Argentina’s Sea Lion case could founder on Falklands sovereignty, a legal expert warns

Argentina's legal challenge against the United Kingdom concerning the Sea Lion oil project in the Falkland Islands region may face an early setback, warns Australian law of the sea expert Donald R. Rothwell. The International Tribunal for the Law of the Sea (ITLOS) will examine Argentina's request on November 10 and 11 in Hamburg.

Rothwell, a professor at the Australian National University, states that the tribunal has the authority to address disputes over the interpretation or application of the United Nations Convention on the Law of the Sea. However, he argues that territorial disputes, such as those related to sovereignty, are typically handled by the International Court of Justice.

Rothwell contends that if the United Kingdom holds sovereignty over the islands, then Sea Lion constitutes a legitimate exploration and exploitation act of the continental shelf. Conversely, if Argentina's claim over the islands is valid, then the UK's actions are in violation of UNCLOS. The legal expert draws a parallel with the 2016 South China Sea arbitration, where the Philippines avoided the issue of sovereignty and focused on China's maritime claims, thereby circumventing the need to determine ownership.

Rothwell expresses concern that this approach will not be viable in the Argentina-United Kingdom case. Nevertheless, he acknowledges the tribunal's propensity to interpret its jurisdiction broadly, citing a past example where it resolved a maritime boundary dispute between Mauritius and the Maldives despite unresolved sovereignty issues between Mauritius and the UK.

Rothwell predicts that Argentina will exhaust all legal, diplomatic, and political measures to hinder the project, and suggests that President Javier Milei might be attempting to bolster national pride ahead of the 2027 elections. Moreover, he speculates that US President Donald Trump might intervene, expressing discontent with limited British support regarding Iran; while Washington maintains a neutral stance on the matter, Trump has indicated that this position is "under review."

Rothwell anticipates that London will vigorously defend its position across all fronts, and if the case proceeds, it will be the first time any aspect of the sovereignty dispute has been brought before an international court. The Sea Lion project, operated by Israel's Navitas Petroleum and Britain's Rockhopper Exploration, is situated approximately 200 kilometers north of the archipelago.

Argentina bases its claim on the principle of succession to Spanish rights and its occupation of the islands between 1820 and 1833, a period during which the United Kingdom took control. In contrast, the UK asserts its continuous presence since then and the Islanders' right to self-determination, as confirmed by a 2013 referendum in which 99.8% of voters supported remaining part of the UK.