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An Analysis of the Dispute over the Falkland/ Malvinas Islands from the Perspective of International Law

Introduction

The Falklands is the name of a group of 200 islands 480 miles northeast of Cape Horn. The islands have been disputed since the 1700s, by the French, Spanish, British and Argentinians, however, the latter two took reign of the conflict since 1833, from which time the British have occupied and administered the islands, but whose legitimacy to do so has continuously been protested by the Argentinians. Of the 4,7000 square miles of land, most was owned by absentee British landlords. By culture, language, and tradition the population was avowedly English and determined to stay that way. Britain occupies and has administered the islands since 1833, however, Argentina never recognized the legitimacy of the British claim to the islands.  For the most part, the British treated the islands with indifference, whilst for the Argentinians it was an “article of faith” that the islands, to them known as the Malvinas, had been seized by a colonial power and rightly belonged to Argentina (Richardson, 1996, p18).

The conflict reached a climax with the war between the two states in 1982, leading to the bloodshed of hundreds of soldiers on both sides. The Security Council intervened, passing resolutions that shall later be detailed and discussed. The problem remains unsolved; as recently as a few months ago the Argentinian president, Cristina Kerchner, made a statement complaining that Britain was not willing to continue discussions and British Prime Minister, Gordon Brown, also released a statement that Britain would “never discuss the sovereignty of the Falklands” (Thegaurdian.co.uk, 2009).

Background

The start of the conflict can be traced back to 1690, with the first documented landing on the islands by Captain John Strong who named them after the First Lord of the Admiralty, Lord Falkland. In 1713, however, the Treaty of Utrecht ratified Spain’s control over its territories in the Americas, including the Falklands. In 1764, Frenchman, Antoine Louis de Bougainville became the first person to settle the islands. Following this, oblivious of the Frenchman’s presence, a British commodore landed on West Falkland, planted the Union Jack on a vegetable patch and sailed off (Richardson, 1996, p18). In 1766, more British arrived to strengthen the British settlement and discovered the French colony. Spain was angry as they saw these actions as a violation of the Treaty of Utrecht by both countries. France, an ally of Spain at this time, agreed to surrender the land to Spain in return for compensation. Spain appointed a governor who ousted the British from the island in 1769. The manner of the way in which the Spanish expelled them outraged the British who had been considering compromise, but now were inclined towards war. An agreement, however, was reached whereby Britain returned temporarily to the islands and Spain continued to claim sovereignty. The British left after three years leaving a plaque that claimed their sovereignty, however, in practise they acknowledged Spanish sovereignty. (Ibid).

The nature of the conflict changed after Argentina declared independence from Spain in 1816 and in 1820 proclaimed its sovereignty over the Falklands. In 1826 they resettled the islands, causing British verbal protestation. Subsequently, some American sailors were arrested by the Argentine governor for illegal sailing, had their property confiscated and were brought to trial in Buenos Aires. The British consul encouraged the Americans to protest on the grounds that the United States had never acknowledged Argentinian sovereignty and could to do as they pleased on the land. The American captain dispatched a warship to secure the confiscated property, recovered it and sacked the settlement arresting most of the inhabitants, declaring the islands “free of all government”.(Ibid) Argentina appointed a new government, who was immediately murdered by the remaining inhabitants. Britain manipulated the disorder and dispatched two warships. In January 1833 the British forced the few remaining Argentines off the island and assumed control of the Falklands. Since then, Argentina has unremittingly contested British control over the islands (Ibid).

Legal rights during the Falkland’s war of 1982

International law raises the issue of when it is just to attack another state and when it is legitimate to use aggression. Aggression along with self- defence has proved to be a concept that is difficult to define.

On April 2nd, 1982, Argentina invaded the Falklands. The small British defence force was quickly overpowered, and the British government immediately decided to dispatch a task force to the South Atlantic. The following day the United Nations passed Resolution 502 which demanded an immediate cessation of hostilities, an immediate withdrawal of Argentine forces from the Falkland Islands, and for the governments of the United Kingdom and Argentina to seek a diplomatic solution to their differences and to respect full the purposes and the principles of the charter of the United Nations (UN.org).

The British saw the Argentine 1982 attack as “a clear case of unprovoked aggression”, as expressed by leader of the opposition, Michel Foot; a line which was swiftly adopted by Prime Minister, Margaret Thatcher (Phythian, 2007, p81). At the first meeting of the PLP following the invasion, Foot conveyed the message that he had, “sought to set out the traditional views of the Labour Party on aggression and the charter of the United Nations and how we operate it.” (Ibid)  The Thatcher government was insistent that it had the right to dispatch a task force, not based on the Security Council Resolution but based on Article 51 of the UN Charter which states that, “Nothing in the present Charter shall impair the inherent right of collective self- defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” (UN Charter).

Britain claimed the right to defend itself against Argentina as its territory had been seized, the rights to self determination of the Falklands’ inhabitants had been usurped, and based on the argument that the principles of international law must be upheld, specifically the principle that force must not be used to resolve disputes (except in self- defence) (Bluth, 1987, p9). The latter reason was used as one of the main justifications for British military action, “there is the longer interest to ensure that foul and brutal aggression does not succeed in the world. If it does, there will be a danger not merely to the Falkland Islands, but to the people all over this dangerous planet,” (Hansard, House of commons, 3 April 1982).

Denis Healey, Shadow Chancellor of the Exchequer understood and emphasized to the government that Opposition support depended on them meeting the requirements of Resolution 502 and genuinely attempting to solve the conflict diplomatically. The power of the UN, however, was highly doubted by Thatcher, “But alas, the United Nations does not have the power to enforce compliance with its resolutions, as a number of aggressors have well known.” (Phythian, 2007, p90). Indeed, the Security Council’s resolutions had little effect; four days later British forces landed on the Falklands and great losses were incurred on both sides. The losses of HMS Coventry and the merchant ship Atlantic Conveyor on 15th March led the UN Security Council to pass Resolution 505, which urged both parties to “co-operate fully with the Secretary General in his mission with a view to ending the present hostilities in and around the Falkland Islands” (UN.org).

The UN resolutions had little effect, and the war ended on the 14th of June when Argentina surrendered following a British land campaign. This emphasizes the quandary of international law; though UN security council resolutions imposed under chapter 7 are legally binding, it has been seen, not only in this case but many times in the past that the UN does not truly have the capacity to uphold SC resolutions. Furthermore, the United Kingdom is a permanent member of the Security Council and has a veto; hence any resolution acceptable to the UK would be weak in criticising it. Consequently, though important as a tool to encourage and assist diplomatic solutions, the UN has proved to lack strength in numerous conflict situations.

Legal claims to sovereignty

The conflicting legal claims for the Falkland Islands are based on different principles for both sides, which have changed over the years, particularly for Britain.  Bluth describes the different ways in which a legal title to exercise sovereignty over a given territory can be acquired. These are: “the occupation of ‘terra nullis’ (previously unsettled land)”; “accretion whereby the geography of an area is altered by the forces of nature”; “cession whereby title is transferred from one state to another by treaty”; “prescription, whereby territory formerly under the control of another state is possessed and controlled by a state with the acquiescence of the other state that previously had title to it” and discovery (Bluth 1987, p1).

Argentina bases its claim on cession, that the islands were ceded from France to Spain and became Argentinian when Argentina became independent, to contiguity based on the fact that they are neighbours, and territorial integrity, also known as Uti Possidetis. The principle of Uti Possidetis means, “freezing the territorial boundaries as at the time of independence, unless altered upon the mutual consent of the state parties concerned. Such boundaries as were in existence at the time of independence cannot be altered lest relevant parties consent to the change” (Muwanguzi, 2007, p1).

Britain, alternatively, bases its claim on discovery; on prescription, having continued the possession of the islands for 150 years; and on self- determination, the fact that the islanders clearly wish to remain British” (Bluth, 1987, p1). Moreover, Britain maintains that it never recognized Spain’s claim to the islands, that it never renounced its claim in 1765, and then when it occupied the Falklands in 1833 its rights to the islands were clearly recognized.

This leads to the argument that the first state to exercise sovereignty over the Falklands thus gained a legal title because until then the islands were terra nullius. (Bluth, 87, p.6) According to Bluth it is agreed upon that the French were the first to settle the islands in 1764, carrying out a ceremony of possession they were the first to exercise sovereignty and thus could claim to legally hold the title (Bluth, 87, p.6). As soon as they ceded it to Spain, however, the latter became the legitimate sovereign owner of the land.

The arrival of the British Captain John Byron on 12th January 1765, confused matters with his claiming of the islands in the name of George III and establishment of a settlement on Saunders Island named Port Egmont. The British settlement must be considered as illegal since the islands were terra nullius before the French settled there. (Bluth, 87, p.6).The French, however, proved incapable of exercising effective control over all the islands, which weakened their case, but was arguably nonetheless stronger than that of the British, and the French claim was then ceded to the Spanish.

In 1770 when the Spanish enforced their claim to sovereignty over the islands by evicting the British from Port Egmont, war seemed imminent until Spain surrendered. On 22 January 1771 the kings of Spain and Great Britain signed two declarations in which Spain renounced the attack on the Port Egmont settlement, agreed to restore the settlement to Britain but this was not to say that Spain’s rights to the sovereignty over the Falklands were affected by this declaration (Bluth, 87, p6).  The declaration restricted restoration to Port Egmont only.

Each of the main above- mentioned legal claims to the Falkland Islands shall now be discussed individually.

The Law and Discovery

Vattel, who was the first to discuss discovery as a source of title, in his 18th century treatise Droit des Gens conditioned that, “navigators going on voyages of discoveries furnished with a commission from their sovereign and meeting with islands or other lands in a desert state have taken possession of the in the name of a nation; and this title has been usually respected, provided it was soon after followed by a real possession (Vattel 1758 in Goebel 1982, p.263). International law maintains that, “an abstract title without effective possession cannot prevail over a constant and effective manifestation of authority (Blum 1965, p.200). Therefore, on the Falklands issue the International Commission of Jurists posits that, “Considering that MacBride’s settlement was separated by 200 years from Davis’ sighting and by 100 years from Strong’s landing o the islands, it cannot be said that real possession was effected by the British ‘soon’ after discovery (ICJ, 1982, P28).

British researcher, J. Myhre, of the Department of International Relations of London School of Economics, fortifies this argument with a comment on the judgement of Max Huber in the case of the Palmas islands, “Discovery, then, confers on a state an inchoate title. That is to say discovery does give right to an exclusive right to occupy the area. Unless the right is exercised though, no firm title exists” (López, 1995, p9).

Indeed, there are important similarities between the cases of the Falkland Islands and the islands of Las Palmas. In the latter case, the United States base their argument in the name of  acquisition of sovereignty whilst The Netherlands “found their claim to sovereignty essentially on the title of peaceful and continuous display of State authority over the island” (UN, 1928). In the Falklands case Argentina bases its case on the legal principle, “uti possidetis” and Britian on effective administration of the territory.  According to UN sources “This title would in international law prevail over a title of acquisition of sovereignty not followed by actual display of State authority”, (UN, 1928). International law then, seems to prioritize the title of effect administration of the territory to that of sovereignty or Uti Possidetis.

During the 18th and 19th century discovery was a prominent argument for British historical and legal rationale regarding their title to the islands, but refuted by Argentina with the rationale that, “discovery is an inadequate basis for sovereignty, that it inherited the islands from Spain, that it attempted to enforce administration of the islands, and that only an American act of piracy permitted British seizure of the island” (Richardson, 1996, p14).

In 1934 just after Britain seized the islands, Lord Palmerston stated that British rights were based on “original discovery and the subsequent occupation of those islands” (López, 1995, px). Nowadays however, virtually no-one  believes that the British discovered the islands, but even if they had, discovery must be followed by occupation to have any meaning, and this did not occur; over 170 years passed before the British showed ay further interest in the islands (Ibid). In the time being, the 1713 Treaty of Utrecht gave Spain the right to control the sea and islands in the New World, which was later confirmed in the 1763 Treaty of Paris. This means, López argues, that when Britain established Port Egmont on the islands in 1766 they were in fact trespassing on Spanish territory. Indeed, the Spanish protested and in 1770 drove them out. The British were soon allowed to temporarily return, seemingly to save face and avoid a war, however, Spain emphasized the fact that this was a gesture that did not weaken their claim to full sovereignty (Ibid).

The British left the islands again in 1774 leaving a plaque claiming the islands.  This however can be refuted by the following events. At the Nootka Sound Convention in 1790, Great Britain acknowledged Spanish sovereignty and relinquished their rights to establish colonies on the southern ocean just off the mainland. Furthermore, for almost sixty years between 1774 and 1833 Britain made no attempt to occupy the Falklands This means that the principle of discovery is intertwined with that of prescription and if prescription is to be the basis for a title then, aside from cases of “force majeure” it must be continuous, which in Britain’s case was clearly not so. The principle of prescription shall be further explored later on this essay. The plaque planted in 1774, for the above reasons, becomes meaningless. In the meantime, Argentina became an independent state in 1817 and sovereignty was passed from Spain to Argentina, who took formal possession of the islands in 1820, and in 1823 appointed Luis Vernet to set up a colony which he did in 1826  (Lopez, 1995, px).

Britain itself discarded the argument of discovery, in light of the fragile and uncertain evidence that it lies upon. In fact, Beck believes that the first discoverer of the Falklands was the Dutch Sebald De Weert. Moreover, he argues that who discovered the islands in not of any legal importance (Ibid). Indeed, the Foreign Office released a memorandum on December 17, 1982 expressing that evidence regarding the British discovery was, “obscure and uncertain. Our claim to first discovery has never of itself formed the basis for our claim to sovereignty over the islands.” (Ibid)  We can conclude them, that the legal claim to the Falkland Islands based on discovery no longer hold any weight, due to two main reasons; the first being that it is unclear who truly discovered the island first, and the second that even if it is accepted that Britain discovered the islands, their unsteady occupation following this, renders the principle of discovery as a claim to the islands, illegitimate. This leads us to the issue of prescription as a legal basis for claim to the Falklands.

The Law and Prescription

After the 1930s the British changed tack; in 1982 Foreign Minister Francis Pym stated that British sovereignty rested not on discovery and occupation but rather on “prescription and the principle of self- determination” (López, 1995, p19). On July 1982, following the armed conflict of that year, British Foreign Minister, Francis Pym re-iterated this argument, “our title can be soundly based on our possession of the islands 1833… prescription as a mode of acquiring territory is generally recognized in international law.” (López,1995, p29.) According to the principle of prescription, Britain’s occupation of the Falklands for nearly 150 years, even if illegal, is enough for Britain to claim this title (Bluth, 1987, p7). Though this argument has some legal basis it is somewhat questionable as it is not universally accepted as a principle of law (Brownlie, 1963, p422).

López contests Britain’s argument of prescription, based on the vein that under the principle of prescription a nation must uncontested occupy the land, over a period of time; if another nation claims the land and consistently protests the occupation, as is the case with the Malvinas, then a case for sovereignty resting on the principle of prescription does not hold water (López, 1995, pxi).According to López, British sources dating back to 1833 to the present day themselves acknowledge consistent Argentine protests of British seizure and occupation, hence he concludes that, “Again, it is British records themselves that destroy the case for acquisitive prescription” (López, 1995, xi). [1] There is, however, a gap between 1849 to 1884 where Argentina did not protest. In spite of this, Argentina emphasized that this silence should not be read as an indication that they had surrendered. It can be argued that these 35 years were long enough to conclude that Argentina had submitted to British occupation and hence Britain acquired the title by prescription.  According to Bluth though, most writers on international law hold that fifty uninterrupted years of occupation is the minimum for the acquisition of the title by prescription (1987, p9).

The Law and Self-determination

The concept of self- determination is given in article 1 of the UN charter, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace..” and expanded upon in article 73; “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories…” (UN.org)  It is, however, a problematic concept given that there are no definitions for terms such as “people”, “nation” and “the right to self determination”

López brands the principle of self- determination as, “the most inapplicable of all” (López, 1995, xi). He claims that their argument of self-determination is ridiculous, based upon a “transplanted population” of Britian’s own colonists, after having driven out the original inhabitants and then claiming the right to self- determination. He muses that if this was all one had to do to claim ownership of a land then the International affairs would be in a very sorry state indeed (Ibid). López represents the Argentinian response to Britian’s claim to the title by self- determination, that they are not indigenous and that the previous inhabitants were forcefully removed in order to colonize them for Britain. It must be noted however, that there were no indigenous people in the Falkland Islands, as the Argentianians also settled there (Gibran, 2008, p.108) Nonetheless, what we witness here is a clash between, the principle of self- determination with the principle of decolonization.

The principle of decolonization was established by the General Assembly of the United Nations in resolution 1514 (XV) of 1960 (gibnet.com). Since then the principle has been further developed as an aspect of the principle of freedom from colonization. Both Britain and Argentina appeal this principle in a conflicting manner. Britain maintains that the principle of de-colonization does not apply to the Falkland Islands, that it is not a colonial situation and that the Falklanders do indeed have the rights to self- determination. UN Resolutions 2065 (XX) and 3160 (XXVIII), however, specifically declared the “aim of bringing to an end everywhere colonialism in all its forms, one of which is the case of the Falkland Islands” (UN.org).

The Argentinian case then, is that recognition of a colonial situation surely implies the need for de-colonization. Strengthening their argument is the study on the right to self- determination carried out for the UN commission on human rights in which Aureliu Cristescu states that, “The relevant elements are that the term ‘people’ denotes a social entity possessing a clear identity and its own characteristics, and that it implies a relationship with a territory, even if the people in question have been wrongfully expelled from it and artificially replaced by another population” (ICJ, 1982, p.32).

López and other advocates of the Argentinian case conclude that none of Britain’s cases for sovereignty over the Malvinas islands are justified, they simply do not have a judicial case, and they well know it, hence their tendency to brush the matter under the carpet by continuously buying time. The issue, however, is clearly not so simple; both sides have their own legal claims to the islands and as we have seen, the legitimacy, all of these claims, on both sides, is ambiguous.

Conclusion

The dispute over the Falkland/ Malvinas Islands is interesting and complex, with no obvious answer within the realms of international law, hence the fact that is it still an unsolved dispute after so many years. Even if the British are indeed colonising the territory there were no peoples being subjugated as there were never any indigenous people- hence it is not really colonization which traditionally means usurping the culture and rights of indigenous people, as was done for instance by the Australians to the aboriginals. This suggests that the legal formulas do not deal with a case where in effect there are no indigenous peoples and thus it cannot be compared to British, Spanish or Portuguese, to name but a few examples of Colonialism in other parts of the world. This, however, is a discussion beyond the scope of this study.  Furthermore, the culture, language and loyalty of all the people on the islands are clearly British and despite the arguments which have been provided against their self- determination, it is a factor that simply cannot be ignored.  Thus, it appears as though there is no clear legal framework to solve this case which is why we still see the issue of these islands in today’s news, so many years later in 2009.

List of references

Books

Brownlie, Ian. International Law and the Use of Force by States. (1963) Oxford: Oxford University Press.

Gibran, Daniel. The Falklands War: Britain versus the Past in the South Atlantic. (2008). McFarland & Co.

Goebel, Julius. The Struggle for the Falkland Islands. (1982) New Haven: Yale University Press.

López, Angel, M. Olivieri. Key to an Enigma. British Sources Disprove Claims to the Falkland/ Malvinas Islands. (1995) Lynne Rienner Publishers.

Phythian, Mark. The Labour Party, War and International Relations, 1945- 2006. (2007) Routeledge: London and New York.

Piers, Brendon. The Decline and Fall of the British Empire. 1781- 1997. (2008) Alfred A Knopf: New York.

Richardson, Louise. When Allies Differ. Anglo- American Relations During the Suez and Falklands Crises.(1996) St. Martin’s Press: New York.

Journals

Bluth, Christopher. The British Resort to Force in the Falkland/ Malvinas Conflict 1982: International Law and Just War Theory. (1987) Journal of Peace Research, vol.24, no.1.

House of Commons Foreign Affairs Committee, Sessions 1983- 84. Falkland Islands. HC 268-I & HC 268- II. London: HMSO.

International Commission of Jurists. ‘The Argentine Claim to the Falkland Islands’, Review of the ICJ.(1982) no. 28, June, pp25-32.

Muwunguzi, Patrick, Reconciling Uti Possidetis and Self Determination: The Concept of Interstate Boundary Disputes. (2007) King’s College London.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1023163 accessed 05/07/09

UN, Reports of International Arbitral Awards. Islands of Palmas Case. 4 April 1928. Vol. ii, pp829-871. (2006).

Websites

www.Thegaurdian.co.uk (24 April 2009) accessed 04/07/09

http://www.gibnet.com/texts/un1514.htm accessed 06/07/09

www.un.org accessed 07/07/09


[1] Unfortunately these specific details are not detailed in the accessible pages of the online version of López’s book.

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