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.