Argentina’s government has claimed for more than a century sovereignty over the Falkland Islands. That is not new. However, what results novel is the form, approach taken in recent years. Rather than using legal and political theory for their arguments to support the claims, there has been a shift to a more populist speech. This changed has not been unnoticed and as it could have been expected, opens the game to further questions.
In the meantime, the United Kingdom has acknowledged in several opportunities the right to self-determination to British citizens around the globe. Latest examples are the 2013 Falklands referendum and the 2014 Scottish referendum−yet to happen.
Connecting the dots: if the British government, many times defined as “colonial power” by its Argentine peer, has accepted several times the wishes of citizens around the world to self-determination by means of a referendum; why Argentina does not follow suit with its population? It is a fact the latest referendum in Patagonia was in 1902. It is also a fact that the idea of an independent Patagonia has been in the region for decades.
So, if the Argentine government were claiming the Falkland Islands based on democratic values, would not it be fair to expect that same government to actually show a democratic example by letting people in Patagonia decide their political future status?
A bit of theoretical background:
There are indeed two intertwined concepts: a) the concept of self-determination; and b) the concept of referendum.
For the concept of self-determination we have to review what International Public Law (IPL) says about it. To discuss the meaning and reasons behind political speeches and documents may be entertaining but does not offer any real or legal useful tool to understand the issue. So we will focus now on some of the documents that are nowadays part of IPL and that both the governments of Argentina and the United Kingdom so often mention. To illustrate the point:
Chapter 1, Article 1, part 2 of the UN Charter states amongst its purposes: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”
UN General Assembly Resolution 1514 Article 2: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”
UN General Assembly Resolution 2649 Article 1: “Affirms the legitimacy of the struggle of peoples under colonial and alien domination recognised as being entitled to the right of self-determination to restore to themselves that right by any means at their disposal”
UN General Assembly Resolution 2625 Article e: “The principle of equal rights and self-determination of peoples”
And here we can immediately see the origin of the disparity in interpretation and the key to use the same concept of self-determination in different forms depending on the interest we support. Because of the vagueness and ambiguity of language legal norms will necessarily have an open texture. And because of the open texture of language, there will be a core of settledness and a penumbra of unsettledness in every legal rule. In simpler terms, any word (and it also happens in law) can have different meanings; for example, a norm banning “vehicles” from city centres would easily be understood for cars; what about bicycles?
Self-determination as a legal concept has the same problems. The term itself and its components are not clearly defined (what do “people”, “nation”, and “right” mean?). And that is “translated” in arguments coming from the United Kingdom used to validate their policy in regards Falklands. But it is also “translated” in counterarguments coming from the Argentinean government to show exactly the opposite.
As we can see, the main problem is given by the term itself and its lack of a precise definition. However, that is not exclusive of self-determination. For those who are into political and legal sciences, an ambiguous, not clearly defined concept, is something almost to be expected by default. So let us try and bring some light into what appears to be a dark problem.
In a simple and schematic way, we could see that:
1) Self-determination is globally recognised as imperative even included in many International Public Law documents.
2) Broadly speaking, it means that people “can decide their destiny”.
3) By people it is meant inhabitants.
4) Any group of people−inhabitants−can assert their right to self-determination.
5) In consequence, the rest of the international society can only acknowledge their wishes.
A referendum is one of the means to express these wishes. That is to say, a referendum is a general vote by the electorate on a single political question. If applied to self-determination, it usually means that the inhabitants will decide whether to be an independent political organization or remain with the political status they currently have−e.g. a province, an overseas territory, etc.