Falklands (Malvinas) Redux

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June 14 2012 marked the 30th anniversary of the end of the 1982 Falklands (Malvinas) War. After a decade of relative calm and increased technical cooperation on the Falklands (Malvinas), diplomatic tensions between Argentina and the UK have flared up in the lead-up to this anniversary. A concerted diplomatic push by Argentina has returned the sovereignty dispute over the Falklands (Malvinas) to the top of the foreign policy agenda. On June 14, Argentine President Kirchner made an emotional appeal to the UN Special Committee on Decolonisation for bilateral negotiations on sovereignty between Argentina and the UK. She was the first head of state to speak to the Committee. A recent conference at the University of Cambridge explored why the Islands remain so deeply rooted in the Argentine psyche.

The dispute over the Falklands (Malvinas) has returned centre stage just as the prospects of substantial hydrocarbon reserves in the seas surrounding the Islands greatly increased the economic stakes of the sovereignty dispute. The promise of an oil boom in the South Atlantic has prompted several companies listed in London, including Falkland Oil and Gas, Borders and Southern Petroleum, Rockhopper, Desire Petroleum and Argos Resources, to survey the area. They obtained exploration licenses from the Falklands administration in 2011, which drew strong criticism from Argentina. Earlier, both Argentina and the UK had anticipated that cooperation in matters of natural resources was desirable, given the uncertainty generated by their sovereignty dispute.  

In 1995, Argentina and the UK had adopted the Joint Declaration on Cooperation over Offshore Activities in the South West Atlantic. They established a joint committee to recommend measures on the development of hydrocarbon resources, among others, and a Special Area of Cooperation in the seas between the Islands and mainland Argentina. The main aim was to foster investments by oil companies. The question of sovereignty, Argentina’s principal concern, was however reserved. In 2007, Argentina withdrew from the 1995 Declaration on Hydrocarbons, frustrated over the unwillingness of the British government to negotiate on sovereignty.

Over the last seven months, the dispute has intensified. In December 2011, Argentina had convinced MERCOSUR countries to refuse landings of ships flying the Falklands flag at their ports, though they could easily re-flag to able to call at these ports. In January 2012, Argentina deplored the “militarisation of the dispute”, and logged a formal complaint with the United Nations. Specifically, Argentina objected to the deployment of an advanced British nuclear warships to the Falklands (Malvinas) and the temporary stationing of Prince William as an RAF search and rescue pilot on the Islands.

In February 2012, the Secretary General of the Organization of American States stated that the two state parties should peacefully resolve their sovereignty dispute over the Falklands (Malvinas), and recalled that the OAS had called for such negotiations by consensus since 1988. Soon thereafter, a union of Argentina’s transport workers union announced that British ships would face delays in calling at Argentine ports. In March 2012, Peru rallied to the Argentine cause and turned away a British warship that was due to dock in Lima. The Argentine government called on large Argentine companies to look for alternatives to imports produced by British companies. In March 2012, Argentina threatened legal action against any company, including its advisors, engaged in exploring hydrocarbons in the seas surrounding the Falklands (Malvinas).

In May 2012, the Argentine government commissioned an ad showing the captain of Argentina’s Olympic land hockey team training on the Falklands (Malvinas) that ended with the provocative slogan “to compete on British soil, we train on Argentine soil”. After an uproar in the UK, the British-owned agency issued a formal apology. The International Olympic Committee (followed by a similar statement from the Argentine Olympic Committee) declared:

The Olympic Games should not be a forum to raise political issues and the IOC regrets any attempts to use the spotlight of the games for that end.

The British response to Argentina’s increasing the pressure on the Falklands (Malvinas) was as firm as it was predictable. Prime Minister Cameron reiterated his government’s unconditional support for the Falklands (Malvinas) to remain a British Overseas Territory, in line with the wishes of its inhabitants. The British government has been explicit that it would not hesitate to defend the Falklands (Malvinas) in case of another attack on British territory. According to the UK, the future status of the Falklands (Malvinas) is a matter for the inhabitants themselves to decide, in line with the principle of self-determination. Argentina denies that the right of self-determination applies to the inhabitants of the Falklands (Malvinas), as they are not a, in Argentina’s view, a “colonial people”, but instead consisted mainly of European settlers.

On June 12, the government of the Falklands announced that a referendum will be held in the first half of 2013 to gauge the wishes of the inhabitants – a move that is reminiscent of the referendum held in respect of Gibraltar back in 1967, in which more than 99 percent of Gibraltarians voted to retain their link with the United Kingdom, rather than them becoming part of Spain. The British Prime Minister, in support of the referendum, said:

Next year’s referendum will determine beyond doubt the views of the people of the Falklands. Britain will respect and defend their choice. We look to all UN members to live  up to their responsibilities under the UN charter and accept the islanders’ decision about  how they want to live.

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    Thiago Braz Jardim Oliveira says

    June 17, 2012

    Dear Michael,

    The UK’s referendum is exactly the same as Argentina’s ad: a publicity stunt.

    Admittedly, the UK has an obligation to progress the population of the Islands towards a full measure of self-government and to support commercial development in the interests of the inhabitants, as required under the UN Charter and Resolution 2065. However, this only means that the UN recognises the UK as the administering power. This is for one obvious reason: the UK has de facto control. This fact is independent from the sovereignty dispute, upon which the UN itself has repeatedly called for a negotiated settlement.

    As recently as 2004, the decolonization committee “[r]eiterate[d] that the way to put an end to special and particular colonial situation in the question of the Falkland Islands (Malvinas) is the peaceful and negotiated settlement of the dispute over sovereignty between the Governments of the Argentine Republic and the United Kingdom of Great Britain and Northern Ireland”. This is consistent with the refusal by the General Assembly in 1985 of the amendment proposals through which the UK sought to introduce the principle of self-determination in what became Resolution 40/21.

    Best,

    Thiago B Jardim Oliveira

    Lawrence Paulsen says

    June 18, 2012

    Dear Dr. Waibel,

    It occurs to me that neither state is particularly convinced of its legal position as to who has proper title. Otherwise, why not present the matter to the ICJ?

    Do you (or does anyone else?) have any knowledge as to whether there has been any discussion by either state regarding a judicial resolution to this almost 200 year old drama?

    Thank you.

    Lawrence Paulsen

    Gerry Dorrian says

    June 28, 2012

    Previous to the period you talk about, Britain tried to go through due process with Argentina at the International Court of Justice three times - the last in 1967, when PM Harold Wilson was minded to hand over the islands. Argentina refused, only invading when its Junta needed a war to distract Argentinians from its abuses at home.

    It's not clear that the Falklands ever belonged to Argentina in the first place - if they did it was for no more than a year, giving Argentina a similar claim to the islands to the US, who owned them for a similar period.

    It's significant that Argentinian première Kirchner is rattling sabres as the Falklanders prepare for a referendum on how they want to be ruled. This is not about the Falklands - it's about Kirchner's ambitions to exploit Antarctica.

    Michael Waibel says

    July 2, 2012

    Lawrence,

    Many states refrain from submitting sensitive sovereignty disputes to judicial or arbitral settlement. This reluctance to submit to third party adjudication extends even to those states that are favourably disposed to international dispute settlement generally and have made an optional clause declaration under Article 36 (2) of the ICJ Statute, such as the United Kingdom - the only permanent member of the UN Security Council to have done so.

    A decision to submit a sovereignty dispute to third-party adjudication by compromis is a difficult one for any government to take, especially if the chances of seeing one's claim upheld are difficult to predict or not particularly high. In many cases, the preferred method of dispute settlement is direct negotiations between the states concerned.

    In the case of the Falklands (Malvinas), the UK has repeatedly ruled out such negotiations as long as the Falkland Islanders wish to remain part of the UK. Both direct negotiations and third-party adjudication in relation to the Falklands also became considerably less likely because of the decision of Argentina's military government to take the Falklands (Malvinas) by force in 1982.

    Back in 1884 and 1888, Argentina twice proposed to submit the dispute to arbitration. Britain suggested in 1947 to submit the dispute over the Falkland Islands Dependencies (South Georgia and South Sandwich Islands) to the ICJ, though the offer did not extend to the Falklands (Malvinas) themselves. In 1955, the UK brought a case before the ICJ against Argentina and Chile regarding sovereignty over what is now Antarctica.

    British archival materials indicate that the Foreign and Commonwealth Office assessed the possibility of bringing the sovereignty dispute concerning the Falklands (Malvinas) before the ICJ in the 1960s, but advised against such course of action because the Court might find against the UK in relation to sovereignty over the Falkland Islands, and particularly, over the South Sandwich Islands.

    Michael

    Michael Waibel says

    July 2, 2012

    Gerry,

    The decision by the military government of Argentina in 1982 to take the Islands by force has indeed converted Argentine sovereignty over the Falklands (Malvinas) into a distant prospect. Understandably, the British willingness to find a political compromise, such as for example, shared sovereignty over the Islands or handing over the Islands to Argentina similar to the model of Hong Kong, decreased substantially following the great loss of life in the Falklands War of 1982. As a result, the British government's political room for manoeuvre on sovereignty has shrunk dramatically. The 1982 War, as many Argentinians that grew up in a democratic Argentina realize, was the greatest disservice its military government could have done to Argentina's claim to sovereignty over the Falklands (Malvinas).

    Both countries find themselves in an intractable sovereignty dispute - to which negotiations do not seem to offer much hope for a comprehensive solution that satisfies both sides. As Lawrence notes, these would seem be a good example of a dispute where third-party adjudication could help - provided the very considerable political obstacles for the British government to agree to such a course of action could be overcome.

    Attitudes are likely to have hardened on both sides with the prospect of natural resources in the seas surrounding the Falklands (Malvinas) and in and around Antarctica. For both sides more is at stake than "just" the Falklands (Malvinas) - though both in Argentina and the UK sovereignty over the Falklands as such is also a cherished idea.

    Michael

    Lawrence Paulsen says

    July 4, 2012

    Dear Michael,

    Thank you for that very detailed reply.

    All the best.