This House would cede control of the Falkland (Malvinas) Islands to Argentina.
The issue of sovereignty over the Falkland Islands (with apologies to Argentinian readers, the English name is used for consistency on this page) is a dense and hotly contested one. This debate rather asks whether the UK should pass control to Argentina. While this naturally encompasses the legal arguments each side puts forwards for the primacy of their sovereignty claim, it needs to be recognised that that is not the centre of the debate – it might be fully conceded that the UK has the legal right to the islands and yet still be the conclusion that it should nevertheless pass control to Argentina.
The Falkland Islands are a British Overseas Territory in the south-west Atlantic Ocean. They are about 300 miles from Argentina and lie just above the Antarctic circle. Their population is about 3000 with an economy based upon agriculture; fishing; tourism; and oil exploration.
The Falkland Islands were discovered uninhabited by various European explorers in the 16th and 17th Centuries. The First European to sight the Islands was probably Amerigo Vespucci sailing under the Portuguese Flag. Magellan’s expedition may have sighted them but the first certain Spanish sighting was in 1540.[1] The first English sighting was by Captain John Davies in 1592, he was followed by Richard Hawkins and the Dutchman Sebald de Weert.[2] Britain claims Davies was the first person to see the Islands. The Argentines recognise De Weert’s sighting but reject those of Davis and Hawkins.[3] The British claim to discovery rests on Davis but it seems certain he was not the first to see them.[4] Captain John Strong of the Welfare may have been the first to actually land on the Islands in 1690 (depending on whether the 1540 Spanish expedition did). However it is claimed that this is ‘of no conceivable legal consequence.’[5]
Since the question of sightings and discovery is so hard to pin down Argentina prefers to have its claim originate from the Treaty of Tordesillas of 1494 that divided the world between Spain and Portugal, the as yet undiscovered Falklands being on the Spanish side.[6] Naturally most other European powers did not recognise this. It is claimed that the return to Status quo ante by the Treaty of London (1604) England/Britain nullified all rights by discovery by Davis and Hawkins.[7] But a reader of the treaty will search in vain for any renunciation of such rights, only finding a confirmation that British ships could only trade where they were permitted before the war, i.e. not America.[8] Subsequent Spanish-British Treaties of Madrid (1670) and Utrecht (1713) confirmed this position that there were some areas where British merchants could not trade in America.[9]
That the first settlement was established in 1764 by the French on East Falkland is not disputed.[10] The French named them the ‘Iles Malouines’ of which ‘Islas Malvinas’ is a direct Spanish translation. The English named the passage between the two main islands the ‘Falkland Channel’ and thus the islands became ‘The Falklands’. In 1766 the British (unaware of the French presence) established a separate colony on the West Falkland. In the same year France agreed (under pressure) to transfer sovereignty over the Islands to Spain, and in 1767 the Spanish assumed control of the French colony. British and Spanish claims over the Islands thus arose simultaneously and independently.
The mutual discovery of each other’s settlements almost lead to war between Britain and Spain. With the order of the Spanish Governor Francisco Bucarelli to evict the British being interpreted in London as the start of a global challenge to British sea power.[11] The crisis was averted by Spanish restoration of the British colony, with the provision that Spain retained a competing claim to sovereignty over the islands. During the crisis however Lord North’s government conceded that it would be willing to abandon its claims and made a secret agreement ‘that did in effect amount to conceding Spanish Sovereignty’.[12]
In 1774 the British withdrew from the Falklands (as well as many other small overseas colonies) as a result of the crisis caused by American War of Independence). When pressed by the French to concede that this was done in accordance with the previous agreement North denied it.[13]A plaque was left on the Falklands asserting continued sovereignty. Spain continued its occupation until 1811, where due to similar pressure caused by the Napoleonic wars it was forced to withdraw, leaving a similar plaque.[14]
From 1811 to 1828 there was no official presence on the islands, though it was used as a refuge for damaged ships and as a staging area for British and American sealers.
In 1820 The United Provinces of the Rio de la Plata (the Argentinian proto-state) sent a Frigate under Colonel Daniel Jewitt to assert its sovereignty. He found various foreign, mostly US, ships there who met his assertion with scepticism, and then rejected it outright when Jewitt was arrested by the Portuguese for Piracy.[15]
In 1828 a German named Louis Vernet living in Buenos Aires was given a large part of the Islands on condition he established a colony which he proceeded to establish the following year. Having ignored Jewitts earlier claim the British consul now protested Vernet’s colonization.[16] It has been asserted that in 1820 Britain did not recognise the United Provinces of Rio de la Plata at all so a protest was superfluous.[17] Ironically many of his colonists were British, including his second in command Matthew Brisbane. In 1831 Vernet arrested three US ships for seal hunting. Since the United Provinces refused to avow that Vernet was their officer and take responsibility for the seizures the USS Lexington declared this to be piracy, sailed into Puerto Soledad and raised it to the ground.[18] At this point the US took the position that Spain had no right to the Falklands and by extension neither did Argentina, thus US citizens had a perfect right to seal hunting in the absence of the British.[19] The Lexington took Vernet’s colonists with it when it left, with only a couple who had fled at its approach remaining.[20] Argentina responded by sending 50 soldiers under Major Juan Esteban Mestivier to establish a penal colony, this failed because in December 1832 his soldiers mutinied and killed him. In 1833 the British Sloop Clio arrived to reassert their claim. Mestivier’s successor refused to take down the Argentine flag so the British took it down for him, the British action amounted to nothing more hostile than that.[21] Most Argentine accounts claim the Clio expelled the Argentine colony while glossing over the combined effect of the US attack and the mutiny having practically left no colony to expel.[22] Indeed British sources claim the exact opposite, the captain of the Clio, Onslow, expended considerable energy in persuading the Argentine survivors of Vernets colony to stay but was ultimately successful.[23] The Clio left William Dickson, one of Vernet’s original colonists in charge. Today the population of the Islands is virtually entirely of British descent.
For much of the 19th and 20th Centuries, Argentina and the United Kingdom enjoyed good cultural, trade and business relations (notwithstanding the sovereignty dispute). However the failure to reach a diplomatic agreement in the mid-twentieth century resulted in Argentina’s military junta launching an invasion of the islands in 1982; which was defeated after a major British military operation. Britain and Argentina restored diplomatic relations after Carlos Menem became President of a democratic Argentina in 1989.[24] Since 1990, South Atlantic issues have been discussed with the Argentine Government under a 'sovereignty umbrella' arrangement, which allows the UK and Argentina to protect their respective positions on sovereignty while seeking to make progress on practical matters of common interest such as fisheries and de-mining.[25]
There has been less cooperation since Nestor Kirchner became President of Argentina in 2003, he was followed in 2007 by his wife Cristina Fernández de Kirchner. For example, flights between Argentina and the islands have been stopped. Kirchner, supported by Hugo Chavez (President of Venezuela), demands that Britain return the islands. Many British commentators think that Kirchner has adopted his tough stance to gain domestic political support. Most recently there has been tension over the conducting of oil drilling tests by British companies in waters off the Falklands, with Argentina requiring permits for ships traveling to and from the Falklands and Argentina.[26]
Most of Latin America supports Argentina’s claim to the Falklands. During the Falklands War both France and the United States provided support to Britain, however the official position of the US government is that it is neutral in the dispute, as is that of Spain.
Each year the UN Special Committee on Decolonization hears representations from Argentina, the UK and the Falklands Islanders and typically passes a resolution calling for bilateral negotiations between the UK and Argentina. The position of the UK government is that it cannot enter into any negotiation over sovereignty without the consent of the Falklands Islanders. The position of the Argentinian government is that the Islanders are colonists and do not possess a right to self-determination; and that Argentina inherited Spain’s territorial claim on gaining independence.
Prior to the Falklands War there was serious exploration in negotiations of various ‘lease-back’ solutions which would protect the islander’s way of life while passing formal sovereignty to Argentina, however today the narrative on both sides considers Sovereignty as an absolute concept.
Timeline of occupation of the Falklands[27]
[1] Fritz L. Hoffmann and Olga Mingo Hoffmann, Sovereignty in Dispute: The Falklands/Malvinas 1493-1982 (Boulder, Colorado, 1984) pp.17-18.
[2] Vera Lee Brown, ‘Chapter III. The Falkland Islands’, The Hispanic American Historical Review, Vol.5, no.3, Aug., 1922, pp.387-90.
[3] Raphael Perl, The Falkland Islands Dispute in International Law and Politics: A Documentary Sourcebook (London, 1983) p.5.
[4] Hoffmann, Sovereignty, p.22.
[5] Hoffmann, Sovereignty, p.29.
[6] Treaty of Tordesillas: http://avalon.law.yale.edu/15th_century/mod001.asp
[7] Douglas Kinney, National Interest/National Honor: The Diplomacy of the Falklands Crisis (New York, 1989), p.38.
[8] Treaty of London: http://books.google.co.uk/books?id=U8nYFSTQhXcC&pg=PA137&output=html
[9] Treaty of Utrecht: http://en.wikisource.org/wiki/Peace_and_Friendship_Treaty_of_Utrecht_between_Spain_and_Great_Britain
[10] Perl, Dispute, p.5.
[11] Nicholas Tracy, ‘The Falkland Islands Crisis of 1770; Use of Naval Force’, EHR vol.90, no.354, Jan., 1975 p.41
[12] Ibid. pp.61, 71.
[13] Ibid. p.73.
[14] A Brief History of the Falkland Islands, ‘Part 2 – Fort St Louis and Port Egmont’, http://www.falklands.info/history/history2.html
[15] Craig Evan Klafter, ‘United States Involvement in the Falkland Islands Crisis of 1831-1833’ Journal of the Early Republic vol.4, no.4, Winter 1984, p.398.
[16] Richard Ware, ‘The Case of Antonio Rivero and Sovereignty over the Falkland Islands’, The Historical Journal, vol.27, no.4, Dec., 1984, p.963.
[17] John Muffty, ‘Reflexions on The Case of Antonio Rivero and Sovereignty over the Falkland Islands’, HJ, vol.29, no.2, Jun., 1986, p.428.
[18] Paul D. Dickens, ‘The Falkland islands Dispute between the United States and Argentina’, The Hispanic American Historical Review, Vol.9, no.4, Nov., 1929, pp.476-7.
[19] Ibid. pp.481-2.
[20] Craig Evan Klafter, ‘United States Involvement in the Falkland Islands Crisis of 1831-1833’ Journal of the Early Republic vol.4, no.4, Winter 1984, p.418.
[21] Barry, M. Gough, ‘British Reoccupation and Colonization of the Falkland Islands or Malvinas, 1832-1843’, Albion, vol.22, no.2, summer, 1990, pp.271-2.
[22] Eg, Alejandro Dabat & Luis Lorenzano, Argentina: The Malvinas and the end of Military Rule, Ralph Johnstone (Trans.), (London, 19840, p.43.
[23] John Muffty, ‘Reflexions’ p.432.
[24] ‘Re-establishing Diplomatic Relations Between Britain and Argentina’, Governments of the United Kingdom and Argentina, 15 February 1990, http://www.falklands.info/history/1990agreement.html
[25] ‘Re-establishing Consular Relations Between Britain and Argentina, and Agreeing a Framework on Sovereignty Which Would Allow Further Talks’, British and Argentine delegations, 19 October 1989, http://www.falklands.info/history/1989agreement.html
[26]The Economist, ‘Argentina and the Falklands: Oil and troubled waters’ Feb 18th 2010 http://www.economist.com/node/15546482
[27] http://upload.wikimedia.org/wikipedia/commons/d/df/Falklands.permanence.png
Points For
Argentina inherited Spain’s claim to sovereignty
Both Argentina and the islands were under Spainish sovereignty. Spain ruled the islands from Argentina – they were therefore part of the same territory – doing so free of British intervention (or complaints) from 1770 until 1811, i.e. 41 years.
Upon independence from Spain, Argentina rightfully asserted sovereignty over the former Spanish territory, a principle that would latter be known under international law as uti possidetis juris. Britain did not claim sovereignty over the islands when Spain left them in 1811. Nor did Britain immediately challenge Argentina’s assertion of sovereignty in 1820, when David Jewett claimed the islands for Argentina, or in 1825, when the first treaty between the new country and Britain was signed.
COUNTERPOINTThe fact that Spain never formally renounced sovereignty is irrelevant – when Britain asserted its territorial claim Spain acquiesced.
Additionally if Spain’s claim did not lapse when it evacuated its colony then surely neither did Britain’s. Nor is it obvious that Argentina should have inherited the Spanish claim to the Falklands – they lie 250 miles off the coast of mainland South America.
Britain was of course not going to immediately contest the 1816 claim as she did not yet recognise Argentina so far as Britain was concern the Argentines were not sovereign and did not have sovereignty over any of their territory – at the time the UK recognised Spanish sovereignty over the mainland that Argentina claimed.
Argentina created a permanent settlement
Argentina formally took posession of the islands in 1820 and established permanent settlements in that decade. Previous settlements by Spain and Britain had been military in nature (garrisons). Britain did not protest to these acts of sovereignty. The Argentinean settlements were only ended by illegal military force, the first strike by an American warship, acting on its own initiative and encouraged by the British charge de affairs in Buenos Aires, and the second and last blow by a British taskforce.
COUNTERPOINTVernet sought the permission of the British consulate before establishing his colony – clearly even he thought there was ambiguity over the status of the islands.
Moreover the British and Spanish settlements ended not because of commercial failure but because of indirect pressure caused by war. If Argentinian sovereignty survives expulsion through war then presumably British sovereignty could survive temporary abandonment due to war.
It is also difficult to describe a settlement as permanent when it was on the point of collapse when the British took it over.
Value
The islands are of minimal value to Britain. In an era of satellites and long-range ships and aircraft, the islands no longer have strategic value. Maintaining a garrison there is an unnecessary expense. Jorge Luis Borges (an Argentinean writer) likened the 1982 conflict to ‘two bald men fighting over a comb’.[1]
[1] ‘Jorge Luis Borges (1899-1986)’, http://kirjasto.sci.fi/jlborges.htm
COUNTERPOINTIf military costs are excluded, the islands are self-supporting. They are of great value because they bring rights to fishing and oil exploration. If the oil that has been detected in the islands’ territory can be extracted economically, the islands will be an even greater asset to Britain.[1] Strategically, they provide NATO with an airbase in the south Atlantic. Port Stanley was used as a supply base for the Royal Navy in WW1, resulting in the Battle of the Falkland Islands.[2]
Moreover ‘value’ means more than products and services – the value of the inhabitant’s right to self-determination is priceless
[1] Swint, Brian, ‘Oil Grab in Falkland Island Seen Tripling U.K. Reserves: Energy’, Bloomberg, 25 January 2012, http://www.businessweek.com/news/2012-01-25/oil-grab-in-falkland-islands-seen-tripling-u-k-reserves-energy.html
[2] http://en.wikipedia.org/wiki/Battle_of_the_Falkland_Islands
Distance
The Falkland Islands are 8000 miles from the UK – in the modern age it is absurd that one country can claim sovereignty over land halfway across the globe from it.
The needs and wishes of the Falkland islanders would be much better served if the government responsible for them was local.
COUNTERPOINTProximity is a poor reason to make a claim to sovereignty as the Falklands lie outside the 200 mile limit that Argentina claims in the southern Atlantic.[1] The Falkland Islands today have effective self-government. They have their own elected legislature and an independent judiciary. The islands are also economically self-sufficient but for the cost of the Military Garrison – which is only necessary because of the Argentinian claim. Moreover with advances in communication the location of the settlement being thousands of miles away from Britain no longer makes much difference when it comes to governing the islands.
[1] R. Reginald & J.M. Elliot, 'Tempest in a Teapot : The Falkland Islands War', The Borgo Press, 1983, http://www.falklands.info/history/hist82article11.html
International relations
Returning the islands would vastly improve Britain’s relationship with Argentina and Latin America as a whole. This would help Britain’s diplomatic and economic ties with the region. It would also be consistent with Britain’s post-war policy of decolonisation, which has seen it withdraw from almost every other colonial possession since 1945. Not only has Britain withdrawn from India, Africa, Malaysia and much of the Caribbean, it has also handed back Hong Kong to China – surely a similar case to that of the Falkland islands and Argentina.
COUNTERPOINTBritain already has a working relationship with Argentina. In 2001, Tony Blair became the first British prime minister to visit Argentina since the 1982 conflict.[1] The agreements made with the Menem government show the potential for peaceful cooperation without returning the islands.
In any case, direct relations with Argentina are of little strategic or economic importance to Britain, except where they affect the Falkland Islands. Trade policy is handled on both sides at a supra-national level, through the EU and Mercosur respectively.
The Falkland Islands are simply not like other examples of decolonisation. Elsewhere Britain has given independence to the indigenous peoples of its former colonial possessions, responding to their desire for self-determination. The Falklands have no indigenous population – their inhabitants regard themselves as British in identity and have no desire to be ruled by Argentina, indeed Britain’s Prime Minister has gone so far as to say the Argentines are the ones who are sounding colonial.[2]
[1] BBC News, ‘Blair’s historic Argentina visit’, 2 August 2001, http://news.bbc.co.uk/1/hi/uk_politics/1467847.stm
[2] BBC News ‘Argentina outraged at Cameron’s ‘colonialism’ remarks’, 19 January 2012, http://www.bbc.co.uk/news/world-latin-america-16625963
Points Against
Argentina inherited Spain’s claim to sovereignty
Both Argentina and the islands were under Spainish sovereignty. Spain ruled the islands from Argentina – they were therefore part of the same territory – doing so free of British intervention (or complaints) from 1770 until 1811, i.e. 41 years.
Upon independence from Spain, Argentina rightfully asserted sovereignty over the former Spanish territory, a principle that would latter be known under international law as uti possidetis juris. Britain did not claim sovereignty over the islands when Spain left them in 1811. Nor did Britain immediately challenge Argentina’s assertion of sovereignty in 1820, when David Jewett claimed the islands for Argentina, or in 1825, when the first treaty between the new country and Britain was signed.
COUNTERPOINTThe fact that Spain never formally renounced sovereignty is irrelevant – when Britain asserted its territorial claim Spain acquiesced.
Additionally if Spain’s claim did not lapse when it evacuated its colony then surely neither did Britain’s. Nor is it obvious that Argentina should have inherited the Spanish claim to the Falklands – they lie 250 miles off the coast of mainland South America.
Britain was of course not going to immediately contest the 1816 claim as she did not yet recognise Argentina so far as Britain was concern the Argentines were not sovereign and did not have sovereignty over any of their territory – at the time the UK recognised Spanish sovereignty over the mainland that Argentina claimed.
Argentina created a permanent settlement
Argentina formally took posession of the islands in 1820 and established permanent settlements in that decade. Previous settlements by Spain and Britain had been military in nature (garrisons). Britain did not protest to these acts of sovereignty. The Argentinean settlements were only ended by illegal military force, the first strike by an American warship, acting on its own initiative and encouraged by the British charge de affairs in Buenos Aires, and the second and last blow by a British taskforce.
COUNTERPOINTVernet sought the permission of the British consulate before establishing his colony – clearly even he thought there was ambiguity over the status of the islands.
Moreover the British and Spanish settlements ended not because of commercial failure but because of indirect pressure caused by war. If Argentinian sovereignty survives expulsion through war then presumably British sovereignty could survive temporary abandonment due to war.
It is also difficult to describe a settlement as permanent when it was on the point of collapse when the British took it over.
Value
The islands are of minimal value to Britain. In an era of satellites and long-range ships and aircraft, the islands no longer have strategic value. Maintaining a garrison there is an unnecessary expense. Jorge Luis Borges (an Argentinean writer) likened the 1982 conflict to ‘two bald men fighting over a comb’.[1]
[1] ‘Jorge Luis Borges (1899-1986)’, http://kirjasto.sci.fi/jlborges.htm
COUNTERPOINTIf military costs are excluded, the islands are self-supporting. They are of great value because they bring rights to fishing and oil exploration. If the oil that has been detected in the islands’ territory can be extracted economically, the islands will be an even greater asset to Britain.[1] Strategically, they provide NATO with an airbase in the south Atlantic. Port Stanley was used as a supply base for the Royal Navy in WW1, resulting in the Battle of the Falkland Islands.[2]
Moreover ‘value’ means more than products and services – the value of the inhabitant’s right to self-determination is priceless
[1] Swint, Brian, ‘Oil Grab in Falkland Island Seen Tripling U.K. Reserves: Energy’, Bloomberg, 25 January 2012, http://www.businessweek.com/news/2012-01-25/oil-grab-in-falkland-islands-seen-tripling-u-k-reserves-energy.html
[2] http://en.wikipedia.org/wiki/Battle_of_the_Falkland_Islands
Distance
The Falkland Islands are 8000 miles from the UK – in the modern age it is absurd that one country can claim sovereignty over land halfway across the globe from it.
The needs and wishes of the Falkland islanders would be much better served if the government responsible for them was local.
COUNTERPOINTProximity is a poor reason to make a claim to sovereignty as the Falklands lie outside the 200 mile limit that Argentina claims in the southern Atlantic.[1] The Falkland Islands today have effective self-government. They have their own elected legislature and an independent judiciary. The islands are also economically self-sufficient but for the cost of the Military Garrison – which is only necessary because of the Argentinian claim. Moreover with advances in communication the location of the settlement being thousands of miles away from Britain no longer makes much difference when it comes to governing the islands.
[1] R. Reginald & J.M. Elliot, 'Tempest in a Teapot : The Falkland Islands War', The Borgo Press, 1983, http://www.falklands.info/history/hist82article11.html
International relations
Returning the islands would vastly improve Britain’s relationship with Argentina and Latin America as a whole. This would help Britain’s diplomatic and economic ties with the region. It would also be consistent with Britain’s post-war policy of decolonisation, which has seen it withdraw from almost every other colonial possession since 1945. Not only has Britain withdrawn from India, Africa, Malaysia and much of the Caribbean, it has also handed back Hong Kong to China – surely a similar case to that of the Falkland islands and Argentina.
COUNTERPOINTBritain already has a working relationship with Argentina. In 2001, Tony Blair became the first British prime minister to visit Argentina since the 1982 conflict.[1] The agreements made with the Menem government show the potential for peaceful cooperation without returning the islands.
In any case, direct relations with Argentina are of little strategic or economic importance to Britain, except where they affect the Falkland Islands. Trade policy is handled on both sides at a supra-national level, through the EU and Mercosur respectively.
The Falkland Islands are simply not like other examples of decolonisation. Elsewhere Britain has given independence to the indigenous peoples of its former colonial possessions, responding to their desire for self-determination. The Falklands have no indigenous population – their inhabitants regard themselves as British in identity and have no desire to be ruled by Argentina, indeed Britain’s Prime Minister has gone so far as to say the Argentines are the ones who are sounding colonial.[2]
[1] BBC News, ‘Blair’s historic Argentina visit’, 2 August 2001, http://news.bbc.co.uk/1/hi/uk_politics/1467847.stm
[2] BBC News ‘Argentina outraged at Cameron’s ‘colonialism’ remarks’, 19 January 2012, http://www.bbc.co.uk/news/world-latin-america-16625963
Popular sovereignty
The people of the Falklands are an established community with a right to self-determination. They are not a transitory population – many of them can trace their origins in the Islands back to the early 19th Century. They are the only successful colonists of the Falklands.
The Argentinian claim of sovereignty through inheritance of the Spanish title (uti possedetis[1]) is not accepted as a general article of international law, and even if it was it would have to be subordinate to the Islander’s right of self-determination.
It is absurd that Argentina claims that the Islanders do not have a right to self-determination because they replaced an indigenous Argentinian population 200 years ago when Argentina consists largely of Spanish colonists who replaced the indigenous Native American population in roughly the same time period.
[1] That newly independent nations inherit the claims of the old colonial states along the colonial boundaries. Dixon, Martin, Textbook on International Law, 6th ed., Oxford, 2007, p.163, http://books.google.co.uk/books?id=aS2fv32rvMcC&printsec=frontcover#v=onepage&q&f=false
COUNTERPOINTThe British colony was established only though the expulsion of the Argentinian colony. It does not matter how long ago this happened - as the legal maxim goes ‘title does not pass with theft’.
Colonists do not have a right to self-determination. It would be absurd if a group of people could invade some land, drive off the people living there; and then state that they have acquired the right to decide for themselves to stay there. The natural consequence of that principle would be that anyone could gain property through ethnic cleansing and long enough adverse possession.
Moral Hazard
Returning the islands would imply that violence and threats are legitimate ways to conduct diplomacy. Britain would be giving in to the invasion of 1982 and Kirchner’s more recent rhetoric. This would set a dangerous precedent that Britain will abandon its interests if threatened.R
COUNTERPOINTReturning the islands would not be a sign that violence and threats are legitimate. It would be recognition of the justice of Argentina’s claim and the illegality of Britain’s occupation of the islands. In fact, it would show that illegal acts of violence, like that of 1833, will eventually be overturned.
Blood has been spilt
If Britain returned the islands, it would be a profound insult to the soldiers who fought and died to liberate them in 1982. The campaign was honourably fought in defence of the rights of the people of the Falkland Islands to determine their own future. It was fought against a military dictatorship which used the campaign in a cynical attempt to divert domestic attention away from its oppressive, corrupt and incompetent rule. One of the positive consequences of British victory was that the military junta fell from power and Argentina became democratic. So Britain, Argentina and the Falkland islanders all have cause to celebrate the outcome of the 1982-83 war.
COUNTERPOINTBritain sent its soldiers to fight an unjust war. Their sacrifices do not make British occupation of the islands legal.
Length of occupation
The primary means of acquiring title to territory is through the effective exercise of the functions of a state within that territory. This means that Britain has a right to the territory under either ‘occupation’ (if Argentina is not considered to have occupied previously) or ‘prescription’ if it has.[1] The ICJ has stated that the claim must be
I, the possession must be exercised in the character of a sovereign
II, the possession must be peaceful and uninterrupted
III, the possession must be public
IV, the possession must endure for a certain length of time.[2]
Britain would not have difficulty arguing that it has continuously exercised sovereignty for over 170 years. It has also been peaceful (no attacking native tribes, no unrest etc). It would seem silly to transfer sovereignty to Argentina on the basis of Argentina having only occupied the islands for at most five years compared to the long period of British occupation both after and before the Argentine colony.
[1] Dixon, Martin, Textbook on International Law, 6th ed., Oxford, 2007, p.155, http://books.google.co.uk/books?id=aS2fv32rvMcC&printsec=frontcover#v=onepage&q&f=false
[2] International Court of Justice, ‘Reports of Judgements, Advisory Opinions and Orders Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)’, 23 December 1999, http://www.icj-cij.org/docket/files/98/7577.pdf p.62/1103
COUNTERPOINTIt would not be possible for the UK to argue that it has a claim through prescription and the length of occupation because the original taking over the Argentine colony was not legitimate, as the islands were not res nullis.
In the Chamizal Case (Mexico vs United States), the ICJ rejected the right to title by prescription invoked by the United States because "the physical possession taken by citizens of the United States and the political control exercised by the local and Federal Governments, have been constantly challenged and questioned by the Republic of Mexico, through its accredited diplomatic agents."[1]
[1] The Chamizal Case (Mexico, United States), Reports of International Arbitral Awards, 15 June 1911, Vol.XI, pp.309-347
The islanders are the only ones who can decide.
It is the Falkland Islanders themselves who have to decide whose sovereignty they should fall under; British, Argentine or even potentially their own. The Falkland Islands are a democracy with a democratically elected Legislative Assembly and Executive Council (made from members of the Legislative Assembly). Similarly it has its own courts. The self-determination of the islanders is prominent in their constitution.[1] The Falklands have therefore been recognised by the British government as a nation just like the Scots, Welsh and Irish. This means that the decision on any change of sovereignty in the future will be up to the islanders alone to make.[2]
It is no longer up to Britain to simply cede the islands even if they wanted to.
[1] The Falkland Islands Constitution Order 2008, Statutory Instruments, 2008 no. 0000, http://www.falklands.gov.fk/assembly/documents/The%20Falkland%20Islands%20Constitution%20Order%202008.pdf#
[2] Ivanov, Lyubomir, ‘The Future Of The Falkland Islands And Its People’, February 2003, http://www.falklands-malvinas.com/Lyubospaper.htm
COUNTERPOINTIf Britain did not have legitimate sovereignty over the Falklands to begin with then it is illegitimate for Britain to hand that sovereignty over to the islanders.
Bibliography
A Brief History of the Falkland Islands, ‘Part 2 – Fort St Louis and Port Egmont’, http://www.falklands.info/history/history2.html
BBC News, ‘Blair’s historic Argentina visit’, 2 August 2001, http://news.bbc.co.uk/1/hi/uk_politics/1467847.stm
BBC News ‘Argentina outraged at Cameron’s ‘colonialism’ remarks’, 19 January 2012, http://www.bbc.co.uk/news/world-latin-america-16625963
‘Jorge Luis Borges (1899-1986)’, http://kirjasto.sci.fi/jlborges.htm
British and Argentine delegations, ‘Re-establishing Consular Relations Between Britain and Argentina, and Agreeing a Framework on Sovereignty Which Would Allow Further Talks’, 19 October 1989, http://www.falklands.info/history/1989agreement.html
Brown, Vera Lee, ‘Chapter III. The Falkland Islands’, The Hispanic American Historical Review, Vol.5, no.3, Aug., 1922, pp.387-90.
Dabat, Alejandro & Lorenzano, Luis, Argentina: The Malvinas and the end of Military Rule, Ralph Johnstone (Trans.), (London, 19840, p.43.
Dickens, Paul D., ‘The Falkland islands Dispute between the United States and Argentina’, The Hispanic American Historical Review, Vol.9, no.4, Nov., 1929, pp.476-7.
Dixon, Martin, Textbook on International Law, 6th ed., Oxford, 2007, p.155, http://books.google.co.uk/books?id=aS2fv32rvMcC&printsec=frontcover#v=onepage&q&f=false
Gough, Barry, M., ‘British Reoccupation and Colonization of the Falkland Islands or Malvinas, 1832-1843’, Albion, vol.22, no.2, summer, 1990, pp.271-2.
Governments of the United Kingdom and Argentina, ‘Re-establishing Diplomatic Relations Between Britain and Argentina’, 15 February 1990, http://www.falklands.info/history/1990agreement.html
Hoffmann, Fritz L., and Hoffmann, Olga Mingo, Sovereignty in Dispute: The Falklands/Malvinas 1493-1982 (Boulder, Colorado, 1984) pp.17-18.
International Court of Justice, ‘Reports of Judgements, Advisory Opinions and Orders Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)’, 23 December 1999, http://www.icj-cij.org/docket/files/98/7577.pdf p.62/1103
Ivanov, Lyubomir, ‘The Future Of The Falkland Islands And Its People’, February 2003, http://www.falklands-malvinas.com/Lyubospaper.htm
Kinney, Douglas, National Interest/National Honor: The Diplomacy of the Falklands Crisis (New York, 1989), p.38.
Klafter, Craig Evan, ‘United States Involvement in the Falkland Islands Crisis of 1831-1833’ Journal of the Early Republic vol.4, no.4, Winter 1984, p.418.
Muffty, John, ‘Reflexions on The Case of Antonio Rivero and Sovereignty over the Falkland Islands’, HJ, vol.29, no.2, Jun., 1986, p.428.
Perl, Raphael, The Falkland Islands Dispute in International Law and Politics: A Documentary Sourcebook (London, 1983) p.5.
Reginald, R., & Elliot, J.M., 'Tempest in a Teapot : The Falkland Islands War', The Borgo Press, 1983, http://www.falklands.info/history/hist82article11.html
Swint, Brian, ‘Oil Grab in Falkland Island Seen Tripling U.K. Reserves: Energy’, Bloomberg, 25 January 2012, http://www.businessweek.com/news/2012-01-25/oil-grab-in-falkland-islands-seen-tripling-u-k-reserves-energy.html
The Economist, ‘Argentina and the Falklands: Oil and troubled waters’ Feb 18th 2010 http://www.economist.com/node/15546482
The Falkland Islands Constitution Order 2008, Statutory Instruments, 2008 no. 0000, http://www.falklands.gov.fk/assembly/documents/The%20Falkland%20Islands%20Constitution%20Order%202008.pdf#
Tracy, Nicholas, ‘The Falkland Islands Crisis of 1770; Use of Naval Force’, EHR vol.90, no.354, Jan., 1975 p.41
Treaty of London: http://books.google.co.uk/books?id=U8nYFSTQhXcC&pg=PA137&output=html
Treaty of Tordesillas: http://avalon.law.yale.edu/15th_century/mod001.asp
Treaty of Utrecht: http://en.wikisource.org/wiki/Peace_and_Friendship_Treaty_of_Utrecht_between_Spain_and_Great_Britain
Ware, Richard, ‘The Case of Antonio Rivero and Sovereignty over the Falkland Islands’, The Historical Journal, vol.27, no.4, Dec., 1984, p.963.
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