Legal Position of the Falkland Islands
The legal problem of the Falkland Islands will be explored in this article.
According to the UN Charter and UN Resolution 1514 the sovereignty of the Falklands should either be determined by its people OR assigned to Argentina on the basis of territorial integrity. The relevant parts of the UN Charter and Resolution 1514 are given at the end of this article.
If it is decided that the wishes of the people are paramount then Argentina has no sovereignty over the Falklands because in the 2013 Falklands Referendum 99.8% of the electorate voted to stay as an Overseas Territory of the United Kingdom (which is a largely self governing status).
If territorial integrity is paramount then does Argentina have a legal or physical claim to sovereignty?
The legal claim begins with the 1850 Convention of Settlement. Argentina and Britain agreed that they had no differences even though the Falkland Islands were a full UK colony in 1850 (the two nations were in “perfect friendship”). This means that in 1850 Argentina relinquished any claim to sovereignty it might have had.
The UN Charter and 1850 Convention of Settlement are the most important recent treaties. The two treaties obviate any Argentine legal claim to the Falklands. They supersede all previous treaties. However, the Argentines base their claim on more historical treaties.
If the 1850 Convention of Settlement is disallowed then the next relevant treaty is the Spanish-Uruguay Pact of 1841 in which Spain assigned sovereignty over East Falkland to Uruguay. If Spain had the right to assign sovereignty of East Falkland to Uruguay then East Falkland would be Uruguayan. This pact was recognised by Argentina so Argentina has no claim to sovereignty.
If the 1841 Pact is disallowed then the next legal problem is to determine which South American state might inherit sovereignty from Spain after the South American wars of independence under the principle of "uti possidetis juris". This principle generally means that the country that was responsible for governing a region prior to the end of Spanish rule becomes sovereign over that region after independence. It does not have the status of an international treaty and amounts to an agreement between South American countries.
Eve if "uti possidetis juris" is accepted Argentina still has a problem claiming sovereignty. The Spanish Governor of the East Falklands was appointed from Buenos Aires until May 30th 1810, from 1810-12 the Governor was appointed from Montevideo. The Argentinians, Uruguyans and Spanish seem to have recognised this sequence of events in signing the Pact of 1841. The Spanish physically abandoned the East Falklands in 1811 (The West Falklands were recognised by the Spanish to be British - see below). Technically this means that the East Falklands would be Uruguayan except that, after Uruguayan independence, between 1812 and 1820 they were unpopulated and unclaimed by Uruguay or Argentina and, given that the Spanish originally had dominion, either reverted to Spanish dominion or belonged to the Captain General of Chile, Chile being Spanish controlled until 1818, when it became a republic. On this basis the East Falklands are either Uruguayan or Chilean, the Spanish having given any claim that they had to sovereignty to the Uruguayans. Argentina has no sovereignty.
Notice also that it was the United Provinces of South America, not Argentina, that laid claim to the Falklands in the early nineteenth century. The United Provinces were certainly not geographically the same as Argentina and whether they can be considered politically contiguous with Argentina is a moot point. Indeed, in the late 1820s, a civil war meant that there were two countries in what is now the North of Argentina and it was the Buenos Aires (AKA Liga del Littoral), not the United Provinces, that first claimed the Falklands between 1827 and 1832 (after which the British took control again).
Prior to any South American claim over the Falklands the British and Spanish had conflicting claims. The next relevant treaty is the Nootka Sound Convention of 1790. Nootka was a treaty between Britain and Spain. It is often quoted by South American States as if Spain were laying down the law. However, Britain controlled the Falkland Islands in 1791 so Nootka cannot be construed as the British relinquishing control of these.
Nootka only forbids new settlements, it allows British occupation because they had an existing settlement in West Falkland - the Spanish recognised the British rights in West Falkland with the Masseran Declaration of 1771. The Spanish had purchased East Falkland from the French in 1766 (without consulting the British) so had recognised that foreign powers could own the Falklands. Article 6 of Nootka also permits British settlement because Patagonia was not populated (by Europeans) and settlement was only forbidden off populated coasts (ie: colonized coasts). The full Convention between Britain and Spain also allows British occupation because the Buenos Aires, by attempting to settle the Islands in the 1820s, initiated occupation by non-Spanish powers, so voiding any agreement for the British to respect Spanish rights in the Islands. In fact, once the United Provinces/Buenos Aires occupied the Falklands it caused the Treaty of Utrecht to fall into abeyance because they were not signatories, and once they occupied the Falklands it caused Nootka to be superseded (the islands were no longer occupied by Spain). The United Provinces might have had a claim over the East Falklands, along with Chile and Uruguay, had Spain relinquished its claim to sovereignty but Spain did not formally renounce sovereignty until 1841 when it transferred its claim to Uruguay. Argentina has no sovereignty.
Arguments from proximity alone
The possible legal argument that Argentina has sovereignty due to proximity or as a result of the Falklands being part of its offshore continental shelf is void because in 1833, when the Falklands were occupied again by the British, Argentina was nowhere near the Falklands. Patagonia was only annexed by Argentina in 1881 (after a genocide of the natives).
What is the Argentine claim? Does anyone know? There is no legal or territorial basis. See The History of the Falkland Islands.
Even if it were claimed that an independent Falklands violated Argentina's territorial integrity UN Resolution 1514 does not declare that the Falklands must be Argentine. The primary clauses in Resolution 1514 give priority to the wishes of the people. Argentina would not be entitled to sovereignty even if it could demonstrate a legal or territorial right to sovereignty.
Given that Argentina appears to have no valid claim to sovereignty and the people of the Falkland Islands have voted to reject Argentine sovereignty why does the world largely support Argentina? The answer is clear, British governments and the British Foreign Office have hoped to trade the Falklands for advantage in South America for the 150 years before 1982. The government made no effort to educate the world about the history of the Falklands or the legal position of the Islanders. It was only the British people who objected on behalf of the Islanders to their government's machinations. The result of this perfidy by the British government is that what should be an open and shut case is considered by the whole world to be dubious.
The Argentine claim to the Falkland Islands was almost unknown in Argentina between 1850 and WWII. In WWII the Fascist Peron re-awakened the issue to put pressure on the British on behalf of the Germans. The Falkland Islands was a critical refuelling base for Allied forces.
It should also be noticed that the Argentine claim to Patagonia, which it illegally invaded in 1870-1880, is dubious. The indigenous people of Patagonia, the Mapuche, were recognised by the Spanish. The Mapuche are still campaigning for the liberation of their country. The British would do well to support these people whose claim is infinitely more worthy than that of Argentina over the Falklands.
Notes:
The Falkland Islands were unpopulated until the 18th century and are now populated almost entirely by settlers of British origin. Do these people have a right to self determination?
The declaration in resolution 1514 states:
"And to this end Declares that:
1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.
2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.
4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence,to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.
6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity."
Territorial integrity is introduced into the UN Charter by this resolution - no doubt to comfort the Russian and Chinese empires and other land empires, especially large ex-colonies such as Brazil and the USA.
The UN Charter:
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 wellbeing of the inhabitants of these territories, and, to this end:
1. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;
2. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;
3. to further international peace and security;
4. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and
5. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.'
Article 103
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
Other documents - all superseded by the 1850 Convention of Settlement and the UN.
In 1766 the British set up a colony on the Falklands and demanded that the French leave. In 1766 Spain paid the French 700,000 francs for Las Malvinas. Reference: The Falklands/Malvinas Case: Breaking the Deadlock in the Anglo-Argentine.Sovereignty Dispute. By Roberto C. Laver. p.30.Martinus Nijhoff Publishers, 2001
Masseran Declaration of 1771:
"DECLARATION OF SPAIN: .. Masserano Prince of states, while in name of your Lord the King, the commitment he has given His Catholic Majesty that reset to Her Majesty the possession of the port and fort called Egmont, can not and should have no effect on the sovereign right of the previous issue of the islands called Malouines Falkland Islands also ."
(Fort Egmont now Port Egmont is in West Falkland.)
“ .. the viceroyalty of La Plata is represented as extending southward to the latitude of 41 degrees; and in the map accompanying it, a line drawn from the Andes eastward to the head-waters of the river Colorado, and down that stream to its mouth in the Atlantic, near the 40th degree, is given as the boundary between the viceroyalty and Patagonia.” [Revolucion Hispano-Americaux 1829 Mariano Torrente]
1790 Nootka Sound Convention No.1 Forbids new settlements but by implication allows the settlement by Britain of the Falklands and has an (at the time) secret Article 6 that refers to coasts "actually occupied by Spain" - Patagonia was not actually occupied.
May 30th 1810 Government of Viceroyalty of Rio del Plata transfers to Montevideo
There was Spanish government of the Falklands from Uruguay. The last governor, Pablo Guillen, was appointed in 1810 and East Falkland was controlled from Montevideo; the abandonment of the Islands was ordered from Uruguay in 1811. Isles of Discord. A file on the Falklands (Malvinas). 1983. Eugenio A.L. Ravenal.p.127 Ventura Books
The Spanish evacuated the Falklands in 1811. Reference: The Falkland Islands: The political and economic aspects. The RUSI Journal Volume 131, Issue 1, 1986 Rex Hunt and David Bolton
First published 4/4/13