There are few issues more contentious
within Argentina today than the issue of sovereignty over the Falkland Islands.
This is so much so that that Argentinian government has put it into their
constitution that they will take them back from the British. To them, it is not
even the Falklands, but the Malvinas. On the 2 of April, 1982, the military
junta that controlled Argentina invaded the Falklands and declared war on the
British. To them, it is without question that the islands belong to them, a
leftover of the former Spanish colonies clearly within their territorial space
when they declared independence and became the United Provinces of the Rio de
la Plata in 1810. To the rest of the world it is not so clearly cut. This paper
will analyze the claims of sovereignty to the islands and argue that the
British do not just have de facto
control over the islands, but also de
jure.
Up until the
war in 1982, there was relatively little written on the Falkland Islands, and
it was for good reason. Quite frankly, the islands were not important until Argentina
made their failed attempt at taking the islands. Before the war the islands
were and still are primarily a chain of islands devoted to wool production.
When the war began there was an understandable demand for answers as to what
was actually going on and why a country like Argentina, who was at such a clear
disadvantage to the British, would want to go to war over something so
unimportant. Most dealt with the immediate cause for tensions, but some delved
deeper to the beginning of British de facto rule over the islands in the
1800’s. However, this does not tell the whole story of what had gone on. In
truth it dated back to the 1700’s and many countries had involvement in the
islands.
It is not
known who first discovered the Falkland Islands, but the first known record of
them is on a series of maps made for Charles V, Holy Roman Emperor. They were,
however, of little note at the time[1],
so the credit for discovery often goes to an Englishman named Captain John
Davis in 1592[2].
It was not until the year 1690 that the islands received the name Falklands by
a man named John Strong, though the name differed based on which country’s map
it was on. For the British it was the Falklands, for the French it was the
Malouines, and the Spanish derived its name, the Malvinas, off of the French
name. Though they had been discovered in the early 1500’s, it would not be
until 1764 that any colonization effort would be made on the islands.
In the time
between the Falklands discovery and the French attempt at colonization in 1764,
there were no permanent settlements, only itinerant fishermen and sailors
making stops for their final destination, usually around the Horn. From 1764
until 1766, the French, under a man named Louis Antoine de Bougainville,
operated the first attempt at a permanent settlement in what they would call
Port Louis. It is still called this today and would be the primary settlement
up until the mid-1800’s. A year later, in 1765, the British, under Captain John
MacBride, formed a settlement at Port Egmont. Without knowing of the other, the
British and French each established a colony on one of the two major islands in
the archipelago.
It is at
this point that the first dispute over the sovereignty of the Falkland Islands
occurred. In 1766 the Spanish purchased[3]
the rights to the French settlement and in their eyes the whole of the
Falklands. Until 1769 the Spanish and the British effectively ignored each
other. In that year the situation would change when the Spanish began to
circumnavigate the islands in an attempt to assert their authority and claim, a
direct continuation of the French one. Outnumbered and outgunned, the British
would flee from their settlement in Port Egmont in 1770. One year later, in
1771, the British regained control over Port Egmont after a compromise was
agreed upon between them and the Spanish. The British would keep their
settlement and the Spanish theirs. The issue of sovereignty was essentially
sidestepped to avoid a war. This success would be short lived for the British
and between the years of 1774 and 1776 they would begin to leave the island due
to pressures caused by the American war of independence. That said, they did
leave a plaque at the settlement stating their claim to the islands and their
intent on returning. With this, de facto
control over the islands was in the hands of the Spanish, though the topic of
de jure control was hardly settled.
In a
situation almost identical to that of the British decades earlier, in 1811 the
Spanish were forced to leave the islands in order to deal with their own
independence movement in South America[4].
Like the British, they left a plaque within the settlement stating their own
claim to sovereignty and intent on returning. In 1816, in what is now known as
the Republic of Argentina, the United Provinces of the Rio de la Plata declared
their independence from the Spanish Empire. However, no claim would be made on
the Falklands by the United Provinces until 1820 when American privateer and
pirate named David Jewett would declare that the Falklands were the property of
the United Provinces. Word of this claim would not reach Buenos Aires for
another year. Nothing would be done of this claim until 1823 when Buenos Aires
would give the rights to East Falkland to a man named Luis Vernet to form a
commercial sealing enterprise and eventually a colony.
In 1831, Vernet would overextend his
authority and seize several United States fishing boats and confiscate their
property. One of the ships managed to escape and asked for help from the US
authorities. In response to Vernet’s actions, and to protect US fishing in the
area which had gone unopposed for decades, the USS Lexington was sent to assert
US authority. The Lexington destroyed the settlement and made it near
uninhabitable on the island for the residents.[5]
Two years later, in 1833, the British would return and reassert their claim to
the islands, forcing the commander of the Argentine military garrison, Lt. Col. José María Pinedo, to surrender and take down their flag. From this
point on the British would have de facto control over the islands and go
unopposed until 1982, aside from diplomatic entreaties from the Argentinian
government.[6]
It cannot be doubted that for nearly
the past two hundred years, the British have had de facto control over the Falkland Islands[7].
Not even Argentina would deny this. However, this does not make for a legal
claim to the islands and Argentina would make this case. As far as Argentina is
concerned, they have a de jure claim
to the islands, not the British. That said, despite what the Argentine
government and its past incarnation, the United Provinces of the Rio de la
Plata would say, they have no claim and long ago willingly gave it up on the
international stage.
As was
stated previously, what is now known as the Falkland Islands had been charted
back in the 1500s by an unknown person. Shortly before the charting of these
islands, two agreements were formed between the Spanish, the Portuguese, and
the Papacy. The first, a preliminary agreement before its final incarnation,
was known as the Inter caetera 1493. It was a Papal Bull[8]
created by Pope Alexander VI, Rodrigo Borgia, which divided the new world
between Spain and Portugal[9].
The second agreement was the Treaty of Tordesillas in 1494. The treaty moved
the line of demarcation further inland to appease the Portuguese[10].
The important aspect of these two agreements to note is that the only ones who
agreed to them were the Spanish, Portuguese, and the Papacy. All of the other
countries at the time were not bound by it and they only informally abided by
it. In the map that was drawn up by this treaty, the Falklands are indeed
within the Spanish zone and they would stake their claim to it, over two
centuries later.
It did not
take long for the treaty to be effectively scrapped by the parties involved.
The small amount of territory given to the Portuguese was not enough and they
quickly encroached on Spanish territory in what is now Brazil. The Spanish, not
being interested in that land gave little in the way of protest. On a more
international stage Spain would prove that the treaty did not have to be
recognized by anyone else other than them and the Portuguese with the 1670
Treaty of Madrid. The treaty did not have any direct relation to the Falklands,
rather, it was a treaty of friendship with the British that recognized their
sovereignty over the Caribbean Islands and made each party agree to not
interfere with each other’s trade[11].
The Caribbean is well within the Spanish side of the demarcation line and,
while it gives no mention to South America, it gives a legal precedent for
foreign claims in the Americas.
It is at the
point that the Treaty of Tordesillas is effectively invalid, but it is made so
more officially with the Treaty of Utrecht in 1713. The main focus of the
treaty is in dealing with the War of Spanish Succession and has no direct
involvement with the Falklands. Indirectly, it does further the case that
unclaimed territory is available to be claimed by those who can enforce it. The
way in which it goes about this is by ending the demarcation line as an
official boundary between Spain and Portugal. In the treaty, Spain cedes
territory between the Amazon and Oyapock rivers along with Colonia del Sacramento in Uruguay. All of these lands are beyond
the demarcation line created by the Pope and further invalidate the treaty.
Another stipulation of the treaty was that aside from territory that was ceded
to other powers, it recognized territory held by Spain up until the death of
King Carlos II[12],
none of which included the Falklands except from the standpoint of the Treaty
of Tordesillas which has been invalidated.
Given the
state of Spanish claims in the Americas, it is unsurprising that the French
would believe it was allowable for them to establish a colony on the Falklands
fifty years later where the Spanish had still yet to make a claim to them. As
far as anyone was concerned, aside from the Spanish, the Falklands were terra nullius, and as such the French
had every legal right to make a claim to the islands. A year later in 1765, the
British also established a colony, so now the British and the French each had a
colony on their own respective islands. At this time in history, the French and
the Spanish were allied thanks to the Pacte
de Famille as they both had Bourbon monarchs. In 1766 the Spanish came to
the islands to assert their claims to the islands but were surprised to find
two colonies. The French, not wanting to endanger their alliance agreed to
leave and the Spanish took possession of the colony. Wanting to assert full
control over the islands, the Spanish and the British almost went to war over
the islands but it was averted after the Falkland Crisis of 1770. As part of
the agreement the Spanish gave a tacit admission that the legal claim over the
islands was still yet to be decided and it sidestepped the entire issue[13].
For the next several years each country effectively held sovereignty over their
respective islands. The British would abandon the colony due to the American
Revolution and as would the Spanish to deal with the independence movements in
their territory. The islands, left abandoned, were stuck in a legal limbo with
the question of sovereignty not being answered, but with the Spanish being the
last to hold them in 1811.
In 1790 the
Nookta Sound Convention would have finally put an end to this dispute in
Spain’s favor had it not been for the Napoleonic Wars. The convention,
specifically Article 6, made the British and Spanish agree to not attempt to
colonize territory held by either party[14].
The problem arises with the Napoleonic Wars which pitted the British against
the French and their Spanish allies, thereby nullifying the convention. When
the war ended and peaceful relations between Spain and Britain renewed, so did
the convention in 1815. This would happen to be four years after the Spanish
abandoned their colony in the Falklands. The renewed convention did not respect
the boundaries of 1790s but of 1815, meaning that the abandoned islands were
still up for the taking[15].
Both the Spanish and British had vowed to return after they respectively left
their Falkland colonies, and as the original convention was nullified it meant
that the agreement after the Falkland Crisis still held.
After the
collapse of the Spanish Empire, the countries that emerged from the Spanish
viceroyalties began to make their claims to the former Spanish territory. This
was not a new concept and was accepted under uti possidetis juris[16].
This is the primary basis for Argentina’s claim to the islands, one which the
United Provinces attempted to enforce back in the early 1800s. In 1820, David
Jewett did make a claim to the uninhabited islands on behalf of the United
Provinces but he never informed the government of his claim. The issues with
this claim are further troubled by the fact that he engaged in piracy which was
against his contract. In a more official capacity, the United Provinces sent
Luis Vernet to make a colony within three years in 1828. He would be given tax
exemptions on the condition that he establishes the colony within the
timeframe, but he was not able to do so because of the events of the USS
Lexington. With the fledgling colony in shambles the British stepped in and
reasserted their claim in 1833 and began their uninterrupted rule to this day.
The question
arises after these events as to why the British claim should be any better than
that of the Argentine one as they were the rightful heirs of the former Spanish
colony. Had the events of 1847-1848 not taken place, a good argument could be
made in Argentina’s favor. In 1847 the Second Latin American Conference took
place and among many other agreements, one was made were the member countries
officially declared their right of uti
possidetis juris, but Argentina was not among them[17].
When given the opportunity to attain some measure of international recognition
of their claim they failed to do so. It was years after the British took
control of the islands, but it is difficult to not see this as an implicit
admittance that they no longer had a claim to the islands. Even had they signed
the agreement, it would not give them any stronger a claim than any other
former Spanish colony. With Patagonia in dispute between Argentina and Chile,
Argentina could not even make a proximity argument at the time.
The current
disputes over the Falkland Islands are hardly new. Despite their small size and
centuries of obscurity, they have proven to be source of trouble for the
British and all others who touch the islands. The Argentinians have on several
occasions had the opportunity to really solidify and enforce their claim to the
islands, but have failed to do so. Now a source of hurt pride, they seek to get
them back, but the British and their long involvement with the islands have the
only real claim to the islands that can be argued.
Glossary
De facto – Literally, in fact, it means a practical ownership
of something, while not necessarily legal ownership.
De jure – Legal ownership. Argentina would argue that they
have de jure ownership of the Falklands.[18]
Terra nullius – Land that is devoid of ownership. When
something is terra nullius it is available for claims to be made.
Uti possidetis juris – Newly formed sovereign states should have
the same borders as their preceding dependent area before independence.[19]
Bibliography
Davis, John, The Voyages and
Works of John Davis, the Navigator, 1880
House of
Commons Hansard (written answer), Deb 07 February 1983
Johnson, Samuel, “Thoughts
on the Late Transactions Respecting Falkland’s Islands”, 1771
Nookta Sound Convention, Article 6, 1790
Pope Alexander VI, The Bull of Inter caetera, 1493
Pope Alexander VI,
Treaty of Tordesillas, 1494
Treaty of Utrecht, 1713
Treaty of Madrid, 1670
“Pan-Americanism and the Pan-American Conferences”, US Foreign Policy
Encyclopedia
Brown, Vera Lee. "Chapter
III. The Falkland Islands", The Hispanic American Historical Review
5, no. 3 (1922): 387-447.
Calvert, Peter. "Sovereignty
and the Falklands Crisis", International Affairs 59, no. 3 (1983):
405-413.
Dickens, Paul. "The
Falkland Islands Dispute Between the United States and Argentina", The
Hispanic American Historical Review 9, no. 4 (1929): 471-487.
Gough, Barry. "The British
Reoccupation and Colonization of the Falkland Islands, or Malvinas, 1832-1843",
Albion: A Quarterly Journal Concerned with British Studies 22, no. 2
(1990): 261-287.
Gustafson, Lowell S. The
Sovereignty Dispute Over the Falkland (Malvinas) Islands, New York: Oxford
University Press, 1988.
"International Law:
Concurrent De Jure, De Facto Recognition", Columbia Law Review 39,
no. 4 (1939): 704-711.
Klafter, Craig. "United
States Involvement in the Falkland Islands Crisis of 1831-1833", Journal
of the Early Republic 4, no. 4 (1984): 395-420.
Laver, Roberto C. The Falklands/Malvinas Case:
Breaking the Deadlock in the Anglo-Argentine Sovereignty Dispute. The
Hague: Martinus Nijhoff Publishers, 2001.
Lesaffer, Randall.
"Argument from Roman Law in Current International Law: Occupation and
Acquisitive Prescription", European Journal of International Law
16, no. 1 (2005): 25-58.
Metford, J.C.J.. "Falklands
or Malvinas? The Background to the Dispute", International Affairs
44, no. 3 (1968): 463-481.
Murphy, Alexander.
"Historical Justifications for Territorial Claims", Annals of the
Association of American Geographers 80, no. 4 (1990): 531-548.
Rice, Geoffrey. "Great
Britain, the Manila Ransom, and the First Falkland Islands Dispute with Spain,
1766." The International History Review 2, no. 3 (1980): 386-409.
Royle, Stephen. "The
Falkland Islands, 1833-1876: The Establishment of a Colony." The
Geographical Journal 151, no. 2 (1985): 204-214.
Shackleton, Lord. "The Falkland
Islands and Their History", The Geographical Journal 149, no. 1
(1983): 1-4.
Shaw, Malcolm. "Peoples,
Territorialism and Boundaries", European Journal of International Law
8, no. 3 (1997): 478-507.
Socolow, Susan. "Recent
Historiography of the Rio de la Plata: Colonial and Early National
Periods." The Hispanic American Historical Review 64, no. 1 (1984):
105-120.
Truitt, Rolland. "Defining
Latin American Security Issues", Military Affairs 40, no. 4 (1976):
169-175.
Ware, Richard. "The Case of
Antonio Rivero and Sovereignty over the Falkland Islands", The
Historical Journal 27, no. 4 (1984): 961-967.
Weddell, James. A Voyage
Towards the South Pole: Performed in the Years 1822-24, Containing an
Examination of the Antarctic Sea (1827), 2nd ed. Newton Abbot: David &
Charles, 1970.
[1]
This did give Spain a legal claim to the islands under the Treaty of
Tordesillas.
[2] Davis, John, The Voyages and Works of John Davis, the
Navigator, 1880
[3]
While the French were the first to colonize, the Spanish asserted their claim
and the French acquiesced to protect their alliance with the Spanish.
[4] Shackleton,
Lord. "The Falkland Islands and Their History", The Geographical
Journal 149, no. 1 (1983): 1-4
[5] Klafter, Craig. "United
States Involvement in the Falkland Islands Crisis of 1831-1833", Journal
of the Early Republic 4, no. 4 (1984)
[6] Royle, Stephen. "The
Falkland Islands, 1833-1876: The Establishment of a Colony." The
Geographical Journal 151, no. 2 (1985): 204-214.
[7] Laver, Roberto C. The Falklands/Malvinas Case:
Breaking the Deadlock in the Anglo-Argentine Sovereignty Dispute. The
Hague: Martinus Nijhoff Publishers, 2001.
[8] A
formal declaration given by the Pope.
[9]
Pope Alexander VI, The Bull of Inter caetera, 1493
[10]
Pope Alexander VI, Treaty of Tordesillas, 1494
[11]
Treaty of Madrid, 1670
[12] Treaty
of Utrecht, 1713
[13]
Samuel Johnson, “Thoughts on the Late Transactions Respecting Falkland’s
Islands”, 1771
[14]
Nookta Sound Convention, Article 6, 1790
[16]
Lowell Gustafson, The Sovereignty Dispute
Over the Falkland Islands, pp. xii, 1988
[17]
“Pan-Americanism and the Pan-American Conferences”, US Foreign Policy
Encyclopedia
[18] “International
Law: Concurrent De Jure, De Facto Recognition” Columbia Law Review 39, no. 4 1939, 704-711
[19] Shaw, Malcolm. "Peoples,
Territorialism and Boundaries", European Journal of International Law
8, no. 3 (1997): 478-507.
No comments:
Post a Comment