Straddling Stocks and Highly Migratory Species

A straddling stock can be defined as a fishing stock that occurs both in an area beyond and adjacent to and within an Exclusive Economic Zone and/or moves between EEZ’s.59 This definition covers the case of some of the species on the Patagonian Shelf of the Falklands.60 While UNCLOS III contained measures that addressed the management of these stocks, they were vague and incapable of properly managing the stocks for the benefit of all nations.61 To deal with these gaps in UNCLOS III regarding straddling stocks, highly migratory species and high seas fishing, the United Nations convened the new conference in 1992 (the Rio Conference).62

The Agreement on Straddling Fish Stocks and Highly Migratory Species entered into force on 10 December 2001.63 The United Kingdom and Argentina are both signatories to the Agreement.64 Although it took twelve years for the UNCLOS III treaty itself to enter into force, this agreement did so after being opened for signature for only six years. It was predicted that economic interest in the natural maritime resources would delay ratification, implementation and enforcement of this agreement. The fact that it entered into force so quickly may be an indicator of a more community-interests- oriented global community.

59 See Articles 63 and 64 of UNCLOS III below. 60 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart/~bethlehem/endnotes.htm#bearing. 61 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart/~bethlehem/endnotes.htm#bearing. 62 This Conference produced the “Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks”: See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart/~bethlehem/endnotes.htm#bearing. 63 The requirements for the entry into force of the Agreement were met on 11 November 2001, when the Minister for Foreign Affairs of Malta deposited an instrument of accession to the Agreement with the Secretary-General. The instrument was the thirtieth instrument of ratification or accession deposited. The Agreement entered into force on 11 December 2001, i.e. 30 days after the date of deposit of the thirtieth instrument of ratification or accession, in accordance with Article 40(1) of the Agreement. 64 Neither have ratified the agreement. Argentina - 4 Dec 1995. United Kingdom – 27 June 1996: http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/xxi_boo/xxi_7.html#Kp9 370Patr,

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The Agreement contained provisions relevant to the case study. Protection and conservation of the natural resource of fish stocks is to be accomplished by the effective implementation of Articles 63,65 6466 and 116–11967 of UNCLOS III. The best scientific research must be applied with

65 “Stocks occurring within the exclusive economic zones of two or more coastal States or both within the exclusive economic zone and in an area beyond and adjacent to it 1. Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal states, these states shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part. 2. Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal state and the states fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.” 66 “Highly migratory species 1. The coastal state and other states whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal state and other states whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work. 2. The provisions of paragraph 1 apply in addition to the other provisions of this Part.” 67 “116. Right to fish on the high seas All States have the right for their nationals to engage in fishing on the high seas subject to: (a) their treaty obligations (b) the rights and duties as well as the interests of coastal states provided for, inter alia, in Article 63, paragraph 2, and Articles 64–67 (c) the provisions of this section.

117. Duty of States to adopt with respect to their nationals measures for the conservation of the living resources of the high seas All states have the duty to take, or to cooperate with other states in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.

118. Cooperation of States in the conservation and management of living resources States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations to this end.

119. Conservation of the living resources of the high seas 1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, states shall: (a) take measures which are designed, on the best scientific evidence available to the states concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing states, and taking into account

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THE USE OF MARITIME NATURAL RESOURCES the goal of conserving stocks of straddling and highly migratory stocks.68 To ensure that fishing does not do harm to these fish stocks, Article 6 prescribes the “precautionary principle”.69 This principle means that even if scientific evidence is not available or unreliable, certain precautionary measures can be taken to conserve and protect an ecosystem, habitat or a living natural resource, although there is no direct scientific evidence that the prescribed practice is harmful to the object of protection.70 Article 7 looks at the problems created by applying different conservation measures.71 This Article calls upon the coastal state and the states fishing in the adjacent waters to cooperate and find compatible rules that do not impede effective management and conservation. Article 8 provides the legal basis for co-operation. If a regional or subregional arrangement already exists, other sovereign non-members should become a party to this arrangement.72

However, the Convention does not make it clear how enforcement of its provisions will occur. For example, if a state refuses to co-operate, that state must be invited to settle this dispute in accordance with the compulsory settlement procedure.73 Disputes arising from any agreement

fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global (b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. 2. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all states concerned. 3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any state.” 68 Articles 5 and 6. 69 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart/~bethlehem/endnotes.htm#bearing. 70 Starke, Introduction to International Law (1984) at 253. 71 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart/~bethlehem/endnotes.htm#bearing. 72 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart/~bethlehem/endnotes.htm#bearing. 73 For example, Article 17.2 stipulates that the non-member states should not authorize their vessels to fly their flag when that vessel is engaged in High Seas fishing.

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The Agreement on Straddling and Fish Stocks and Highly Migratory Species is implemented by the practical application of a code of conduct.

The FAO Code of Conduct for Responsible Fisheries

The FAO75 Code of Conduct applies UNCLOS III-consistent conservation and sustainability requirements to fisheries for all stocks in all areas of the seas.76 The Code was adopted by the Conference of the FAO in November 1995. The Code of Conduct is an important instrument of "soft International Law”77 that Parties should endorse and implement in order to achieve the goals of the Biodiversity Convention78 in the fisheries context.79

74 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart/~bethlehem/endnotes.htm#bearing. 75 The FAO was founded in 1945 with a mandate to raise the levels of nutrition and standards of living, to improve agricultural productivity and to better the conditions of rural populations. Today, the FAO is one of the largest specialised agencies within the United Nations and the lead agency for agriculture, forestry, fisheries and rural development. An intergovernmental organisation, the FAO has 183 member countries, (the United Kingdom, and Argentina are signatories). Since its inception, the FAO has attempted to minimise poverty and hunger by promoting agricultural development. See http://www.fao.org. 76 According to the FAO this Code is voluntary. However, certain parts of it are based on relevant rules of International Law, including those reflected in the United Nations Convention on the Law of the Sea of 10 December 1982. The Code also contains provisions that may be or have already been given binding effect by means of other obligatory legal instruments amongst the Parties, such as the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993, which, according to FAO Conference resolution 15/93, par 3, forms an integral part of the Code: http://www.fao.org/fi/agreem/codecond/ficonde.asp#1. 77 Soft law is not mentioned by Brownlie in Principles of Public International Law. Neither is it included the chapter on sources nor listed in the index. However, in the case of international law, given the lack of any supreme authoritative body with law-making powers, it has always been difficult to secure on a universal basis the consent otherwise necessary to establish binding rules. Soft law is by its nature the articulation of a norm in written form, which can include both legal and non- legal instruments. Increasing use has been made of half-way stages in the lawmaking process, especially in environmental and economic matters, in the form of codes of practice, recommendations, guidelines, resolutions, declarations of principles, standards and so called framework treaties which do not fit neatly into the categories of legal sources: Birnie and Boyle, International Law and the Environment (1992) at 26-27. 78 The Convention on Biological Diversity was negotiated at the 1992 Earth Summit in Rio de Janeiro. The Convention has 182 parties. Article 1 of the convention states its objectives: the objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account

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The Straddling Stocks Agreement discussed above and the FAO Code of Conduct were negotiated during approximately the same period of time and the two are intended to be complementary.80 The FAO Code of Conduct focuses on the practices of national fishing fleets, calling on countries to act at the national level.81 It covers fishing on the high seas, as well as

all rights over those resources and to technologies, and by appropriate funding. The full text of the Convention is available at: http://www.biodiv.org/convention/articles.asp. 79 The Code, like the Biodiversity Convention, notes that the precautionary approach must guide States in developing conservation and sustainable use programmes when complete information is not available, so that conservation and management measures are not postponed or undermined by a lack of complete scientific certainty: http://www.nmfs.noaa.gov/prot_res/PR/fpweb/icri/text/2117b.htm. 80 The Straddling Stocks Agreement draws heavily on the technical principles of the Code, but goes further by calling for the establishment of strong regional organizations and arrangements, in which coastal states and distant-water fishing states will collaborate to adopt conservation and management measures for straddling and highly migratory fish stocks. Both instruments seek to impose greater responsibilities on states whose vessels fish on the high seas. 81 See, for example, the relevant articles of the Code of Conduct for Responsible Fisheries: 6.5 States and subregional and regional fisheries management organizations should apply a precautionary approach widely to the conservation, management and exploitation of living aquatic resources in order to protect them and preserve the aquatic environment, taking account of the best scientific evidence available. The absence of adequate scientific information should not be used as a reason for postponing or failing to take measures to conserve target species, associated or dependent species and non-target species and their environment … 6.9 States should ensure that their fisheries interests, including the need for conservation of the resources, are taken into account in the multiple uses of the coastal zone and are integrated into coastal area management, planning and development … 6.11 States authorizing fishing and fishing support vessels to fly their flags should exercise effective control over those vessels so as to ensure the proper application of this Code. They should ensure that the activities of such vessels do not undermine the effectiveness of conservation and management measures taken in accordance with International Law and are adopted at the national, subregional, regional or global levels. States should also ensure that vessels flying their flags fulfil their obligations concerning the collection and provision of data relating to their fishing activities … 6.12 States should, within their respective competences and in accordance with International Law, cooperate at subregional, regional and global levels through fisheries management organizations, other international agreements or other arrangements to promote conservation and management, ensure responsible fishing and ensure effective conservation and protection of living aquatic resources throughout their range of distribution, taking into account the need for compatible measures in areas within and beyond national jurisdiction; 6.13 States should, to the extent permitted by national laws and regulations, ensure that decision-making processes are transparent and achieve timely solutions to urgent matters. States, in accordance with appropriate procedures, should facilitate consultation and the effective participation of industry, fishworkers, environmental and other interested organizations in decision-making with respect to the development of laws and policies related to fisheries management, development, international lending and aid … 6.15 States should cooperate in order to prevent disputes. All disputes relating to fishing activities and practices should be resolved in a timely, peaceful and cooperative manner, in accordance with applicable international agreements or as may otherwise be agreed between the parties. Pending the settlement of a dispute,

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THE USE OF MARITIME NATURAL RESOURCES activities within EEZ’s, including fishing of stocks exclusively within EEZ’s. The two instruments refer to one another extensively, and the full implementation of one requires implementation of the other.

The Code consists of six thematic articles on Fisheries Management, Fishing Operations, Aquaculture Development, Integration of Fisheries into Coastal Areas Management, Post-Harvest Practices and Trade, and Fisheries Research.82 The Agreement to Promote Compliance with International Conservation and Management Measures by Vessels Fishing on the High Seas is an integral part of the Code and technical guidelines have been prepared by the FAO Secretariat83 in support of the implementation of the Code.84

The Code addresses most of the threats to biodiversity from current fisheries practices and explicitly states that it is designed to be interpreted and applied with due regard to the Biodiversity Convention.85

the states concerned should make every effort to enter into provisional arrangements of a practical nature which should be without prejudice to the final outcome of any dispute settlement procedure. 6.16 States, recognising the paramount importance to fishers and fishfarmers of understanding the conservation and management of the fishery resources on which they depend, should promote awareness of responsible fisheries through education and training. They should ensure that fishers and fishfarmers are involved in the policy formulation and implementation process, also with a view to facilitating the implementation of the Code. 6.17 States should ensure that fishing facilities and equipment as well as all fisheries activities allow for safe, healthy and fair working and living conditions and meet internationally agreed standards adopted by relevant international organizations.” 82 Code of Conduct For Responsible Fisheries: http://www.fao.org/fi/agreem/codecond/codecon.asp. 83 The FAO Secretariat is currently comprised by the following personnel: Dr Mark Rweyemamu - Senior Officer, Infectious Diseases/EMPRES; Dr Martyn Jeggo - Head, Animal Production and Health Section Joint FAO/IAEA Division, Vienna; Dr Peter Roeder - Animal Health Officer (Infectious Disease Emergency); Dr Kris Wojciechowski - Animal Health Officer (Virology); Dr Abdelali Benkirane - Animal Health Officer (Bacteriology); Dr Paul Rossiter - EC-Funded PARC Epidemiology Project Inter-African Bureau for Animal Resources of The Organisation of African Unity, Nairobi; Dr Peter Morcombe - Visiting Scientist; Dr Mark Schoenbaum - Visiting Scientist; Dr Bernadette Abela - Short Term Officer, Animal Health Service; Ms Diana Dennington, EMPRES Clerk: http://www.fao.org/docrep/W6319E/w6319e0a.htm. 84 Code of Conduct For Responsible Fisheries: http://www.fao.org/fi/agreem/codecond/codecon.asp. 85 FAO Code of Conduct, Article 3.1: “The Code is to be interpreted and applied in conformity with the relevant rules of International Law, as reflected in the United Nations Convention on the Law of the Sea 1982. Nothing in this Code prejudices the rights, jurisdiction and duties of States under International Law as reflected in the Convention. 3.2 The Code is also to be interpreted and applied:

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A new forum for dispute resolution has been created to determine disputes relating to UNCLOS III. It allows for the determination of disputes arising from the Agreement on Straddling and Fish Stocks and Highly Migratory Species and its application through the FAO Code of Conduct.

International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea is an independent judicial body established by Annexes VI, VII and VIII to UNCLOS III to adjudicate disputes arising out of the interpretation and application of the Convention. It is important to refer to this relatively new Tribunal in the context of this Chapter, because its decisions recognise many of the new principles that have already developed and are continuing to develop with regards to the use of natural maritime resources in maritime zones. The Tribunal is composed of 21 independent members,86 elected from among persons “enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the Law of the Sea”.87

The Tribunal has formed the following Chambers: the Chamber of Summary Procedure, the Chamber for Fisheries Disputes, the Seabed

a. in a manner consistent with the relevant provisions of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks b. in accordance with other applicable rules of International Law, including the respective obligations of states pursuant to international agreements to which they are party c. in the light of the 1992 Declaration of Cancun, the 1992 Rio Declaration on Environment and Development, and Agenda 21 adopted by the United Nations Conference on Environment and Development (UNCED), in particular Chapter 17 of Agenda 21, and other relevant declarations and international instruments. 86 The Tribunal is composed of 21 independent members elected by secret ballot by the States Parties to the Convention. Each State Party may nominate up to two candidates. No two members may be nationals of the same state and in the Tribunal as a whole it is necessary to assure the representation of the principal legal systems of the world and equitable geographical distribution; there shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations (African States, Asian States, Eastern European States, Latin American and Caribbean States, and Western European and Other States). Members are elected for nine years and may be re-elected; the terms of one-third of the members expire every three years. Noteworthy members include President Dr P. Chandrasekhara Rao from India, Vice-Presidents Dr Nelson from Grenada, Dr Caminos from Argentina and David Anderson from the United Kingdom.

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Disputes Chamber (provides advisory opinions only), the Chamber for Marine Environment Disputes and, at the request of Chile and the European Community, a Special Chamber to deal with the Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community).88

The jurisdiction of the Tribunal comprises all disputes submitted to it in accordance with UNCLOS III. It also extends to all matters specifically provided for in any other agreement that confers jurisdiction on the Tribunal.89 To date, applications have been made for the tribunal to hear ten cases.90

Of great relevance to the case study is the decision in the Dispute concerning Southern Bluefin Tuna, published in December 2001.91 Agreements (as discussed in Chapter 9) regarding fishing licences in the

87 See the International Tribunal for the Law of the Sea website: http://www.itlos.org/start2_en.html. 88 On the request of Chile and the European Community, the International Tribunal for the Law of the Sea, by an Order dated 20 December 2000, formed a Special Chamber to deal with their dispute concerning the conservation and sustainable exploitation of swordfish stocks in the South-Eastern Pacific Ocean. This Special Chamber consists of President Chandrasekhara Rao, Judges Caminos, Yankov and Wolfrum, and ad hoc Judge Orrego Vicuña. President Rao will preside over the Chamber. The Special Chamber will be called upon to decide, among other things, whether the European Community has complied with its obligations under the United Nations Convention on the Law of the Sea to ensure the conservation of swordfish in the fishing activities undertaken by vessels flying the flag of any of its Member States in the high seas adjacent to Chile’s exclusive economic zone; whether the Chilean Decree which purports to apply Chile’s conservation measures relating to swordfish on the high seas is in breach of the United Nations Convention and whether the “Galapagos Agreement” of 2000 was negotiated in keeping with the provisions of the UN Convention. 89 UNCLOS III, Article 288 par 1; Statute of the International Tribunal for the Law of the Sea, Article 21. Limitations on and exceptions to the applicability of the compulsory procedures entailing binding decisions (Convention, Part XV, section 2) are contained in Articles 297 and 298 of the Convention (declarations made pursuant to Article 298). Any dispute belonging to the categories referred to in Articles 297 and 298 of the Convention may, nevertheless, be submitted to the Tribunal if the parties to the dispute so agree. 90 The M/V "SAIGA" Case (Saint Vincent and the Grenadines v Guinea), Prompt Release; The M/V "SAIGA" (No 2) Case (Saint Vincent and the Grenadines v Guinea); Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional Measures; The "Camouco" Case (Panama v France), Prompt Release; The "Monte Confurco" Case (Seychelles v France), Prompt Release; Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community); The "Grand Prince" Case (Belize v France), Prompt Release; The "Chaisiri Reefer 2" Case (Panama v Yemen), Prompt Release ; The MOX Plant Case (Ireland v United Kingdom), Provisional Measures. A majority of these cases have dealt with prompt release of vessels participating in unauthorised fishing activities.

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Significant commercial harvesting of the Southern Bluefin Tuna began in the early 1950’s. Australia, Japan and New Zealand agreed to a global total allowable catch (“TAC”)92 in 1985. Despite the catch limits, the ‘parental’ stock continued to decline. Following the ratification of a 1993 Convention for the Conservation of Southern Bluefin Tuna, to which Australia, Japan and New Zealand are all parties, a Commission for the Conservation of Southern Bluefin Tuna was established. The Commission (in which all three parties were members) decides, with the assistance of a Scientific Committee, a TAC and its distribution among the member States. This Commission is similar in nature to the South Atlantic Fisheries Commission which will be discussed in detail in Chapter 9.

Starting in 1995, Japan proposed an increase in the TAC, but no agreement was reached. In 1998, Japan undertook what it described as experimental fishing. In their requests to the Tribunal, Australia and New Zealand claimed that this was essentially for Japanese commercial purposes, with minimal scientific gain, thereby increasing the risk to the Southern Bluefin Tuna stock.93

The dispute94 therefore concerned the conservation of the population of Southern Bluefin Tuna.95 The species was, according to the applicants

91 See the website of the International Tribunal for the Law of the Sea: www.itlos.org/news/press_release/ 1999/press_release_24_en.doc. 92 In setting a TAC, whether that TAC is to be part of a “global” quota strategy or a part of an individual quota-managed fishery, it is most unlikely, even with the best scientific advice that the production function and its variance will be calculated correctly. This has been a particular problem in quota-managed fisheries (see Section 2.1) and, for example, in New Zealand, TACs for a number of fisheries were initially set too high because of inadequate data and scientific analysis. This continues to be a problem in many fisheries where often the problem is not fully recognised, if at all; see http://www.fao.org/docrep/003/W7292E/w7292e05.htm. 93 See http://www.affa.gov.au/ministers/truss/releases/00/00153wtj.html. 94 Australia and New Zealand formally notified Japan of the existence of a dispute by Diplomatic Note delivered on 31 August 1998, which was followed by negotiations. Japan proposed to have the dispute settled by mediation, however Japan could not agree on the conditions placed by Australia and New Zealand on submitting the dispute to mediation. Subsequently, Japan notified the applicants that it was ready to have the dispute resolved by arbitration pursuant to the 1993 Convention. The applicants did not accept the Japanese proposal and instead commenced compulsory dispute resolution proceedings under Section 2 of Part XV of the

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Australia and New Zealand, significantly over-fished and below commonly accepted thresholds for “biologically safe parental biomass”.96 Australia and New Zealand claimed that Japan’s actions amounted to a failure to conserve and to co-operate in the conservation of the Southern Bluefin Tuna stock. Further, the applicants claimed that Japan, by initiating a unilateral experimental fishing programme for Southern Bluefin Tuna in 1998 and 1999, threatened serious or irreversible damage to the Southern Bluefin Tuna population. They requested an interim injunction against Japan, to immediately cease the unilateral experimental fishing of the Southern Bluefin Tuna, which they had commenced at the beginning of June 1999.

According to the requests,97 Southern Bluefin Tuna is a highly migratory fish species,98 which traverses the exclusive economic zone and territorial

United Nations Convention on the Law of the Sea: http://www.worldbank.org/icsid/bluefintuna/award080400.pdf. 95 Between Australia and New Zealand on one side and Japan on the other. 96 Australia and New Zealand filed their Requests for provisional measures with the Tribunal on 30 July 1999. The Requests are for the prescription of provisional measures (an interim injunction) by the Tribunal that Japan immediately ceases the unilateral experimental fishing of Southern Bluefin Tuna, which commenced at the beginning of June 1999. Japan filed its response to the Requests on 9 August 1999. In its response, Japan submits that the Tribunal should deny the provisional measures requested by Australia and New Zealand. The response also contains a Counter-Request by Japan for provisional measures: http://www.worldbank.org/icsid/bluefintuna/award080400.pdf. The Governments of Australia and New Zealand decided to submit their dispute with Japan to an arbitration procedure under Annex VII of the United Nations Convention on the Law of the Sea. Pending the constitution of such an arbitral tribunal, the Governments of Australia and New Zealand have requested the International Tribunal for the Law of the Sea to prescribe provisional measures (interim injunction), pursuant to paragraph 5 of Article 290 of the Convention. The Tribunal heard oral argument from the parties at five public sittings between 18 and 20 August 1999. 97 Australia and New Zealand request the Tribunal to prescribe provisional measures that: “Japan immediately cease its unilateral experimental fishing for the Southern Bluefin Tuna; Japan restrict its catch to its national quotum as last agreed, reduced by the amount taken in the course of its unilateral experimental fishing; the parties act consistently with the precautionary principle (caution and vigilance) in fishing for the Southern Bluefin Tuna pending final settlement of the dispute; the parties ensure that no action is taken to aggravate, extend or render more difficult the solution of the dispute; and the parties ensure that no action is taken which might prejudice their respective rights pending final decision of the case.”: http://www.worldbank.org/icsid/bluefintuna/award080400.pdf. 98 The Southern Bluefin Tuna (“SBT”) is a powerful fish, well suited to a long life endlessly swimming the open seas. The SBT population is thought to be one family of fish with origins in warm waters south of Java in the tropical Indian Ocean  the only known spawning area for SBT in the world. It is one of 13 other species of tuna in the Scombridae family and is related to the billfishes, which include swordfish, marlins and spearfish. Its cousins are the butterfly mackerel. An adult SBT grows to around 200 kg and over 200 cm long. Its close relative, the Northern

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UNCLOS III, to which Australia, Japan and New Zealand are all parties, requires states to settle their disputes arising under the Convention by peaceful means.100 For this purpose, they can choose the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal or a special arbitral tribunal. This choice may be exercised in a declaration when signing, ratifying or acceding to the Convention or at any time thereafter, even on an ad hoc basis for a particular case.101

The International Tribunal for the Law of the Sea has issued an Order in the Requests for the prescription of provisional measures102 in the Southern Bluefin Tuna Cases (New Zealand and Australia v Japan). The Tribunal noted that there was no disagreement between the parties that the stock of Southern Bluefin Tuna is severely depleted.103 It considered that there was scientific uncertainty regarding measures to be taken to conserve the stock. The Tribunal also considered that in the circumstances the parties should act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of Southern Bluefin Tuna. The Tribunal ordered inter alia that the parties should resume negotiations without delay with a view to reaching agreement on measures

Bluefin Tuna, Thunnus thynnus, can grow to a massive 700kg. SBT are true athletes of the ocean, one of the fastest ocean swimmers in the world, and often travel in speed bursts of up to 70 km/hr during their migrations over thousands of kilometres of ocean: http://www.nexus.edu.au/Schools/PLHS/tuna/mlfact6.htm. 99 See Ocean Law: http://www.oceanlaw.net/cases/tuna1so2.htm. 100 See Ocean Law: http://www.oceanlaw.net/cases/tuna1so2.htm. 101 For a copy of the Award see http://www.worldbank.org/icsid/bluefintuna/award080400.pdf. 102 Provisional measures are a kind of interim injunction; an order prohibiting certain behaviour pending final decision on the merits (substance) of a case. The Tribunal may prescribe provisional measures when it “considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment” (Article 290 of the United Nations Convention on the Law of the Sea). The Convention specifies that the International Tribunal for the Law of the Sea may prescribe provisional measures, if it considers that certain requirements have been met, namely that prima facie the arbitral tribunal which is to be constituted would have jurisdiction and the urgency of the situation so requires: see http://www.affa.gov.au/ministers/truss/releases/00/00153wtj.html. 103 See Ocean Law: http://www.oceanlaw.net/cases/tuna1so2.htm.

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The Tribunal prescribed five provisional measures and ordered the parties each to submit an initial report105 on the steps they have taken, or propose to take, in order to ensure prompt compliance with the measures prescribed. The Tribunal also decided that the Registrar of the Tribunal should notify all States that are involved in the fishery for Southern Bluefin Tuna that are Parties to the UNCLOS III of the Order. The Tribunal, after it had found that it had jurisdiction over the disputes, prescribed the following provisional measures:106

• Parties to prevent aggravation or extension of the dispute107 • Parties to prevent prejudice to the decision on the merits108 • Parties to keep catches to levels last agreed109 • Parties to refrain from conducting an experimental fishing programme110

104 The Order was read in open court by the President of the Tribunal, Judge Thomas Mensah. 105 The report was to be submitted not later than 6 October 1999. 106 The Requests for the prescription of provisional measures were submitted to the full Tribunal composed as follows: President Thomas A. Mensah (Ghana), Vice- President Rüdiger Wolfrum (Germany), Judges Lihai Zhao (China), Hugo Caminos (Argentina), Vicente Marotta Rangel (Brazil), Alexander Yankov (Bulgaria), Soji Yamamoto (Japan), Anatoly Lazarevich Kolodkin (Russian Federation), Choon-Ho Park (Republic of Korea), Paul Bamela Engo (Cameroon), L. Dolliver M. Nelson (Grenada), P. Chandrasekhara Rao (India), Joseph Akl (Lebanon), David Anderson (United Kingdom), Budislav Vukas (Croatia), Joseph Sinde Warioba (United Republic of Tanzania), Edward Arthur Laing (Belize), Tullio Treves (Italy), Mohamed Mouldi Marsit (Tunisia), Gudmundur Eiriksson (Iceland), Tafsir Malick Ndiaye (Senegal), and Judge ad hoc Shearer (Australia). Vice-President Wolfrum, Judges Caminos, Marrotta Rangel, Yankov, Anderson and Eiriksson appended a joint declaration to the Order of the Tribunal. Judge Warioba appended a declaration. Judges Laing and Treves appended separate opinions. Judges Yamamoto and Park appended a joint separate opinion. Judge ad hoc Shearer appended a separate opinion. Judges Vukas and Eiriksson appended dissenting opinions. 107 By 20 votes to 2, the Tribunal decided that Australia, Japan and New Zealand shall each ensure that no action is taken which might aggravate or extend the disputes submitted to the arbitral tribunal. 108 By 20 votes to 2, the Tribunal decided that Australia, Japan and New Zealand shall each ensure that no action is taken which might prejudice the carrying out of any decision on the merits which the arbitral tribunal may render. 109 By 18 votes to 4, the Tribunal decided that Australia, Japan and New Zealand shall ensure, unless they agree otherwise, that their annual catches do not exceed the annual national allocations at the levels last agreed by the parties of 5,265 tonnes, 6,065 tonnes and 420 tonnes, respectively; in calculating the annual catches for 1999 and 2000, and without prejudice to any decision of the arbitral tribunal, account shall be taken of the catch during 1999 as part of an experimental fishing programme. 110 By 20 votes to 2, the Tribunal decided that Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a catch of Southern Bluefin Tuna, except with the agreement of the other

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• Parties to resume negotiations111 • Parties to seek agreement with others engaged in fishing for Southern Bluefin Tuna.112

The St Pierre and Miquelon Arbitration

There is currently no evidence that the Falkland Islands or their surrounding maritime zones contain metalliferous minerals of economic value.113 Chapter 9 discusses the mineral exploration occurring in the maritime zones around the Falkland Islands. In that context the St Pierre and Miquelon Arbitration114 is of great relevance to the case study. St Pierre115 and Miquelon116 are French Islands117 lying off the south coast of Newfoundland, Canada. As a result of licences being issued for hydrocarbon exploration by both France and Canada, a dispute arose over the delimitation of the EEZ and Continental Shelf between these islands and Canada’s mainland.118 The parties negotiated unsuccessfully for nearly three decades before signing an agreement to arbitrate the dispute. Canada claimed that the Islands were not entitled to an EEZ. Even after Canada declared its own EEZ in January 1977, it argued that the French Islands were only entitled to a twelve-mile territorial sea. France maintained their right to an EEZ and declared one in February 1977.119

parties or unless the experimental catch is counted against its annual national allocation. 111 By 21 votes 1, the Tribunal decided that Australia, Japan and New Zealand should resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of Southern Bluefin Tuna. 112 By 20 votes to 2, the Tribunal decided that Australia, Japan and New Zealand should make further efforts to reach agreement with other States and fishing entities engaged in fishing for Southern Bluefin Tuna, with a view to ensuring conservation and promoting the objective of optimum utilization of the stock. 113 See the Falklands Islands Government website: http://www.falklands.gov.fk/10h.htm. 114 Canada/St Pierre and Miquelon 95 ILR 645 at 646. 115 This Island is one of the Seychelles Inner Islands. It is a tiny tropical island part of the Curieuse National Park. 116 The islands are about 15 miles south of Newfoundland, about 800 miles North-East from Boston, and are at the top of the Saint-Pierre Banks near the Grand Banks of Newfoundland. 117 The islands are part of the French Republic. A specific series of institutions have been created and limited autonomy has been granted by France: see http://www.st-pierre-et-miquelon.com/edescript.html. 118 Harris, Cases and Materials on International Law (5th ed 1998) at 461-467. 119 Harris, Cases and Materials on International Law (5th ed 1998) at 461-467.

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In 1987, the Parties signed an agreement setting quotas for various fisheries and to negotiate an arbitration agreement.120 France maintained that the proper way to delimit the Continental Shelf and EEZ between the two nations was by using the principles of equidistance.121 Canada maintained that France was not entitled to claim an EEZ at all, so there was no need to consider further the issue of the delimitation.122

The Arbitration Court considered that geographical factors were at the nucleus of the delimitation process and were of primary importance in determining the appropriateness of using the equidistance123 or any other principle. Both parties to the arbitration did accept that a single delimitation line was appropriate in this circumstance.124 The parties agreed that the fundamental norm to be applied in this case would require the delimitation to be effected in accordance with equitable principles, or equitable criteria taking account of all the relevant circumstances, in order to achieve an equitable result.125

120 Harris, Cases and Materials on International Law (5th ed 1998) at 461-467. 121 Canada/St Pierre and Miquelon 95 ILR 645 at 646. 122 Canada appears to have based this claim on Article IV of the Treaty of Versailles of 1783 in which the King of Great Britain ceded the islands to France providing that: “… in ceding the Islands of St Pierre and Miquelon to France, [Great Britain] regards them as ceded for the purpose of serving as a real shelter to the French fishermen and in full confidence that those possessions will not become an object of jealousy between the two nations”. The court did not accept the argument that this limited France’s entitlement to claim maritime zones around the Islands. The phrase “real shelter” had not been interpreted to limit the development of settlements on the islands since the treaty was signed. Nor did the court interpret the term “an object of jealousy” to mean the legal rights to France should be denied because of jealousy: 95 ILR 645 at 667. 123 This principle was discussed in the North Sea Continental Shelf Cases (FDR/Denmark/The Netherlands) (1969) at 4 par 47: The conclusion drawn by the court from the … analysis is that the notion of equidistance as being logically necessary, in the sense of being an inescapable a priori accompaniment of basic continental shelf doctrine, is incorrect. It is said not to be possible to maintain that there is a rule of law ascribing certain areas to a state as a matter of inherent and original right without also admitting the existence of some rule by which those areas can be obligatorily delimited. The Court cannot accept the logic of this view. 124 In the Case Concerning the Delimitation of the Maritime Boundaries in the Gulf of Maine Area (1984) ICJ Reports 4, a Chamber of the International Court of Justice said that “there is certainly no rule of International Law to the contrary, and, in the present case there is no material impossibility in drawing a boundary of this kind.” In that case the court drew a single boundary to delimit the EEZ’s and Continental Shelf between the United States and Canada. 125 Canada/St Pierre and Miquelon 95 ILR 645 at 665.

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Access to and control over the fisheries in the area were central to the dispute over delimitation of the area.126 However, the parties agreed that geographical factors were the primary criteria to be considered in the delimitation. The Court was not asked to apportion resources on a needs basis.127 The Court, however, felt bound128 to consider whether their wording was “radically inequitable”.129 While both parties had issued exploration permits in overlapping areas, no drilling had been undertaken.130 For this reason the Court determined that mineral resources were not relevant to the delimitation.131

The Arbitration Court determined that the delimitation should be based on geographical factors. Among these was the proportion between the length of the affected Canadian and French coasts. The Court found this proportion to be 15.3 to 1.132 The Court followed the view of the International Court of Justice in the Libya-Malta Case133 in saying that there was no reason that a test of proportionality of their decision should not be employed to verify the equity of a delimitation. In that case, the Court found that there were practical difficulties in applying the test. In particular, it was difficult to identify the relevant coasts.134 The Court therefore based its delimitation on the geography of the coasts and ensured that their decision was proportional and equitable.135

Eritrea/Yemen Arbitration

126 Harris, Cases and Materials on International Law (5th ed 1998) at 461-467. 127 Canada/St Pierre and Miquelon 95 ILR 645 at 675 par 83. 128 Canada/St Pierre and Miquelon 95 ILR 645 at 675 par 84. 129 This term was used by the Chamber in the Case Concerning the Delimitation of the Maritime Boundaries in the Gulf of Maine Area (1984) ICJ Reports at 4 par 237. The Court defined this phrase as, “likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the parties concerned”. 130 Canada/St Pierre and Miquelon 95 ILR 645 at 675 par 89. This is the case in the maritime zones around the Falkland Islands. 131 Harris, Cases and Materials on International Law (5th ed 1998) at 461-467. 132 Canada’s coast is 455.6 nautical miles and the French Island’s is 29.85 nautical miles. 133 Continental Shelf (Libya/Malta case) (1985) ICJ Reports at 53 par 74. 134 Continental Shelf (Libya/Malta case) (1985) ICJ Reports at 53 par 33. 135 Harris, Cases and Materials on International Law (5th ed 1998) at 461-467.

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The maritime boundary dispute between Eritrea/Yemen as referred to the Permanent Court of Arbitration136 is also of great relevance to the case study in this thesis. The dispute, while it related to maritime delimitation and questions of sovereignty, centered on the natural resources in the area.137

The decision by the Permanent Court of Arbitration, confirmed that the traditional fishing regime is not limited to the territorial waters of the islands

136 The decision was given in London on 9 October 1998: http://www.lawschool.cornell.edu/library/pca/ER-YEchap3.htm. 137 Eritrea contended that "if this regime is to be perpetuated, the Parties must know what it is and where it holds sway in a technically precise manner". Furthermore, they characterized this regime "as a sort of servitude internationale falling short of territorial sovereignty” (Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at pars 27 and 38 citing 1998 Award par 126) and proposed fulfillment of that regime by means of "the joint resource area boxes" of the mid-sea disputed islands: Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER- YEMMain.htm at pars 27–28, 32–35 and 89. The coupling by Eritrea of the traditional fishing regime and the maritime boundary delimitation was in contradiction to the views of Yemen. Yemen maintained that the holding in question constituted res judicata without prejudice to the maritime boundary, that the Tribunal had not made any finding that there should be joint resource zones, that there had traditionally been no significant Eritrean fishing in the vicinity of the islands concerned and that the framework created by the 1994 and 1998 Eritrea/Yemen Agreements obviated any further need to take into account the traditional fishing regime in the maritime boundary delimitation: Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at pars 29, 36–37, 90, 110–111 and Annex II. On its part, Eritrea found these submissions as conveying the misleading impression that in a follow-up to the 1998 Award, the Parties had agreed upon arrangements to protect or preserve Eritrea's traditional rights in the waters around the mid-sea islands: Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at pars 30. In view of the voluminous fisheries evidence which was submitted by the Parties and formed the subject of their strong and differing views, the Tribunal gave the fisheries matters its careful consideration in three Chapters of the 1999 Award, namely Chapter I on The Arguments of the Parties referred to above, Chapter II on The General Question of Fishing in the Red Sea and Chapter IV on The Traditional Fishing Regime: Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at pars 20, 27–38 (Chapter I), pars 47–74 (Chapter II) and pars 87-112 (Chapter IV). In the second of those Chapters, the Tribunal found on the whole the evidence advanced by the Parties as being to a very large extent "contradictory and confusing", and as not providing any ground — whether related to the historical practice of fishing in general, to matters of asserted economic dependence on fishing, to the location of fishing grounds, or to the patterns of fish consumption by the populations — for accepting, or rejecting, the arguments of either Party on the boundary line proposed by itself or by the other Party: Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at pars 61 and 72. The Award notes that neither Party has succeeded in demonstrating that the line of delimitation proposed by the other would produce a catastrophic or inequitable effect on the fishing activity of its nationals or detrimental effects on fishing communities and economic dislocation of its nationals: Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at pars 50–51 and 59–60, citing par 50 the test of "economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage”.

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THE USE OF MARITIME NATURAL RESOURCES concerned, nor is it by its very nature qualified by the maritime zones provided for in UNCLOS III, but it operates throughout those waters beyond the territorial waters of each of the Parties, and also in their territorial waters and ports, to the extent and in the manner specified above.138 Accordingly, the Tribunal found this regime as not depending, either for its existence or for its protection, upon the drawing of the Eritrea/Yemen international maritime boundary and vice versa, nor was the drawing of this boundary conditioned by the holding of the 1998 Award concerning the regime in question.139 In doing so, the Tribunal referred to the framework for consultation of environmental issues in the 1982 United Nations Environment Program (UNEP)140 Jeddah Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment and its Emergencies Protocol. The Tribunal referred to this framework for consultation of environmental issues even though it had not been ratified by either Ethiopia or Eritrea.

Although the resource-related factors did not ultimately influence the actual course of the Eritrea/Yemen single boundary line, the Tribunal's respective holdings importantly reappraise the international legal regime governing common mineral deposits on the one hand,141 and the role of fisheries factors in equitable maritime boundary delimitation on the other. The fisheries factors in the Eritrea/Yemen Award were taken into account by the Tribunal as an inherent part of its resolution of the issue of territorial sovereignty.

The Arbitral Tribunal found itself not to be in a position to accede to Eritrea's request that it determine that "The Eritrean people's historic use of

138 Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at par 109. 139 Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at par 110. 140 The UNEP was established in 1972 and works to encourage sustainable development through sound environmental practices. Its activities cover a wide range of issues from atmosphere and terrestrial ecosystems, the promotion of environmental science and information, to an early warning and emergency response capacity to deal with environmental disasters and emergencies: http://www.unep.org. 141 Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at pars 84–87 citing inter alia the North Sea Judgement (1969) International Court of Justice Reports at 54 par 101(D)(2).

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THE USE OF MARITIME NATURAL RESOURCES resources in the mid-sea islands includes ... mineral extraction".142 The Tribunal, in any event, considered that the Parties are bound to inform and consult one another and to give every consideration to the shared or joint or unitised exploitation of any such resources.143

Analysis

This Chapter has provided the general framework necessary for the specific analysis that occurs in Chapter 9. The principles and precedents examined in this Chapter are by necessity limited to those that are of specific relevance to the case study.

For the time being, in International Law much depends on the “goodwill” of states in applying conservation regimes as the guiding principle remains the freedom of High Seas fishing. Biological unity is not recognized in International Law. The notion of the “special interest” of the coastal state in waters adjacent to its zones has not been recognized within the international community.144

International agreements provide a framework for the usage of natural resources within maritime zones. In developing laws to deal with the human uses of the ocean, the protection of ecosystems and the long-term sustenance of the resource have often been ignored. Customary law regarding the rights of ecosystems to protection is still undeveloped. There are some narrow definitions recommended by the Organization of Economic Cooperation and Development in 1974 and later adopted into several international treaties. These definitions focused only on human activities and narrowly defined terms such as “environment,” “substance,”

142 Eritrea/Yemen Arbitration 1999 Award: http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at pars 86, 96, 104 and Annex II. Yemen in answering a question put by Judge Stephen M Schwebel on 13 July 1999, maintained that the application of equitable principles to maritime delimitation did not encompass the creation or modalities of "joint resource zones" around the Yemeni islands in the manner requested by Eritrea. 143 Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm at pars 84–87, citing the North Sea Judgment (1969) ICJ Reports at 54 par 101(D)(2). 144 See Bethlehem, Fishery Conflicts around the Falkland Islands at http://users.bart/~bethlehem/endnotes.htm#bearing.

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THE USE OF MARITIME NATURAL RESOURCES and “deleterious effect” in relation to harmful effects on humans rather than the environment itself.

The standard, based upon the sic utere doctrine, is a strict one, and does not allow the balancing of values that might have been incorporated into an equitable-use standard. UNCLOS III established boundaries but left a ‘gap’ open concerning straddling stocks and highly migratory species. This created a scenario that promoted the extension of jurisdiction as the island state whose interests were potentially damaged by overexploitation on the High Sea sought to protect “their” stocks by extending their jurisdiction. The Agreement on Straddling Stocks and accompanying Code of Conduct, with the recently formed Tribunal for the Law of the Sea provide ‘mechanisms’ to protect current jurisdiction.

Initially, exclusive sovereign rights were granted to assist with the establishment of effective conservation regimes. The sovereign state is under a duty to conserve as it has been granted an exclusive exploitation right in return for effective conservation. Parties to UNCLOS III are bound to co-operate in establishing conservation regimes. While the principle of equitable and reasonable utilization of shared natural resources is not a new idea in the field of International Law, its concrete placement assures Comment [TR1]: structure that it will continue to receive attention in the process of the development of modifications agreements.

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CHAPTER NINE

NATURAL RESOURCES AROUND THE FALKLANDS

CONTENTS

FISHERIES...... 153 1986 PROCLAMATION ...... 155 1990 PROCLAMATION ...... 156 1990 JOINT STATEMENT ...... 157 CO-OPERATIVE MEASURES ...... 159 OIL AND MINERAL RESOURCES...... 163 DESIGNATED AREA AND DIVISIONS ...... 167 LEGISLATION ...... 171 EXPLORATION LICENCES ...... 171 ENVIRONMENTAL CONSIDERATIONS ...... 172 ANALYSIS ...... 174

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There is a tide in the affairs of men, which taken at the flood, leads on to fortune; omitted, all the voyages of their life is bound in shallows and in miseries. On such a full sea we are now afloat, and we must take the current when it serves, or lose our ventures.1

This Chapter examines the sovereignty exercised by the Falkland Islands over the natural resources within the maritime zones that have been delimited (as analysed in Chapter 7). It investigates how the general Comment [TR1]: This is principles that have been developed (as analysed in Chapter 8), regarding Chapter 8? the extent of the use of the maritime natural resources, have been applied in the context of the Islands.

The environment around the Islands consists of various forms of marine and animal life. Animal life includes the wild fox, different species of birds and different kinds of penguins. Specifically, some of the birds inhabiting the Islands throughout the year include the peregrine falcon, the Falkland pipit, and the carcara breed. Some of the different breeds of penguins 2 Comment [TR2]: This means include the Gentoo and the Magellanic. that one breed is called ‘the King and Macaroni’? Or perhaps ‘ … Magellanic, the King and the Macaroni.’? Generally, there are a number of environmental agreements in place concerning the region of the Islands. These include the Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964); the Convention for the Conservation of Antarctic Seals (1972); and the Convention on the Conservation of Antarctic Marine Living Resources (1980).3

Fisheries

The fishing potential of the waters around the Falkland Islands is considerable, although commercial fishing in the South-West Atlantic only commenced in the early 1970's.4 Selling fishing quota licenses for the

1 William Shakespeare, “Julius Ceasar”. 2 Http://oneworld.org/gemini/wk39_gemini_malvinas.html. 3 Http://gurukul.ucc.american.edu/ted/falkoil.htm. 4 See the Falkland Islands Government website: http://www.falklands.gov.fk/10e.htm.

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Falkland Islands Conservation and Management Zone (FICZ) has, in effect, made the Falkland Islands economically self-sufficient.5

In cooperation with the Argentinean Government, conservation measures have been put in place by the Falkland Islands Government to ensure the continuing economic viability of the resource within the region. A Food and Agriculture Organisation (FAO)6 Working group concluded7 in 1983 that overfishing on the Patagonian Shelf and other waters adjacent to the Argentine continental shelf had seriously damaged fish stocks in the EEZ.8 As well as being a primary income source for the Falkland Islands, fishing is now also Argentina’s main export.9

A number of the major marine species in the maritime zones of the Islands are straddling stocks. For example, half of the world stocks of Shortfin squid10 — a straddling stock — spawn in the maritime zones around the Islands. Chapter 8 analysed the Agreement on Straddling Fish Stocks and Highly Migratory Species. The squid migrates in a clockwise direction from

5 In 1987, the Falkland Islands Government began selling fishing licenses to foreign trawlers operating within the Falklands exclusive fishing zone. These license fees totalled more than $40 million per year and supported the island’s health, education, and welfare system: see the Falkland Islands Government website at http://www.falklands.gov.fk/10e.htm. 6 The Food and Agriculture Organization of the United Nations was founded in 1945 with a mandate to raise levels of nutrition and standards of living, to improve agricultural productivity and to better the condition of rural populations. Today, the FAO is one of the largest specialized agencies in the United Nations system and the lead agency for agriculture, forestry, fisheries and rural development. An intergovernmental organization, the FAO has 183 member countries plus one member organization, the European Community. Since its inception, the FAO has worked to alleviate poverty and hunger by promoting agricultural development, improved nutrition and the pursuit of food security — defined as the access of all people at all times to the food they need for an active and healthy life. A specific priority of the Organization is encouraging sustainable agriculture and rural development, a long-term strategy for increasing food production and food security while conserving and managing natural resources. The aim is to meet the needs of both present and future generations by promoting development that does not degrade the environment and is technically appropriate, economically viable and socially acceptable: see http://www.fao.org/UNFAO/e/wmain-e.htm. 7 See, Food and Agriculture Organisation, Working Paper; UN Doc.A/AC 109/878, 6 August (1986) Falkland Islands (Malvinas). 8 Meltzer, Global Overview of Straddling and Highly Migratory Fish Stocks, Ocean Development and International Law, vol. 25 at 274. 9 The catches within the Argentine area in 1981 were measured at 350,000 metric tons and increased to 692,000 metric tons in 1992. The Argentine Government has tried to find a way of maintaining the high levels of exports in fish while protecting the resource within the same area: see http://www.falklands.gov.fk/10e.htm. 10 See, for example: Wilson, Illex coindetii. Broadtail Shortfin squid. Marine Life Information Network: Biology and Sensitivity Key Information Sub-programme (1999) Plymouth: Marine Biological Association of the United Kingdom.

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Argentina to the High Seas, then into the Falkland maritime zone and then returns to Argentine waters.11 Therefore, special environmental considerations must be taken into account to ensure the protection of the vulnerable but commercially very valuable natural resources on the Patagonian Shelf.12

1986 Proclamation

In 1986, for the first time, the United Kingdom recognised the need for conservation of the resources within the Island’s maritime zones.13 By proclamation, the government established the 150-nautical-mile FICZ. As discussed in Chapter 7, this zone was created as an initial response to the increasing levels of uncontrolled fishing in the proximity of the Islands. The practical effect of the proclamation was to reduce the number of fishing vessels operating within the area.14 The zone became effective on 1 February 1987.

11 Half the world’s stock of Shortfin squid spawns in the Southwest Atlantic; on maturing it migrates to the High Sea where it is caught. During the most vulnerable stage in its life cycle, the squid is in the High Seas. The squid has a life span of one year, which means that overfishing by unregulated vessels outside the FICZ significantly depletes the stocks. See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 12 For example, increases in High Sea catches of squid after 1989 resulted in a near collapse of the stocks of Shortfin squid. This endangered not only the fish stocks but also the economic situation of the Falkland Islands: Meltzer, “Global Overview of Straddling and Highly Migratory Fish Stocks”, Ocean Development and International Law, vol. 25 at 274. 13 Proclamation No 4 of 1986: Interim Fishery Conservation And Management Zone: “1. There is established for the Falkland Islands an interim fishery conservation and management zone, hereinafter referred to as “the Zone”. 2. The Zone will have as its inner boundary the outer limits of the territorial sea of the Falkland Islands and has as its seaward boundary the line formed by the circumference of a circle with a radius of 150 nautical miles and its centre at latitude 51o 40' S, longitude 59o 30' W, except that between the points on that circumference situated at latitude 52o 30' S, longitude 63o 19.25' W and latitude 54o 08.68' S, longitude 60o 00' W the seaward boundary shall be a rhumb line. 3. The seaward boundary of the Zone may be varied by means of a further Proclamation for the purpose of implementing any agreement or arrangement with another state or states or an international organization or otherwise. 4. Her Majesty will exercise the same jurisdiction in respect of the conservation of living resources and the management of fisheries in the Zone as she has in respect of those matters in the territorial waters of the Falkland Islands subject to such provision as may hereafter be made by law for the conservation of living resources and management of fisheries within the said Zone.” 14 The number of vessels fishing around the Falkland Islands was reduced to approximately 200, whereas 600 had been recorded in previous years, because all vessels fishing within the Zone now require a Licence from the Falkland Islands Government: see http://www.falklands.gov.fk.

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1990 Proclamation

In a further Proclamation on 26 December 1990, the Government of the United Kingdom recognised the need for greater conservation measures in the maritime areas surrounding the Islands. The 1986 FICZ was extended to the north, east and south of the Falkland Islands, creating the Falkland Islands Outer Conservation Zone (FOCZ) to improve the regulation of fishing beyond the 150-mile outer limit of the FICZ.15 Therefore, this proclamation extended the area within which licenses are required. Several conservation measures were implemented within the zone, the principal one being the issuance of licences to individual vessels to fish there — these are set out in the Fisheries (Conservation and Management) Ordinance 1986 (UK).16

15 The proclamation states as follows: “1. There is established for the Falkland Islands an outer fishery conservation zone, hereinafter referred to as 'the Outer Zone'. 2. The Outer Zone has its limits and lines defined in the schedule to this Proclamation. 3. The outer limits of the Outer Zone may be varied by means of a further Proclamation for the purpose of implementing any agreement or arrangements with another state or states or an international organisation or otherwise. 4. Her Majesty will exercise the same jurisdiction in respect of fisheries in the Outer Zone as she has in respect of fisheries in the territorial sea of the Falkland Islands subject to such provision as in force or may hereafter be made law for those matters within the territorial sea and the Outer Zone.” 16 The ordinance contains the following provisions: 1. Citation and commencement 2. Interpretation 3. Fishing waters 4. Fishing prohibited without a licence 5. Notification of fish on board by fishing boats entering fishing waters 6. Stowage of gear 7. Trans-shipment and export of fish prohibited without a licence 8. Manner of exercising of licensing powers 9. Director of Fisheries and Fisheries Protection Officers 10. General powers of Fisheries Protection Officers 11. Release of boat or thing if no proceedings instituted 12. Security for release of fishing boat 13. Indemnity 14. Obstruction of Fisheries Protection Officers 15. Offences, penalties and proceedings 16. Jurisdiction of Summary and Magistrates Court 17. Forfeiture of licence 18. Administrative penalties for minor offences 19. Detention or forfeiture of fishing boat on failure to pay or secure fine 20. Regulations 21. Restriction of application of Fisheries Ordinance Cap 27 and Saving.

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1990 Joint Statement

The Governments of the UK and Argentina issued a Joint Statement on 2 November 1990,17 the effect of which was to establish the South Atlantic Fisheries Commission (“SAFC”). The Statement18 begins by referring to the formula of sovereignty agreed to by Argentina and the United Kingdom in the Joint Statement issued in Madrid on 19 October 1989, namely:19

That nothing in the 1990 Joint Statement is to be interpreted as a change in the position of either side on the question of sovereignty or territorial and maritime jurisdiction over the Falklands in the surrounding maritime areas and that no act or activity carried out in consequence of the Joint Statement is to constitute a basis for inferring, supporting or deriving the position of either party.

The SAFC is composed of delegations from Britain and Argentina with the participation of observers from the Falkland Islands as a part of the British delegation. The role and functions of the Commission are to assess the state of fish stocks in the Commission area, collect and analyse information from both parties on the operations of the fishing fleets, to make proposals on joint scientific research and to make recommendations for the conservation of the most significant offshore species.20 The first meetings took place in Buenos Aires and London in 1991 and since then meetings have been held at regular intervals.21

17 Joint Statement on the Conservation of Fisheries between the Government of the Argentine Republic and the Government of the United Kingdom of Great Britain and Northern Ireland. 18 The Joint Statement is reproduced at (1991) 17 LOSB at 22. 19 Warbrick and McGoldrick (Eds), Falkland Island’s — Maritime Jurisdiction and Cooperative arrangements with Argentina (1997) vol. 46, International and Comparative Law Quarterly at 464. 20 See the Guide to International Fisheries Law: http://www.oceanlaw.net/docs/ficz- sum.htm. 21 “On 23 and 24 November 1992, the fourth meeting of the SAFC took place. At that meeting it was agreed that joint scientific research would be conducted between the two nations. There was also a lengthy discussion regarding the granting of licenses by Argentina to Japanese vessels that, it was alleged, were overfishing the Argentine EEZ. It was also alleged by the Falkland Islands Government that Argentina had offered these Japanese vessels half-price licences and that the license entitled them to fish for seven months. In the Falkland zones, the fishing season was limited to three months: General Assembly document: A/AC 109/1168, 13 July 1993 at par 36–37. During the fifth meeting, the Argentine delegation to the SAFC agreed to authorize only 45 fishing licenses. The primary concern at this meeting, as stated by the Falklands’ Director of Fisheries, was that vessels denied fishing permits would continue fishing outside the zones on the high seas and may even be

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The formation of the SAFC was an attempt to deal with the complex balance between conservation and financial revenue.22 Formally, the SAFC was created to oversee the maritime area between latitudes 45° South and 60° South.23 Therefore, in the South-West Atlantic, the SAFC24

illegally infringing the two EEZs. The length of the fishing season was also an issue at this meeting. At the seventh meeting of the SAFC, Argentina and the United Kingdom agreed to enforce limits on catches for the 1994/1995 season. Argentina unilaterally limited its catch of Shortfin squid to 220,000 metric tons for a maximum of 80 foreign vessels. In the Falkland Islands Zone a limit would be enforced of 150,000 metric tons. In 1994, both countries closed the fishing season three months earlier than usual. In April 1995 at the next (eighth) SAFC meeting, the respective delegations in the commission could not agree on quotas for the 1995/1996 season. The Falkland Islands Newsletter reported the cheap sale of licenses and “thinly veiled threats” by Argentina to fish the overexploited squid21. It was feared that a deteriorated economy, owing to a loss of revenue from the sale of quota licenses, would make the Falkland Islands dependent on development and support funds from the United Kingdom. This could make the Falkland Islands vulnerable to sovereignty demands as London might not be willing to pay that price for continued sovereignty. In the meeting of the Commission on 20–21 November 1995, the Commission recognized that the stocks of Shortfin squid had dropped to dangerously low levels. The Commission recommended immediate action and also welcomed the Agreement on Straddling Stocks and Highly Migratory Species. In December 1995 and January and February of 1996, informal talks were held in London between Argentina and the United Kingdom over the Islands, but these failed after the Royal Navy arrested an Argentine-flagged vessel — the Antarctica III — close to South Georgia. The Argentine side claims the vessel was forced to buy a license: Latin America Weekly, 21 March 1996 at 122. The diplomatic disagreement escalated as Argentina asserted that this was an implicit recognition of British sovereignty over South Georgia and the other dependencies islands in the Southwest Atlantic and that Argentina did not recognize the 200-mile EEZ around the islands. Another incident occurred on 7 March when a Royal Navy ship arrested a Chilean vessel. Argentina warned that the bilateral fishing agreement was in jeopardy. On 22 March 2002 the twenty-first meeting of the South Atlantic Fisheries Commission was held in London”: see Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 22 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 23 An area stretching 900 nautical miles from central Argentina to well below the tip of South America. 24 In the North Atlantic, the North Atlantic Fishery Organisation is responsible for this task. On 20 April 2001, the nations of the Southeast Atlantic (Angola, European Community, Iceland, Korea, Namibia, Norway, South Africa, United Kingdom (in respect of St Helena and its dependencies) and the US) concluded a fisheries conservation treaty which could serve as a model for the United Kingdom and Argentina Convention on the Conservation and Management of Fishery Resources in the South-west Atlantic Ocean. The treaty recognizes the duties of states to cooperate with each other in the conservation and management of living resources in the Southeast Atlantic Ocean. The Conventions objective is to ensure the long- term conservation and sustainable use of the fishery resources in the Convention Area. The Convention established the South-East Atlantic Fisheries Organisation, which comprises of the Commission, the Compliance and Scientific Committees, and the Secretariat. The Commission's functions, include identifying conservation and management needs; formulating and adopting conservation and management measures, determining total allowable catches and/or levels of fishing effort, and encouraging, promoting and coordinating scientific research on fishery resources

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The aim of the SAFC is to promote conservation measures in the relevant maritime area by the allocation of quotas.26 The Statement confirmed that this aim is to be achieved with the assistance of the best scientific research available.27 The Statement created formal diplomatic lines of communication and consultation28 and in addition provided the mechanisms for emergency meetings. Under its mandate, the SAFC can only make recommendations to each nation with respect to their respective EEZ’s.29 Non-member parties fishing on the High Seas are, of course, not bound by measures established by the SAFC.30

Co-operative Measures

In early 1992, following the recommendations by the Instituto Nacional de Investigacion y Desarrollo (INIDEP),31 and after the early

within the Convention Area and in the adjacent waters under national jurisdiction. Under the Convention, the Commission is obliged to apply widely the "precautionary approach" in conservation, management and exploitation of fishery resources. Furthermore, the Commission should exercise caution when information is uncertain, unreliable or inadequate, while the absence of adequate scientific information "shall not be used as a reason for postponing or failing to take" conservation and management measures. 25 Joint Statement (1991) 17 LOSB at 22 par 4(d). 26 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 27 The British Imperial College and the Argentine National Institute of Fishing Research and Development carry out scientific research jointly. 28 The SAFC usually meets twice yearly. 29 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 30 Meltzer, Global Overview of Straddling and Highly Migratory Fish Stocks, Ocean Development and International Law, vol. 25 at 274. 31 National Institute of Investigation and Fishing Development. Created by Argentinean Law 21673 of 1977. The objectives of the Institute are: to propose to the SAGPyA (Secretariat of Agriculture, Cattle Ranch, Fishing and Feeding) the planning of the programmes and projects of investigation referring to as fishing resources; to gain an understanding in the execution and control of sustainable economic operations; to plan and to execute studies on the improvement and development of capture systems and methods of fishing; to understand advanced technological processes and to improve their use for cultivating fishing resources; and to develop and/or to adapt technologies of cultures for aquatic organisms of commercial value.

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NATURAL RESOURCES AROUND THE FALKLANDS closure of the fishing season by the Falkland Islands, Argentina also closed early its fishing season. After the closure, Argentina detected some ships just outside its EEZ, fishing.32 In accordance with the Joint Statement, it formally requested a number of European governments to abstain from fishing in areas adjacent to its zones and to co-operate with the goal of a regional arrangement. The request was made as an appeal to the “goodwill”33 of the European states.34

Argentina and the EU35 reached an agreement regarding fishing36 in Comment [TR3]: See TR6. Buenos Aires on 30 November 1992.37 The Agreement entered into force on 24 May 1994. The Agreement allows Community vessels to fish in Argentine waters. It had an initial duration of five years with optional

http://translate.google.com/translate?hl=en&sl=es&u=http://www.inidep.edu.ar/s_bi envenida.html&prev=/search%3Fq%3DINIDEP%26hl%3Den 32 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 33 The European Union declared that it was not bound by the Argentine measures, because those measures can only be applied to the Argentine EEZ and that the requested abstention of fishing on the High Seas had no basis in International Law. However, the European Union did declare that it was prepared to co-operate in international measures regarding those straddling stocks. The Argentinean Government took no further action with regard to the issue and Article 5. 34 As a group, the nations of the European Union (EU) have a large distant-water fishing fleet. The economies of many regions within the EU, including the regions of Galicia, Andalusia and Portugal, remain dependant on the utilisation of the natural maritime resources of the high seas. Therefore, any agreements that secure the rights of EU vessels to exploit the maritime resources of a region are to their advantage. However, Argentina has traditionally closed its waters to foreign flag vessels and has tried to secure its economic interests in the straddling stocks on the Patagonian Shelf. 35 The European Union has the power to conclude treaties and agreements with other sovereign states regarding fisheries. The European Court of Justice has stated that “the only way to ensure the conservation of the biological resources of the sea both effectively and equitably is through a system of rules binding on all states concerned, including non-EC members: Cornelis Kramer and others “Biological Resources of the Sea”, Case Nos 3,4, and 6/76 at 30/33, Judgement 12 July 1976. Obtaining access to fishery grounds is an important EU objective because in some states, fishing products can represent up to 40 per cent of the animal protein intake. As has been stated above, overexploitation of the European Union waters has forced the EU to find access to new fishing grounds. Some 25 per cent of the EU catches originate in the High Seas or from waters under the jurisdiction of non-EU members: Daverede, The Fishery Agreement Between the EC and Argentina (1994) Leiden Journal of International Law, vol 7, no 1 at 13. 36 This follows from Article 116 of the EEC Treaty: “ … from the end of the transitional period onwards, Member States shall, in respect of all matters of particular interest to the common market, proceed within the framework of international organisations of an economic character only by common action”. The right of the union was recognised in the judgment in Kramer by the European Court of Justice Cornelis Kramer and others “Biological Resources of the Sea”, Case Nos 3,4, and 6/76, Judgement 12 July 1976. See Kapteyn and Verloren van Themaat, Introduction to the Law of the European Communities. 37 Daverede, The Fishery Agreement Between the EC and Argentina (1994) Leiden Journal of International Law, vol 7, no 1 at 12.

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NATURAL RESOURCES AROUND THE FALKLANDS prolongation.38 The Agreement does not foresee reciprocal access rights for the Argentine fleet, because Argentina has no distant-water fishing fleet. If European flag vessels want to fish in the Argentine EEZ, they have either to establish a joint venture with an Argentine company or to found a company in Argentina.39 This requirement has been inserted to provide for a structural overhaul of the Argentine fishing fleet.40

Additionally, the European Union will support scientific and technical Comment [TR4]: No, development and cooperation to find more efficacious and efficient ways to suggest ‘efficacious’. conserve and sustain the exploitation of maritime natural resources, in particular fishing stocks. In Protocol I, the European Community has committed 28 million (Euro) for this purpose.41 A joint Committee administers these funds. Under the Agreement, the fishing of the Shortfin squid is only allowed with squid jiggers.42 This use of “jiggers” forces a limitation on the tonnage of the event incident by-catch and will also force a decrease in the catch as this instrument is less efficient.43

Initially, Argentina proposed a comprehensive regime for zones adjacent to its EEZ.44 This was rejected by the European Community which is

38 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 39 In Protocol I of the Argentine-EU Agreement, a maximal allowable catch was allocated to fishing companies in accordance with the Agreement. The total allowable catch is 250,000 metric tons. Ninety-four thousand tons is allocated to joint ventures, the rest is reserved for European companies that have established themselves in Argentina and re-flagged under the Argentine flag. In return, the European Union will support the renewal and adaptation of the Argentine fishing fleet. Joint ventures and companies established in Argentina, as described in Article 2, are eligible for this support. Total commitments so far have been estimated at 88 million ECU, but over the five years duration of the Agreement commitments will be much higher: Daverede estimated a total commitment of 900 million $US, but others estimate the commitments at 162.5 million (Euro): See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 40 Due to older vessels and a shortage of personnel, the structural problems of the Argentine fisheries fleet and the growing importance of fish exports in Argentina, the European Union could offer support for the overhaul of the fishing fleet and support scientific research in fisheries on the Patagonian Shelf. In addition, Argentina is rewriting its economic policy by opening up its economy for foreign investment. 41 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 42 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 43 Agreement between the EC and Argentina regarding fisheries, Appendix II, k 2. 44 This reasoning seems to be inspired by the Kramer decision as referred to in footnote 39 above. That decision addressed the problem of High Seas fisheries. In summary, it asked for international binding rules to be agreed upon by all states. UNCLOS and the recent Straddling Stock Convention place High Sea fishing states

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NATURAL RESOURCES AROUND THE FALKLANDS dependent on its distant-water fishing fleet.45 Argentina now hopes that the Joint Committee established in this Agreement will enlarge its scope to the protection of stocks outside the EEZ. Emma Bonino,46 the EU fisheries Commissioner, stated that there will be no agreement if other countries are not brought in.47

In order to obtain access to more fishing grounds, the European Union also sought to conclude an agreement with the United Kingdom.48 This agreement would have included the Falkland Islands, South Georgia Islands and South Sandwich Islands.49 The draft for a fishery agreement for the British dependencies contained the same clauses as the Argentine agreement.50 In return for access to the fishing grounds off the Islands, the European Union would support the local development of fisheries and encourage scientific research.51

under a duty to conserve stocks. This goal is to be reached through regional cooperation. By insisting on bringing in other countries, the European Union is circumventing its duty to cooperate with the coastal state as given in Article 63 of UNCLOS III. In addition, it is also contrary to Article 17 of the Agreement on Straddling Stocks. Such an act of denial of the duty to cooperate would mean a breach of good faith and hence a breach of Article 18 of the Vienna Convention on the Law of Treaties. Moreover, it is a denial of biological reality that stocks straddle between High Seas and EEZ’s: See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 45 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 46 Emma Bonino, Member of the Commission — fisheries, consumer policy and European Community Humanitarian Office (ECHO); born in Bra (Cuneo) Italy, 9 March 1948; Degree in foreign languages and literature from the Bocconi University of Milan (1972); 1975 — Founder of CISA (Centro Informazione, Sterilizzazione e Aborto); to provide women with medical assistance; 1976 — Elected to the Italian Chamber of Deputies; re-elected at every subsequent election (1979, 1983, 1987, 1992, 1994). Has held offices such as that of Chairman of the Parliamentary Group of the Radical Party and Member of the Bureau of the Parliament; 1978 — Prime Mover of a referendum against nuclear energy, which resulted in the blocking of the civil nuclear power in Italy; 1979 — Elected to the European Parliament; re-elected in 1984; 1981 — Founders member and then secretary of “Food and Disarmament International”; 1987 — Promoter of international human, civil and political rights campaigns in the countries of Eastern Europe; 1991 — Active supporter of an anti-prohibition and harm-reduction policy on drugs; again, through parliamentary, referendum and civil disobedience campaigns; 1991–1993 — Chairman of the trans-national and cross-party Radical Party; 1993–1994 — Elected Secretary of the Party. See http://europa.eu.int/comm/commissioners/bonino/profile_en.htm. 47 Latin America Weekly, 24 August 1995 at 381 and see Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 48 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 49 Bethlehem, “Fishery Conflicts around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm 50 See the website of the Falkland Islands: http://www.falklands.gov.fk/home.htm. 51 8103/94 PECHE 191 - SEC(94).

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When Argentina learned of the draft agreement, it immediately protested that this would be a recognition of British sovereignty over the Islands and that Argentina would exclude the Falkland waters from their EU 52 Comment [TR5]: Does the Agreement. Argentina added that such an Agreement would also EU now have an official 53 Agreement with Agentina? establish a violation of General Assembly resolutions 31/49 and 2065 Earlier you mentioned a 'goodwill' gesture. In the (XX), which called up parties to abstain from unilateral moves that would previous para you said that the 54 EU proposed a draft fishery establish a unilateral change of the sovereignty dispute. agreement to the UK ‘containing the same clauses as the Argentine agreement’. But the concrete fact of an The draft agreement was presented as an A-point (without debate EU/Argentina agreement has no been given up this point in approved) on the Agenda of the European Council. However the draft the thesis. BTW, see footnote 34 and the main text, also TR17 agreement was withdrawn, by Spain and Italy. The United Kingdom then and its para. Comment [TR6]: Not logical formally announced that it was no longer interested in a fisheries -- if the subject had already 55 been withdrawn by Italy, how agreement with the European Union. could Spain then withdraw it? Or did those countries decide to ‘withdraw [themselves] from discussions' on this subject?

Oil and Mineral Resources

Though there is no evidence that the Falkland Islands or their surrounding maritime zones contain metalliferous minerals of economic value,56 it is possible that there could be suitable graded deposits of silica sand for glass manufacture, but such materials would probably need expensive pre-treatment.57

Potential oil and mineral discoveries would have a significant economic impact not only on the Islands, but also on the delicate ecological system in place on the still somewhat pristine environment. The Falkland Islands Legislative Council passed a Bill on 22 November 1991, which permitted licensed surveys of the Falkland Islands continental shelf. Initial surveys were conducted and the data were made available commercially.58

52 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 53 Question of the Falkland Islands (Malvinas), dated 1 December 1976. 54 See the website of the Falkland Islands: http://www.falklands.gov.fk/home.htm and Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 55 See Bethlehem, “Fishery Conflicts Around the Falkland Islands” at http://users.bart/~bethlehem/endnotes.htm. 56 See the Falklands Islands Government: http://www.falklands.gov.fk/10h.htm. 57 The only local fuel is peat. See the website of the Falkland Islands Government: http://www.falklands.gov.fk/10h.htm. 58 See the website of the Falkland Islands Government: http://www.falklands.gov.fk/10h.htm.

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The Islands may possibly have significant amounts of oil and gas reserves within the territorial waters. According to the British Geological Survey (BGS),59 approximately half of the 420,000 square kilometres of Falkland Islands’ waters contain sedimentary basins, holding concentrated areas of Cenozoic and Mesozoic infills.60 "The shallower water Malvinas basin lies to the west of the Islands in 200–500 metres of water and extends westward into the Argentine area, where there has already been some exploratory success".61

The British Geological Survey announced a 200-mile oil exploration zone around the Islands in 1993. Early seismic surveys suggested there maybe substantial reserves capable of producing 500,000 barrels per day.62 If this occurred, the Falkland/Malvinas Islands would be the largest oil-producing region in the world for the next decade.63

59 The mission of the British Geological Survey is to advance geo-scientific knowledge of the United Kingdom landmass and its adjacent continental shelf by means of systematic surveying and data collection, long-term monitoring and high- quality research; provide comprehensive, objective, impartial and up-to-date geo- scientific information, advice and services which meet the needs of customers in the industrial, engineering, governmental and scientific communities of the UK and overseas, thereby contributing to the economic competitiveness of the United Kingdom, the effectiveness of public services and policy, and quality of life; enhance the UK science base by providing knowledge, information, education and training in the geo-sciences, and promote the public understanding of the relevance of geo-science to resource and environment issues. The BGS has about 800 staff of whom over 500 are scientists with a range of governmental, commercial, industrial and managerial experience. The scientists include geologists, mineralogists, engineering geologists, palaeontologists, chemists, hydrogeologists, mathematicians, biologists, computer specialists and information technologists. This wide range of skills is essential in mounting multi- disciplinary research projects and process-oriented studies: See http://www.bgs.ac.uk/about/home.html. 60 Burns, The Land That Lost Its Heroes: The Falklands, the Post-War, and Alfonsin (London: Bloomsbury, 1987) at 223. 61 "Exploration opportunities pop up around the world" Oil and Gas Journal, 91 (1993) at 44. 62 See http://www.worldatlas.com/aatlas/samerica/facts/falkland.htm. 63 Http://gurukul.ucc.american.edu/ted/falkoil.htm.

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In 1994, at a meeting between the Argentine64 and British65 Foreign

64 It is important to understand the historical context within which this meeting took place. President Raul Alfonsin (President of Argentina between 1983 and 1989 changed the country's economic structure in the mid 1980’s. By the end of 1986, for example, the austrial was slowly devaluated to realign Argentine currency with international markets. Also, in 1986, President Sarney of Brazil and President Alfonsin signed a twelve-point protocol agreement calling for a complete elimination of all barriers to bilateral trade and to co-operate more on energy-related issues: see Burns, The Land That Lost Its Heroes: The Falklands, the Post-War, and Alfonsin (London: Bloomsbury, 1987) at 223. In May 1985, in Houston Texas, Alfonsin lobbied American oil executives to play a more aggressive role in exploring his countries' oil reserves, promising a seemingly untapped region of the world. Alfonsin's attempts to persuade these business people was founded in the assumption that without foreign investment in energy, Argentina's economy would forever lose its regional role as an economic leader in not only the Southern Cone, but in all of Latin America: Burns, The Land That Lost Its Heroes: The Falklands, the Post-War, and Alfonsin (London: Bloomsbury, 1987) at 223. During this time, Argentina was more energy self-sufficient than in the 1960’s, when approximately 60 per cent of domestically consumed oil was provided by imports. However, the major problem within the Argentine oil industry was hidden within the state-owned oil company, Yacimientos Petroliferos Fiscales. First, this company held the monopoly in this area. Second, it had no coherent energy policy. In short, the main problems were buried well below the surface, with years of corruption and neglect provided mainly by the nationalistic military regimes of the past. The Houston plan would double gas production for industry, with a 30 per cent oil production increase. Three thousand exploratory wells would be drilled, eighteen thousand other wells would be developed, and fifty thousand miles of seismic lines would be measured. The grand total for these efforts would reach twenty five billion dollars between the years 1986–2000: Burns, The Land That Lost Its Heroes: The Falklands, the Post-War, and Alfonsin (London: Bloomsbury, 1987) at 224. Alfonsin believed that his new oil policies and their start-up costs would finance themselves. However, although the State's support in exploring flexible approaches to the economy was assured, a graver problem that could impede the restructuring efforts was the financial record and organizational structure of Yacimientos Petroliferos Fiscales. At this time, the company owed five billion dollars to foreign creditors. Alfonsin slashed the company's exploration budget. 65 It is important to understand the historical context within which this meeting took place. The United Kingdom has been involved with oil exploration in Latin America for a long period. During the Second World War, Venezuelan oil supplies to Britain were vital. During the First World War Mexican oil, if not perhaps quite so crucial, was still of great importance. It is also true that mineral, and above all oil, wealth was the major focus of British foreign-policy interests in some of the South American republics until the outbreak of the Second World War: Philip, Britain and Latin America: Oil and Minerals in Britain and Latin America: a Changing Relationship, ed. Victor Bulmer-Thomas (Cambridge: Cambridge University Press, 1989) at 136. There were numerous disputes between the US and UK involving their oil interests until the 1920’s. With increasing US presence in the South American area during the twentieth century, Britain was soon a minor player in the oil market in the region. Further, state-owned companies, such as those in Mexico and Venezuela, were now rich in capital, and closely tied to the US: Philip, Britain and Latin America: Oil and Minerals in Britain and Latin America: a Changing Relationship, ed. Victor Bulmer-Thomas (Cambridge: Cambridge University Press, 1989) at 138. Burns in The Land That Lost Its Heroes: The Falklands, the Post-War, and Alfonsin (London: Bloomsbury, 1987), writing about the government in Argentina and its ties to the state-owned oil company, Yacimientos Petroliferos Fisclaes, states that: "The source of much military corruption under the juntas, it had become the only major oil company in the world to lose more money than it made. By 1986 it had accumulated a foreign debt of five billion dollars, one tenth of the national total”. Philip (1989) states that: “Latin America may become more important to British interests than it has been in the recent past. Before the turn of the century, Britain is once again likely to become a significant importer of oil; with political

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Ministry's Working Group on Falkland Island oil exploration, a report was submitted on the environmental impact of oil exploration in the South Atlantic archipelago. Environmental Resources Management (ERM),66 a UK based group, was contracted by the Falkland Islands Governing Council to study the effect of development, particularly oil, on the Islands and its community. The report called for the use of refineries based on the South American mainland, although no country was specifically named. The report stressed the fundamental change in the way of life that oil would have on the island communities. The ecology of the islands would be altered dramatically, although the impact could be somewhat alleviated by gradual changes. The development of an almost non-existent highway system and expansion of airport facilities were listed as improvements that would be required in the short term to facilitate the development of an infrastructure to exploit the resources.

The Falkland Islands Government opened an oil-licensing round in London and Houston, Texas in October 1995, so that “suitably competent and qualified companies could bid for exploration and production licences covering the offshore areas to the north and south of the Islands”.67

The citizens of the Falklands have formally indicated that they wish to preserve the unique habitat around the Islands.68 In December 1991, a UK/Argentine “high-level contact group on hydrocarbon matters” was established to exchange information and views on events in the South Atlantic as they unfolded.69 It was based upon the 1989 Madrid Declaration

conditions in the Middle East unlikely to become any easier, there may be value in assuring supplies from one or more of the Latin American exporters. The Falklands, as will be addressed later, is abundant in oil, and the British are selling off licenses for these oil blocks within its new territorial waters to the highest bidder.” 66 Environmental Resources Management is a worldwide provider of environmental services. It has over 100 offices in 35 countries and employs over 2,300 staff: see http://www.erm.com/ERM/updates/annual_report.NSF/(Page_Name_Web)/Adhoc_ ermhistory. 67 The British Geological Survey (part of the Natural Environment Research Council) and an Oil Licensing Administrator are, in conjunction, acting as consultants to the Falkland Islands Government in this matter. 68 “Environmental Impact of Oil Exploration on Falkland Islands Topic for UK/ Argentina.” International Environment Reporter Current Report 10 August (1994) vol. 17 No 16 at 682. 69 See TED Case Studies: www.american.edu/TED/FALK.HTM.

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NATURAL RESOURCES AROUND THE FALKLANDS that paved the way for the restoration of diplomatic ties.70 The principle factor in UK-Argentine relations is that no act or activity carried out by either government may constitute a basis for affirming, supporting or denying their respective positions with regard to the sovereignty of the Falkland Islands.71 Officially, the high-level contact group met four times, with much additional liaison taking place before the signing in New York of the Joint Declaration of Cooperation over Offshore Activities in the South West Atlantic on 27 September 1995.72 The Joint Declaration created a Commission charged with submitting to both Governments recommendations on the maritime environment, hydrocarbon developments and marine collaboration.73 The Commission is designated to meet at least twice per year, and to make recommendations reached by mutual agreement. The Joint Declaration also creates a new geographical Special Area of cooperation covering some 20,000 square kilometres of straddling waters controlled by both governments.74

Designated Area and Divisions

The Joint Declaration of 1995 also designated areas for the purpose of mineral and oil exploration. This Designated Area covering over 400,000 km2 is subdivided into quadrants based on one degree of latitude by one degree of longitude, each of which is subdivided into thirty blocks. The

70 See the website of the Falkland Islands Government: http://www.falklands.gov.fk/oildept2.htm. 71 See TED Case Studies: www.american.edu/TED/FALK.HTM. 72 See TED Case Studies: www.american.edu/TED/FALK.HTM. 73 Within this structure there are many issues that have presumably been considered: • a zoning approach which restricts the areas of development • the human power and financial implications of both preparing and implementing legislation regarding the zones • creating a time table for both the development of the zones and implementation of legislation considering the opportunities for cost recovery • reviewing which environmental standards for oil operation represent the best protection technologies for other regions in the world • considering the progression of oil exploration standards up until the conclusion of exploration • considering the needs of the oil industry with regards to the adoption of strict oil exploration standards • considering what kinds of regulations would be required under the oil legislation in the process of being drafted: see Wells, Butler and Hughes Eds, “Exxon Valdez Oil Spill: Fate and Effects in Alaskan Waters”, American Society for Testing and Materials, (Philadelphia, 1995) at 3–38. 74 See TED Case Studies: www.american.edu/TED/FALK.HTM.

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The Falkland Islands Government granted seven offshore Production Licences to five consortia in October 1996.76 The licensed tranches are situated in the Falkland Islands Designated Area to the North of the Islands in the North Falkland Basin where water depths range from 150 to 500 metres and the distance from the shore is between 100 and 250 kilometres. The operators of the seven licensed areas committed to an exploration expenditure of over US$150 million during the first five year phase of the licences, with an additional minimum of US$122 million provided for extra exploration during phase one in the event of success.77

75 See the website of the Falkland Islands Government: http://www.falklands.gov.fk/oildept2.htm. 76 Acreage rentals are payable annually in advance for each square kilometre of a Production Licence: See the website of the Falkland Islands Government: http://www.falklands.gov.fk/oildept2.htm. Acreage rentals rise incrementally in exploration phases two and three, but the overall cost to the licence holder is reduced through a combination of acreage relinquishments and payment discounts for wells drilled. The exploration acreage rental for the first five years is US$30 per km2. Development approval for a projected field can be sought at any time and is limited to the potential field boundaries: once development consent has been given by the Governor the exploration acreage rental on that portion of the licensed area is replaced with a rental of US$ 375,000 per annum, payable only until the first royalties are paid for production: see http://www.falklands.gov.fk/oildept3.htm. 77 Production Licences can be retained for a total period of up to 57 years composed of three exploration periods totalling up to 22 years and an exploitation period of up to 35 years. The exploitation phase may only be started subject to approval from the Governor of the Falkland Islands after the consideration of a development plan. The first exploration phase is for five years with any drilling commitment specifying the anticipated depths, the anticipated formation present and the conditional or definite status of the drilling. There is an automatic 50 per cent relinquishment of acreage at the end of the first phase. However, as well as the 50 per cent retained automatically, an additional 10 per cent can be retained for each of the first three exploration wells drilled within the first phase, and all the acreage can be retained if four or more wells are drilled. The second exploration phase of seven years allows for completion of the original work programme and includes drilling unless the agreed drilling commitment for this phase has been carried out in the first exploration phase. Again there is an automatic 50 per cent relinquishment of remaining acreage at the end of the second phase, with no additional acreage retention allowable for wells drilled during the phase. The third exploration phase of 10 years allows for further exploration and appraisal drilling. Entry to the third exploration phase requires a renewed drilling commitment on the exploration acreage, and is therefore also on a drill or drop basis. The exploration phase will last for 35 years to allow full exploitation of any resources and can be extended at the discretion of the Governor: See the website of the Falkland Islands Government: http://www.falklands.gov.fk/oildept2.htm.

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The tranches are licensed to:78

Comment [TR7]: Each map requires a title/heading. The Falkland Islands Government has stated that this Special area will be:79

… divided into six tranches, and, a sub-committee subordinate to the Commission will oversee development of the Special Area.80 Terms synonymous with sovereignty have been avoided. The Special Area mechanism offers a testing ground for collaboration in the now least-disputed part of the overall disputed area. It is envisaged that companies will operate on a joint venture basis with 50 per cent licensed by the Falkland Islands Government and 50 per cent by Argentina. Paragraph 6 of the Joint Declaration,

78 See the website of the Falkland Islands Government: http://www.falklands.gov.fk/oildept2.htm. 79 See the website of the Falkland Islands Government: http://www.falklands.gov.fk/oildept2.htm. 80 See the website of the Falkland Islands Government: http://www.falklands.gov.fk/oildept2.htm.

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requires both parties to abstain from taking action to frustrate hydrocarbon development.

Legislation

Exploration for petroleum on the Falkland Islands Continental Shelf is governed by Falkland Islands law. These provisions are independent of UK laws and regulations, however, explorers will find many similarities with the UK North Sea regime. The principal enabling legislation is the Offshore Minerals Ordinance 1994 under which the Offshore Petroleum (Licensing) Regulations (1995) prescribes model clauses for licences. The Offshore Minerals Ordinance became law in December 1994 and the Offshore Petroleum (Licensing) Regulations in September 1995.81 In November 1996 two former state energy companies, British Gas and Yacimientos Petroliferos Fiscales (YPF),82 publicly announced their intention to jointly study the hydrocarbon potential of the first licensing round.83

Exploration Licences

There is therefore a requirement under Falkland Islands legislation for all exploration companies, contracted by Production Licence holders to acquire proprietary data within the area licensed, to apply independently for

81 Exploration licences can be granted by the Governor of the Falkland Islands with the consent of the Secretary of State, under the Offshore Minerals Ordinance 1994, subject to Model Clauses in the Offshore Petroleum (Licensing) Regulations 1995 and the Petroleum Survey Licences (Model Clauses) Regulations 1992; these clauses can be varied by the Governor at his discretion where this is agreed with the licensee. These licences are designed primarily to allow service/specialist exploration companies to acquire speculative and/or proprietary seismic, gravity, magnetic, geochemical and sea-bed data. Exploration Licences are not area specific and, dependent on the details contained within the individual licences, can apply to all of the Designated Area: exceptions to this rule of applicability are that no exploration survey may be undertaken within the boundaries of a Production Licence area without the consent of the licensee, and that the licence will not extend into that part of the Designated Area incorporated within the Special Area of Co-operation to the southwest of the Falkland Islands unless by prior agreement of the Joint Commission that oversees activity in that area (see below for details of the Special Area of Co-operation). 82 YPF, the largest company in Argentina, is a company involved in the exploration and production of oil and natural gas. It also refines, markets and distributes oil and petroleum products. In July 1993, 44 per cent of YPF was offered on the New York and Buenos Aires stock exchanges, raising $3 billion for the Argentine Government. $one billion has since been raised with the sale of further 13 per cent. However, see footnote 65 above. 83 "Argentina-United Kingdom: Joint Declaration on Cooperation Over Offshore Activities in the South West Atlantic", American Society of International Law.

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NATURAL RESOURCES AROUND THE FALKLANDS an Exploration Licence from the Falkland Islands Government.84 Holders of Exploration Licences are required to supply copies of all data to the Governor of the Falkland Islands through the British Geological Survey based in Edinburgh, Scotland. All data will be held in confidence by the Falkland Islands Government for a period of five years (or longer as determined by negotiation) but may then be released to the public.85

With regard to the licensing, then Argentine President Carlos Menem86 stated in 1993 that "the contracts to prospect for and exploit oil in the South Atlantic are meaningful steps towards the recovery of Argentine sovereignty over the Malvinas Islands because problems crop up and get resolved".87 The economic importance of the Islands to these two nations derives predominantly from oil within the territorial waters as well as the fishing zones that are used by vessels of countries like Japan, Poland, and Spain.88

Environmental Considerations

84 There is a requirement that all service and/or specialist exploration companies contracted by Production Licence holders to acquire proprietary data within the geographic limits of their Production Licence area must independently hold an Exploration Licence. However, Production Licence holders do not require an Exploration Licence unless they intend to conduct surveys themselves outside the confines of their Production Licence areas. All surveys to be conducted under an Exploration Licence must be notified to the Director of Mineral Resources at least 30 days in advance of operations starting. An application for an Exploration Licence can be made at any time by submitting three completed copies of an application form obtainable from the Director of Mineral Resources, enclosing an application fee of £1,000 (cheques made payable to the Falkland Islands Government): http://www.falklands.gov.fk/dmr/legal- framework.htm#link3. 85 See the Falkland Islands Government website at http://www.falklands.gov.fk/oildept.htm. 86 On 9 July 1988, Dr Carlos Saúl Menem was elected as Governor of the province of Buenos Aires and president of the Party Justicialista Antonio Cafiero. On 14 May 1989, by popular vote, he was elected to the Argentinean Presidency. He took office as Head of State of the Republic on 8 July 1989, five months before the established date, because of the resignation of Dr Raul Alfonsin. Constitutional Reformation in 1994 allowed Dr Menem to be re-elected on 14 May 1995. The second presidential period of Dr Menem culminated on 10 December 1999. At present, Menem continues to lead the Justicialista Party, whose leadership has been conferred on him again until the year 2003: www.cidob.org/bios/castellano/lideres/m-009.htm. 87 “President Says Policy Toward Falklands Residents ‘not bad’.” BBC Summary of World Broadcasts, 26 May 1996. 88 “Exploration Opportunities pop Up Around The World” Oil and Gas Journal, 91 (1993) at 44.

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Oil companies working in the area seem have commissioned an exploration drilling environmental impact assessment (EIA), that has been made available for public comment and external review, before being approved by the Falkland Islands Government to commence drilling.89

A Falklands Exploration and Production Environmental Forum, chaired by Professor McIntyre90 of Aberdeen University, has been established to represent all interested groups, to monitor progress and recommend projects for research. A seabird-monitoring project has been identified as a priority through the Forum and is being funded by the companies involved.91

In attempting to preserve the wildlife populations of the Islands, the Falkland Islands Government has strategically voiced concern about having any shore-based oil facilities on the Islands, thus reducing the environmental impact of dealing with oil extraction.92 The intention would be that oil would be directly exported by tankers loading the oil offshore.93

The International Convention on Civil Liability for Oil Pollution Damage (“CLC”) 1969 was implemented in the Falkland Islands by Schedule 1 to the Merchant Shipping (Oil Pollution) (Falkland Islands) Order 1975.94 The Order provides uniform rules and procedures for determining questions of liability and for awarding compensation when damage is caused by pollution resulting from the escape or discharge of oil from ships. The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (the Fund Convention) 1971, was implemented in the Islands by Schedule 2 to the 1975 Order, set up an international fund to provide a supplementary system for compensation and

89 See http://www.falklands.gov.fk/oildept2.htm. 90 Professor Alasdair McIntyre CBE is currently the Emeritus Professor of Fisheries and Oceanography at Aberdeen University. He was the Director of the Fisheries Research Services for Scotland from 1983–1986. He is Vice-President of the Scottish Association for Marine Science, having been President from 1988–1993 and has served on many other national and international bodies concerned with the pollution of the seas. 91 See Http://gurukul.ucc.american.edu/ted/falk.htm. 92 See the Falkland Islands Government website at http://www.falklands.gov.fk/oildept.htm. 93 See Http://gurukul.ucc.american.edu/ted/falkoil.htm. 94 Statutory Instrument 1997 No 2584.

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NATURAL RESOURCES AROUND THE FALKLANDS indemnification for such damage.95 The 1992 Protocol to the CLC, and the 1992 Protocol to the Fund Convention respectively created a new 1992 Civil Liability Convention and a 1992 Fund Convention which together provide for higher levels of compensation and more extensive liability. The 1992 Conventions are given effect in the United Kingdom by Part VI, Chapters III and IV of the Merchant Shipping Act 1995 (UK).96 The Order extended the provisions of the 1995 Act to the Falkland Islands, with the necessary exceptions, adaptations and modifications.97

There are many more environmental policies and plans being considered by the Falkland Islands Government.98 They involve the immediate designation of sites termed sensitive or valued around the Islands with particular wildlife importance; the establishment of buffer zones for key islands and sites; further study to both identify the priorities of the Falkland Islands Conservation and the implementation of baselines that would prepare an inventory of all sites and wildlife resources; and, setting long term designations for some areas (this is a joint effort with the oil companies currently present).99

Analysis

Agreements between the United Kingdom and Argentina have promoted the effective conservation of stocks inside the respective zones of each country but also between their zones and in the neighbouring High Seas. This Chapter has outlined this co-operation, since the 1982 with regard to the maritime zones off the islands. Further agreement and co-operation is required to ensure the effective conservation of the Patagonian Shelf and the adjacent High Seas. As parties to the Convention of the Law of the Sea, the United Kingdom and Argentina are bound to co-operate in establishing

95 This Order revoked in s 4 the following Orders: The Merchant Shipping (Oil Pollution) (Falkland Islands) Order 1975 [SI 1975/2167]; The Merchant Shipping (Oil Pollution) (Falkland Islands) (Amendment) Order 1976 [SI 1976/2143]; and The Merchant Shipping (Oil Pollution) (Falkland Islands) (Amendment) Order 1981 [SI 1981/218]. 96 1995 c 21. 97 See the website of the HMSO: http://www.hmso.gov.uk/si/si1997/97258401.htm#note5. 98 See the website of the Falkland Islands Government: http://www.falklands.gov.fk/oildept2.htm. 99 See the website: www.falklands-malvinas.com and the Falkland Islands Government website at http://www.falklands.gov.fk/oildept.htm.

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NATURAL RESOURCES AROUND THE FALKLANDS such a regime. In addition to the mechanisms discussed in this Chapter, other forums such as the Joint Committee and other consultation mechanisms of the Rio-Group100 may be used in the future as a conciliation forum for the problems relating to the fishing of species around the Islands.

The Falkland Islands, the United Kingdom, the oil companies in the region and the Argentine Government are attempting to co-operate in an effort to prevent environmental catastrophes from occurring. A comprehensive system of Falkland Island national legislation for licensing, taxation, and environmental protection has been established. Relations between the UK and Argentina continue to improve. It seems as if some progress has occurred. As a beginning, the royalties from any oil and gas discoveries are to be shared. Furthermore, Argentina will have the right to survey the effects of exploration on the environment.101 The offshore oil industry has brought substantial wealth to many coastal states, but there have also been negative effects. While not advocating the abandonment of oil extraction the realities of extraction must be considered. The most important of these is the potential for damage to the marine environment caused by blow-outs from drilling operations; accidental and intentional discharges of oil from ships at sea or in port and from land-based sources such as oil refineries and factories; the discharge of sludge from the rigs and platforms; the use of sub-standard structures and the abandonment of these artificial islands. The annual spillage of oil worldwide is estimated at eight million barrels a year.102 The environmental damage caused by offshore drilling is,

100 On 16–17 December 1986, the foreign ministers of Colombia, Mexico, Venezuela, Panama, Brazil, Argentina and Peru held a meeting in Brazil, at which they decided to set up a “permanent body for political consultation and coordination” to give an impetus to the process of Latin America Integration. This group is called the “Group of Eight Countries” — also known as the “Rio Group”. In March 1990, the name of the Group was officially changed to the “Rio Group” at a meeting of the foreign ministers of seven of the countries. The group conducts consultations over the important political, economic and social issues of the Latin America areas and coordinates the positions of the member states to take corresponding actions to accelerate the development of the Latin American Integration. At present, there are 18 member countries: Argentina, Brazil, Colombia, Mexico, Uruguay, Venezuela, Chile, Ecuador, Bolivia, Paraguay, Peru, Panama, Costa Rica, Honduras, El Salvador, Nicaragua, Guatemala, and Dominica. The summit conference is convened annually. No organ is set up for handling the routine affairs, and consultative meetings of foreign ministers or ministers in charge of other special matters are held irregularly as the situation changes in Latin America. 101 See, www.falklands-malvinas.com and Falkland Islands Government website at http://www.falklands.gov.fk/oildept.htm. 102 Other oil related environmental catastrophes include:

9-176

NATURAL RESOURCES AROUND THE FALKLANDS however, less significant than that produced by the dumping of toxic wastes into the waterways that discharge into the Northern Hemisphere.103

Regardless of the sovereignty of the fishery and mineral resources around the Islands, unused resources will become more valuable in the future, Comment [TR8]: Clumsy when resources elsewhere have been exhausted. However, unused sentence? ‘Regardless of the sovereignty of the fishery and resources may be rendered uneconomic by changes in economic demand mineral resources around the Falkland Islands, resources or superseded by technological or scientific changes. which, at present, lie unused should become far more valuable in the future. Over time, currently active users of similar sources can be expected to exhaust their own supplies.’ Is this any better?

December 1989 — An Iranian tanker spills 70,000 tons (19 million gallons) of oil off the coast of Morocco. January 1990 — Broken Exxon pipeline leaked 567,000 gallons of oil into the New York Harbour. June 1990 — Tanker spills 260,000 gallons of oil in New York Harbour. June 1990 — Tanker carrying 38 million gallons of oil catches on fire; oil leaked into the Gulf of Mexico, posing a severe threat to local shrimp nurseries and wildlife refuges. February 1990 — Damaged tanker off Southern California leaks 300,000 gallons of oil. 1970 — Shell pipelines continue to burst in the Niger River delta in Nigeria; oil spilled across an area of 3 square miles, which has remained contaminated for over 20 years: Pawlowski, “The Falkland Oil Conflict” (1997) ICE Case Studies — case number 16 at http://www.american.edu/TED/ice/FALK.HTML. See also Webster's Encyclopaedia (CD-ROM Version) 1994 Helicon Publishing Ltd. 103 During 1988, large numbers of dead seals and other sea creatures were found washed up on North Sea beaches. They were, presumably, affected by pollutants discharged into the European river system. In the waters of the Persian Gulf masses of dead fish were found off Bahrain during 1991. They were victims of bacterial infection, possibly as a result of the environmental pollution caused by the oil slick and the fires deliberately lit in the onshore oil-fields of Kuwait. See European Community, Environmental Conference, Dublin 1990.

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CONCLUSION

CONCLUSION

This research commenced with the perception that there has been a Deleted: significant change in the way sovereignty over islands is determined. Since the inception of the United Nations the traditional legal notions of sovereignty have been downgraded by international interests (‘globalisation’). Increasingly, the self-determination of peoples under the United Nations Charter has become an important consideration within Deleted: International Law. That, along with global environmental issues, has i Deleted: l diminished the significance of traditional national sovereign rights. Deleted: Traditional tests, such as the discovery and occupation of islands, are no Deleted: ve longer the primary focus in the determination of sovereignty. Therefore, the concept of sovereignty has developed from a single-dimensional concept to Deleted: a multi-dimensional modern concept.

Maritime zones can be easily drawn but the sovereignty of nations within those zones are more difficult to define as changing principles and precedents impact upon the determination of sovereignty. Global issues Deleted: impact to a greater extent than ever before upon resource usage in e maritime jurisdictions. Customary international law regarding the use of resources within the maritime zones of islands on the high seas is rapidly Deleted: developing. There has been a change in the way a sovereign power can Deleted: use and exploit natural maritime resources. Current trends have placed environmental concerns higher on the list of considerations. However, Deleted: International Law is not solely about conserving natural resources. l Deleted: Fundamentally, International Law exists to promote the peace, order and Deleted: i justice between sovereign nations. It seeks an equilibrium between global Deleted: l ecological concerns and resource usage. Economic necessities require the Deleted: effective usage of maritime resources. In the Falkland’s maritime zones, Deleted: shared economic and environmental interests with regard to these Deleted: resources has led to co-operation and agreement. Unilateral action by the Falkland Islands will have a negative impact on environmental conservation in the South-West Atlantic.1 Further, the rights to the maritime resources

1 Such as the extension of zones, seizure of vessels and competition in the sale of licenses. 10-177

CONCLUSION surrounding the Islands are linked to attempts to gain additional sovereignty in the Antarctica region and its surrounding maritime zones.2

This thesis has developed a methodology for determining the sovereignty Deleted: of islands in the high seas and their maritime zones. This methodology has Deleted: i its basis in the precedents, treaties and agreements within International Deleted: Law. Essentially, the methodology is a two-part formula utilising two inter- l related questions in the determination of sovereignty over maritime zones around islands in the high seas: Within International Law, who can claim sovereignty over the land-mass adjacent to the relevant maritime zones (question 1)? If a nation has a legitimate claim to the islands themselves, Deleted: . Deleted: : what natural maritime resources can be exploited within those zones Deleted: (question 2)? These primary inter-related questions have been further Deleted: c articulated into sub-principles which have been enumerated within the Deleted: ; Chapters of this thesis.3 Deleted: c Deleted: ;

Deleted: i The first part of the thesis involved three-steps in the determination of the Deleted: l sovereignty of the island itself, geography and description (step 1 - Chapter Deleted: c 2), history (step 2 - Chapter 3) and applicable International Law precedents Deleted: p Deleted: c (step 3 - Chapter 4). The application in the second part of the thesis cannot Deleted: occur unless a definitive answer to the first question has been ascertained Deleted: p 4 (step 4 - Chapter 5). Once sovereignty of the island is determined Deleted: (question 1), the extent of the jurisdiction and the usage of resources within Deleted: c Deleted: c the maritime zones can then be established (question 2). This Deleted: determination involves the general and specific analysis that constitutes the Deleted: c four steps leading to the answer to the second question. The general Deleted: c maritime delimitation principles (step 5 - Chapter 6) must be applied to the Deleted: Deleted: - relevant case-study (step 6 - Chapter 7). The current rules relating to the Deleted: use of resources (step 7 - Chapter 8) must also be applied to the case Deleted: study (step 8 - Chapter 9). Deleted: Deleted: Deleted: 2 See, for example, “Antarctica: Polar Wilderness in Peril” National Geographic World 186 (February, 1991) at 22–27; Auchard, “Scientists Fear Antarctic Policy Deleted: Plans” Reuters BC Cycle (15 July 1993); Bendle, “Topic: Studying Antarctica” USA Deleted: Today 20 February 1989, A(9); and Boadle, “Antarctic Treaty Decides Frozen Continents Ecological Future” Reuters News Service 16 November 1990. Deleted: 3 Within each chapter the sub-headings form sub-elements to each step of the Deleted: (chapter 4) methodology. 4 Chapter 5 is the application of the international legal principles in Chapter 4 to the Deleted: c facts and background of the Falkland Islands as discussed in Chapters 2 and 3. Deleted: 10-178

CONCLUSION

Therefore, the Chapters of this thesis and their sub-headings progressively illuminate the individual elements of a distinctive formula for determining the sovereignty of islands within the high seas. Each Chapter is a step Deleted: towards the determination of sovereignty. The pace at which International with Deleted: i Law in this area evolves necessitates a thorough progression through each Deleted: l and every step. The Chapters form a template of principles, which are Deleted: , applied to the Falkland Islands. The modus operandi articulated in this thesis could be applied to new disputes involving the sovereignty of islands and their maritime zones in the high seas. The enumerated principles could be applied to disputes in this realm, such as those filed with the International Court of Justice. For example, the overlapping sovereignty claims by China, the Philippines, Vietnam, Taiwan regarding approximately 44 small islands and reefs in the South China Sea (known in the English- speaking world as the Spratly Islands), could be determined using these Deleted: principles.

Deleted: This area of international maritime law is complex and ever-evolving. This thesis has provided a methodology for navigating the intricate elements that constitute the sovereignty of islands and their maritime zones in the high Deleted: seas. Though, as Vaughan Williams LJ stated in Wren v Holt:5 Deleted:

The difficulty arises which must always exist when an Deleted: “ attempt is made to [determine] an exhaustive [methodology] of any branch of [the] law. However Deleted: able the [author] may be, when the [methodology] comes to be applied to some of the innumerable cases that must arise, there is found every now and then some case which it is impossible to suppose was in fact intended to be governed by the [methodology]. At Deleted: the same time the [methodology] purports to be exhaustive, and, therefore, it is necessary to try to treat every case as falling within it.

Deleted: - The Falkland Islands were an appropriate case study for this thesis because they are a modern example containing both the long-established Deleted: and emergent concepts of sovereignty. The conflict of 1982 was fought on the time-honoured notion that sovereignty was determined by military Deleted: power. Occupation was determinative in that conflict. However, since 1982, Deleted: 10-179

CONCLUSION disputes regarding the sovereignty of the maritime zones around the Islands have been resolved using principles that have been evolving within Deleted: i International Law. Deleted: l

Comment [TR1]: Better to Chapters Two, Three, Four and Five of the dissertation examined the use ‘chapters’ – alternatively ‘ Part 1 (Chapters 1–X) description, history and international legal principles relating to the Falkland Deleted: Islands. The title to the Islands oscillated before finally settling as a British Deleted: dependency. Originally, France held the title when it established a Deleted: settlement before ceding its rights to Spain. Subsequently, the Argentinean Deleted: title was acquired by its occupation of the Falkland’s. The United States displaced that Argentine occupation using force, but later abandoned Deleted: possession. The United Kingdom then reclaimed the territory for the second time establishing an English settlement. The United Kingdom’s possession of the Falklands was a stronger sovereignty claim — using the traditional Deleted: : determinants of sovereignty: cession, conquest, occupation and Deleted: prescription — when the invasion occurred in 1982. Deleted: ,

Furthermore, the current British claim for sovereignty also contains more recent principles now regarded as fundamental in answering the question Deleted: of ownership. For example, the inhabitants of the Islands are an Deleted: n homogenous English-speaking population who wish to remain a Comment [TR2]: ‘a’ means dependency. As Lord Shackleton stated in his 1976 Report to the House of ‘one out of several’ – suggest ‘his’. Lords on the economic prospects of the Islands,6 “the population is British Deleted: and … is firm in its desire to remain British”. According to then British Prime Deleted: i Minister, Margaret Thatcher, these “tiny, rock-strewn” islands were “still Deleted: : British and the people still wish to be British and owe their allegiance to the Deleted: Deleted: - Crown”.7 Deleted:

Comment [TR3]: Chapters Six, Seven, Eight and Nine of this dissertation analysed general See TR1 maritime zone delimitations and the use of resources within those zones, Deleted: before applying these to the Falkland Islands. Few maritime delimitations around the world would remain unaffected if they were redrawn on the Deleted: basis of claims dating back to 1833. “Borders are the physical manifestation

5 [1903] 1 KB 610 at 613-614. Deleted: 6 Freedman, Britain and the Falklands War (Blackwell, Oxford, UK: 1988) at 14. 7 The Times, 6 April 1982 at 1. Deleted: 10-180

CONCLUSION

Deleted: . of the abstract concept of the separation between nations and states.”8 In Deleted: ” the twentieth century, nations extended their borders into the high seas. Deleted: Just as on land, maritime zones “reflect a nation’s conception of its own Deleted: territorial and sovereign limits … ”.9

Deleted: ” In its use of new international treaties, recent decisions of the International Deleted: Using Court of Justice, the Permanent Court of Arbitration and the International Tribunal for the Law of the Sea, this thesis has interpreted existing Comment [TR4]: ‘It is of knowledge, principles and practice. It is a significant application, because importance to all nations, … ‘? international disputes regarding islands within the high seas and their Deleted: maritime zones are an ever-increasing issue, as nations seek to secure Deleted: , Deleted: , their natural resources in a finite world. Deleted:

8 Sumartojo, Borders and Conflict in Southeast Asia and China at http://www.utexas.edu/depts/grg/ustudent/gcraft/fall96/rini/projects/fall96/borders.ht ml. Deleted: 9 Sumartojo, Borders and Conflict in Southeast Asia and China at http://www.utexas.edu/depts/grg/ustudent/gcraft/fall96/rini/projects/fall96/borders.ht ml. Deleted: 1

BIBLIOGRAPHY

BIBLIOGRAPHY

CONTENTS

CASES...... 2 MONOGRAPHS ...... 5 DICTIONARIES & ENCYCLOPAEDIAS ...... 8 JOURNAL ARTICLES ...... 8 NEWSPAPER ARTICLES...... 11 INTERNATIONAL AGREEMENTS ...... 11 INTERNET...... 12 LEGISLATION...... 14 REPORTS...... 16 MISCELLANEOUS ...... 17

2

BIBLIOGRAPHY

Cases

A Raptis & Son v South Australia (1977) 138 CLR 346

Advisory Opinion on Western Sahara (1975) ICJ 12

Anglo-Norwegian Fisheries Case [1951] ICJ Reports 116

The Anna (1805) 5 C Rob 373

Arkansas v Tennessee 310 US 563 at 570 (1940)

Barclays Bank Ltd v Brassey [1955] 1 All ER 577

Beagle Channel case, HMSO 1977 52 ILR 93 Formatted

Bonser v La Macchia (1969) 122 CLR 177

Re Brassey’s Settlement; Allnutt, In re; Pott v Brassey (1882) 22 Ch D 275 (Ch D 16/11/1882)

Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520

"Camouco" Case (Panama v France), Prompt Release, 7 February 2000

Campbell v Hall (1774) 98 ER 1045

Cantley v Queensland (1973) 1 ALR 329

Case Concerning the Delimitation of the Maritime Boundaries in the Gulf of Maine Area (1984) ICJ Reports 4

Canada/St Pierre and Miquelon 95 ILR 645

Case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) Judgment ICJ Reports 1999

Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) CR 93/1

Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [2000] 22 ICJ (29 June 2000)

Case concerning the Maritime Delimitation (Tunisia/Libyan Arab Jamahiriya) Judgement ICJ Reports 1981

Case concerning Passage through the Great Belt Request for the Indication of Provisional Measures (Finland v Denmark) CR 91/10

Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment of 15 June 1962, ICJ Reports 1962

"Chaisiri Reefer 2" Case (Panama v Yemen), Prompt Release

Chen Yin Ten v Little [1976] WAR 161

Clipperton Island (France v Mexico) January 28 (1931) 26 American Journal of International Law 390 (1932)

Commonwealth v Mewett (1997) 191 CLR 471

Continental Shelf (Libyan Arab Jamahiriya/Malta) (1985) ICJ Reports

Continental Shelf (Libya/Malta case) (1985) ICJ Reports 3

BIBLIOGRAPHY

Continental Shelf Case (Tunisia v Libya) ICJ Report 1982 18

Cooper v Stuart (1889) 14 AC 286

Cornelis Kramer and others “Biological Resources of the Sea”, Case Nos 3,4, and 6/76 at Formatted 30/33, Judgement 12 July 1976

Corfu Channel Case (UK v Albania) (Merits) ICJ Rep 1949 4

The Dusseldorf (1920) AC 1034

Eastern Greenland Case PCIJ Rep, Series A/B, No 53 (1933)

Ed Johnson, Appellant v The State of Tennessee

Eritrea/Yemen Arbitration: www.lawschool.cornell.edu/library/pca/ER-YEMMain.htm

Fisheries Case (UK v Norway) 1951 ICJ 116 (Judgment of 18 December) Deleted:

Fisheries Jurisdiction Case (UK v Iceland) (Jurisdiction) ICJ Rep 1973 3

Gatward v Alley (1940) 40 SR (NSW) 174

The Grisbadarna case, 11 RIAA 147 (1909) Formatted

"Grand Prince" Case (Belize v France), Prompt Release 20 April 2001 Formatted

Gulf of Maine Case (Canada v USA) ICJ Rep 1984 246

Horsley v Phillips Fine Art Auctioneers Pty Ltd (unreported SC (NSW) Santow J 3211/92, 31 July 1995)

The lan Mayen Continental Shelf 1981

Island of Palmas Case (US v Netherlands) (1928) II RLAA 829 (Award of 4 April)

Jones v United States 137 US 202, 11 SCt 80, 34 L Ed 691 (1890); Deak 3 American International Law Cases 242

Lac Lanoux Arbitration (Spain v France) (1950) 53 AJIL 156

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (The Gulf of Fonseca Case), 1992 ICJ 351

Legal status of Eastern Greenland (Denmark v Norway) (1933) ICJ 53 (judgment of 5 April)

Li Chia Hsing v Rankin (1978) 141 CLR 182

Libya/Malta Continental Shelf case [1985] ICJ Rep 13

Mabo v Queensland (No 2) (1992) 175 CLR 1

Martin v Hunter's Lessee (1816) (US)

Re Maryon-Wilson’s Estate [1912] 1 Ch 55

The May v R [1931] SCR 374; [1931] 3 DLR 15, SC (Canada)

The Mediation over the Caroline Islands (1885)

Ministere Public v Mallegui, France, Criminal Court of First Instance, Ajaccio, 15 Annual Digest (1948) 71

Minquiers and Ecrehos Case (France v UK) [1953] ICJ 47

4

BIBLIOGRAPHY

"Monte Confurco" Case (Seychelles v France), Prompt Release 18 December 2000

MOX Plant Case (Ireland v United Kingdom), Provisional Measures 13 November 2001

M/V "SAIGA" Case (Saint Vincent and the Grenadines v Guinea), Prompt Release 4 December 1997

M/V "SAIGA" (No 2) Case (Saint Vincent and the Grenadines v Guinea) 1 July 1999

Netherlands v United States (Island of Palmas case) (1928) 2 RIAA 829

New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337

North Sea Continental Shelf (FRG v Denmark and FRG v The Netherlands) 1969 ICJ Rep 3

North Sea Judgment (1969) International Court of Justice Reports

Pianka v R [1979] AC 107 (PC) Deleted:

Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340

R v Anderson (1868) LR 1 CCR 161; 11 Cox CC 198

Queen v Anderson (1868) LR1CCR 161; (1868) 11 Cox CC 198; [1861-73] All ER Rep 999 — 16/11/1868

R v Bull (1974) 131 CLR 203

R v Garrett; Ex parte Sharf [1917] 2 KB 99

R v Gomez (1880) QSCR 179 (Torres Strait Islands); (1917) 5 BILC 95

Republic of Bolivia v Indemnity Mutual Marine Assurance Company, Limited (1909) 1 KB 785

Rex v Conrad, Supreme Court of Nova Scotia (1941) 1 DLR 313; 9 Annual Digest (1938– 1939) 127–128

Rylands v Fletcher 1868 ELR 330

The Creole (1853) IV Moore, Int Arb 4375

The Schooner Exchange v McFaddon (1812) 7 Cranch 116 SC(US) Deleted:

Secretary of State for India v Chelikani Rama Rao, 43 Indian Appeals 192

Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional Measures

Re Sutherland (1922) 39 (NSW) 108

Trail Smelter Case (US v Canada) (1941) 2 RIAA 1905

United States v The Nancy 27 Fed Cas 69 (1814)

Western Sahara case (1975) ICJ 12 pars 7981 (ABD Op 16 October 1975) Deleted: -

Whiton v Albany City Insurance Co, 109 Mass 24 (1871)

Wildenhus's Case 120 US SC 1, 30 L Ed 565 (1887) Deleted:

William Aldred’s Case (1611) 9 Coke 57b [77 ER 816]

5

BIBLIOGRAPHY

Monographs

Anaya, Indigenous Peoples in International Law (New York: OUP, 1996)

Arend and Coll, The Falklands War: Lessons For Strategy, Diplomacy and International Law (1985)

Birnie and Boyle, International Law and the Environment (1992)

Blackshield, Coper and Williams (Eds), Oxford Companion to the High Court of Australia (2001)

Blackstone, Commentaries on the Laws of England (4 vol, 1765–1769)

Blake, International Boundaries and Environmental Security: Frameworks for Regional Cooperation (Kluwer Law International, 1997)

Borges, Fervor de Buenos Aires (1923)

Bougainville, Voyage Autour du Monde (1771) Deleted: a

Bowett, The Legal Regime of Islands in International Law, Oceana Publications, New York Deleted: m (1979) Deleted: l

Boyson, The Falkland Islands (1924)

Brownlie, Basic Documents in International Law (3rd ed, Oxford 1983)

Brownlie, Principles of International Law (4th ed, Oxford 1990)

Bryce, The American Commonwealth (1888)

Buckle, Natural Law and the Theory of Property: Grotius to Hume, Oxford: Clarendon Press; Deleted: l New York: Oxford University Press (1991) Deleted: t Burns, The Land That Lost Its Heroes: The Falklands, the Post-War, and Alfonsin (London: Deleted: p Bloomsnbury, 1987) Deleted: Bynkershoek, De Dominio Mans (1721) Deleted:

Deleted: Bynkershoek C V, De dominio maris dissertatio, New York: Oxford University Press (1923) Deleted: Bynkershoek, De foro legatorum (1702) Formatted

Bynkershoek, Observationes Juris Romani (1710) Deleted:

Formatted Bynkershoek, Quaestiones Juris Publici (1737) Formatted Bynkershoek, C V, Quaestionum juris publici libri duo, Oxford: Clarendon Press; London: Formatted Milford (1930) Deleted: Calvert, The Falklands Crisis: The Rights and the Wrongs (St Martin’s Press, New York: Deleted: 1982) Deleted: Chemillier-Gendreau, Sovereignty of the Paracel and Spratly Islands (2000) Klewer Law International, The Hague

Churchill, The Law of the Sea, Manchester University Press, Manchester (1999)

Churchill R R and Lowe A V, The Law of the Sea, 3rd Ed, Juris Publishing (1999)

Crawford, The Creation of States in International Law (1979) 381

Dabat and Lorenzano, Argentina: The Malvinas and the end of Military Rule (1984) Deleted:

Deleted: 6

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Duncan-Hall H, Mandates Dependencies and Trusteeships, Stevens & Sons for the Carnegie Endowment for International Peace, London, 1948

Evensen, “Certain Legal Aspects Concerning the Delimitation of the Territorial Waters of Deleted: c Archipelagos” in Preparatory Documents for 1958 UN Conference on the Law of the Sea, A/CONF 13/37, 289 Deleted: d

Eyffinger, The International Court of Justice, (1996) Kluwer Law International

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Formatted Goebel Jr, Law and Practice of Alexander Hamilton (Columbia Univ Press 1964) Deleted: f Goebel Sr, The Struggle for the Falkland Islands (1927) Deleted: s

Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625) Deleted: r Deleted: b Grotius H, De jure belli ac pacis libri tres: in quibus jus naturae & gentium, item juris publici praecipua explicantur: editio nova cum annotatis auctoria, ex postrema ejus ante obitum Deleted: t cura multo nunc auctior. Accesserunt & annotata in epistolam Pauli ad Philemonem, Deleted: p Washington: Carnegie Institution of Washington (1913–1925) Classics of International Law vol 2 (books 1–3 are translated by Kelsey F W) Deleted: t Deleted: Grotius, De Jure Praedae (Commentary on the Law of Prize and Booty) (1868) Deleted: Grotius H, The Freedom of the Seas, or, The Right which Belongs to the Dutch to Take Part Formatted in the East Indian Trade” New York: Oxford University Press (1916) Formatted Grotius, Mare Liberum (The Freedom of the Seas) (1609) Deleted: m

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Deleted: t Henderson, “The Doctrine of Aboriginal Rights in Western Legal Tradition” in The Quest for Justice: Aboriginal Peoples and Aboriginal Rights, Boldt, Long and Little Bear (eds), Deleted: (Toronto: University of Toronto Press, 1985) Deleted:

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Sorrentino, Seven Conversations with Jorge Luis Borges (NY: Whitson, 1981) Deleted:

Starke, Introduction to International Law (1984)

Sturrock, Introduction to Ficciones (NY: Knopf Everyman's Library, 1993) Deleted:

Symmons, Ireland and the Law of the Sea, 2nd ed (2000)

Symmons, The Maritime Jurisdiction of Islands in International Law (1979)

Van Dyke J, Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony (1999)

Van Dyke and Brooks, Uninhabited Islands and the Ocean's Resources: The Clipperton Island Case, in Law of the Sea: State Practice in Zones of Special Jurisdiction 351 (Thomas A Clingan, ed, 1982)

Wells, Butler and Hughes Eds, “Exxon Valdez Oil Spill: Fate and Effects in Alaskan Waters”, American Society for Testing and Materials (Philadelphia, 1995)

Westlake, International Law (1910) Vol I

Whiteman M M, Digest of International Law 2 (1963) 1061

Wilson, Illex coindetii. Broadtail Shortfin squid. Marine Life Information Network: Biology and Deleted: s Sensitivity Key Information Sub-programme (1999) Plymouth: Marine Biological Association of the United Kingdom

Woodall, Borges: A Life (NY: Basic Books/HarperCollins,1996) Deleted:

Deleted: Dictionaries & Encyclopaedias

Encyclopaedia Britannica: http://www.britannica.com/

Halsbury’s Laws of Australia (1998) Deleted: .

The Oxford English Dictionary, 2nd ed (Oxford University Press, Oxford, 1989) Deleted: // Formatted The Macquarie Dictionary, 3rd ed, Macquarie Library Pty Ltd, Sydney (1997) Deleted: // Deleted: r Journal Articles Deleted: i

Abad Santos and Lennhoff, "The Taganak Island Lighthouse Dispute" (1951) 45 AJIL Deleted: p Deleted: i Anaya, “The Rights of Indigenous Peoples and International Law in Historical and Contemporary Perspective” (1990) Harvard Indian Law Symposium Deleted: l Deleted: h “Antarctica: Polar Wilderness in Peril" (February, 1991) National Geographic World 186 Deleted: c "Argentina-United Kingdom: Joint Declaration on Cooperation Over Offshore Activities in the Deleted: p South West Atlantic", American Society of International Law Formatted 9

BIBLIOGRAPHY

Armas Pfirter F M, Straddling Stocks and Highly Migratory Stocks in Latin American Practice and Legislation (1995) 26 Ocean Development and International Law 127-150

Auchard, "Scientists Fear Antarctic Policy Plans" (July 15, 1993) Reuters BC Cycle Deleted:

Balton, “Strengthening the law of the sea: The new agreement on straddling fish stocks and highly migratory fish stocks” (1996) 27 Ocean Development and International Law 125–51

Bisbal GA, Fisheries Management on the Patagonian Shelf (1993) 17 Marine Policy

Brown J (ed) ”Australian Practice in International Law 1988 and 1989: VI Law of the Sea” (1992) 12 Australian Yearbook of International Law

Cheng T, “The Sino-Japanese Dispute over the Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition,” Virginia Journal of International Law 14 (1973–1974)

Churchill RR, The Falklands Fishing Zone: Legal Aspects (1988) 12 Marine Policy

Coker, "Peru's Wealth-Producing Birds" (June 1920) The National Geographic Magazine

Daverede, The Fishery Agreement Between the EC and Argentina (1994) 7(1) Leiden Journal of International Law

“Declarations Made By States Upon Ratification of the United Nations Convention on the Law of the Sea” (1987) 26 ILM 11

Dzurek, “Southeast Asian Offshore Oil Disputes” (1994) 11 Ocean Yearbook 157

Eisler Case: Jeniungs R, Extradition and Asylum (1949) 26 British Yearbook of International Deleted: i Law 468

Elias, “The Doctrine of Inter-temporal Law” (1980) 74 AJIL 285 Deleted: Vol

Deleted: , El Deas, “Some Considerations on the Right of Indigenous Peoples to Self-Determination” (1993) 3 Transnational Law and Contemporary Problems 1 Deleted: i Deleted: d Evans, The Restoration of Diplomatic Relations between Argentina and the United Kingdom (1991) 40 International and Comparative Law Quarterly Deleted: - Deleted: i Evatt, “The Acquisiton of Territory in Australia and New Zealand” in Alexandrowicz (ed) (1970) Grotian Society Papers 1968 16 Deleted: e Deleted: v "Exploration opportunities pop up around the world" (1993) 91 Oil and Gas Journal Deleted: f Franck and Hoffman, “The Right of Self-determination of Very Small Places” Franck and Deleted: b Hoffman 8 New York University Journal of International Law and Politics 331 Deleted: t Gerard: CLH, “Les Isles Falkland (Nalouines)” (1932) 18 Annuaire Francais de Dorit Deleted: w International 249–254 Deleted: Glorioso and Davies, The Influence of Eddy Viscosity Formulation, Bottom Topography, and Deleted: e Wind/wave Effects upon the Circulation of a Shallow Bay (1995) Journal of Physical Deleted: c Oceanography Deleted: s Glorioso & Flather, A Barometric Model of the Currents off South East South America (1995) Deleted: b Journal of Geophysical Research Deleted: m Glorioso and Flather, The Patagonian Shelf Tides (1997) Progress in Oceanography Deleted: c

Gravelle, The Falkland (Malvinas) Islands: An International Law Analysis of the Dispute Deleted: t Between Argentina and Great Britain (1985) 107 Military Law Review 5 Deleted:

Gunter, “Self-determination in the Recent Practice of the United Nations” (1974) 137 World Deleted: r Affairs 155 Deleted: p 10

BIBLIOGRAPHY

The Island of Palmas (Miangas), 4 April 1928 (1928) reprinted in 22 American Journal of International Law 867–909

Kirby, "The Impact of International Human Rights Norms: 'A Law Undergoing Evolution'" (1995) 25 Western Australian Law Review 1

Korowicz, “Some Present Aspects of Sovereignty in International Law” (1961) 102 RPCUTIL Des Cours 1

Lawrey, “Contemporary Efforts to Guarantee Indigenous Rights under international Law” Deleted: e (1990) 23 V and JTL 703 Deleted: g Li, “China and off-Shore oil: The Tiao-yü Tai Dispute,” (1975) Spring Stanford Journal of Deleted: i International Studies 10 Deleted: r MacChesney, “Judicial Decisions: The Lake Lanoux Case Among Others” (1959) 53 The Deleted: i American Journal of International Law Deleted: l

Meltzer, Global Overview of Straddling and Highly Migratory Fish Stocks (1994) 25 Ocean Development and International Law

Morris, “In Support of the Rights of Self-determination for Indigenous Peoples under Deleted: s International Law” (1986) 29 Germ YBIL 277 Deleted: r Mueller, The Falkland Islands: Will the Real Owner Please Stand Up, (1983) 58 The Notre Deleted: s Dame Law Review 616 Deleted: i Mustafa, “The Principle of Self-determination in International Law” (1971) 5 International Deleted: p Law 479 Deleted: i

O’Connell, “Mid Ocean Archipelagos in International Law” (1971) 45 BYBIL Deleted: l

Opeskin B and Rothwell D ”Australia's Territorial Sea: International and Federal Implications of its Extension to Twelve titles” (1991) 22 Ocean Development and International Law

Pawlowski, “The Falkland Oil Conflict” (1997) ICE Case Studies

Sanders, “The Re-emergence of Indigenous Questions in International Law” (1983) 1 Can Deleted: r Hum Rts YB 3 Deleted: i Simsarian J, "The Acquisition of Legal Title to Terra Nullius," (1938) LIII, 1 Political Science Deleted: q Quarterly Deleted: i ”Straight Baselines Constituting Part of Emer Limit of Australia's Territorial Sea” (1983) 54 Deleted: l Australian Foreign Affairs Record

Symmons, “The Maritime Zones around the Falkland Islands” (1988) 37 April International and Comparative Law Quarterly 283

Symmons, “Who Owns the Falkland Islands Dependencies, International Law?” An Analysis Deleted: a of Certain Recent British and Argentinean Official Statements” (1984) 33 July International And Comparative Law Quarterly Deleted: c Deleted: r Van Dyke and Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans' Resources, (1983) 12 Ocean Development & International Law Journal 265

Vicuna O, “Trends and Issues in the Law of the Sea as Applied in Latin America” (1995) 26 Ocean Development and International Law

Waldock, "Disputed Sovereignty in the Falkland Islands Dependencies" (1948) 25 BYBIL

Warbrick and McGoldrick (Eds), Falkland Island’s — Maritime Jurisdiction and Cooperative Deleted: - arrangements with Argentina (1997) 46 International and Comparative Law Quarterly Deleted: - Deleted: Vume 11

BIBLIOGRAPHY

Williams, “The Medieval and Renaissance Origins of the American Indian in Western Legal Deleted: m Thought” (1983) 57 So Cal LR 1 Deleted: o Newspaper Articles Deleted: w Deleted: l “Argentina warns UK over Falklands”, Financial Times, 22 May 1996 Deleted: t Bendle, "Topic: Studying Antarctica", USA Today, 20 February 1989, A(9) Deleted:

Boadle, "Antarctic Treat Decides Frozen Continents Ecological Future", Reuters News Deleted: Service 16 November 1990 Deleted:

Brazil, International Environmental Law, Australian IL News 1985

Chiang CL, “Special Dispatch”, Chung-kuo Shih-pao (Taipei), 6 October 1996 at 2, translated in FBIS, China (10 October 1996)

“China Will Never Yield an Inch of Territory”, Wen Wei Po (Hong Kong), 12 September 1996 at A2, translated in FBIS China (16 September 1996)

Falkland Island Newsletter, April 1995

Gugliotta, "Dropping Anchor to Claim Fortune in Government Guano" Washington Post 11 December 1996 at A15

Latin America Weekly, 21 March 1996 at 122

McSmith, “Belgrano families to sue Britain”, Electronic Telegraph 30 June 2000: http://www.spaceship-earth.de/Letters/Editor/Belgrano_families_to_sue_Britain.htm

“Premier of China Joins Fray”, Washington Post , 1 October 1996 at A15

“Protester Dies in Defence of Disputed Asian Islands”, Washington Post, 27 September 1996 at A32

Shimbun S (Tokyo), 17 July 1996 at 1, translated in FBIS, Daily Report: East Asia

International Agreements

Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964)

Agreement on Straddling and Fish Stocks and Highly Migratory Species (1995)

Antarctic Treaty (1959)

Charter of the United Nations (1948)

Code of Conduct (1995) FAO Formatted

Columbia Water Treaty (1961) Formatted

Convention on the Conservation of Antarctic Marine Living Resources (1980)

Convention for the Conservation of Antarctic Seals (1972)

Convention on Fishing and the Conservation of Living Resources

Convention on the High Seas (1958)

Convention on the Territorial Sea and the Contiguous Zone (1958) UNTS No 7477, Volume 516 at 205–225: Geneva, 29 April Deleted: -

Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) Deleted: Resolution 1514, 14 December 12

BIBLIOGRAPHY

Declaration of Santiago (1998)

General Assembly Resolution 1654 (1960) 16 United Nations GAOR Supplement 17

General Assembly Resolution 31/49 (1976) 1 December Deleted: 197

Geneva Convention on the Continental Shelf (1958) Geneva, 29 April

International Convention on Civil Liability for Oil Pollution Damage (1969)

Joint Declaration of Cooperation over Offshore Activities in the South West Atlantic (1995)

Madrid Declaration (1989)

Rio Declaration on Environment and Development (1992)

Statute of the International Court of Justice (1945)

Stockholm Declaration on the Human Environment (1972)

Straddling Stocks Agreement, United Nations (1995)

Timor Gap Treaty (1991) February

Torres Strait Treaty (1978) Sydney, 18 December; Aust TS 1985 No 4

Treaty Banning Nuclear Weapons Testing in the Atmosphere, Outer Space and Underwater (1963)

Treaty of Madrid (1967)

Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil thereof (1971) 955 UNTS 115

Treaty for the Prohibition of Nuclear Weapons in Latin America (1967)

Treaty of Tor des Illas (1494) Formatted

Treaty of Utrecht (1713)

Treaty of Versailles (1783)

Treaty of Waitangi (NZ) (1840)

UN Resolution 798 (VIII) (1953) 7 December Deleted:

UN Resolution 1105 (XI) (1975) 21 February

UN Resolution 1307 (XIII) (1958) 10 December

United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; UN Doc A/Conf 62/122; 21 ILM 1261 (1982)

USA-Canada Boundary Treaty (1909)

USA-Mexico Treaty (1973)

Internet http://www.american.edu/TED/FALKOIL.HTM http://www.american.edu/TED/ice/KURILE.HTM 13

BIBLIOGRAPHY

Bethlehem, “Fishery Conflicts Around the Falkland Islands”: Deleted: a http://users.bart/~bethlehem/endnotes.htm http://www.bgs.ac.uk/about/home.html http://www.biodiv.org/convention/articles.asp http://www.butterworths.com.au/legalwords/html/00072.htm

Chronicle of the Falkland Islands History and War: http://www.yendor.com…ed/falklands_war.html http://www.canadiana.org/citm/treaties/1713.html Field Code Changed

CIA — The World Factbook at http://www.cia.gov/cia/publications/factbook/geos/er.html http://earthobservatory.nasa.gov/Newsroom/NewImages/images.php3?img_id=5270 Field Code Changed http://www.ehistory.com/world/amit/display.cfm?amit_id=1702 http://www.encyclopedia.com/articles/00314.html http://www.erm.com/ERM/updates/annual_report.NSF/(Page_Name_Web)/Adhoc_ermhistor Field Code Changed y http://europa.eu.int/comm/commissioners/bonino/profile_en.htm http://www.falklands.gov.fk www.falklands-malvinas.com http://www.fao.org/UNFAO/e/wmain-e.htm http://www.fordham.edu/halsall/mod/1519magellan.html Field Code Changed

Gaubatz, The Island of Palmas: http://www.gwu.edu/~jaysmith/Island.html Formatted

Gaubatz and Kane, The Trail Smelter Case: http://www.gwu.edu/~jaysmith/Trail.html

Genesis 1:28, The Bible, King James Version. On Line Bible and Concordance V5.0, Woodside Bible Fellowship, 1991 quoted in Ogleby, Terra Nullius, the High Court and Surveyors: http://www.sli.unimelb.edu.au/research/cad_anthology/article/artic7.htm http://www.geocities.com/little_chay/hisintro.htm Formatted http://geography.miningco.com/library/weekly/aa050498.htm Field Code Changed

Http://gurukul.ucc.american.edu/ted/falkoil.htm http://www.hawaii.edu/law/facpubs/KoreanPaper-Islands12999.htm#_endref5 http://www.hmso.gov.uk/si/si1997/97086401.htm#note2 http://www.ibru.dur.ac.uk/docs/senkaku.html http://ijgls.indiana.edu/archive/08/02/aman1.shtml http://www.indonesia-ottawa.org/indonesia/general/history.html#dutch http://www.iphc.washington.edu/halcom/about.htm

Eritrea/Yemen Arbitration 1999 Award http://www.lawschool.cornell.edu/library/pca/ER- YEMMain.htm http://www.lawschool.cornell.edu/library/pca/ER-YEchap3.htm 14

BIBLIOGRAPHY

http://www.lectlaw.com/def2/t019.htm http://www.mofa.go.jp/region/europe/russia/territory/index.html http://www.murdoch.edu.au/elaw/issues/v6n3/suanzes63_text.html. http://plato.stanford.edu/entries/augustine/

Guide to International Fisheries Law: http://www.oceanlaw.net/docs/ficz-sum.htm Formatted http://www.magellan-group.com/ferdy.htm Field Code Changed Formatted http://na.nefsc.noaa.gov/lme/text/lme14.htm Field Code Changed http://www.naval-history.net/NAVAL1982FALKLANDS.htm http://www.nbi.ac.uk/appl/patagonia.html http://www.ndsu.edu/subantarctic/southgeorgia.htm Field Code Changed http://www.nmfs.noaa.gov/prot_res/PR/fpweb/icri/text/2117b.htm

Http://oneworld.org/gemini/wk39_gemini_malvinas.html http://www.orst.edu/instruct/phl302/philosophers/grotius.html Field Code Changed http://www.patagonia-argentina.com/i/content/historia.htm http://www.qsl.net/clipperton2000/history.html

Roy-Chaudhury, Trends in the Delimitation of India's Maritime Boundaries at http://www.idsa-india.org/an-jan9-5.html http://www.st-pierre-et-miquelon.com/edescript.html http://www.tierradelfuego.org.ar/museomar/Ushuaia/Malvinas/malvinas02-I.htm http://www.thevillage.ie/resources/articles/sean_mcdonagh.html http://translate.google.com/translate?hl=en&sl=es&u=http://www.inidep.edu.ar/s_bienvenida. html&prev=/search%3Fq%3DINIDEP%26hl%3Den http://www.uct.ac.za/depts/age/resunact/voc.htm http://www.un.org http://www.worldatlas.com/aatlas/samerica/facts/falkland.htm Field Code Changed http://www.worldtravelguide.net/data/flk/flk500.asp http://www.yendor.com/vanished/falklands-war.html http://www.yendor.com/vanished/junta.html

Legislation

Administration of Justice Ordinance [Laws of the Falkland Islands, Cap 3]

Australian Antarctic Territory Acceptance Act 1933 (Cth)

Christmas Island Act 1958 (Cth)

Christmas Island (Request and Consent) Act 1957 (Cth) 15

BIBLIOGRAPHY

Coastal Waters (State Powers) Act 1980 (Cth)

Cocos Islands Act 1955 (UK)

Cocos (Keeling) Islands Act 1955 (Cth)

Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth)

Commonwealth of Australia Constitution Act (Cth)

Crimes at Sea Act 1979 (Cth)

Customs Act 1901 (Cth)

Falkland Islands Constitution Order 1985 (UK) Deleted:

The Falkland Islands (Territorial Sea) Order 1989 - Statutory Instrument 1989 No 1993

Fisheries (Conservation and Management) Ordinance 1986 (UK) Formatted

Coastal Fisheries Protection Act 1985 (Canada)

Coastal Waters (State Powers) Act 1980 (Cth)

Coastal Waters (State Title) Act 1980 (Cth)

Coral Sea Islands Act 1969 (Cth)

The Double Taxation Relief (Taxes on Income) (Falkland Islands) Order 1997 [Statutory Instrument 1997 No 2985]

Falkland Islands Letters of Patent (Falkland Islands) 21 July 1908 (1912)

Falkland Islands Ordinance No 1 of 1970 (Falkland Islands Gazette vol LXXIX) http://www.hmso.gov.uk/si/si1989/Uksi_19892399_en_1.htm#tfnf003

Falkland Islands Courts (Overseas Jurisdiction) Order 1989 (No 2399)

Papua Act 1905 (Cth) (repealed)

Interim Fishery Conservation and Management Zone, Proclamation No 4 1986

MacDonald Islands Act 1953 (Cth) Deleted:

Merchant Shipping Act 1995 (UK)

The Merchant Shipping (Oil Pollution) (Falkland Islands) Order 1975 [SI 1975/2167]

The Merchant Shipping (Oil Pollution) (Falkland Islands) (Amendment) Order 1976 [SI 1976/2143];

The Merchant Shipping (Oil Pollution) (Falkland Islands) (Amendment) Order 1981 [SI 1981/218]

Norfolk Island Act 1913 (Cth) (repealed)

Offshore Minerals Ordinance 1994 (Falkland Islands) Formatted

Outer Fisheries Conservation and Management Zone Proclamation extending the Falkland Islands Outer Conservation Zone, 22 August 1994

Seas and Submerged Lands Act 1973 (Cth)

South Georgia and South Sandwich Islands (Territorial Sea) Order 1989 - United Kingdom, Statutory Instruments, 1989, No 1995 16

BIBLIOGRAPHY

Statutory Instrument 1997 No 2584 (Falkland Islands)

Treaty of Waitangi Act 1975 (NZ)

Truman Proclamation (1945) Presidential Proclamation No 2667 (US) 28 September

Whaling Ordinance Act 1906 (UK)

Reports

Argentine Republic, Protestation Au Gauberne des Provinces Unites du Rio de la Plata par son Ministre Plenipotentiaire a Londres (ATP 3)

Australia's Territorial Sea Baseline, AGPS, Canberra (1988)

Crawford J, Aboriginal Self-government in Canada: Research Report for the Canadian Bar Deleted: s Association (1988) Deleted: British Antarctic Territories Report (1961 – 1967) (London, 1967)

Commission of the Churches on International Affairs, World Council of Churches, Conflict in the South Atlantic: Documents on the Falklands/Malvinas Crisis (1983) Deleted:

“Environmental Impact of Oil Exploration on Falkland Islands Topic for UK/ Argentina” Deleted: International Environment Reporter Current Report 10 August (1994) vol 17 no 16 Deleted: V

Evans, Pereyra, Black, Glorioso and Cavill, An Environmental Desk Study of the Special Co- Deleted: e operation Area (1997) British Geological Survey Technical Report WB/97/28C Deleted: d The Fifth Report from the Defence Committee, Session 1986–1987: Defence Commitments Deleted: s in the South Atlantic, 13 May 1987 (1986–1987) 408 HC Deleted: - Food and Agriculture Organisation, Working Paper; UN Doc A/AC 109/878, 6 August (1986) Deleted: - Falkland Islands (Malvinas) Deleted: -

General Assembly document: A/AC 109/1168, 13 July 1993

Glorioso, Temperature Distribution Related to Shelf-sea Fronts on the Patagonian Shelf Deleted: d (1987) Continental Shelf Research Deleted: r Glorioso and Simpson, Numerical Modelling of the M2 Tide on the Northern Patagonian Deleted: s Shelf (1982) Continental Shelf Research Deleted: f Great Britain, Foreign and Commonwealth Office, the Falkland Islands, No 2 (London May Deleted: m 1982) Deleted: t

Hezlet, “Geographical Fact Sheet on the Falkland Islands, South Georgia Island and Deleted: n Sandwich Islands“ (1992) United States Department of State Deleted: s

International Legal Materials, Background/Content Summary 34 ILM 1542 (1995) Deleted: ” Deleted: Joint Statement on the Conservation of Fisheries between the Government of the Argentine Republic and the Government of the United Kingdom of Great Britain and Northern Ireland is reproduced at (1991) 17 LOSB 22

Scott, Hague Court Reports 2d 83 (1932) (PCA, 1928), 2 UN Rep Intl Arb Awards 829

Security Council Document: A/48/162; S/25742 of 7 May 1993

Summary of the Report of the Joint FAO/IMO ad hoc Working Group on Illegal, Unreported Formatted and Unregulated Fishing and Related Matters - Rome, 9-11 October 2000

United Kingdom, Foreign Office Handbook No 138 17

BIBLIOGRAPHY

UK Statement to the Sixth Committee of the General Assembly, 12 November 1996, (1996) 67 BYBIL 703

United Kingdom, Report on the First United Nations Conference on the Law of the Sea, Misc No 15 (1958) Cmnd 584 6

Yearbook of the International Law Commission (1956)

Miscellaneous

British and Foreign State Papers 76 (1907–1908) Deleted: -

British and Foreign State Papers 1097 (1842–1843) Deleted: -

British and Foreign State Papers 1387 (1832–1834) Deleted: -

“Chronology of Events,” Kyodo (Tokyo) broadcast in English, 26 September 1996, transcribed in FBIS, East Asia (27 September 1996)

Davies, Kwong and Flather, Formulation of a Variable-function Three-dimensional Model, Deleted: with Applications to the M2 and M4 Tide on the North-West European Continental Shelf (1997) Continental Shelf Research Deleted: F Deleted: v Hansard (House of Commons), vol 28 at col 235 Deleted: t Hansard (House of Lords), vol 481 at col 740 Deleted: model Kageyama Y, “Asian Land Fight Heats Up,” AP (Tokyo) 25 September 1996; Kyodo (Tokyo) Deleted: a broadcast in English, 7 October 1996, transcribed in FBIS, East Asia (8 October 1996) Deleted: t Kirby, Visions of the Legal Order in the 21st Century: essays to honour His Excellency Deleted: V Judge C J Weeramantry Ed. Sturgess and Anghie) The Growing Rapprochment Between International Law And National Law

Kirkpatrick, Question Concerning the Situation in the Falkland Islands (Islas Malvinas) Deleted: c

Kun J, “Japan Cannot Claim Sovereignty over the Diaoyu Islands by Citing the “Pre-emption’ Deleted: s Principle,” Zongguo Tongxun She (Hong Kong) broadcast 1309 GMT, 12 September 1996, translated in FBIS Daily Report: China (17 September 1996)

Moore, The Law of the Sea. Paper presented by LEUT Cameron Moore RAN to the RAN Deleted: College, HMAS Creswell, 2001

Optional Rules for Arbitrating Disputes Relating to the Environment and/or Natural Resources

“President Says Policy Toward Falklands Residents' not bad' " BBC Summary of World Deleted: . Broadcasts, 26 May 1996

Van Dyke, Legal Status of Islands – with reference to Article 121(3) of The UN Convention on the Law of the Sea, Presentation made 9 December 1999 at Seoul, Korea: http://www.hawaii.edu/law/facpubs/KoreanPaper-Islands12999.htm#_endref5