The Continental Shelf, the UN Commission, and the Sovereignty Dispute

Why the seabed is tied to sovereignty

Under the 1982 UN Convention on the Law of the Sea (UNCLOS), a coastal State's continental shelf comprises "the seabed 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" (Article 76(1)). Islands count: under Article 121(2), "the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory" (subject to the exception for uninhabitable rocks in paragraph 3). And Article 77(3) provides that a coastal State's rights over its shelf "do not depend on occupation, effective or notional, or on any express proclamation".

The consequence for this dispute is direct: whoever holds sovereignty over the islands holds the shelf rights that the islands generate. Both countries' notes to the UN say as much, each claiming sovereignty over the islands "and the surrounding maritime areas" (Argentina, Note verbale of 20 August 2009, p. 1). The seabed question is therefore not a separate dispute but the sovereignty dispute expressed in maritime terms, which is why it surfaced in both countries' 2009 submissions to the UN body that reviews outer shelf limits. This article follows that process through the documents. (For the hydrocarbons dimension inside 200 nautical miles, see the companion article on the 1995 declaration.)

What the Commission does, and what it may not do

The Commission on the Limits of the Continental Shelf (CLCS) is a body of scientific experts set up by UNCLOS. Its remit is narrow. A coastal State that wants to establish shelf limits beyond 200 nautical miles submits data to it (Article 76(8)); the Commission "shall make recommendations", and "the limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding". The Convention channels only limits beyond 200 nautical miles to the Commission.

The Convention also fences off the Commission from sovereignty and boundary questions. Article 76(10) says the article is "without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts", and Article 9 of Annex II says "the actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts". The Commission's Rules of Procedure add the rule that governs this case. Annex I, paragraph 5(a), reads:

"In cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute. However, the Commission may consider one or more submissions in the areas under dispute with prior consent given by all States that are parties to such a dispute." (CLCS/40/Rev.1, Annex I, para. 5(a))

Paragraph 5(b) adds that submissions and the resulting recommendations "shall not prejudice the position of States which are parties to a land or maritime dispute". Paragraphs 5(a) and 5(b) read the same in the version that applied while these submissions were examined (CLCS/40/Rev.1) and in the current one (CLCS/40/Rev.2, dated 4 October 2024 on the UN website). The Rules also place a duty on the submitting State to inform the Commission of any dispute (paragraph 2(a)).

Two submissions in May 2009

Both countries filed in the spring of 2009. Argentina submitted on 21 April 2009; the Commission's summary records that Argentina described it as a full submission covering the shelf "appurtenant to the continent, the islands and the Argentine Antarctic Sector" (CLCS Summary of Recommendations, 11 March 2016, p. 3). The United Kingdom followed on 11 May 2009 with a partial submission "in respect of the Falkland Islands, and of South Georgia and the South Sandwich Islands", which the UN's own page quotes the UK as calling "the final partial submission" it would make before a deadline of 13 May 2009.

Each side then wrote to the Secretary-General.

The UK's note of 6 August 2009 (No. 84/09) states that it "has no doubt about its sovereignty over the Falkland Islands, and over South Georgia and the South Sandwich Islands and the surrounding maritime areas", and that "[t]here can be no negotiations on the sovereignty of the Falkland Islands unless and until such time as the Falkland Islanders so wish". It says the UK "exercises control over the continental shelf up to 200 nautical miles" from each territory under a 1986 Declaration on Maritime Jurisdiction and a 1993 Proclamation, and it "rejects those parts of Argentina's submission which claim rights to the seabed and subsoil of the submarine areas appurtenant to the Falkland Islands, South Georgia and the South Sandwich Islands", asking the Commission not to examine "any fixed points greater than RA-481, except between fixed points RA-3458 and RA-3840". It expressly has "no objection" to the examination of the rest.

Argentina's note of 20 August 2009 (in the UN's translation) "categorically rejects the British submission and expressly requests that the Commission ... neither consider nor qualify it", "categorically denies that there is any maritime delimitation between States, either established or pending, in the area of the Malvinas, South Georgia and South Sandwich Islands", and recalls that the islands and surrounding maritime areas are "an integral part of the national territory" of Argentina and, "being illegally occupied by the United Kingdom of Great Britain and Northern Ireland, are the subject of a sovereignty dispute between the two countries" (Argentina, Note verbale of 20 August 2009, p. 1). The two notes were repeated in August 2012 (Argentina on the 8th; the UK, Note 273/12, on the 23rd), each reaffirming its earlier position.

What the Commission decided

The Commission's own records show a symmetrical outcome.

• The UK submission. When the UK presented on 7 April 2010, its delegation told the Commission that the subject of its partial submission was also the subject of the Argentine one, that the UK "firmly rejected" Argentina's sovereignty claim, and that consideration would not prejudice boundary delimitation. The Commission then "decided that, in accordance with its rules of procedure, it was not in a position to consider and qualify the submission" (report CLCS/66, paragraphs 57 to 60). A note by the UN Secretariat in the same report states that "a dispute exists between the Governments of Argentina and the United Kingdom ... concerning sovereignty over the Falkland Islands (Malvinas)".
• The Argentine submission. After Argentina's presentation on 26 August 2009, the Commission decided that it "was not in a position to consider and qualify those parts of the Submission that were subject to dispute", and instructed the future Subcommission accordingly; it reiterated this in 2012. On 11 March 2016 it approved recommendations covering only two regions: fixed points RA-02B to RA-481 (the Río de la Plata region) and RA-3458 to RA-3840 (the Tierra del Fuego region). Its summary states that the recommendations "shall not prejudice ... the position of States which are parties to a land or maritime dispute". A partial revised submission followed on 28 October 2016; the Commission's March 2017 recommendations on it concerned two points in the north, and Argentina told the Commission that its area "contained no areas envisaged under article 46 of the Rules of Procedure".

The fixed-point ranges the Commission recommended are the same ranges to which the UK's 2009 note said it had no objection. None of the documents reviewed here records the "prior consent given by all States that are parties to such a dispute" that paragraph 5(a) would require for the Commission to examine the disputed areas.

Argentina's 2020 law

In August 2020 Argentina enacted Law 27,557 (approved 4 August, published 25 August). Article 2 divides the outer limit in three: points RA-01 to RA-481 and RA-3458 to RA-3840 are "demarcated on the basis of the Recommendations" of the Commission; points RA-482 to RA-3457 are demarcated "on the basis of the Argentine submission", and are "pending Recommendations under point 5.a of Annex I of the Commission's Rules" (our translation; the Spanish reads "demarcados tomando como base las Recomendaciones de la Comisión de Límites de la Plataforma Continental", "tomando como base la presentación argentina" and "encontrándose pendientes de Recomendaciones en los términos del punto 5.a del Anexo I del Reglamento de la Comisión"); and the Antarctic sector's points fall under a separate provision of the maritime-spaces law (Law 23,968) that the new law amends. The law thus records for itself which parts of the outer limit the Commission has and has not reviewed. The ranges it uses coincide with those in the UK's 2009 note; the article makes no claim about the geography of the intermediate points.

How each side describes the outcome

The two accounts differ in emphasis, not in the underlying record.

Argentina's official presentation of 28 March 2016 says that its work with the Commission "has allowed an international body to recognise the existence of a sovereignty dispute", that the Commission "postponed the analysis of the data presented on that area until the dispute is resolved", and that this matters "since the United Kingdom denies the existence of the dispute" (our translation; the Spanish reads "ha permitido que un organismo internacional reconozca la existencia de una disputa de soberanía", "postergó el análisis de los datos presentados sobre esa zona hasta que se resuelva la disputa" and "pues el Reino Unido niega la existencia de la disputa"). The UK's notes state that it has "no doubt" about its sovereignty and ask the Commission not to examine the Argentine claims to the islands' shelf, and its delegation told the Commission in 2010 that it "firmly rejected" Argentina's sovereignty claim. The Commission's own text is narrower than either summary: it applies its Rules of Procedure, records the Secretariat's note that a dispute exists, and takes no view on sovereignty, as the Convention requires.

What this does and does not settle

The Commission's handling shows that a UNCLOS body will not review either side's outer shelf limits around the islands without the other's consent. It does not show who is sovereign, and by design it cannot. It also leaves two things open. First, no "final and binding" outer limit beyond 200 nautical miles exists for the shelf around the islands under either country's submission. Second, the Commission does not review the area within 200 nautical miles; there, each side's position rests on its claim to sovereignty over the islands, which is precisely what the Convention leaves to the parties. The 1989 "sovereignty umbrella" formula is the framework the parties have used for practical cooperation without prejudging that question, as the companion article on it explains, including its comparison with the provisional arrangements contemplated by UNCLOS Article 83(3).

A note on sources

The Commission's decisions, the two States' notes verbales, the Rules of Procedure, and the UNCLOS texts are primary UN documents; the UK note is a scan of the original. Argentina's 28 March 2016 presentation and Law 27,557 are official Argentine texts in Spanish, translated here by the project. This article does not rely on press or think-tank commentary about the Commission's decisions. It did not locate a UK government statement specifically on Law 27,557, and says nothing about the UK's view of it.