Argument: Popular sovereignty

The people of the Falklands are an established community with a right to self-determination. They are not a transitory population – many of them can trace their origins in the Islands back to the early 19th Century. They are the only successful colonists of the Falklands.

The Argentinian claim of sovereignty through inheritance of the Spanish title (uti possedetis [1] ) is not accepted as a general article of international law, and even if it was it would have to be subordinate to the Islander’s right of self-determination.

It is absurd that Argentina claims that the Islanders do not have a right to self-determination because they replaced an indigenous Argentinian population 200 years ago when Argentina consists largely of Spanish colonists who replaced the indigenous Native American population in roughly the same time period.

[1] That newly independent nations inherit the claims of the old colonial states along the colonial boundaries. Dixon, Martin, Textbook on International Law, 6th ed., Oxford, 2007, p.163, http://books.google.co.uk/books?id=aS2fv32rvMcC&amp;printsec=frontcover#v=on...

Candidate 1: "If Britain did not have legitimate sovereignty over the Falklands to begin with then it is illegitimate for Britain to hand that sovereignty over to the islanders."
Candidate 2: "Argentina inherited Spain’s claim to sovereignty

Both Argentina and the islands were under Spainish sovereignty. Spain ruled the islands from Argentina – they were therefore part of the same territory – doing so free of British intervention (or complaints) from 1770 until 1811, i.e. 41 years.

Upon independence from Spain, Argentina rightfully asserted sovereignty over the former Spanish territory, a principle that would latter be known under international law as uti possidetis juris. Britain did not claim sovereignty over the islands when Spain left them in 1811. Nor did Britain immediately challenge Argentina’s assertion of sovereignty in 1820, when David Jewett claimed the islands for Argentina, or in 1825, when the first treaty between the new country and Britain was signed."
Candidate 3: "The fact that Spain never formally renounced sovereignty is irrelevant – when Britain asserted its territorial claim Spain acquiesced.

Additionally if Spain’s claim did not lapse when it evacuated its colony then surely neither did Britain’s. Nor is it obvious that Argentina should have inherited the Spanish claim to the Falklands – they lie 250 miles off the coast of mainland South America.

Britain was of course not going to immediately contest the 1816 claim as she did not yet recognise Argentina so far as Britain was concern the Argentines were not sovereign and did not have sovereignty over any of their territory – at the time the UK recognised Spanish sovereignty over the mainland that Argentina claimed."
Candidate 4: "Argentina created a permanent settlement

Argentina formally took posession of the islands in 1820 and established permanent settlements in that decade. Previous settlements by Spain and Britain had been military in nature (garrisons). Britain did not protest to these acts of sovereignty. The Argentinean settlements were only ended by illegal military force, the first strike by an American warship, acting on its own initiative and encouraged by the British charge de affairs in Buenos Aires, and the second and last blow by a British taskforce."
Candidate 5: "It would not be possible for the UK to argue that it has a claim through prescription and the length of occupation because the original taking over the Argentine colony was not legitimate, as the islands were not res nullis.

In the Chamizal Case (Mexico vs United States), the ICJ rejected the right to title by prescription invoked by the United States because "the physical possession taken by citizens of the United States and the political control exercised by the local and Federal Governments, have been constantly challenged and questioned by the Republic of Mexico, through its accredited diplomatic agents." [1]

[1] The Chamizal Case (Mexico, United States), Reports of International Arbitral Awards, 15 June 1911, Vol.XI, pp.309-347"
Candidate 6: "Britain sent its soldiers to fight an unjust war. Their sacrifices do not make British occupation of the islands legal."
Candidate 7: "Vernet sought the permission of the British consulate before establishing his colony – clearly even he thought there was ambiguity over the status of the islands.

Moreover the British and Spanish settlements ended not because of commercial failure but because of indirect pressure caused by war. If Argentinian sovereignty survives expulsion through war then presumably British sovereignty could survive temporary abandonment due to war.

It is also difficult to describe a settlement as permanent when it was on the point of collapse when the British took it over."
Candidate 8: "The islanders are the only ones who can decide.

It is the Falkland Islanders themselves who have to decide whose sovereignty they should fall under; British, Argentine or even potentially their own. The Falkland Islands are a democracy with a democratically elected Legislative Assembly and Executive Council (made from members of the Legislative Assembly). Similarly it has its own courts. The self-determination of the islanders is prominent in their constitution. [1] The Falklands have therefore been recognised by the British government as a nation just like the Scots, Welsh and Irish. This means that the decision on any change of sovereignty in the future will be up to the islanders alone to make. [2]

It is no longer up to Britain to simply cede the islands even if they wanted to.

[1] The Falkland Islands Constitution Order 2008, Statutory Instruments, 2008 no. 0000, http://www.falklands.gov.fk/assembly/documents/The%20Falkland%20Islands%20Constitution%20Order%202008.pdf#

[2] Ivanov, Lyubomir, ‘The Future Of The Falkland Islands And Its People’, February 2003, http://www.falklands-malvinas.com/Lyubospaper.htm"
Candidate 9: "Value

The islands are of minimal value to Britain. In an era of satellites and long-range ships and aircraft, the islands no longer have strategic value. Maintaining a garrison there is an unnecessary expense. Jorge Luis Borges (an Argentinean writer) likened the 1982 conflict to ‘two bald men fighting over a comb’. [1]

[1] ‘Jorge Luis Borges (1899-1986)’, http://kirjasto.sci.fi/jlborges.htm"
Candidate 10: "Britain already has a working relationship with Argentina. In 2001, Tony Blair became the first British prime minister to visit Argentina since the 1982 conflict. [1] The agreements made with the Menem government show the potential for peaceful cooperation without returning the islands.

In any case, direct relations with Argentina are of little strategic or economic importance to Britain, except where they affect the Falkland Islands. Trade policy is handled on both sides at a supra-national level, through the EU and Mercosur respectively.

The Falkland Islands are simply not like other examples of decolonisation. Elsewhere Britain has given independence to the indigenous peoples of its former colonial possessions, responding to their desire for self-determination. The Falklands have no indigenous population – their inhabitants regard themselves as British in identity and have no desire to be ruled by Argentina, indeed Britain’s Prime Minister has gone so far as to say the Argentines are the ones who are sounding colonial. [2]

[1] BBC News, ‘Blair’s historic Argentina visit’, 2 August 2001, http://news.bbc.co.uk/1/hi/uk_politics/1467847.stm

[2] BBC News ‘Argentina outraged at Cameron’s ‘colonialism’ remarks’, 19 January 2012, http://www.bbc.co.uk/news/world-latin-america-16625963"
Candidate 11: "Returning the islands would not be a sign that violence and threats are legitimate. It would be recognition of the justice of Argentina’s claim and the illegality of Britain’s occupation of the islands. In fact, it would show that illegal acts of violence, like that of 1833, will eventually be overturned."
Candidate 12: "The British colony was established only though the expulsion of the Argentinian colony. It does not matter how long ago this happened - as the legal maxim goes ‘title does not pass with theft’.

Colonists do not have a right to self-determination. It would be absurd if a group of people could invade some land, drive off the people living there; and then state that they have acquired the right to decide for themselves to stay there. The natural consequence of that principle would be that anyone could gain property through ethnic cleansing and long enough adverse possession."
Candidate 13: "Distance

The Falkland Islands are 8000 miles from the UK – in the modern age it is absurd that one country can claim sovereignty over land halfway across the globe from it.

The needs and wishes of the Falkland islanders would be much better served if the government responsible for them was local."
Candidate 14: "Blood has been spilt

If Britain returned the islands, it would be a profound insult to the soldiers who fought and died to liberate them in 1982. The campaign was honourably fought in defence of the rights of the people of the Falkland Islands to determine their own future. It was fought against a military dictatorship which used the campaign in a cynical attempt to divert domestic attention away from its oppressive, corrupt and incompetent rule. One of the positive consequences of British victory was that the military junta fell from power and Argentina became democratic. So Britain, Argentina and the Falkland islanders all have cause to celebrate the outcome of the 1982-83 war."
Candidate 15: "Proximity is a poor reason to make a claim to sovereignty as the Falklands lie outside the 200 mile limit that Argentina claims in the southern Atlantic. [1] The Falkland Islands today have effective self-government. They have their own elected legislature and an independent judiciary. The islands are also economically self-sufficient but for the cost of the Military Garrison – which is only necessary because of the Argentinian claim. Moreover with advances in communication the location of the settlement being thousands of miles away from Britain no longer makes much difference when it comes to governing the islands.

[1] R. Reginald &amp; J.M. Elliot, 'Tempest in a Teapot : The Falkland Islands War', The Borgo Press, 1983, http://www.falklands.info/history/hist82article11.html"
Candidate 16: "Moral Hazard

Returning the islands would imply that violence and threats are legitimate ways to conduct diplomacy. Britain would be giving in to the invasion of 1982 and Kirchner’s more recent rhetoric. This would set a dangerous precedent that Britain will abandon its interests if threatened.R"
Candidate 17: "International relations

Returning the islands would vastly improve Britain’s relationship with Argentina and Latin America as a whole. This would help Britain’s diplomatic and economic ties with the region. It would also be consistent with Britain’s post-war policy of decolonisation, which has seen it withdraw from almost every other colonial possession since 1945. Not only has Britain withdrawn from India, Africa, Malaysia and much of the Caribbean, it has also handed back Hong Kong to China – surely a similar case to that of the Falkland islands and Argentina."
Candidate 18: "If military costs are excluded, the islands are self-supporting. They are of great value because they bring rights to fishing and oil exploration. If the oil that has been detected in the islands’ territory can be extracted economically, the islands will be an even greater asset to Britain. [1] Strategically, they provide NATO with an airbase in the south Atlantic. Port Stanley was used as a supply base for the Royal Navy in WW1, resulting in the Battle of the Falkland Islands. [2]

Moreover ‘value’ means more than products and services – the value of the inhabitant’s right to self-determination is priceless

[1] Swint, Brian, ‘Oil Grab in Falkland Island Seen Tripling U.K. Reserves: Energy’, Bloomberg, 25 January 2012, http://www.businessweek.com/news/2012-01-25/oil-grab-in-falkland-islands...

[2] http://en.wikipedia.org/wiki/Battle_of_the_Falkland_Islands"
Candidate 19: "Length of occupation

The primary means of acquiring title to territory is through the effective exercise of the functions of a state within that territory. This means that Britain has a right to the territory under either ‘occupation’ (if Argentina is not considered to have occupied previously) or ‘prescription’ if it has. [1] The ICJ has stated that the claim must be

I, the possession must be exercised in the character of a sovereign

II, the possession must be peaceful and uninterrupted

III, the possession must be public

IV, the possession must endure for a certain length of time. [2]

Britain would not have difficulty arguing that it has continuously exercised sovereignty for over 170 years. It has also been peaceful (no attacking native tribes, no unrest etc). It would seem silly to transfer sovereignty to Argentina on the basis of Argentina having only occupied the islands for at most five years compared to the long period of British occupation both after and before the Argentine colony.

[1] Dixon, Martin, Textbook on International Law, 6th ed., Oxford, 2007, p.155, http://books.google.co.uk/books?id=aS2fv32rvMcC&amp;printsec=frontcover#v=on...

[2] International Court of Justice, ‘Reports of Judgements, Advisory Opinions and Orders Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)’, 23 December 1999, http://www.icj-cij.org/docket/files/98/7577.pdf p.62/1103"

The British colony was established only though the expulsion of the Argentinian colony. It does not matter how long ago this happened - as the legal maxim goes ‘title does not pass with theft’.

Colonists do not have a right to self-determination. It would be absurd if a group of people could invade some land, drive off the people living there; and then state that they have acquired the right to decide for themselves to stay there. The natural consequence of that principle would be that anyone could gain property through ethnic cleansing and long enough adverse possession.
