Why the Falklands Dispute Will (Probably) Never Go to Court

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Our readers are surely aware of the reemergence of the Falklands dispute on the international stage, provoked by the UK’s decision to allow oil exploration in the waters of the Islands, and the possibility that the oil deposits may be quite significant. Over at Opinio Juris, Julian Ku suggests that the UK and Argentina might well take this dispute to court, either the ICJ or the ITLOS.

In my view, this will simply not happen. Ever. I might well eventually be proven wrong, of course, but it seems to me that the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution. Here’s why:

First, the current oil exploration dispute cannot judicially be resolved on its own, since it legally entirely depends on who was title over the islands – the UK or Argentina. If it was Argentina who was the Islands’ proper owner, it would be perfectly within its rights to oppose the UK’s implementation of oil exploration by any non-forcible means. If, on the other hand, it was the UK who had title, then it is clear under the UNCLOS and other applicable law that it has every right to drill away, come what may.

Second, as for title, the issue is extremely complicated. To brutally simplify it, Argentina claims title either through succession from Spain, or by having occupied the Islands on its own shortly after gaining independence. The UK relies on prior discovery, effective occupation since 1833, and prescription. It also relies on the Islanders’ right to self-determination, which they’ve freely exercised by choosing to remain a part of the UK. This is, for example, how the UK’s Ambassador to the UN has just stated the UK’s position:

As British Ministers have made clear, the UK has no doubt about its sovereignty over the Falkland Islands, South Georgia and the Sandwich Islands. This position is underpinned by the principle of self-determination as set out in the UN Charter. We are also clear that the Falkland Islands Government is entitled to develop a hydrocarbons industry within its waters, and we support this legitimate business in Falklands’ territory.

Third, to be blunt, the British statement that they have ‘no doubt’ about their title over the Falklands is total rubbish. Privately (of course) they have every reason to doubt it. In fact, I think it would be fair to say that despite the UK’s de facto control for all these years, it is indeed Argentina that has a somewhat superior title over the Islands. Likewise, the Islanders’ claim to self-determination is dubious for various reasons, and UN practice with regard to the Falklands does not support it. For reasons of space and time I will not venture into this further, but there are two recent exhaustive treatments of the subject which are helpful: R. Laver, The Falklands/Malvinas Case (Nijhoff, 2001); R. Dolzer, The territorial status of the Falkland Islands (Malvinas): past and present (Oceana, 1993).

Fourth, following from three above, the UK knows full well not only that there would be a chance, but that there would be a good chance that it might lose a judicial dispute over the Falklands.

Fifth, the UK has invested an enormous amount of political capital in preserving its sovereignty claim over the Falklands, both internally and externally. It has fought a war over them, which still has a place in the national psyche. It has guaranteed to the population (if perhaps not the ‘people’) of the Falklands the right to determine their own fate. For the foreseeable future, it is politically inconceivable that the UK would be willing to renounce this claim, which it would have to be prepared to do if it submits the case to judicial resolution. Not to mention the fact that an oil bonanza would only render such an option less likely.

Sixth, as a matter of fact, the UK’s hold over the Falklands is strong. It’s military position today is far superior to what it was back in the day when the Argentine junta decided on its little adventure. Argentina has no practical way of forcing the issue.

In sum, because of (1)-(6), it is unlikely in the extreme that the UK would be willing to submit this case to a court. It would of course do so if Argentina would be willing to accept arguendo the UK’s title over the Islands, and thus narrow the dispute down to the current oil exploration issues. Yet Argentina has no interest in doing so, because it also knows that it would lose this dispute if title were out of the picture.

So, the only way forward are negotiations. Such negotiations could probably only be successful if title was kept out of the picture, in exchange for a deal on oil rights and a share of profits. The UK and Argentina had such an agreement in 1995, but Argentina repudiated it in 2007. Whether a new deal on those lines is possible today depends on various political considerations that I know nothing about. I am convinced, however, that little else is practically possible.

Anyway, those desperately wanting to see the Falklands dispute (or a simulacrum thereof) argued in court may wish to come to Washington, DC, from 20-27 March, for the international rounds of this year’s Jessup moot court competition…

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    Geoffrey Beresford Hartwell says

    March 9, 2010

    I write from the UK but I believe that I am being objective. If the Falklands dispute does not go to a Court, it is because the historical circumstances are so completely clear. The people of the Falkland were in beneficial posession of the Islands well before the Argentine Republic was in being. There is therefore no nexus between the Argentine Republic and the Islands. Unfortunately, the United States has apparently decided to support the Argentine colonial ambition, possibly as proxy for its own (what other reason could there be?). US power is such that it will prevail. If there is a political outcome, US ambition will be the key as it has been in recent events!

    Pat Capps says

    March 23, 2010

    Why is the Falkland Islander's right to self-determination dubious?

    I am British and therefore obviously jingoistic about the Falklands but I can't see any reason why the UK's position is anything other than correct on the self-determination point. Furthermore, given Western Sahara, the right of self-determination overrides any territorial claim.

    My view is that the Argentinians know this and this is why they try to drum up support in the GA on an anti-imperialist ticket rather than consider the ICJ route. Also, if the Argentinians had accepted the compulsory jurisdiction of the Court, I might have some more sympathy, but they haven't.

    Marko Milanovic says

    March 24, 2010

    Pat,

    Without going into too much detail, the Falkland Islanders right to self-determination is dubious for the following reasons:

    (1) They might not constitute a people, and only a people is entitled to self-determination. They are not a population indigenous to the Islands, but were settled there by Britain after it had arguably expelled an Argentinian population that previously existed there (the facts, of course, are in dispute). They are at any rate not sufficiently distinct from the British metropolitan population to be considered a people. Nor has, for that matter, their status as a people ever been recognized by UN organs, who have consistently called them a 'population.'

    (2) Even if they were a people, this would not automatically give them a right to self-determination that could override Argentina's presumed title over the Islands. Contrary to what you say, in Western Sahara the ICJ did not say that the right of self-determination can override any territorial claim. Rather, it found that some pre-existing legal ties of a third state to the territory colonized by some other state could in principle affect the decolonization of the territory (see para. 162 in particular).

    On the facts of that case, the Court did not find that such legal ties existed between Morocco and the Mauritanian entity and Western Sahara, and therefore it did not specify what the precise effect of such ties could be. Arguably, however, if a third state had title over the territory, which was usurped by the colonizer, this would have an effect of limiting the right of a people of that territory to internal, rather than external self-determination, as is indeed normally the case.

    Anyway, I am not saying that the two arguments I have given above are necessarily correct. They are sufficiently strong, however, that there can simply be no reasonable certainty that the UK would prevail if the case came before the Court. And because this is so, I remain completely skeptical that the UK would be willing to submit the case to judicial resolution, even if Argentina wanted to do so.

    Finally, let me just say that in my view the best legal argument that the UK could have made to support its title over the Falklands is conquest, pure and simple. It was perfectly valid in the 19th century for states to take territory from one another by force. For political reasons, however, the UK did not make that argument in the past, and it certainly cannot do so now.

    Deanstreet says

    March 25, 2010

    May I Suggest that Marko Milanovic, reads the following:

    "Getting it right: the real history of the Falklands/Malvinas"
    authored by Graham Pascoe and Peter Pepper.

    Which can be downloaded from:

    English Language: http://www.falklandshistory.org/

    Spanish PDF: http://www.falklandshistory.org/spanish4.pdf

    If Mr Milanovic reads this doument he might just think about rewriting his essay.

    Kindest wishes from the Falkland Islands

    Robin McCaig says

    March 25, 2010

    The reason why the UK has never claimed to have title to the Falklands by reason of conquest is not "political". The only time that the UK has (re)taken possession of the islands by force of arms was in 1982. They came close in 1833 but that cannot be described as a "conquest" in the sense used above.

    HJ says

    May 15, 2010

    Marko Milanovic:

    "Third, to be blunt, the British statement that they have ‘no doubt’ about their title over the Falklands is total rubbish. Privately (of course) they have every reason to doubt it. In fact, I think it would be fair to say that despite the UK’s de facto control for all these years, it is indeed Argentina that has a somewhat superior title over the Islands."

    Then perhaps Marko Milanovic could explain why twice Britain has offered to refer the issue of sovereignty to the International Court of Justice and twice Argentina has declined. Could it just be because Britain is confident to its right of sovereignty and Argentina isn't?

    Marko Milanovic says

    May 15, 2010

    HJ,

    As far as I am aware, the UK's offered to Argentina to settle the dispute before the ICJ only back in the late 1940s and the early 1950s. This was before the Falklands achieved any greater relevance in UK politics, and certainly before the UK fought a war over them. At the time the UK may well have been sincerely willing to test its legal arguments in court, and take the risk that the ICJ might not accept them. It was at the time that the UK was shedding far more important jewels in its imperial crown.

    And it is TODAY, after the war, that it is to my mind exceedingly unlikely that the UK would be willing to submit the case to adjudication, and risk losing. Contrary to what the tone of your comment would imply, I am not arguing that Argentina would, for its part, be any more willing to submit the dispute to judicial resolution. Rather, doing so would also serve to expose the Argentinean nationalist narrative to possible failure.

    HJ says

    May 15, 2010

    This rather misses the point.

    Yes, the UK's offer was made in the 1940s and 1950s when Argentina resurrected a claim which had not been made for many decades during which it had effectively accepted that the Falklands were British.

    However, the question that must be asked is why Argentina was not prepared to test its claim at the time, if it felt that it was justified. After all, if the claim had any validity, it stood to gain something.

    The very simple answer is that the whole basis of the Argentine claim resolves around domestic political considerations and not any real legal argument.

    If you believe, as you clearly state, that Argentina's claim is superior and that the British claim is weak, then rather than just assert it, please provide your argument so that it can be tested.

    Marko Milanovic says

    May 16, 2010

    Well, I don't know exactly what point is being missed here, because the only point I am trying to make is that it is unlikely that the Falklands dispute will be submitted to judicial resolution. In that regard, while the 'Argentine claim revolves around domestic political considerations' - so does the UK one.

    I am simply not interested (and this is my post after all) in whether it is the UK or Argentina who should prevail were the case to come to court. As I put it, the Argentinean claim is to my mind 'somewhat superior' to the UK one (hardly a ringing endorsement!), but I said this only to point out that the UK does not have some sort of risk-free, ironclad legal case that many people in the UK or the Falklands believe it does.

    I have absolutely no wish to enter into a deeper analysis of the legal arguments regarding the sovereignty over the Falklands in a blog format, not the least because they depend on a contested set of facts. And, to put it bluntly, I simply don't care about the merits of the dispute one way or the other. I'm sorry that my interests are not aligned with yours - but hey, it's a free Internet.

    ijm says

    May 17, 2010

    I agree with Marko. There was a time when the UK actively wanted to 'get shot' of the Falklands-
    http://www.guardian.co.uk/commentisfree/2007/apr/02/comment.falklands .

    But that time is definitely over. The financial stakes have changed recently, and regardless, when you've fought a war in which over 250 of your own soldiers died for something, it makes it politically virtually impossible to just walk away (maybe sadly).

    The situation now is that the UK can stop the case from going to the ICJ and, whatever happens, probably will. It's unlikely that enough pressure will be put on the UK to make them want to change their position. But if it was- eg if the US really started getting serious about it (though why would they?)- the UK would be unlikely to go through the ICJ. They don't want to risk being labelled a modern coloniser. They'd be more likely to do a deal out of Court.

    HJ says

    May 17, 2010

    "In that regard, while the ‘Argentine claim revolves around domestic political considerations’ – so does the UK one. "

    Rather obvious nonsense. Most people in the UK weren't even aware of the existence of the Falklands prior to 1982. Even now, they are rarely mentioned.

    In contrast, in Argentina, children are taught in school that Argentina owns the islands and every time the government there wants to distract attention from internal problems they bang on about the islands. That's why they invaded in 1982!

    The reason why we in the UK believe that the Argentine claim is extremely weak is that, despite having every opportunity to do so, Argentina never presents any sort of coherent case, other than claiming that Britain is behaving in a colonialist fashion. If they have a coherent case, let's hear it!

    HJ says

    May 18, 2010

    ijm:

    I would beware of believing any articles by discredited communist journalists in The Guardian if you want to retain any connection with reality.

    As for Britain "being labelled a modern coloniser", it is Argentina that is making colonial claims. Britain says that the wishes of the islanders are paramount. Argentina doesn't care what the islanders think.

    ijm says

    May 18, 2010

    Well, I think that the reason there is a dispute is that Britain's claim is colonial as regards the land, and Argentina's is colonial as regards the people. That is why the legal situation is unclear.

    The article was by a left winger, but I do not think that makes it automatically worthless. And, after all, he was there, which counts for something.

    HJ says

    May 18, 2010

    The legal situation is very clear. Why do you say that it is unclear?

    On what basis do you say that Argentina's claim is not colonial when it comes to the land, only in respect of the people? In what respect is Britain's argument colonial? Falkland islanderss are the original settlers of the islands.

    Clearly you're not aware of the background of the author or the nature of The Guardian's target audience. The author's version of events is significantly different from others who were involved. Also, do not confuse the Foreign Office with Britain's political will - they always favour compromise because they want good diplomatic relations (because diplomatic relations is what they do). Their approach was consistently rejected by Parliament.

    ijm says

    May 18, 2010

    To answer all the questions in the first two paragraphs together:

    The legal situation is unclear because UN Resolution 1541 (XV), on decolonisation, states that, in order to achieve this, it takes the view that all peoples have a right to self-determination, and also that it is contrary to the 'purposes and principals' of the UN to threaten a country's territorial integrity. Now, if Britain can show that the Falkand Islanders are a 'people' (and actually, for my money, they can) then the people have the right to choose to be British, according to this resolution. But if Argentina can show that it owns the title of the land (which they may well be able to, since Spain owned it through treaty and Argentina inherited Spain's rights when they abandoned the area), then according to this resolution, the UN cannot deprive it of the Falklands. So any solution would leave one side open to the claim that they are flouting this resolution on decolonialisation.

    The Guardian's target audience are middle class professionals who think bankers get paid to much and the minimum wage should go up a bit.

    HJ says

    May 18, 2010

    Interesting to hear that Spain "owned the Falklands through treaty". From where did you get this idea?

    Also, if Argentina inherited Spain's rights, then Uruguay has an equal claim to the Falklands as they were part of the same province at the time.

    Perhaps you should read this:

    http://en.mercopress.com/2008/05/14/new-british-research-dismisses-argentina-s-falklands-claim

    No, The Guardian is read by left wing public sector workers.

    ijm says

    May 18, 2010

    sorry that's resolution 1514, not 1541. I'm always making that mistake!

    ijm says

    May 18, 2010

    I've read that study. It's a bit mad, though it has so nice picture of the Falklands.
    The ownership through treaty argument is in Laver, which Marko mentions above. Argentina's claim would trump Uruguay's, because of geography.

    HJ says

    May 18, 2010

    As you must surely know, the UK disputes that Spain ever owned the Falkland islands, through treaty or otherwise.

    You might think that there is an opposing argument, but you state it as a fact that Spain "owned the Falklands through treaty". The UK has never been a party to any such treaty, although, of course, Argentina was a party to the 1850 so-called "Treaty of Convention" which explicitly abandoned any claims to the Falklands. It is interesting to note that following this treaty, Argentina did not claim sovereignty and, indeed, accepted British sovereignty (as evidenced the existence of various maps) for the best part of 100 years.

    ijm says

    May 19, 2010

    Agree that there can rationally be two opinions on whether or not Spain owned the Falklands.

    paul says

    June 13, 2010

    'Likewise, the Islanders’ claim to self-determination is dubious for various reasons, and UN practice with regard to the Falklands does not support it.'

    Recently the UN General Secretary said that yes they DO have the full rights of self determination. Just a minor point there.

    harrier61 says

    June 18, 2010

    Is there a link to this statement by the UN Secretary General?

    paul says

    June 18, 2010

    Certainly. This is only one of the reports of the statement (sorry but I dont have time to trawl the web for the original).

    http://www.speroforum.com/a/33140/Remaining-nonselfgoverning-territories-must-have-full-freedom-of-choice-Ban-says

    'The world"s 16 remaining territories that still do not govern themselves must have complete freedom in deciding their future status, Secretary-General Ban Ki-moon told a forum on decolonization today.'

    16 territories on the list, that includes the Falklands, must have complete freedom! Ergo they have the full right of self determination.

    J. A. Roberts says

    July 3, 2010

    It's not the UK who made the "decision to allow oil exploration in the waters of the Islands". That was the Falkland Islands Government's decision. And any revenues will accrue to the FIG and not the UK.

    And no Argentine population was expelled in 1833. They were settlers from Buenos Aires, of mixed nationality, none of them born in the Falklands. The British expelled the Buenos Aires garrison. The civilians were encouraged to stay and most of them did.

    Argentina did not inherit anything from Spain. It took its independence and any territory it could by force. Please stop repeating the nonsense that Argentina somehow inherited rights in the Falklands because they formerly belonged to Spain. Spain did not even recognize Argentina until 1859...

    Marcos says

    November 21, 2010

    Hi im from Argentina, let me put a light into your propagandistic facts:
    Argentina was officially born in 1816, it was known as the united province of the river plate, with is a legally accepted name for our republic now and then.
    In 1816 Argentina formally claim its independence and claim sovereignty over malvinas taking posession of the islands Continuing the spanish rule there. In 1825 England recognize the argentine independence in a treaty of friendship and commerce without mention the total control of the islands by Argentina.
    So the fact of the spanish recognition of Argentine independence in 1859 has no relevance.

    """"the UK’s offered to Argentina to settle the dispute before the ICJ back in the late 1940s and the early 1950s.""""
    That is not true at all, In 1947,1948 the United Kingdom offered to Chile and Argentina to submit to the ICJ the malvinas dependencies and the antartic territory. And in 1955 they submited the matter to the Icj , having Argentina and Chile denied any jurisdiction of the court.
    http://www.icj-cij.org/docket/files/26/9069.pdf
    This link is the official website of the ICJ, in this link you can check the map of the disputed territorie showed in page 35 and read the case presented in 1955 (the only case made by britain against Argentina and Chile). Feel free to go to the ICJ webpage and search for cases related.

    Its really incredible to read that british people consider that Argentina have colonials ambitions and that the Uk gave the islands freedom and democracy.
    I should remind you that 10 from 16 remaining colonies in the UN list are colonies of the UK. And malvinas islands are included in that list. No matter that you say they govern themself or that they enjoy self-determination.