My sincere apology for a rather emotive title. I have never been one for blind patriotism, in fact I deplore it as a matter of principle. However, the Falklands have increasingly become an emotive issue and both sides, having shed blood on its sacred, rain-soaked ground, have higher stakes than ever in the islands. The recent referendum provided confirmation, as if any were needed, that the islanders overwhelmingly desire to remain British. 10 Downing Street is claiming victory while the Casa de Gobierno pours scorn over the illegitimacy of the vote. If the Argentine claim for the Falklands, which has been more or less persistent since 1833, is correct, then the principle of self-determination is invalid, and the referendum null and void, since the Falklanders become occupiers voting to keep a stolen possession.
Here I examine the Argentine case for possession of the Falklands, in the context of international law, and show it to be invalid. Most important to disputes of this kind, is the basic and universal tenet of international law, which states that all disputes are validated or invalidated by the international law and prevailing norms of the time, and not by retroactive application of current laws. It is by this principle that much of the dialogue in this debate has been framed, a schema from which I will not diverge.
A (very) brief history of the islands
Before we inspect Argentine apologia, it is necessary to appreciate the key events in the history of the Falkland islands, leading up to the contested British take over of the islands in 1833 and beyond. Although it makes for a lengthy and convoluted catalogue of events, here is an abbreviated timeline of the most significant incidents.
- 1690 - First landing on the islands by British Captain John Strong, named after Viscount Falkland, Treasurer of the Royal Navy
- 1764 - Louis Antoine de Bougainville takes formal possession of East Falkland by order of Louis XV.
- 1764 - British prepare an expedition to colonise the islands before word of the French colonisation had reached Europe.
- 1765 - Commodore John Byron of HMS Dolphin, having seen no signs of habitation, takes formal possession of the islands in the name of King George III and founds Port Egmont off West Falkland.
- 1766 - More permanent occupation is established by the British at Port Egmont (still unaware of the French settlement).
- 1767 - French transfer their claim to the islands to the Spanish for £24,000 after Spanish protests. The Spanish protest the presence of a British settlement on the islands.
- 1770 - A Spanish force arrives at Port Egmont and orders the settlers to leave.
- 1771 - After sustained British protest and increasing friction between the two nations, the Spanish return Port Egmont to Britain and agree "to restore all things precisely to the state in which they were before 10th June 1770".
- 1774 - British withdraw from Port Egmont, leaving a plaque behind decreeing the islands the property of King George III.
- 1810 - Buenos Aires creates its own government.
- 1811 - Spanish garrison at Port Louis is withdrawn and the islands are left uninhabited.
- 1820 - Colonel Daniel Jewitt arrives at the Falklands and claims possession of the islands in the name of the government of the United Provinces of the Rio de la Plata.
- 1826 - Government at Buenos Aires hires French Merchant, Luis Vernet, to establish a settlement on the islands.
- 1828 - Luis Vernet named governor of the islands.
- 1829 - Government at Buenos Aires decrees it had succeeded to the claims of Spain in 1810.
- 1831 - After seizure of two US ships by Vernet, US warships destroy Vernet's settlement on the island, deports settlers, and declares the islands free of all government.
- 1833 - British government reasserts its claim to the islands and dispatches a force which arrives at the island and raises the Union flag on the shore the next day. British maintain peaceful control of the islands until the Falklands war in 1982.
With a clear understanding of the history of the islands in mind, we can now examine the Argentine case.
Sovereignty of the Falklands was transferred to Argentina from Spain upon its independence (uti possidetis)
This is perhaps the strongest leg of the Argentine case but it is also the one surrounded by most confusion and ambiguity. The argument is based on uti possidetis juris , a principle in international law which states that newly independent states occupy the borders in which the antecedent province resided prior to sovereignty. Argentine apologists therefore claim that, upon Argentina's independence, it naturally assumes control of the Falklands from Spain.
If this is to succeed, one must first show that Britain's possession of the island expired from 1774 to 1810. This is not at all clear, and there are strong arguments to the contrary, including the ineffective control of the islands by the French, Spain's renouncement of its deportation of British settler's and the plaque left behind by British settlers after their departure. In the interest of brevity I will not flesh out this case and urge readers to look into the arguments. More importantly, I am omitting this line of argument because, even if we concede that the islands belonged to Spain in 1810, the Argentine case fails.
The problem for the Argentine case is that, in 1810, there did not exist a generally accepted right for new nation states to come into existence. Spain certainly had not recognised the independence of any of its American territories at this point. The Spanish abandonment of the Falklands in 1811 was merely out of a need to divert resources elsewhere; there was no explicit or implicit intention of handing control over to 'Argentina' (which did not formally declare independence until 1816). In fact, Argentina was not recognised by Spain until 1859, a whole 26 years after the Falklands had come under British control. Spain could not transfer sovereignty to a state it did not recognise.
Argentina acquired sovereignty over the islands in 1820 by formal possession
Perhaps then, Argentina acquired sovereignty over the Falklands directly through Jewitt's arrival on the island in 1820. This would contradict the claim that the islands were transferred to Argentina from Spain. Nevertheless, occupation was a legitimate mode for acquiring territory according to the prevailing rules of the time. Given that the period of post-1820 Argentinian occupation of the islands is too short for title by prescription, it must be demonstrated that the islands were res nullius (without an owner) at the time of Argentinian colonisation. In practical terms then, one must not only show that the British had relinquished control of the islands when they withdrew in 1774 - an impossible feat since the plaque, British insistence on their claims, and British reassertion of their claim in 1833 all fly in the face of this hypothesis - but also that Spain had at some point abandoned their possession of the island. There is no evidence for the latter either. In fact, Spain's refusal to recognise independence in the Americas and its attempt to reconquer Rio de la Plata in the 1820s point to the contrary. Therefore, if Spain was the sovereign power in the Falklands in 1811, then it would still have been the sovereign power in 1820 when Argentina formally took over the islands, and in 1833 when Britain regained the islands.
Argentina succeeded its parent state's possession of Falklands by controlling the islands successfully
There is an argument, presented by Goebel's compelling paper on the topic, that has gained some traction. He argues that Argentina succeeded its parent state's possession of the Falklands by successfully controlling the islands upon its independence. The principle presented by Goebel states that, upon the independence of a nation, if there is no explicit treaty delineating the borders of this nation between the new state and its parent state, then its borders are decided by power, such that whatever land the new state is able to successfully take and control belongs to it. Again there are several problems with this, as outlined in Peter Calvert's excellent 1983 paper Sovereignty and the Falklands crisis. Firstly, the application of this principle is an anachronism. It developed as a result of the emergence of independent states in the Americas, near the end of the 19th century, not antecedent to it. Therefore, under the contemporary rules and norms in 1810 and 1820, Spain was the sovereign authority in the Americas. Furthermore, 'Argentina' as we know it today simply did not exist in 1820. Colonel Jewitt acted on behalf of the government of Buenos Aires, which was independent of the United Provinces (comprising modern day Argentina), and did not join the rest of the provinces of 'Argentina' until the late 19th century. Consequently, it is impossible to regard Jewitt's act as a valid incorporation of the Falklands into an Argentina that did not exist.
The islands belong to Argentina by virtue of their proximity to the Argentine mainland
This we can dismiss fairly swiftly. For a start, this is not an valid principle in contemporary international law. It also holds no water in the 18th century, since no Spanish settlements existed on the mainland of Patagonia until well into the 19th century. Even had there been, the claim of geographical proximity to the continent would most probably have been rejected by Europe at the time given the distance of the islands from the continent.
Argentine claims to the Falklands do not stand up to scrutiny when judged by the laws, rules and precedents set at the time. The British claim to the islands was reasserted in 1833, and gives stronger evidence, if any more were needed, that there was no act of dereliction by Britain in 1774. A century and a half of peaceful administration of the islands by Britain, subsequent to 1833, only strengthens the British claim to the islands by the accepted principle of prescription of the time. This is then at least one chapter of our colonial past that we need not feel ashamed about.