Falklands Oil: Sovereignty Cannot Excuse Environmental Recklessness -By Fransiscus Nanga Roka

The South Atlantic has had enough of the sovereignty disputes that have been funded by oil. Governments in the region must recognize that a government’s belief about who owns a territory cannot replace the use of the law to determine ownership; and, therefore, the pursuit of commercial interests cannot be used to resolve disputes over ownership.

Argentina asked the International Tribunal for the Law of the Sea in Hamburg, Germany, on October 13 to issue provisional orders regarding British-authorized hydrocarbon activity off the Falkland Islands (or Malvinas). Argentina had previously filed an Annex VII arbitral proceeding under the United Nations Convention on the Law of the Sea (UNCLOS) in September. Now, Buenos Aires is taking action against Sea Lion, a $2.2 billion offshore oil and gas development being carried out by Navitas Petroleum and Rockhopper Exploration. Argentina wants to protect what it believes are its rights to the continental shelf and avoid escalating the dispute. Argentina’s filing with the court is for judicial relief, not a judicial victory.

Britain’s response is valid under international law. Starting legal action will not necessarily render current licenses invalid, nor will it require the termination of development projects. Britain refers to the right of the islands to determine their own destiny by referring to the results of the 2013 referendum. The rights of the islanders to decide their own future should be respected. Using the islanders’ livelihood as a commodity for negotiation reproduces the same type of domination that was supposed to be dismantled through decolonization.

Yet, either a referendum or a petroleum licence will answer some of the many international law questions. Additionally, Argentina may have geographic proximity and patriotic conviction but cannot transform either of those factors into an established title. UN General Assembly Resolution 2065 acknowledges that there is a sovereignty dispute, and urges both sides to negotiate, considering the interests of the islanders. Resolution 2065 does not grant sovereignty to Argentina. It would be wise for each capital city to cease portraying contested positions as established facts.

Jurisdiction is the primary legal problem. UNCLOS establishes procedures for interpreting and applying the Convention; it does not grant limitless power to decide who owns disputed islands. To show that its maritime claims fall under the provisions of the Convention, Argentina must establish that those claims can be addressed through the mechanisms provided in the Convention. Provisional measures that are taken before an arbitral tribunal is formed must be based on a showing of prima facie jurisdiction and urgency, as stated in Article 290(5). Emotional statements about sovereignty do not satisfy these conditions.

environmental protection cannot be put off until nationalism has a consensus. the obligation to protect marine life and prevent pollution are outlined in articles 192 and 194. the requirement to perform an environmental assessment when there may be a possibility of significant harm is established under article 206. these requirements call for evidence e.g., spill modeling, ecological baselines, emergency response capability and transparent assessments. a claim that a threat exists does not establish an immediate catastrophe; a permit does not demonstrate that a person is adequately protected.

Three strategic steps should follow.

First, Britain, Argentina, and the islands must come to an agreement regarding a temporary freeze (standstill) on any new irreversible offshore operations during the period of time that they are examining the legalities of jurisdiction and the potential environmental risks associated with these operations. Each of the three parties involved should make explicit reservations to protect each of their respective positions on sovereignty.

The second is that there needs to be an independent scientific panel to evaluate all environmental assessments, provide access to the underlying data and perform testing for worst case spill scenarios. Additionally, operators must fund the independent monitoring of their activities and provide proof of having credible insurance, financial security and the capability to clean up spills. Private extraction cannot be subsidized by the public exposure.

Thirdly, there needs to be practical collaboration in marine science, fisheries and emergency responses that will include significant input from islanders as part of the UN-sponsored discussions. In addition, when it comes to any future resources agreements, there should be disclosure of all contracts, who gets paid what and how revenues are distributed.

The provocation is basic: If each country believes that its laws are valid and legitimate then each country should be open to scrutiny which may limit what they can do.

Drilling will not create true sovereignty. Litigation will also not rid politics of intimidation. The true challenge is whether London and Buenos Aires can limit their actions prior to when the costs associated with commercial agreements become too costly to reach compromises on, as well as the point at which environmental harm is no longer able to be repaired.

Fransiscus Nanga Roka

Faculty of Law Unviersity 17 August 1945 Surabaya and Managing Partner Law Firm Victorious Indonesia