The sovereignty dispute from a British point of view

By Sir Lawrence Freedman

For the Herald

The dispute between the United Kingdom and Argentina over the islands the former knows as the Falklands and the latter as the Malvinas has never been argued out before judges. If it was the judges would be faced with arguments drawing on distinctive views of international law, interspersed with claims about the meaning of geography, and of events, not always well recorded, of the eighteenth and nineteenth century. To Britain the fate of the islands was settled in 1833. After much coming and going, and claim and counter-claim, it was the British flag that was left flying, and it has continued to fly to this day, despite a brief interruption thirty years ago.

The Argentine claim is that the islands were seized unjustly and that its original claim is as strong as ever. This claim reflects the logic of geographical contiguity as well as the historical legacy of the Spanish Empire for first the United Provinces and then modern Argentina. Geographical contiguity is the weakest part of this case. If allowed to serve as a definitive argument then an extraordinary precedent would have been established and few boundaries could be considered settled. There are even other examples of islands owned by one country and close to another (the French archipelago of Saint-Pierre et Miquelon located 25 km south of Newfoundland is often cited).

The early history of the South Atlantic islands, stretching into Antarctica, is complicated and fragmented, often revolving around at most small communities and at times individual adventurers. It is possible to imagine very different outcomes as sovereignty was more firmly established during the early Nineteenth Century. Not all aspects of the sequence of events which had been used to assert the Argentine claims are as well supported by evidence as others. One might of course say the same thing about the British claim. At which point we could have an extended discussed about who got where first and what precisely was going on during the 1820s.

For a historian such discussions tend to be frustrating for evidence tends to be evaluated according to what it means for the respective claims rather than on its own terms. But such a discussion would also be for the large part irrelevant. Try this thought experiment.

Let us suppose that actually the British claim leading up to 1833 was watertight, fully documented and compelling in every sense. Yet also suppose that when Captain Onslow on HMS Clio turned up in January 1833 to reassert British sovereignty he was successfully resisted and after that the British never accepted the Argentine position but did nothing much about it.

If after 180 years the British government was still demanding that really the Islands should revert to the United Kingdom its position would be considered risible and anachronistic. It would be firmly pointed out that it was referring back to a fluid period in international affairs when attitudes towards territory and sovereignty were quite different. Much happened around the world during that period that was dubious and often unjust. If the international community tried to unpick it all the only result would be numerous disputes and great upset. As territorial disputes are the most notoriously difficult to resolve through compromise it was best to move on. Argentineans (we must presume) would have their own community on the Islands. Why should their status suddenly be transformed to satisfy some old grievance?

On this basis we can see why the British case no longer has much to do with the murky events of long ago but instead is based on the constancy of its occupation and administration for 180 years. If nobody had actually been living there one can imagine a deal in the past that would have seen a transfer of sovereignty, but that would have been for practical and not legal reasons. But people are living there. While originally they might have been disparaged as a settler community, after in some cases six generations of residence this disparagement does not work. The clinching argument for the British then becomes one of self-determination. Even with small communities the principle applies and this community has made its preferences well known. They are content with the current arrangements and fear the alternatives. If they wanted to become Argentinean Britain would certainly not stand in their way.

This dispute is a residue of an era that has now passed. In so many other areas of international affairs, when it comes to managing resources or dealing with transnational threats, sovereignty is no longer so important. Rather than reopen an issue that has recently resulted in little but grief why not look to the many matters on which the two governments, and the islanders, could work together? Then over time the issue of sovereignty might become increasingly marginal.