Sovereignty over the Falklands: who has the right to claim?

Once again the Falkland Islands on the news. And once again because of a conflict between Argentina and the United Kingdom. There are, like in previous occasions, many terms from legal and political theory that are being used without much accuracy: sovereignty, self-determination, colonialism, implanted population and so on. It is a fact, the confusion and misuse is evident for someone that is used to dealing with legal theory or international relations as well as the real intentions behind such a use.

Leaving aside anecdotic discussions about the governmental interests of both Argentina and the United Kingdom, it is sill undefined who has the right to claim sovereignty over the Falkland Islands. The arguments from one side and the other focus on short and medium term impact but even the islanders seem to be forgotten.

It is the time for a more egalitarian approach in international relations. To be equal does not mean that we are not different. Being equal means that every being has the same “weight”, that his opinion has equal worth. Moreover, an equal moral status implies more than simply respect to mutual claims. Therefore, even though we have competing claims in a case like the Falklands, the main issue is that the parties involved appear to have an unequal right to participate.

Assuming that both claiming parties finally decided to leave behind egoistical interests and were looking for a real, definitive and peaceful solution for the conflict, before going into any negotiations, they would need to agree on who would be able to participate. Indeed, this is a key question to solve, particularly important to all the claiming parties because not only do Argentina and the United Kingdom opposed to each other but also they –to a different extent- neglect the direct participation of the Falkland Islanders (Argentina simply rejects them in any negotiation; the United Kingdom speaks on their behalf, differently from what they do in the case of Gibraltar for which they apply the principle “two flags, three voices”).

Any claiming party in any sovereignty conflict should have what I call a ‘colourable claim’. In other words, they must have a valid reason to claim sovereignty over the Falklands—e.g. effective occupation, consent by the other agent in the dispute, consent by other States, and/or consent by the international community. That reason should be ‘colourable’ enough to prove that their intended rights are at least plausible to be acknowledged, and they can be based on any reasonable circumstances—e.g. political, historical, legal, geographical arguments to name a few. For example, in the case of the Falkland Islands it would be unreasonable for Russia to participate in the negotiations in relation to their sovereignty since they do not have any colourable claim over that territory.

Some questions may arise, in particular, in relation to the participation of the Falkland Islanders in the negotiations: would it be fair for them to negotiate the sovereignty of the territory they are inhabitants of? On the other hand, do we need some minimum criteria here to help us determine when the residents of the disputed territory get a vote?—e.g. what if these residents were brought there by one of the competing parties? And that is the main obstacle Argentina always introduces.

Indeed, it may seem unfair for someone to negotiate what is supposed to be his own. However, the reality is that the sovereignty over the Falkland Island is the centre of the whole dispute. These inhabitants do live there, but their right to do so is under discussion. Nevertheless, that does not mean that they can be left outside the negotiations. It must be made clear that they are rational beings and human beings and hence they have human rights, even though sovereignty disputes are not an issue of human rights only. Therefore, it would be simply unfair to ask them to leave or not to take their claimed rights into consideration. In the hypothetical scenario there were negotiations and the islanders did not participate, two sovereign States would be deciding the future of a whole population (and for the next generations) with various consequences at different levels—e.g. territory, exploitation of natural resources, law, taxes, etc., and that seems completely unfair.

If we pursue a solution both possible and fair, to ask the Falkland Islanders to go into negotiations is fair, provided that their right participate is welcomed by all the claiming parties—i.e. they have a colourable claim.

9 comments

  1. Nice try, but no solution I’m afraid. The problem is that you assume that all the parties to the sovereignty issue have equal claims. They do not. Argentina’s claim is so tenuous, so weak, that they refused to take it to the International Court when Britain encouraged them to do so.You then suggest that the Falkland Islanders would only have a ‘claim’ to the Islands if they participated in sovereignty negotiations. What you casually forget is that the Islanders hold the trump card, the right to decide their own future.It’s the reason why Argentina pointedly ignores their rights to Self Determination. This right is enshrined in clause one of the Charter of the United Nations and is the prime reason why Ban-ki Moon repeats that the wishes of the Islanders must be respected.It was this failure to respect the Islanders rights in 82 which compelled the British to take military action. Memory of the Argentine invasion is still fresh, together with the hostility shown by successive Argentine governments. No wonder then that Islanders have no intention of having any discussions over sovereignty. They are happy to talk about anything else with Argentina, but not sovereignty.Your argument suggests that the Islanders be given an ‘equal’ claim to the Islands, equal to that of Britain and Argentina, but that is a false premise. The UN Charter gives them the overriding right to decide, over and above both Britain and Argentina. If the Falkland Islanders want to become an independent nation (as I believe they will eventually) then nothing London or Buenos Aires can do can change that. The other UN countries, especially the United States, would defend the right of any people to seek their liberty.The only way that Argentina could legally obtain sovereignty is if the Islanders want it. They could try to persuade the Islanders by offering all sorts of enticements, but in the end I doubt that any would succeed, because of 1982. It was a critical act of aggression that made Argentina an ever-lasting enemy.Argentina repeatedly makes the claim that the Islanders are an implanted population from Britain. This is one of many lies that they keep repeating, along with the one that all the Argentine population was expelled in 1833. The reports of the officers that returned to Buenos Aires makes absolutely clear that the majority of people on the Islands were still Argentine. The very fact that Argentina claims that Rivero (an Argentine) rebelled against the British (he actually rebelled against Vernet’s management over the matter of pay) explodes that lie, but Argentina glosses over that fact. They also forget that Vernet considered the Islands were British and often said so, or that the Spanish also recognised British sovereignty in 1863.

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  2. The Islanders are not ‘implanted’ as Argentina claims. They migrated to the islands from many countries including Britain. Even Vernet recruited mostly europeans, knowing as he did that the harsh climate was more suited to them. The Islanders claim ancestors from scandinavia (mostly Norway and Sweden), Denmark, Finland, Russia, Germany, France, Italy, Gibraltar, Malta, Ascension Island, St Helena, Australia, New Zealand, United States, Chile, Uruguay and even Argentina. Many of the Islanders may have ancestors that lived in Britain and they have close ties to the UK, but the majority of Islanders were born in the Islands from people who were also born in the Islands. Indeed, many of the Islanders can trace their ancestors back longer than the Argentines can trace theirs back to Spain or Italy. It has to be remembered that Argentina is a relatively new country. The Argentine constitution dates back to 1853, but was only in its current organisation from 1860. If Argentina tries to deny the legitimate rights of self determination to Falkland Islanders who were on the Islands far longer, they only imperil their own claim to these same rights. The same is true for all other ‘young’ nations in the UN. The United Nations recognises that there is a dispute. The United Nations would like the parties to talk about this dispute, to reach a solution. The problem is that Argentina does not recognise the rights of the Islanders, or the fact that IF the Islanders don’t want to talk, then neither can Britain, because Britain has no right to force the Islanders to talk.So the inevitable conclusion is that Argentina will indefinitely continue with unfulfilled national aspirations, which will knaw at their national identity and make a joke out of them amongst all other South American nations. The Falkland Islanders will grow rich from the oil reserves. So rich, that they will be able to secure the Islands forever from any aggression by Argentina.Argentina lost 649 lives in 1982. It could have been a great many more. If the current leaders carry on with their rhetoric, then someone will make the same mistake the Junta made in 1982 and a great many more Argentines will die. The United Kingdom is pledged to defend the rights of the Islanders, no matter how much it costs. Let us hope that Argentina is not so foolish that they test that resolve, because I would hate to think that the temperature in Buenos Aires has to reach 1 million degrees celsius, before you finally realise that you cannot obtain the Falklands by conquest.I would hope that Buenos Aires wakes up to realise that it would be far better to cooperate with the islanders, trade with them, become friends of them, respect them and eventually build a reciprocal relationship of mutual trust, rather than the hostility we see today. Then Argentina can put aside the claim to land that does not belong to you and finally become a mature partner of the Falkland Islands.

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  3. Indeed I agree with most of what you say. What you basically state and Argentina rejects are facts. Therefore, even in the case there was a disagreement about their 'weight' in terms of either Argentnian or British claims, they would still be the same facts. In addition to that, the wording the Argentinian government uses is naive (to say the least and being politically correct). Expressions such as implanted population, colonialism, empire and many others can only be used by Jack Sparrow or Peter Pan but not a President of what is supposed to be a serious and democratic sovereign State.You're also right I assume certain elements to propose the solution. Amongst these elements, I assume all the parties involved in any sovereign conflict are reasonable and want both a fair and just solution that can have a positive outcome for them all. The idea is part of a PhD Thesis entitled 'Shared sovereignty in a two States context: a problem of distributive justice”. I propose a theoretical model that can be applied to any sovereignty conflict in which we have two sovereign States and a populated third territory -e.g. Falklands/Malvinas, Kashmir, Gibraltar, Kuril Islands, and so on. Before creating the model, go through many stages such as focusing on sovereignty, other international remedies tha have shown to be futile, etc. And once I propose the model, I show how it can work in certain cases positevily for all the parties (in the case of Falklands/Malvinas, I focus on territory and some of its sub elements such as natura resources and defence). This post is but a nutshell of one of the arguments. However, I believe it important to make clear that the Falkland/Malvinas islanders have a right that goes beyond self determination.

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  4. In relation to self determination there is both conceptual and cultural misunderstanding. It is in fact a right granted at UN level. However, it's content and implications are very loosely expressed both in what I'm reading from the United Kingdom and Argentina. I'll be posting an article on Thursday focusing on making it clear, in particular the many possible options that it may open.It is the time to leave behind differences and work together in a cooperative manner. Any military action (or threatening with it) is out of the question nowadays. The whole idea of these posts is to offer an open floor for discussion. And that's as well the idea behind the model I propose. I'm mainly interested in making sure we have in mind what people need and want rather than what governmental agendas dictate. It is for that same reason I don't make any reference to speeches either from Argentinian or British governments. Thus, to be able to live both Argentinian and British ways of understanding the conflict puts me in a balanced position. 1982 saw me in Argentina; 2013 sees me in the United Kingdom. I can assure you that both populations are highly tolerant. I believe that same tolerance will one day go beyond governments and get the peaceful solution we want.

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  5. It is very refreshing to read an educated post on the Falklands dispute from an Argentine. Although there are others like you who are open minded to possible solutions, the vast majority repeat the nationalistic rhetoric which accepts the falsehoods so often repeated by governments. Your thesis will be an interesting addition to the intellectual debate on solutions that can work for all the parties. I would be very interested to read it and comment on it when you've prepared a draft. nigelpwsmith@yahoo.co.ukAs you say, the historical facts are indisputable. They are corroborated by documents on both sides. Sadly, these truths are ignored in support of jingoistic claims. Politicians need to accept some realism. They need to accept that the Falkland Islanders have the overriding decision on matters of sovereignty.I happen to believe that the solution comes from building trust. If Argentina was to adopt a rapprochement with the Islanders, a willingness to trade, to cooperate, to build friendship, to build understanding, by teaching the true historical facts, by sharing resources, by assisting each other to preserve the environment and the natural beauty of the Islands, then over time, the Islanders would come to regard Argentina as a friendly neighbour, and trust them as friends rather than an enemy.It's not going to happen overnight. Even 30 years on, does not heal the scars of 1982. It will take decades for the changes to happen, but so long as the Falkland Islanders feel safe, that the Argentine hostility has gone, then they can be sure that they can work with Argentina for a brighter tomorrow. The way things stand right now, I can only foresee continued problems for Buenos Aires. The Falkland Islands Government will reap the benefits of oil and they will get exceedingly rich from it. Argentina may try to extract oil, but foreign investors will not feel safe after Repsol.I can only hope that the politicians that replace Kretina see the benefit of winning the Islanders friendship rather than continuing the animosity. Good luck.

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  6. Indeed. I particularly agree with the paragraphs that states: “I happen to believe that the solution comes from building trust. If Argentina was to adopt a rapprochement with the Islanders, a willingness to trade, to cooperate, to build friendship, to build understanding, by teaching the true historical facts, by sharing resources, by assisting each other…”Instead of seeing the Falklands/Malvinas either as a never ending conflict or a political opportunity for a short term result governments saw them as the chance for international cooperation, they would set a worldwide example useful in situations like Kashmir, Gibraltar, even Jerusalem and many others.This is not a question of beign Falkland Islander, Argentinian or Briton. It is a question of being forward thinking and having a bit of common sense. There is no real proposal coming from Argentina's governments for the Falklands/Malvinas Islanders. If we assume Argentina was given the sovereignty over the islands, what would the Argentinian government ask the islanders to do? Or what would they do with them? These are questions currently without answer.Geographical proximity could lead to cooperation at many levels. The Falklands/Malvinas Islanders have families and these families have children. Wouldn't it be a good will gesture to offer them the possibility of having HE studies in Buenos Aires? What about the national healthcare system? And have anyone thought what would happen in the event the islands were invaded by a third party? Would the Argentinian government not defend the islands because the inhabitants are not nationals?Nowadays the solution has to come from those who are interested in Falklands/Malvinas without thinking it as an casual opportunity. Both Argentinian and British societies are extremely tolerant and are capable of doing it. The discursive approach from both governments is irrelevant if it does not work towards a real, reasonable, peaceful and definitive solution.

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  7. My gut reaction (I say this because I've not had a deep thought for some time) is this.. the Falkland Islands are like a bone of contention between two dogs, Argentina and Britain being the aforesaid canines. One dog has the bone and the other one will always want it regardless of the fact that it has one of its own. Human beings share this trait with our canine friends, I'm thinking along the lines of the grass always being greener on the other side of the fence here but perhaps that is not the best analogy. So simplistically what do you do re the two dogs wanting the same bone i.e the islands ? Well I think that the islanders will (not in my lifetime but perhaps you Jason and Jorge will see it) at some time in the future go for full independence with perhaps a mutual defence agreement with Great Britain. They will have the economy, the infrastructure and the common sense to make a good go of this, but they will need good friends and neighbours who live nearby, as well as family who live 8000 miles away…. Step one pace forward Argentina, Chile and Uruguay you have new friends, welcome them, invite them over to your place for some Yerba Mate Tea and perhaps they will bring the Marmite sandwiches. Their conversation may even run along these lines “do you remember the bad old days when we didn't get along very well ?” and the other one replies “jajaja! how silly was that, we were so stupid back then” … The bone of contention had disappeared !

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  8. This bone of contention i.e the Falkland Islands in disappearing from between the two dogs will enable both to save that all important but seldom mentioned thing called “Face”

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