The Falklands – Right or Wrong by law?

Being as today – April 2nd 2016 is the 34th anniversary of the start of the Falklands War I thought I would apply myself to a little piece of International Law to examine the competing claims. Argentina invaded the islands to ‘reclaim’ them under what it saw as a ‘lawful right’ so I thought I would examine this by use of International Law. Now, I should add that this is difficult. What I want to see is a reconciliation between three nations; Argentina, The Falkland Islands and Great Britain. Oddly, Britain has the least to do with this. The sovereignty of the islands is in the hands of the people there. Here in Britain we don’t have a ‘position’ – ours is simply “What they want.” – It isn’t taught in schools in Britain as it is in Argentina, and most British people know very little about it. We leave the decision up to them. It’s the way of the world.

The Falkland Islanders are sometimes also quite confused by all of the ‘hype’. They are a close community, many eight or nine generations long, who can’t understand why a small piece of the world which they have always called ‘home’ should spark such a tug of war. In truth, they want ALL of us to leave them alone! They are a country in their own right. There is no ‘colonialism’ or ‘imperialism’ – just some people in their own home. A quiet corner of the world. Also – despite what the internet might have us all believe, many Argentines – probably most – view this as really not an important thing to everyday life. I have met a good few fanatics – but every cause has, and attracts, those in any country. This said, it is confusing why these islands and their people attract such fierce opinions, so i thought I should try, at least, to clear away a lot of the conjecture by a study of international law.

When it first came out, this post attracted a lot of attention – for good and bad. In this sense I have thought it prudent to write a slight update of the original. The biggest issue has been that – as is well known – I am currently writing a book about the Falklands war from both sides. The Argentine veterans – and one in particular – have all been outstanding. There is no hate nor malice and a general call for reconciliation. The men I have spoken to have been wonderful to deal with. This is not a post, therefore, which aims to promote bias or even opinions upon the subject, but simply a piece of interesting fact. One of the interesting things about the whole Falklands argument is the politics – who said what or wrote what, when, what they might have meant or inferred…historically this becomes a game of ‘one upmanship’ with seemingly no end and greater misunderstanding on both sides. The many ‘keyboard warriors’ who clamour for war or conquest seem to be very different from the men who actually did the real fighting – but such is so often the case.

What I have been asked to do, therefore, is to examine and write about a legal case which, having a little knowledge of from something else I was writing, I was asked to apply here. The hope is (and this is written retrospectively) that an understanding of the legal basis will lead to…well, more understanding. Sadly this is a case still wreathed in a lot of ignorance and opinion. The best result, surely, is that people stop calling for others to take up a cause and fight – and possibly die – for it. We know that those who shout loudest will be hiding under the bed anyway. So to those people who shout loudest and do the least and have not the slightest idea of what warfare is like, I thought I would present a case to silence the keyboard-warrior arguments.

Essentially, we are going to look at the five laws and then see if history can allow us to determine which, if any, apply on either side.

Now, International Law holds – and has always held that there are only five methods by which territorial sovereignty can be acquired; these being Cession, Effective Occupation, Accretion, Subjugation and Prescription. Let us define each and see the relevance to the Argentine case which, if it cannot be proven, must be voided:

1) Cession: a territory may be ceded by treaty under international law. Such cession of territory would include Hong Kong, the Louisiana Purchase, the purchase of Alaska or ongoing discussions with Canada in regards to the Turks & Caicos islands. This is a legal agreement between two volunteering states. Since the law of self-determination came in, it allows that, if a nation wishes to cede occupied territory to another, it must at least take into account the interests of the population. NOTE: There is not, not ever has been a law of ‘Succession’ – only of ‘Cession’ – and this clears up one massive piece of confusion straight away.

Does Cession Apply:  – For Argentina, the answer is no. Neither Britain nor Spain who both held competing claims, ever ceded the Falklands to Argentina by any agreement, implied or real. Technically, France, who held a garrison there which BOTH Britain and Spain protested, can be deemed as having ceded it claim to Spain, however (and here we get technical) Spain absolutely refused to recognise this as an act of cession or of purchase – money changed hands for ‘expenses’ although the wording of the contract was made to mean different things to different people by intention; something which angered Spain no small end . Moreover, the deal was not done between France and Spain but the St. Malo Company and Spain, which was also a touch ambiguous in terms of international law. However, Spain did recognise British sovereignty over the territories in 1863 (the same year that they recognised Argentine independence) which in itself is an implied act of cession – of course, Britain never accepted that territories which it had always called its own could be ceded by a foreign power anyway, but this is a moot point. Spain – who held a claim to those islands at one time – the ONLY other competing claim, recognised cession of that claim in favour of Britain. Britain could therefore claim an implied form of cession (and more likely ‘prescription’ – see below) whilst Argentina could not in this instance. Certain parties in Argentina often claim ‘Uti Possidetis Juris‘- which is not a law but a principle founded at the Congress of Lima in 1848 which uses law of cession – always with consenting signatories, to mutually settle territorial disputes. This does not apply to the Falklands in any way and is an agreement, not a law. It is an applied principle of the law of cession and nothing more.

2) Effective Occupation: Effective occupation occurs when free and newly-discovered territory has sovereignty enacted upon it for a considerable time. To use case law from three cases, such quotes from those rulings as “an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis” (Eritrea case) – “by immemorial usage having the force of law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there” (Clipperton Islands Case) and “a definite title founded on continuous and peaceful display of sovereignty” (Palmas Case). Although ‘Effective Occupation’ is not a new concept, it has been Latinised to ‘Uti Possidetis de Facto’ – an application of this law which was successfully proclaimed by Brazil in the Congress of Lima in 1848 when determining its own borders against the former Spanish colonies.

Does Effective Occupation Apply: – Again, for Argentina the legal answer here is no. Argentina has never occupied the Falklands except by force over a period of 74 days in 1982. There was, of course, the case of Luis Vernet who occupied the islands between 1826-1832 with a small group of people (more than half of who were British ironically) but Vernet had asked permission of the British government to come and set up a ranching business, actually suggesting that it would show effective administration of the territory. Vernet was no patriot; he was a businessman playing both sides. When Britain grew concerned over his intentions and ordered him to withdraw, he refused, but was removed by the American ship USS Lexington in 1832 for acts of piracy against three of their ships. However, by contrast, Britain has held effective occupation for over 183 years of continuous and peaceful sovereignty which I think more than satisfies ‘immemorial usage‘ as prescribed by the International Court of Justice.

3) Accretion: Accretion is the physical expansion or territory perhaps as a result of the sea retreating or new territory being created by geological or volcanic means. Naturally this does not apply to any side in any case, so we can move on past this one quickly!

4) Subjugation: Subjugation or ‘Conquest’ occurs when a power physically takes by force a territory and holds it to the end of that conflict. This is directly associated with the idea of ‘Uti Possidetis Ita Possedeatis‘ – “As you possess – so may you continue to possess”(normally given as the most common form of Uti Possidetis and referred to by that more simple term) which pertains solely to ground ‘physically held’ at the end of a conflict. It became a legally accepted term and means of territorial acquisition in the early 1770’s but had died out by the mid-1800’s and was abolished by Article IV of the Hague Convention 1907.

Does Subjugation or Conquest Apply: – Again for Argentina the answer is no. At no time did Argentina subjugate or conquer the Falkland Islands and hold them at the end of any conflict. This puts to bed the idea of ‘Uti Possidetis‘ as no land in the Falklands was held at any time during the revolution from Spain. Britain could claim this from 1833 if so wished, however does not due to the fact that Britain always upheld Hawkins’ 1594 claim. You cannot conquer your own territory!

5) Prescription: Prescription is the acquisition of sovereignty by actual exercise of effective sovereignty over a territory for a ‘reasonable’ and sustained period – normally given as fifty years or more. This is applied in cases of extended negligence and forms the basis of ‘easement by prescription‘ law in use in most countries today. Importantly, the law does state that there should be ‘no protest or contest from the original sovereign.’

Does Prescription Apply: – Once again, for Argentina the clear answer here is no. Argentina has never exercised effective sovereignty over the Falklands except in the case of Vernet and the 1982 invasion – both of which cases were strongly protested and contested by the ‘original sovereign’ – Great Britain. Spain’s 1863 act of cession or of recognition made Britain the only original sovereign of the Falkland Islands. Britain can claim prescription over Vernet’s settlers and others and has held its title for a ‘reasonable and sustained period’ from at least 1863-present since Spain – the only other country which might claim a right to ‘original sovereignty’ formally recognised British sovereignty, thereby satisfying international law. Of course, Spain did begin a period of negligence from 1811 and a case for full British prescription can be made from then and certainly from 1833 onwards.

Conclusions and the case for each side.

Britain: The United Kingdom of Great Britain and Northern Ireland can therefore claim Cession, Effective Occupation, Prescription and an implied Subjugation if it wished. It takes only one law to be found evident to prove sovereignty. Now, we should rationalise this however, and seek to understand it. The strongest cases are for Cession and Effective Occupation – Uti Possidetis Juris and Uti Possidetis de facto – Spain ceded its claim in 1863 and the settlers had been there uninterrupted since 1833 and so remain there today. Was there ‘Prescription’? – Well if one case be true, there was. If the other case be true, there would be no need for it anyway – and the same goes for ‘Subjugation’. In effect, and considering that ‘Accretion’ simply doesn’t apply in any case, every single one of the four points of International Law apply to the British case. If Spain held title then ‘Cession’, ‘Prescription’ and ‘Effective Occupation’ apply also. If Argentina ever did hold a claim then again ‘Subjugation’ and ‘Effective Occupation’ side the case to Britain. Finally we might add that, even allowing for an Argentina claim – although based, as we see, on no act of law, then Britain might rightly claim ‘Prescription’ from them and, we might allow, ‘Cession’ too. For in the 1850 Convention of Settlement, Britain and Argentina sat down to work out their differences and end any and all points of grievance. The resulting treaty assured that “all territory – unless otherwise specifically mentioned is to stay in the possession of the conqueror” – if Argentina ever did hold a claim, then here was an act of Cession. It has been argued that Rosas, signing for Argentina, might simply have overlooked the Falklands, but this is not so, for he had written to Lord Palmerston about them twice just before the Convention of Settlement, offering to drop any claim from Argentina. Following the Convention, Rosas wrote and asked if this did, in fact, include the Falkland Islands and was told absolutely yes, with Palmerston stating that “I understand the case to be exactly as described to me in your letters.” Notably, Argentina from here on ceased any protests towards Britain over its possession of the Falklands. There had been eleven protests between 1833-1849, but between 1849-1888 these protests stopped. Forty years of acquiescence until a letter was sent, ignored and the matter largely dropped until Peron placed it again before the UN in 1946.

Argentina: Seen against the legal – and also historical evidence, it is hard to see a justifiable basis for this claim; and that isn’t bias. Argentina cannot claim Cession – for there was none (although some try to confuse cession with ‘Succession’ for which there is no law), there was no Prescription, no Subjugation and no Effective Occupation either, and these are the ONLY ways in which sovereignty can be gained over a territory in this or any age. When the argument flares up, as ever it will, it comes down to these five laws only. However, I think it just and proper to explore some of the conjecture around this case. Firstly there is a case for the Falklands being part of the Argentine Continental Shelf – well the law has no basis for this. America might as well claim Mexico and Canada, or France claim Britain (which is much closer than Argentina is to the Falklands). The ICJ has rules that ‘Continental Shalf’ arguments are invalid as are proximity – something which Argentina should know since such a claim by Uruguay against Argentina was thrown out for these exact reasons in the late 20th century! Next is an argument that the British claim extended only to West Falkland (the Spanish being on East Falkland) – yet again this vanishes if we add that Spain ceded this territory to Britain and the whole has been under Effective Occupation since 1833. Finally there is a charge of ‘Abandonment’ by the British between 1775 and 1833 which should be addressed. The law of Prescription does – after all – allow for abandonment being taken into consideration, but for this we have to look at the prescriptions for this to be in effect. ‘Abandonment’ in those times was a legal definition which stated a period of fifty years or greater with no effective administration, no demonstration of continued usage of that land and a demonstration of no intent to return to that territory. However, Britain had always maintained the international stance that it would return to the Falklands. The plaque left there when the British garrison pulled out even stated as much. Britain administered anything to do with those islands throughout this period, appointed ministers to oversee South Atlantic possessions and relations, had sealing and whaling bases on them and administered and taxed the proceeds of those ventures. The Royal Navy used the islands frequently too and Lord Cornwallis even negotiated their status with Napoleon in the 1802 Treaty of Amiens – yes, even Napoleon – the world’s greatest statesman and military commander knew they were British.

Final thoughts: In conclusion, therefore, there is every legal right for the Falklands to be British and none for them to be Argentine. This is simply the law. There are some who might conjure up certain historical arguments – and we have dealt with those too, but let us be clinical; these all come back to the same five laws of Cession, Effective Occupation, Accretion, Subjugation and Prescription – and Argentina can answer to not one f those whilst the British case stands up from every angle on at least two or more of these laws.

The original ending of this post stated ‘Case closed’ – I wanted to expand upon that and, if I admit a fault, it is in being too headstrong. My purpose has been to quieten some who shout the most ignorance. Those who call for a war and seem to do it by stalking and ‘trolling’ ones friends and family which I have received a few times.

The law is not wholly ‘just’ – we all know this. There is a saying in the UK “The law is an arse” – it is. But without laws there is a problem. I would rather appeal to what is ‘morally right’ than what is ‘legally right’. If we were talking about some barren rocks in the south Atlantic, maybe with a small garrison – from whichever country – then maybe someone would have a case. But these are people. They are lives. Nobody in this day and age could possibly think that avenging some 200 year-old grievance on behalf of a few dozen long-dead men (most of whom were British) is worth disrupting the lives of 3,000 peaceful farmers in this day and age.

There is a new act of law which has come into effect, that of the “Enshrined Right of Self Determination to all People”, and surely this should answer everything. Yes, Britain holds right and title both legally and historically, but in the modern age, this is not a case purely for Britain. Since 1961 Britain has been proactively working to encourage her colonies of a bygone era to become independent. The United Nations has provided a way to do this in a safe and controlled environment. These fledgling nations are encouraged to achieve self-determination and then ‘free association’ with a country of their choice. Full independence is not a requirement, only that they always have the option. The Falkland Islands are getting there. A land and its people are indivisible. There are claims that “The land is ours, the people can be whatever they want” – well, legally no. The land is not Argentine, as we have seen. It never has been. This isn’t ‘against Argentina’, just ‘for the Falkland Islanders’ – I don’t think anybody has a right to claim anybody else’s home.

I believe that the Falklands may one day become an independent country and, if that is their wish, good luck to them! But they like being British, the same as someone from Tenerife likes being Spanish or someone from the USVI likes being American. They aren’t colonists, not are they colonised…they are just people in their own home and on their own piece of land. Most importantly their right; that of Self determination – is a law which trumps any and every law stated above. People are the law now – not land. It is wrong to claim somebody’s home, particularly when you don’t want to live there yourself. I bet that if those in Argentina who clamour for the Falklands were made to live there, they would soon stop shouting. It is a hard life on the islands…can anyone imagine CFK herself walking around the streets of Stanley in her Wellington boots and a woolly hat? In short, I think the people there have more than earned the right to call that place home.

Argentina is a vast and beautiful country. It occurs to me that the world would be a better place if everyone appreciated more what they had already and stopped trying to take from others who want nothing more other than what they have. A wise man told me once that there is only one race – the Human race. When we accept that, the rest is simple and laws are probably unnecessary.

For more on this, and also on my own personal views on the subject please view my latest post: https://rickydphillipsauthor.wordpress.com/2016/04/06/falklands-malvinas-lets-set-the-record-straight/