There have been a number of news stories in recent days about a diplomatic row between the United Kingdom and Argentina concerning proposals to pursue exploration for oil and gas on the continental shelf off the Falkland/Malvinas Islands. The Guardian reports that the Argentine government has issued a decree which will “in theory force all ships bound for the islands or travelling through waters claimed by Argentina to secure [a] new permit.” The purpose of the permit is apparently to prevent ships carrying oil exploration equipment from Argentina to the Islands. According to the Telegraph, the Argentine authorities have already prevented a ship, the Thor Leader, from leaving port carrying pipeline equipment which it was suspected was destined for the Islands. The diplomatic dispute raises a number of international law issues.
Rights over the continental shelf around the Islands had already raised diplomatic tensions when both the United Kingdom and Argentina submitted claims to an outer continental shelf to the Commission on the Continental Shelf in 2009. The Argentinian submission prompted the United Kingdom government to issue a response in which it requested the Commission not to consider those parts of the submission relating to the Islands.
The latest decree issued by the Argentine authorities raises a number of law of the sea issues. Argentina can theoretically limit access by ships to and from its ports provided it has not entered into any treaty obligations which would require it to allow unconditional access to its ports. This is because states have full sovereignty over their internal waters, including ports. However, the application of the decree to ships passing through the territorial waters of Argentina would be more problematic as ships have a right of innocent passage under Article 17 of the Law of the Sea Convention. Of course, it could be argued that innocent passage would only be affected if the decree was effectively enforced, whereas the Guardian report admits that “the decree did not specify, and officials did not elaborate, what sanctions Argentina may levy on ships which do not comply.”
In response to the decree, the UK government has reasserted its right to develop a hydrocarbons industry in the area. It has not, however, commented on the legality of the decree or on what measures, if any, it will take to ensure that drilling can go ahead.