Situation of the Provisional Understandings

1. Confidence-building measures in the military field
2. Conservation of fishing resources in the South Atlantic
3. Exploration and exploitation of hydrocarbons in the South West Atlantic. Legal action plan of the Argentine State against unlawful hydrocarbon exploration and exploitation activities in the South Atlantic
Legal action plan of the Argentine State against unlawful hydrocarbon exploration and exploitation activities
4. Air and sea communications between the Argentine mainland and the Malvinas Islands
5. Access to the islands by Argentine passport holders
6. Construction of a Monument to the Argentine War Dead in the Malvinas Islands
7. Delineation of the outer limits of the continental shelf
8. Analysis of the toponymy of the Malvinas Islands
9. Feasibility study on landmine clearance in the Malvinas Islands

1. Confidence-building measures in the military field

Confidence-building measures in the military field applied to the disputed area were initially adopted as annexes to the Joint Statement of Madrid of 15 February 1990. They were subsequently reviewed and gradually simplified through the Joint Statements of 25 September 1991 and 12 July 1993 and the Joint Communiqué of 19 July 1994.

The main confidence-building measures include:

a) The “Transitory System of Reciprocal Information and Consultation”.
b) The “Direct Communication System”.
c) Reciprocal conduct rules for military units working in close proximity.
d) Procedures for maritime and air search and rescue (SAR).
e) System for the exchange of information on safety and control of maritime and air navigation.
f) Working Group on South Atlantic Matters.

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2. Conservation of fishing resources in the South Atlantic

By virtue of the “Joint Declaration on Conservation of Fishing Resources” of 28 November 1990, the Argentine and British Governments undertook the commitment to cooperate on the maintenance and conservation of five fish populations in the South Atlantic.

It should be noted that there is no provisional understanding under any formula authorizing joint activities related to the joint administration of fishing resources in the maritime areas surrounding the Malvinas, South Georgias and South Sandwich Islands, since the Argentine Republic does not recognize the United Kingdom as a coastal state in the South Atlantic.

Notwithstanding the actions of cooperation under the sovereignty formula with regard to conservation of fishing resources, the Argentine Republic has made repeated protests against successive British unilateral acts in this matter, including the establishment of pretended maritime jurisdictions around the Malvinas Islands in 1986 and 1990, and around the South Georgias and South Sandwich Islands in 1993, the sale of fishing licences since 1987, the unilateral removal in 1994 of the temporary full ban on fishing imposed on the area described in the Annex to the Joint Declaration of 28 November 1990 and to the west of such area, and the establishment of quotas on fishing resources in waters surrounding the Malvinas Islands in 2005. This measure amounts to a long-term illegal and unilateral form of disposal of fishing resources in the disputed maritime areas.

Argentina had repeatedly warned the United Kingdom that it would reject any further unilateral British measures, especially those aimed at making a long-term disposition of fishing resources that are under a sovereignty dispute. Argentina had also warned the United Kingdom that the adoption of such a measure would seriously affect cooperation in the South Atlantic Fishing Commission (SAFC). The Argentine rejection of this measure was reflected in the Joint Press Release issued by the 27th South Atlantic Fisheries Commission Meeting in London on 15 July 2005. In addition, on 3 and 29 June 2005, Argentina sent to the United Kingdom its formal protest against the intended adoption of such measure. Finally, once the United Kingdom adopted the measure, Argentina formally rejected and protested against it on 27 October 2005.

These unilateral measures adopted by Britain, which were rejected and protested against by the Argentine Republic, are contrary, in particular, to Resolution 31/49 of the United Nations General Assembly urging both Parties to the dispute to refrain from adopting unilateral modifications to the situation while a resolution of the dispute is pending and asking them to resume bilateral negotiations in compliance with Resolution 2065 (XX) of the United Nations General Assembly and other relevant resolutions of such organization.

For that reason, the Argentine Government proposed for the 28th Meeting of the South Atlantic Fisheries Commission a draft agenda aimed at discussing the SAFC mandate and the extent to which it is affected by the prolonged series of British unilateral measures. The meeting was held on 6 December 2005. However, no agreement was reached with the British Delegation on the adoption of the agenda proposed by the Argentine Delegation. Following such disagreement between the parties on the agenda, SAFC has not met again and all cooperation mechanisms provided for in the Joint Declaration of 28 November 1990 have been suspended.

On 6 and 7 September 2006, a Special Diplomatic Meeting between the Argentine Republic and the United Kingdom was held for the purpose of analyzing the mandate of the SAFC. On 14 and 15 March 2007, a Second Special Diplomatic Meeting was held in Buenos Aires, but no agreement was reached.

Britain’s unilateral actions described above have consistently undermined the objectives and purposes of the Joint Declaration and of the Commission. Furthermore, none of Argentina’s claims reflected in the Joint Press Releases of the SAFC have been adequately addressed by the United Kingdom thus far.

On 20 June 2008, the Argentine Government, relying on the actions provided for by the legal framework applicable to this situation, published Law No. 26,386 to deal with companies exploiting fishing resources in Argentina’s exclusive economic zone without the relevant permit. The Argentine Republic will continue to make its best efforts to preserve fishing resources in the South Atlantic.

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3. Exploration and exploitation of hydrocarbons in the South West Atlantic

On 27 March 2007, the Argentine Government notified the UK Government through a note from the Argentine Foreign Minister to the British Foreign Secretary, of its decision to terminate the Argentine-British Joint Declaration on “Cooperation in Offshore Activities in the Southwest Atlantic” signed by Argentina and the United Kingdom on 27 September 1995 under the sovereignty safeguard formula and related to the exploration and exploitation of hydrocarbons in the area subject to the sovereignty dispute.

The substantial divergence between the parties relates to the spatial scope of cooperation for hydrocarbon exploration and exploitation, which, according to the Joint Declaration, had to be carried out in the “maritime areas of the Southwest Atlantic subject to a sovereignty and jurisdiction dispute” (the 430,000 km2 area of the Malvinas Islands). The United Kingdom, however, intended to restrict cooperation with Argentina to “a special cooperation area” of only 21,000 km2 created pursuant to the agreement and to reserve for its unilateral actions the rest of the disputed area around the Malvinas Islands.

At the last meeting of the Southwest Atlantic Hydrocarbons Commission created by the Joint Declaration, held in July 2000, both Parties produced a written statement referring to the subsistence of their divergent interpretations with regard to the Declaration and agreed to allow time for reflection in an attempt to solve them.

The United Kingdom’s repeated unilateral activities in the disputed area, including the award of hydrocarbon exploration blocks, and its reluctance to hold an open dialogue on the provisional agreements, led the Argentine Government to consider the reflection exercise opened in 2000 exhausted and to terminate the agreement.

Furthermore, on 2 February 2010, the Argentine Government submitted a protest note to the United Kingdom, rejecting its attempt to authorize hydrocarbon exploration activities in the areas surrounding the Malvinas Islands by means of the Ocean Guardian platform. Such protest note has circulated as an official document of the United Nations and the OAS.

Furthermore, in the context of the specific measures aimed at discouraging and avoiding the illegitimate exploitation of its natural resources, the Argentine Government issued the Presidential Decree No. 256/2010, which applies to the navigation of vessels and naval artefacts between ports located in the mainland and in the disputed islands, and whose Application Regulations were published on 26 April 2010 in the Official Gazette. The aforesaid Presidential Decree is currently in the course of implementation.

In this regard, Law No. 26659, passed on 16 March 2011 and published on 13 April 2011 should be recalled, which sets forth the conditions for hydrocarbon exploration and exploitation on the Argentine Continental Shelf and provides for penalties ranging between 5 and 20 years of licence suspension.

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Legal action plan of the Argentine State against unlawful hydrocarbon exploration and exploitation activities

Since the announcement made by the Argentine Foreign Minister on 15 March 2012, the Argentine Republic has been implementing a legal action plan against unlawful hydrocarbon exploration and exploitation activities carried out in the Argentine Continental Shelf.

As part of this action plan, warning and risk-assumption letters were sent through Argentina’s diplomatic representations, stating that participation in those activities will cause companies taking part, either directly or indirectly, in them to be subject to the administrative, civil and criminal actions provided for in the Argentine laws governing such activities, including those relating to environmental protection.

Furthermore, the Foreign Minister sent letters to the CEO of the New York Stock Exchange and to the President of the London Stock Exchange providing information on the companies that are unlawfully performing hydrocarbon exploration tasks in the Argentine continental shelf, thus exposing themselves to administrative, civil and criminal sanctions. Moreover, both Stock Exchanges were notified that the Argentine Republic is aware that financial analysts provided incomplete or no information to investors regarding the potential risks inherent in the unlawful hydrocarbon exploration activities carried out by the companies in the Argentine continental shelf.

The Argentine Securities and Exchange Commission, in turn, sent letters to the authorities of the International Organization of Securities Commissions (IOSCO), the Chairman of the Financial Service Authority of the United Kingdom (FSA) and the Office of the Secretary of the British Treasury (as the regulating authority of the London Stock Exchange), informing about the violations of Argentine Law committed by the oil companies in question, as well as on the administrative, civil and criminal sanctions provided for under Argentine law in each case.

As regards the five oil companies already involved in unlawful hydrocarbon exploration activities in the Argentine Continental Shelf, the Secretariat of Energy passed a resolution declaring such companies to be in violation of the law and establishing the unlawfulness of their activities, as they operate without the authorization of the competent Argentine authority. The said resolution allows the institution of civil and criminal proceedings against those companies, without prejudice to any ongoing administrative proceedings.

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4. Air and sea communications between the Argentine mainland and the Malvinas Islands

The Joint Declaration of 14 July 1999 allowed the Chilean airline LAN AIRLINES to operate a scheduled, weekly flight between Punta Arenas and the Malvinas Islands with two monthly stopovers in Río Gallegos on the inbound and outbound flights respectively. This is the only commercial flight between the mainland and the islands in accordance with a provisional understanding under the sovereignty formula with the United Kingdom as part of the air transport agreements in force between the Argentine Republic and Chile. This means that, as Chile recognises the Malvinas Islands as Argentine territory, the legs between Punta Arenas and Río Gallegos and between Punta Arenas and the Malvinas Islands constitute international flights between Argentina and Chile, while the Río Gallegos-Malvinas Islands leg is considered to be a domestic route within Argentine territory, for which LAN Chile, by Decree 1179/2002, is entitled to an exception to the rule that domestic routes are to be served by Argentine flag carriers exclusively.

In addition, in the summer (November to March) of 1999-2003, Argentina authorized non-scheduled flights between third countries (mainly Chile) and the Malvinas Islands operated by third-nation flag carriers (mainly LAN Chile). During almost all this period the British Party was reminded of the growing difficulty for Argentina to continue authorizing this type of flights and of the need to start discussions on air communications between the mainland and the Malvinas Islands. These non-scheduled flights are not contemplated in any provisional understanding with the United Kingdom and their authorization is a unilateral action by Argentina based on a case-by-case assessment.

Within this framework, on 3 November 2003, the United Kingdom and the other countries involved were informed that the Argentine Republic would not thenceforth authorise non-scheduled flights between third countries and the Malvinas Islands operated by third-nation flag carriers. This measure does not apply to scheduled flights provided for in the Joint Declaration of 14 July 1999, private flights covered by the Agreement by Exchange of Notes of 23 February 2001, flights used for medical evacuation, nor to emergency situations.

On 3 November 2003 as well, the Argentine Republic made a proposal to the United Kingdom on the possibility of reaching a provisional understanding under the sovereignty formula on “the establishment of scheduled direct air services between the Argentine mainland and the Malvinas Islands operated by Argentine airlines”. On 7 November 2003, the Argentine Republic and the United Kingdom agreed to exchange points of view regarding the Argentine proposal and other ideas for the development of air connections between the Malvinas Islands and the mainland.

On 17 February 2004, the then Argentine Foreign Minister, Rafael Bielsa, and the then Parliamentary Secretary of the Foreign Office, Bill Rammell, agreed on a series of guidelines to be followed in all future negotiations on the issue. However, on 2 March 2004, a British proposal was made, which did not adjust to these guidelines, and was thus immediately rejected by the Argentine party. Since then, a new British proposal consistent with the agreed guidelines is being awaited.

In April 2012, the Argentine Republic submitted to the United Kingdom a proposal that both countries analyse the application of the existing instruments, and future prospects on the question of air communications between mainland Argentina and the Malvinas Islands, with a view to reviewing the situation and to establishing scheduled direct air services operated by Aerolíneas Argentinas.

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5. Access to the islands by Argentine passport holders

The Joint Declaration of 14 July 1999 re-established access to the Malvinas Islands by mainland Argentine citizens upon presentation of valid Argentine passports. Meanwhile, the Agreement by Exchange of Notes of 3 May 2002 re-established access by mainland Argentine citizens to the South Georgias and South Sandwich Islands on the same conditions that apply in the case of the Malvinas Islands.

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6. Construction of a Monument to the Argentine War Dead in the Malvinas Islands

Under the Joint Declaration of 14 July 1999, the two governments agreed on the construction in the cemetery of Darwin, Malvinas Islands, of a monument to the members of the Argentine Armed Forces who died in action during the 1982 conflict. The monument was a private undertaking of the Commission of Families of War Dead in Malvinas and the South Atlantic Islands, and its construction was agreed through diplomatic negotiations. The monument was built between February and April 2004 and in March 2005 a delegation of the Commission visited the Malvinas Islands to witness the completion of the work.

On 3 and 10 October 2009, relatives of the war dead travelled to the Malvinas Islands for the purpose of unveiling the monument to the members of the Argentine Armed Forces dead in action in 1982, which stands in the Darwin cemetery and which had been built in 2004 in accordance with one of the commitments undertaken by Argentina and the United Kingdom through the Joint Declaration of 14 July 1999.

In total, 320 relatives and 55 accompanying persons travelled on the weekly scheduled flight operated since 1999 by the Chilean company LAN AIRLINES between Punta Arenas (Chile) and the Malvinas Islands, which makes two monthly stopovers in Río Gallegos, on the inbound and the outbound flight respectively.

At the cemetery of Darwin, there are 237 graves, 123 of which belong to unidentified soldiers and are marked with the phrase “Argentine Soldier Known Only to God”. With a view to enforcing the rights of the families and friends of the fallen, on 30 March 2012, the Argentine President sent a letter to the president of the International Committee of the Red Cross requesting the adoption of the necessary measures to search for and identify the soldiers who died and were buried in the territory of the Malvinas, South Georgias and South Sandwich Islands as a result of the armed conflict of 1982.

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7. Delineation of the outer limits of the continental shelf

The 1982 Convention on the Law of the Sea provided for the creation of the Commission on the Limits of the Continental Shelf, to which the Parties must submit their proposal for the delineation of the outer limits of the continental shelf.

It should be recalled that, at the time of ratification of the Convention on the Law of the Sea on 1 December 1995, the Argentine Republic expressed its reservation on the Question of the Malvinas Islands.

Law No. 24815 created the Argentine Commission on the Limits of the Continental Shelf, which drafted a definitive proposal on the outer limit of the continental shelf. The Argentine Republic exercises sovereignty rights over its continental shelf, which constitutes a natural reserve of energy and mineral resources of great strategic and economic importance. The continental shelf has an area of approximately 1,000,000 km2 beyond two hundred nautical miles.

On 8 and 20 June 2001, the Argentine Republic and the United Kingdom signed an Agreement by Exchange of Notes under the sovereignty formula on the exchange of information concerning the preparatory activities of the respective presentations to the Commission on the Limits of the Continental Shelf. In this regard, two meetings were held in Buenos Aires in June 2001 and in December 2004.

In this context, in November 2004 the first campaign of scientific data collection to the northwest of the Malvinas Islands was carried out.

On 21 April 2009, the Argentine Republic, after 12 specific campaigns and relying on the scientific information available in pursuance of Argentine Law No. 20489 and the Convention on the Law of the Sea, submitted to the United Nations Commission on the Limits of the Continental Shelf the documents supporting its submission regarding the outer limit of the continental shelf for the entire Argentine territory.

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8. Analysis of the toponymy of the Malvinas Islands

Pursuant to the provisions of the Argentine-British Joint Declaration under the sovereignty formula of 14 July 1999, which establishes that the Argentine government is willing to analyze the question of toponymy in the Malvinas Islands, and that, with that purpose in mind, it will continue its consultations with the appropriate national institutions, by Joint Resolution of the Ministries of Foreign Affairs, International Trade and Worship and of Defence on 10 November 2000, the “Interministerial Commission for the Analysis of the Toponymy in the Malvinas Islands” was set up, composed of the Director General of Malvinas and South Atlantic, the Director of the Military Geographic Institute and the Head of the Naval Hydrographic Service.

In this framework, the Military Geographic Institute (replaced by the Argentine Geographic Institute) transferred to the Naval Hydrographic Service a segment of the System of Geographic Information (SIG), to which that Service added additional geographical and hydrographic details, apart from carrying out a survey of the historical, geographical and cartographic documentary sources that provided the basis for imposing and using each Argentine geographical name and the determination of the exact coordinates of each geographical accident named in the Malvinas Islands.

The Geography Department of the Argentine Geographic Institute, along with the Toponymy Division of the Naval Hydrography Service, drew up the standard nomenclature of the Malvinas Islands toponymy on the basis of 1 500 000 scale maps containing, among other data, the specific term, generic term, geographic coordinates and location. Such nomenclature has been uploaded, for its dissemination, to the websites of both agencies (www.ign.gob.ar and www.hidro.gov.ar).

The expansion of the Malvinas Islands nomenclature to 1:250 000 scale is currently in development, as well as the incorporation of the validated toponymy to official maps, which is being carried out by the Argentine Geographic Institute along with the Toponymy Division of the Naval Hydrography Service.

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9. Feasibility study on landmine clearance in the Malvinas Islands

Following a complex negotiation process that led Argentina and the United Kingdom to sign on 11 October 2001 an Agreement by Exchange of Notes under the sovereignty safeguard formula to conduct a feasibility study on landmine clearance in the Malvinas Islands, aimed at complying with the obligations assumed by the Argentine Republic under the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (the Ottawa Treaty).

The feasibility study was carried out by both Governments through a Joint Working Group. Both Governments bore the costs of conducting the feasibility study, in proportion to the unexploded landmines and ammunition attributable to each party.

On 3 August 2006, the Agreement by Exchange of Notes was signed under the sovereignty safeguard formula in addition to the Agreement of 11 October 2001, which provided for the inclusion of the unexploded ammunition placed in the mined areas into the subject-matter of the Feasibility Study and a procedure to hire a private company to carry out certain tasks provided for in the Main Study stage, as well as field work in the Malvinas Islands. Such agreement, entered into in compliance with the 2001 and 2006 agreements, was signed with Cranfield University in November 2006.

In December 2006, the contractor’s experts monitored by two military experts per country carried out field works in the Malvinas Islands. During the subsequent meetings of the Joint Working Group, the Group and Cranfield University worked towards the preparation of a report that satisfied the requirements fixed by the two Agreements by Exchange of Notes under the sovereignty safeguard formula and the 2006 agreement. On 5 October 2007, Argentina and the United Kingdom exchanged notes approving the documents agreed upon in the context of the Joint Working Group.

At the 8th Meeting of the States Parties to the Ottawa Convention (Jordan, 17-22 November 2007), the Argentine and UK delegations submitted separately, in a plenary session, the final report that resulted from the efforts of the Joint Working Group.

At a plenary meeting during the second Review Conference of the Ottawa Treaty held in Cartagena, Colombia, on 29 November-4 December 2009, Argentina’s request for a 10-year extension in accordance with the provisions of Article 5 of the Ottawa Treaty was granted.

In the national report provided for in Article 7 of the Ottawa Treaty for the year 2009, submitted in April 2010 to the United Nations Office for Disarmament Affairs in Geneva, Argentina reiterated that it cannot implement Article 5 of the Convention in the mined areas in the Malvinas Islands, because it “does not exercise territorial control over the area to be demined.”

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