Friday, September 19, 2014

The Falklands War’s 30-Year Dénouement




Now, on the 30th anniversary of the Falklands War, the British government remains steadfast that there will be no sovereignty negotiations with Argentina unless the islanders so request, because their right to self-determination must be respected.

But is the British government’s stance justifiable? Whether or not the principle of self-determination applies to the inhabitants of the Falkland Islands is a major bone of contention between the UK and Argentina. Indeed, not just any human community is considered to possess that right. In fact, who has it and how to apply fuels controversy around the world.

Britain’s claims find little support in the international community. No UN resolution related to the Falklands/Malvinas has ever referred to self-determination – in stark contrast with resolutions concerning decolonization elsewhere. Indeed, Britain’s refusal to make any attempt to settle the sovereignty dispute until 3,000 British subjects ask the government to do so flies in the face not only of fundamental rules of international law, but also of elementary logic.

The British government’s stance amounts to a breach of its obligation under international law to settle international disputes through available peaceful means. This obligation implies positive action, not mere abstention from the use of force. By rejecting Argentine proposals to negotiate, refusing to accept the good offices of the UN Secretary-General, and failing to propose any alternative means of resolving the dispute, the UK is adopting a stance that is not merely unfriendly but illegal.

Nor can the UK’s refusal to negotiate be justified on the grounds that Argentina has inscribed its sovereignty claim into its 1994 constitution. After all, London refused to negotiate with Argentina before 1994. More fundamentally, it is to be expected that countries would establish as a matter of domestic law a claim to any disputed territory. The outcome of negotiations would then require either country – or both – to modify its domestic law, in order for the compromise to enter into force. Simply put, a domestic claim to the disputed territory cannot constitute an obstacle to negotiations.

Many countries consider the Falklands/Malvinas to be Argentine territory, including all of those in the surrounding region. None of the other permanent members of the Security Council recognizes the UK’s sovereignty claim. Indeed, the overwhelming majority of countries have called on the UK and Argentina to enter into negotiations.

Maintaining the status quo is thus more than an obstacle to normal relations between Argentina and the UK, two countries that have traditionally maintained strong links; it adversely affects British relations with the entire region. Moreover, it negatively affects the islands’ development.

The Falkland Islands’ leaders must understand that ignoring the sovereignty dispute is not an option, and that their purported right to self-determination is neither endorsed by the UN, nor recognized by a majority of countries – even those nearby. A compromise is possible, if the concerned parties are willing to take the necessary steps to relieve future generations of the potential hazards of this longstanding dispute.

Argentina and the UK have an opportunity to give a positive example, showing the rest of the world that even disputes that have led to violence in the past can be solved through imaginative diplomatic formulas. Only by bringing this conflict to an end can those who lost their lives on the Falkland Islands 30 years ago truly be honored.

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  1. CommentedJon Russell

    Interesting article, but quite a few errors. The UK Government, which you say is adopting not only an unfriendly but illegal stance contradicts what you said about how the principle of self-determination fuels controversy around the world. Indeed, not many governments agree on who this should apply to, or when - so if no one can agree, how is it that the UK government is adopting an illegal stance? Is it just an illegal stance as far as Argentina is concerned?

    Additionally, Britain's claim finds little support in the international community? Really? What do you base that comment on? The fact that Argentina is the only participant in this dispute that has actively recruited other countries to their cause, and then it is only other Latin American countries that are siding with them - quite possibly because of Latin solidarity and the possible effect it would have on trade in the region. Chile is only mildly siding with Argentina for this very reason. If they agree whole heartedly - why do the flights continue. Of course, if they did agree with Argentina, they'd be stating that the land they stole from the Bolivians over a hundred years ago would also be returned. Same can be said for Peru that stole a huge chunk of land from Ecuador back in the 90s. Brazil have even expressed their refusal to get completely on board as it would adversely affect their relations with the UK, and potentially other European countries.

    Now, what about the illegal actions of the Argentinians? The blockading of ports, the imminent closure of their air space to the only scheduled flight to the islands (and also the request to LAN to stop the flight), the refusal of trade to the islands, the request to large Argentinian countries to stop trading with the UK? Are these not also illegal actions? I presume not as they're not in your article.

    The islands are roughly 300 miles off the coast of Argentina - so can they really just say that because they're the closest country they should have the islands? Should Greenland now be governed by Canada? Should Alaska revert to either Canadian or Russian hands?

    The only reason this is back in the spot light is down to two things:

    1) Argentinian economy is suffering from high inflation which is already affecting some of their citizens, so why not divert attention away from internal issues and find a common enemy
    2) Oil. Yes, Argentina wants the oil just as much as the UK. Of course, the UK was in talks with Argentina less than a decade ago to discuss how they can both benefit in the oil reserves. Argentina walked out of those discussions as it did not include the islands themselves.

    It would be great if the next time you write an article, you'd maybe look at the issue from both sides rather than picking one over the other. Journalism usually works like that.

      Portrait of Marcelo G. Kohen

      CommentedMarcelo G. Kohen

      Thanks Jon Russel for your comments. There is a large amount of extrapolation in your comments. I said that the British attitude is illegal since its denial to negotiate contradicts the fundamental obligation to settle international disputes through peaceful means, not because the UK claims (although not followed by relevant UN organs) self-determination. Obviously, each party to a dispute can advance the positions it wishes, but they have to take positive action in order to settle it. This is my point. For the rest, it is a fact that there are more countries in the world recognising Argentine sovereignty than the British claims. Moreover, this is not the revival of an old dispute that was settled by treaty centuries ago. The problem is, precisely, that it has never been settled. When it started, the British government categorically refused to settle it. This was so until 1965, when the UNGA adopted its first resolution within the context of decolonisation.
      What you call current illegal actions are not illegal or have not taken place at all. There is no Argentine ban of trade between the islands and the mainland at all. On the contrary, I would say that the Islands’ elite imposes a self-blockade, while rejecting anything having the slightest taste of Argentina. You also rebut arguments I have never raised. I do believe that Argentina is right on the sovereignty issue (this was not the subject of my article: it would require more than few words), but not because the islands are closer to the Argentine mainland than the UK. It’s a matter of State succession with regard to the Spanish sovereignty, the exercise of Argentine sovereignty after independence and the maintenance of its title after the action of 1833, when the UK forcibly expelled Argentina from the Islands. But this would require another article…