“What the Argentinians have been saying recently, I would argue, is actually far more like colonialism because these people want to remain British and the Argentinians want them to do something else.”[1]David Cameron

Image courtesy of Kenneth Ian Griffiths, ©1982, some rights reserved

In June, 1982 the British Overseas Territory known to us as the Falkland Islands was liberated from temporary Argentine occupation. As the Union Jack was raised once more over Stanley and the Argentine Junta left defeated and embarrassed, a wave a jingoistic patriotism swept across mainland Britain. Margaret Thatcher’s popularity soared. The public was distracted from concern over the dire state of the economy and instead rejoiced in victory as the fate of the sparsely populated islands, located 7,780 miles from the UK, was finally settled. Or so it seemed.

This year marks the 30th Anniversary of the Falklands War and much has changed in both countries since then. In recent months British war veterans have been ceremoniously paraded around city streets. In Argentina coins were produced to venerate the year of the invasion and to highlight British ‘colonialism’. On the international stage, however, tensions and the wartime hangover manifested in a less superficial manner (Although President Cristina Kirchner’s attempt at the G20 summit to force a letter at David Cameron titled the ‘UN Malvinas’ was blundering at best).

The sovereignty dispute over the Falklands continues to represent a moral and legal gridlock which has persisted since the 19th century. It is also an exceptional exposé of some of the shortcomings in international law. To put the question in simple terms: do you support Argentina’s claim of territorial integrity, or the UK’s support for the self-determination of the islanders? Both claims are legitimate and legally viable and this has helped sustain a faceoff which both unilateral and multilateral initiatives have failed to cool (the 1995 Joint Declaration, which agreed on the common exploration and exploitation of hydrocarbons, was a step in the right direction, however Argentina’s withdrawal in 2007 marked an end to any such rapprochement).

So what are the foundations for the two arguments? Is there any way the interests of both states can be satisfied and the dispute resolved?

Territorial Integrity

Argentina’s territorial claim extends back centuries. Most importantly, following the Treaty of Westphalia (1648) and later Utrecht (1713), the principle of uti possidetis was applied by the Spanish to their territories in South America. This was carried out in order to establish clearly marked spheres of influence and avoid conflict over borders. Utrecht also stipulated that only Spain retained the right to sail in South American waters. Given that Britain signed and ratified the Treaty, including this specific clause, it cannot be denied that Argentina has a right to protest against Britain’s initial colonisation of the islands and subsequent establishment of control in 1833.

Taking a less historical perspective, it is important to point out that Argentina’s claim also has the backing of UN General Assembly Resolution 31/49. This resolution infers that while the sovereignty dispute continues neither party should take unilateral action to alter the current situation. British efforts to explore and exploit the recently discovered oil reserves located inside the islands’ economic exclusion zone sends a clear message that Britain does not see sovereignty as negotiable and that the islands and the economic resources that come with them are her exclusive property.

Argentina also has a point in stating that Britain’s Wilsonian claim of self-determination is not relevant given the current situation. Since the native population was forced out in 1833 and not allowed to return and instead a British community implanted in its place, Argentina can argue that the upcoming referendum on independence is an unfair representation. Additionally according to the UN, aspirations of self-determination are suspended until the more important issue of sovereignty is settled between the two parties. Nevertheless the UN Special Committee on Decolonization does recognise this as a “special and particular” colonial situation[2] and suggests that any agreement should consider the interests of the population, but not enforce their rights of representation.

Self-determination

For the British, the military defeat of Argentina in 1982 ended any unfounded territorial claims put forward by the South Americans and quelled the delusions of grandeur held by the Junta’s generals. In recent years the discovery of potentially valuable oil reserves and the deteriorating state of Argentina’s economy has engendered a series of political attacks and media stunts from Buenos Aires.  Ms Kirchner seems eager to engage in bilateral dialogue on the issue and has brought the case to the UN’s Special Committee on Decolonization in recent months. London, however, remains intransigent and insists that the matter has been settled through war and through the will of the people.  Indeed the Falklands community has been settled for over a century and a half and is entirely determined to remain part of Britain. In this sense it is ludicrous to declare, as some Argentine nationalists have in the past, that Britain’s ‘occupation’ of the Malvinas is equivalent to Argentina occupying the Channel Islands.

Although the UK can cite the UN Charter and reiterate the universal right to self-determination expressed in Common Article 1 of the 1966 Covenants, as previously mentioned this case represents a unique situation. Certainly many would argue that territorial integrity must always be determinant on the more important fulfilment of self-determination and human rights. In this sense the UK may hold a foothold in the moral battlefield, although neutral nations are now far more receptive to the current democratic Government of Argentina than they were toward its totalitarian predecessor during the 1970s.

What next?

As with many other disputed territories, ranging from South Ossetia and Abkhazia to the West Bank, the Falkland Islands stands as an exhibit to the failings of international law. Drastic changes in the Cold War-era legal framework are required in order for international law to become an effective mechanism for resolving competing claims of sovereignty as, for the time being, such cases are reliant on the actions of individual states. The Falklands dispute shows no signs of abating in the near future and although war seems a highly unlikely prospect, the increasing preference for unilateralism is heralding an ever more heated stand-off between the two states. Any future rapprochement or political condominium over the islands will first require a mellowing of both Argentine bellicosity and British intransigence.

2 thoughts on “Law and Disorder: The Never-ending Dispute over the Falkland (Malvinas) Islands”

  1. “Ms Kirchner seems eager to engage in bilateral dialogue on the issue and has brought the case to the UN’s Special Committee on Decolonization”.
    These two statements are not compatible. Argentina cannot have it both ways: if they want a bilateral solution, they should refrain from the nationalism of minting coins and appealing to the UN, but the Government of the day would not then be able to invoke nationalistic jingoism to distract attention from their economic incompetence.
    As for Utrecht – “Utrecht also stipulated that only Spain retained the right to sail in South American waters”: such waters are not defined in Utrecht, and the Falklands are in modern law outside the national zone applicable under the UN Law of the Sea to a continental shelf.
    This all quite apart from the ridiculous situation we face here: as Borges put it, “like two bald men fighting over a comb”. There may be some oil, but the greater prospects for trade between the two countries should outweigh this. Both Cameron and Kirchner need to acknowledge this and stop their respective jingoisms.

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