This article has been written by Mr. Dhruva Ranjan, a second-year student of Christ (deemed to be) University, Delhi NCR.
Abstract
The Falkland Islands and Dependencies Colony is located in the South Atlantic Ocean, three hundred miles east of South America’s southernmost tip.1 East Falkland and West Falkland are divided by the Falkland Sound, and there are a further one hundred tiny islands. Despite the fact that the Falkland Islands are a British crown colony, Argentina claims sovereignty over them. This article discusses and reviews the opposing British and Argentine claims to the Falkland Islands, attempting to ascertain the legitimacy of Argentina’s and Great Britain’s conduct during the 1982 military war between the two nations. Following Argentina’s withdrawal from the 1995 Joint Declaration signed with the UK for the joint exploration and exploitation of hydrocarbons in the Falkland Islands, the sovereignty dispute over the Islands has recently resurfaced as an ‘economic struggle’ for access to the oil deposits of the North Falkland Basin. The article examines the governments’ looming sovereignty conflict and their current claims from the standpoint of natural resource extraction on the Islands. The current study examines the legality of decoupling the handling of title to territory and natural resources, particularly in areas where sovereignty is contested. By examining UN practice in the Falkland Islands case, it is claimed that separate treatment is not inherently illegal, as long as all parties with a genuine sovereign claim to the area are participating. To give proof in this regard, the Joint Declaration is used as a paradigm. Furthermore, the study addresses the parties’ unilateral action as a viable alternative to a cooperative agreement. Because the UK is now operating independently in terms of access to the oil reserves in the Islands, the repercussions of its actions are being examined.
Introduction
Argentina’s government has obtained international support for its claim to the Falkland Islands (known as Las Malvinas in Argentina). The United Kingdom, which governs the Falkland Islands, is planning to resume drilling for seabed oil and natural gas deposits, which is the immediate reason of Argentina’s renewed efforts to recapture the Falkland Islands.
The United Kingdom and Argentina have been at odds over the Falkland Islands for more than 200 years. Although the current conflict has significant political and economic ramifications, it is also an intriguing illustration of how public international law norms play an important role in defining and resolving international disputes between states. The Falkland Islands issue is a textbook example of two basic concepts of international law colliding: territorial sovereignty and the right to self-determination. In legal terms, Argentina based the majority of its claims on territorial rights, whilst the United Kingdom emphasizes the rights of Falkland Islanders to self-determination.
When the events that give rise to a nation’s claim to sovereignty over territory occurred more than three hundred years ago, proof of sovereignty acquisition is sometimes lacking. However, nothing is more significant in international law relative to claims of title to territory than the history of events on which each claimant bases its claims. Often, the success of a claim to sovereignty has hinged on the performance of a seemingly benign deed. As a result, the accompanying narrative of the 1982 battle and the historical context for the South Atlantic sovereignty issue is necessarily lengthy and thorough. The conflict between Argentina and the United Kingdom for territorial authority over the Falkland Islands stretches back to the seventeenth century. It looked to be a “very abstract disagreement between two nations, neither of which had a genuine national interest at stake.” Indeed, it appeared to be a conflict that was “neither important enough to resolve nor unimportant enough to forget.” This was to alter abruptly on April 2, 1982.
Legal Issues
Succession: The concept of succession is founded on the premise that newly constituted sovereign states should have the same borders that their previous dependent territory had prior to independence. Argentina’s claim is based on Spain’s title succession. Argentina’s status is ambiguous: Spain left the Islands in 1811, yet Argentina gained independence in 1816. If Argentina can claim sovereignty despite Spain’s departure in 1811, Britain may claim sovereignty despite its own evacuation in 1774.
Occupation: Occupation necessitates that the region be res nullius and that the occupation be successful, requiring administration and possession. Argentina’s claim is based on settlements made in the 1820s. However, its occupancy was arguably ineffectual. Britain’s claim is based on its effective possession of the Islands commencing in 1833. However, the Islands were arguably not res nullius at the time they were colonized.
Prescription: Prescription can be asserted through acquisitive prescription, where a state acknowledges another’s occupation, or extinctive prescription, where a state loses sovereignty due to the extended duration of the occupying state, with no proper maintenance of title. The UK’s argument for acquisitive prescription stems from the 1850 Arana-Southern Treaty, which, though not specifically identifying the Islands, aimed to settle prior disputes. Argentina contends that its diplomatic protests are sufficient to challenge claims of acquiescence. The UK’s argument for extinctive prescription is grounded in its virtually continuous possession of the Islands since 1833. Additionally, despite British appeals in the 1940s and 1950s, Argentina never sought to validate its rights through international arbitration.
Self-determination: Self-determination is a concept of international law that may be found in various international documents, most notably Article 1 paragraph 2 of the UN Charter and Resolution 1514 (XV) on decolonization. Territorial integrity is a concept contained in paragraph 6 of the Resolution. The International Court of Justice (ICJ) ruled in Western Sahara that the concept of territorial integrity might take precedence over the right of self-determination. Britain’s claim is predicated on the Islanders’ right to self-determination, as proved by the 2013 referendum, in which 99.8% of voters supported continuing under British authority. Argentina contends that the Islanders are not an indigenous population because Argentine immigrants were evicted from the Islands in 1833, and so the concept of territorial integrity should apply.
The Question of Territorial Sovereignty
The Falkland Islands are an archipelago around 300 miles from South America’s continent. It is made up of two major islands and 776 minor islands. The first Europeans came in the 16th century, however there is much disagreement about which Europeans visited the islands initially and in what capacity. One of the two primary problems at the heart of the dispute is the question of who came first and whether ownership to the islands was created and legally maintained.
Argentina bases its claim to the islands on two grounds. Initially, Argentina asserts that the Falkland Islands should have reverted to Spain, which had acquired the region from France and had a presence on the islands from 1776 to 1811. Argentina contends that upon gaining independence from Spain, it succeeded Spain’s sovereignty over the Falkland Islands. In contrast, Argentina also argues that it obtained ownership of the Falkland Islands in 1820 when David Jewett, an American sailor working for the Argentine government, raised the Argentine flag over the islands.
On the other hand, the United Kingdom lays claim to territorial sovereignty as well. Not only was an English explorer among the first Europeans to visit the island, but the UK also established a settlement there from 1765 to 1776. Despite withdrawing this settlement due to pressures from the American Revolutionary War, the UK maintained its sovereignty claim. In 1833, the United Kingdom returned to reassert sovereignty and expel Argentine government officials from the islands. Since 1833, the UK has upheld possession of the islands.
The Right of Self Determination
Despite the fact that the United Kingdom has been in effective occupancy of the islands for almost 180 years, Argentina has never given up its claim to sovereignty based on its former colonization and purchase of the islands from France. Argentina did, in fact, invade the lands in 1983 to re-establish its territorial claim, only to be driven out by British soldiers.
The United Kingdom is emphasizing a contemporary yet fundamental concept in international law to support its territorial assertion: the principle of self-determination. According to the UK’s Ambassador to the United Nations, there is unequivocal confidence in the sovereignty of the Falkland Islands, South Georgia, and the Sandwich Islands. This stance is substantiated by the principle of self-determination outlined in the UN Charter. Electoral processes and public opinion surveys consistently reveal a strong majority of Falkland islanders expressing the desire for the islands to maintain their status as British territories, thereby reinforcing the UK’s reliance on the principle of self-determination. Article 1 of the UN Charter declares that the principle of “peoples’ self-determination” is a basic objective of the UN.
Argentina has a counter-argument to this. While the right to self-determination is universally acknowledged, it is questionable whether the occupants of the Falkland Islands qualify as a “people” with the right to exercise it. Under international law, the notion of a “people” is still hotly debated. Furthermore, because the term arose in the context of nations fighting colonial control, it is difficult to be certain that the Falkland islanders, who are primarily decedents of British colonists, match the description.
Possible Resolutions
Argentina has ruled out any military involvement to retake the Falkland Islands, but it continues to insist that the United Kingdom initiate talks over the islands’ future status. The United Kingdom continues to oppose any discussions, despite rising pressure from the United States and other Latin American countries to do so. The use of an international court is one possibility that neither the United Kingdom nor Argentina have considered. The International Court of Justice, the United Nations’ main judicial instrument, would be the most likely venue for such conflicts. The United Kingdom has agreed to the ICJ’s mandatory jurisdiction. All Argentina would have to do is accept compulsory jurisdiction and take the UK to the World Court. Both states would be bound by the Court’s decision under the UN Charter. The Court has already handled territorial conflicts. Indeed, this year’s Jessup Moot Competition featured an issue based on the facts of the Falkland Islands dispute.
As appealing as international dispute resolution may seem, the stakes in this case may just be too great to move to the ICJ. Not only do the two countries have nearly 200-year-old claims against one other, but such a decision might have massive economic ramifications. Rather, while international law affords both parties legal claims, this conflict will most likely be addressed by politics and talks. Even in such cases, the legal arguments of the United Kingdom and Argentina will be defined by long-standing and significant norms of international law.
Conclusion
This article attempted an examination of the Falkland/Malvinas situation from the standpoint of natural resource utilization. The overriding question that has changed the focus is whether it is conceivable to separate the claim to territory from the title to natural resources, which represents Argentina’s and the UK’s primary interests in the Islands.
Starting with the de facto assumption that the dispute between Argentina and the United Kingdom over sovereignty over the Islands cannot be resolved realistically by imputing title to territory to one of the two states, it is argued that two other paths to the oil deposits in the North Falkland/Malvinas Basin remain open. The first option involves a cooperative agreement, as demonstrated by Argentina and the UK in their 1995 Joint Declaration for Hydrocarbons. Unfortunately, this attempt proved unsuccessful, with Argentina withdrawing in 2007. The failure likely stems from the non-binding nature of the Declaration and the absence of exploitable resources in the designated Special Cooperation Area. Despite the setback, the Joint Declaration serves as an intriguing model, illustrating that separating territorial claims from natural resource rights is not inherently illegal. Instead, it highlights that treating sovereignty and its associated rights separately aligns with international law, provided all legitimate sovereign claimants are involved in the process. The second option for reaching the oil riches beneath the seabed of the Falkland/Malvinas Islands is for each side to act alone. However, this conforms to the UK’s present behaviour in the Falkland/Malvinas Islands: English businesses are operating in the North Falkland/Malvinas Basin, while more investments are encouraged. The legality of this behaviour is called into question. It is suggested that the English (mis)use of an exhaustible natural resource such as oil might irreversibly harm Argentine title to natural resources. Furthermore, because sovereignty over the Islands is disputed, the UK has yet to be granted the authority to dispose of the Falkland/Malvinas’ natural riches and resources in accordance with international law.
The Falkland/Malvinas issue is the narrative of an unending “struggle” between Argentina and the United Kingdom, with ancient origins that make it unlikely to be resolved even in the long run. Furthermore, the UK’s current behaviour appears to exacerbate the state of the dispute by irreparably undermining Argentina’s claim to natural resources. Despite being an interesting case of a separate treatment of title to territory and natural resources, the case of the Falkland/Malvinas provides evidence that violations of the latter may be far more problematic than violations of the former, preventing the status quo ante from being restored.
Reference:
- This article was originally written by Alice Ruzza published on website Goettingen Journal of International Law 3 (2011) 1, 71-99. The link for the same is herein. https://www.gojil.eu/issues/31/31_article_ruzza.pdf
- This article was originally written by Julian Ku published on website Deane School of Law at Hofstra University Journal. The link for the same is herein. https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2368&context=faculty_scholarship
- This article was originally written by R.P. Barston and P.W. Birnie published on website Sciencedirect. The link for the same is herein. https://www.sciencedirect.com/science/article/pii/0308597X8390057X
- This article was originally written by Mcnair Chambers published on website Mcnair International. The link for the same is herein. https://www.mcnairinternational.com/client/publications/2017/CENTRAL%20ISSUES%20IN%20THE%20FALKLAND%20ISLANDS,%20MALVINAS%20SOVEREIGNTY%20DISPUTE.pdf
- This article was originally written by Nicolas J. Watkins published on website Florida State University Law Review. The link for the same is herein. https://core.ac.uk/download/pdf/217315321.pdf