A British Position

In some of the many open forums that allow debate on the history and issues surrounding Britain’s possession of the Falkland Islands, I have seen a huge mix of misinformation with regard to the British Government’s current position on the islands.

Perhaps not surprisingly with the degree of emotion involved, arguments have raged over issues as diverse as the rights of the parties following 1771, who discovered the islands, Britain’s justification in 1833, geography and acquisitive prescription.

It occurred to me that, as positions change with the tides of time, it would be worthwhile to state clearly the current position of the UK Government. It may change again of course, any international lawyer has to be flexible after all, but as of June, 2010 the Government’s stance is clear:

” The British Government has no doubt about Britain’s sovereignty over the Falkland Islands.

With the exception of the 2 months of illegal occupation in 1982, the Falklands have been continuously, peacefully and effectively inhabited and administered by Britain since 1833. {1}

Argentina’s claim to the Falklands is based on the grounds that, at the time of British repossession of the Islands in 1833, Argentina had sovereignty over them through her inheritance, upon independence, of Spain’s possessory title (uti possidetis), through her attempts to settle the Islands between 1826 and 1833, and through the concept of territorial contiguity. {2} 

However, uti possedetis is not accepted as a general principle of international law. {3} 

Moreover Spain’s title to the Islands was disputed and in 1811 the Spanish settlement was evacuated, leaving the Islands without inhabitants or any form of government. Argentina’s subsequent attempts at settlement were sporadic and ineffectual.

As for territorial contiguity, this has never been a determinant for title to islands (otherwise the Canary Islands, for example, might be Moroccan) and should not be used to overrule the right of self-determination. {4} 

The Argentine Government has argued that the Falkland Islanders do not enjoy the right of self-determination, on the (false) basis that they replaced an indigenous Argentine population expelled by force. However there was no indigenous or settled population on the Islands until British settlement.

The people who live in the Falklands now are not a transitory population. Many can trace their origins in the Islands back to the early 19th century. Britain is committed to defend their right to choose their own future.

The Islanders are fully entitled to enjoy the right of self-determination. It is a right which cannot be applied selectively or be open to negotiation, and one which is recognised in the UN Charter and the International Covenant on Civil and Political Rights.

Self-determination does not necessarily mean independence. Britain has willingly granted independence where it has been requested, and will continue to do so where it is an option, while remaining committed to those of its Overseas Territories which choose to retain the British connection.

In exercise of their right of self-determination, the Falkland Islanders have repeatedly made known their wish to remain British.

An Argentine-inspired poll, conducted in 1994, revealed that 87% of them would be against any form of discussion with Argentina over sovereignty, under any circumstances.

In 1960 the United Nations General Assembly adopted its Declaration of the Granting of Independence to Colonial Countries and Peoples (GAR 1514). A committee was set up to oversee implementation of this resolution. This Committee, which became known as the Committee of Twenty-four, considered the question of the Falklands for the first time in 1964. Following its recommendations, the General Assembly adopted Resolution 2065 in 1965. The Resolution invited the British and Argentine Governments to begin negotiations ‘with a view to finding a peaceful solution to the problem, bearing in mind the provisions and objectives of the UN Charter and of GAR 1514 and the interests of the population of the Falkland Islands (Malvinas).’

During 1967 and 1968 Britain entered into negotiations with Argentina based on a willingness to transfer sovereignty. Although the British Government had no doubt about British sovereignty of the Falklands, they were concerned by the difficulty of defending the Islands, and by the threat to the Islands’ economy from declining world demand for wool and from their isolation without links to the mainland.

However, Britain maintained throughout that any transfer of sovereignty must be subject to the wishes of the Islanders. It was on this issue that negotiations foundered.

Although the United Nations General Assembly has not debated the question of the Falklands since 1988, the Committee of Twenty-four has continued to adopt resolutions calling for negotiations between Britain and Argentina.

These resolutions are flawed because they make no reference to the Islanders’ right to choose their own future. Several members of the Committee have acknowledged this omission.

The principle of self-determination is included in every other resolution considered by the Committee.

The British position that sovereignty is not for negotiation remains unaltered.

There will be no change in the status of the Falklands without the Islanders’ consent.

The White Paper, Britain and the Overseas Territories, presented to Parliament by the Foreign Secretary in March 1999, did not propose any change of status. It charted a new partnership with all our Overseas Territories, founded on several core principles including the right of self-determination. In the White Paper the Government said, ‘Our Overseas Territories are British for as long as they wish to remain British…”

{1} The first paragraph appears to refer to the legal concept of ‘acquisitive prescription’ or, arguably, ‘extinctive prescription’ but I have my doubts about this. It may serve as a fall back argument, but both of these concepts involve a trespasser obtaining good title from an owner. This is obviously flawed, as Britain has never acknowledged Argentina’s right of ownership. The term ‘peaceful’ is also open to debate and Argentina’s repeated diplomatic objections since 1941 may act to stop an ‘acquisitive prescription’ argument.

Having said that, the fact that Argentina negotiated and ratified a Treaty of Friendship in 1849 which purported to resolve all outstanding issues between the two countries, and Argentina’s silence on the subject between 1849 and 1888 would tend to indicate acquiescence during that period.

There is also an argument that Argentina’s failure to take the UK to the International Court of Justice after its foundation in 1945 is sufficient evidence of ‘extinctive possession’.

{2} Territorial contiguity is a fancy term for geography, ie. if a territory is close to a large State, then it has to belong to that State. Something of a joke in international law, Argentina has hinted at this as one of its main arguments. When Britain unilaterally submitted a case to the ICJ over South Georgia and the South Sandwich Islands, Argentina declined to recognise the court’s jurisdiction instead relying on some vague concept of ‘natural law’ and their claim being ‘too self evident to require judicial determination’.

Of course, this simplistic approach to the issue of sovereignty was dismissed as having no legal weight in international law in the Islas de Palmas Case of 1928 where the issue was considered by the Permanent Court of Arbitration at the Hague.

{3} The Uti possidetis here is more commonly known as Uti possidetis juris, considered in the Beagle Channel arbitration as rather more of a political tenet of inter-South American politics, than a legal concept capable of binding a party outside South America.

{4} The right of a people to ‘self determination’ is enshrined in the Charter of the United Nations, a multilateral Treaty signed by all the Members of the UN including Argentina. This right remains unqualified in any regard, even after repeated attempts by Argenta to subject Articles 73 and 74 to a ‘sovereignty dispute’ condition in its submissions to the Special Committee on Decolonization.

So where does this leave us?

The basis of Britain’s continued refusal to negotiate without the Falkland Islander’s consent is laid out clearly.

Argentina’s arguments however, are based on theories already disproven. Importantly, she needs to deal with the modern argument that the UN Charter overrides all other considerations. Until Argentina manages this, the situation is unlikely to change.


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