Offside rule: How climate was centred in messy litigation around the Falklands

It was a football match that spurred a top Argentine environmental lawyer to file a climate lawsuit against two companies developing a deepwater oil project.

The face-off between Argentina and England in the semi-final of the World Cup earlier this year revived memories of the bloody 1982 Falklands conflict over the sovereignty of the archipelago in the South Atlantic Ocean. 

Things escalated after victorious Argentine players waved a banner saying ‘Malvinas son Argentinas’ (‘the Falklands are Argentine’) after the match. The incident was heavily criticised and led to a fine from the football governing body. But for Enrique Viale, the head of the Asociación Argentina de Abogados Ambientalistas (AAdeAA), it proved a symbolic turning point. 

“Just the other day, my youngest son went to buy a t-shirt with ‘Malvinas son Argentinas’. I was stunned because the Malvinas wasn’t something he talked about,” Viale tells The Wave. “The banner generated a feeling of patriotism among people under 30 who had regarded the Malvinas issue as something distant.” 

Star players

Viale and the AAdeAA have a history of opposing carbon-intensive projects including those offshore. In 2022, the group secured a preliminary injunction against Norway’s Equinor, Anglo-Dutch Shell and Argentine state-owned YPF which were planning seismic exploration studies for offshore oil off the coast of Mar del Plata, a famous beach resort. 

Now they want to target exploitation of Sea Lion, an oil field discovered in 2010 about 220 km north of the Falkland Islands/Las Malvinas, itself 349 km from southern Argentina. The project is being developed by Israel’s Navitas Petroleum and the UK’s Rockhopper Exploration. 

Viale had already been working on challenging Sea Lion for several months, he says, “but I think what triggered the filing of the lawsuit was the banner”. The claim, filed on 2 September, sought to halt the project ahead of extraction planned to start in March 2028.

AAdeAA chose to litigate together with the veterans from the Centre for Former Combatants of the Malvinas Islands La Plata (CECIM), giving the lawsuit “a strong component of sovereignty and patriotism, but also of climate and the environment”, Viale says. 

“For us, this is key because it could be seen as an unprecedented form of anti-colonial climate action, which could have implications elsewhere - in Africa, other parts of the Americas - places that are exploited both for their natural resources and through colonialism,” Viale says. “I don't know of any case with these characteristics.”

They also deliberately chose to file the lawsuit in the Federal Court of Rio Grande in the deep south of Argentina, because it claims jurisdiction over Tierra del Fuego, Antarctica and the South Atlantic Islands including Las Malvinas/Falklands.

Red card

The lawsuit describes itself as a preventative action against collective environmental damage across the Argentine Sea, the South Atlantic islands and Antarctica, with the “most significant risks, first and foremost” coming from the atmospheric emissions of greenhouse gases, which contribute to anthropogenic climate change.

Sea Lion could generate approximately nine million tonnes of CO₂ during the development phase and more than 100 million tonnes from the burning of the extracted oil, according to the AAdeAA and CECIM lawsuit. “We came up with these figures based on calculations made by Veritas and Rockhopper of producing between 120,000 and 130,000 barrels a day,” Viale says. 

In fact, their estimates are lower than the 150 million tonnes of CO₂ forecast by Falklands Conservation in its response to a 2024 consultation on the Sea Lion project. The charity argued that the level of emissions made the project “inconsistent” with the International Energy Association’s position that no new investments in oil and gas are needed if the world is to keep average temperature rise to 1.5°C.

The crux of the lawsuit is the absence of an environmental impact assessment by Argentine authorities. “This includes the absence of the climate factor in the assessment as well,” says Viale.

A fortnight after the case was filed, federal judge Mariel Borruto granted the claimants’ request for a precautionary measure, ordering Veritas and Rockhopper to halt both maritime operations and land and port works until the Rio Grande court makes a final decision.

In the order, Judge Borruto accepted the main arguments and ordered the oil companies to present an environmental impact assessment before the relevant Argentine national environment authority.

She stressed that “the fact that the defendants are foreign-incorporated companies does not preclude the full application of Argentine law, given that the project in question extends into the Argentine continental shelf and the maritime areas corresponding to the Malvinas”.

Although Veritas and Rockhopper were ordered to disclose detailed information about their operations within ten judicial days, neither company had done so by mid-October, Viale says. A spokeswoman from Rockhopper deferred comment to The Wave on the court order to Veritas, but Veritas declined to respond despite several requests. 

The Falklands Islands Government (FIG) is clear about its stance on the court order. “As a self-governing British Overseas Territory, the FIG is the only authority with jurisdiction over hydrocarbon projects in Falkland Islands waters,” a government spokeswoman tells The Wave.

This position was backed by UK Labour peer Baroness Jenny Chapman of Darlington who said last May that the FIG was “responsible for hydrocarbon development and the relevant regulatory framework” in response to a query about the UK government’s role in estimating the “potential carbon emissions” from Sea Lion.

As part of its approval for Sea Lion in 2025, the spokeswoman says the FIG greenlit an environmental impact statement (EIS) which “identifies the principal environmental risks associated with the development”. 

Interestingly, the EIS includes comments from UK non-profit Uplift, which previously successfully challenged approval for the Rosebank oil project in the North Sea. Uplift argued that the Sea Lion EIS falls short in its assessment of combustion and production emissions, mitigation and offsetting of significant environmental impacts, as well as compliance with other international legal obligations.

In its response in the EIS, Navitas claimed that it “remains the case that there is currently no guidance regarding estimation or assessment of such emissions” and the narrative was reworded to state: "Once the oil is produced and sold, it is beyond the ability of Navitas to determine where, when and how the end-use emissions will be created and thus Navitas has very little ability to influence these aspects."

The EIS does set out some “proposed” mitigation measures, says the FIG spokeswoman, including financial contributions to the Environmental Impact Offsetting Trust based on the “project's level of emissions” and “the potential effects of ocean acidification”. The trust, launched in June, was created for offshore petroleum firms "to contribute activities that contribute to offsetting the environmental impacts of their offshore petroleum projects by providing benefits to the environment".

Any future phases of the Sea Lion field, or any other offshore hydrocarbon developments, “would be required to undergo their own environmental assessment processes and would need to be supported by separate EIS before they could be considered for approval”, she adds. 

The question now is: what happens when claimants pursue climate litigation for a fossil fuel project such as Sea Lion that has already passed through an environmental approval process in a disputed jurisdiction?

Soledad Aguilar, director at social sciences organisation FLACSO, says that “while there is extensive global jurisprudence on the extraterritorial application of the law, in this case the main point to explain the controversy and the jurisdiction applied by the [Argentine] court, is that the court considers [Islas Malvinas] as part of its jurisdiction”. 

That’s “because it does not recognise the British occupation, and therefore in its interpretation it would not be making an extraterritorial application of the law, but applying the law in its territory”, Buenos Aires-based Aguilar tells The Wave. “Consequently, the court may legitimately apply its legislation and jurisdiction to the area under dispute.”

Who's the referee?

The problem arises when the Rio Grande court, once it makes a final ruling, tries to impose an order because it has no real way of enforcing it. “This is a case where the dispute takes place in the legal sphere, without a corresponding capacity for implementation in the territorial sphere,” says Aguilar.  

Viale is more optimistic about the territorial scope of the lawsuit, particularly the potential financial costs the proceedings could provoke. 

“I want to see how many international oil companies will continue to support [Sea Lion] financially, knowing that it is subject to legal challenges and that the Argentine state has declared it illegal, notwithstanding the fact that we know the territory is occupied,” he tells The Wave.

He cites the case of the offshore project in Mar del Plata which he and other groups managed to halt for almost two years. “Afterwards it became economically unviable because of the pressure we were applying. That was part of the logic.” Indeed, earlier this year, oil exploration rights granted in 2019 to Shell Argentina and Qatar Energy were returned to the state.

In the case of Sea Lion, Viale believes litigation will drive away financial backers, who he says his organisation will pursue “everywhere in the world”. That includes targeting banks, insurers and the companies’ own assets. “This is a very expensive project because it involves 23 offshore wells, and that requires substantial financing,” he says.

In partial response, the UK government has introduced Protection of Trading Interests legislation which prevents UK businesses and individuals complying with specific extraterritorial sanctions measures affecting the Falklands. 

Parallel action taken by Argentine president Javier Milei could further complicate the operating climate for the oil firms. On 13 October, the government asked the International Tribunal for the Law of the Sea (ITLOS) for interim measures to prevent exploitation until the court comes to a decision.

In a 2015 case at ITLOS with several similarities, Ghana was ordered to ensure that no new drilling take place in a disputed oil area after Côte d'Ivoire sought provisional measures to stop the activities.

An ITLOS hearing will be held on 10-11 November. In the meantime, the AAdeAA and veterans await a final decision from the Rio Grande court on their challenge, which links environment and sovereignty so closely together.