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Does Argentina Have Sovereignty over the Falkland Islands?

By: Guest Contributor - May 6, 2015, 1:36 pm

Argentina Has the Law on Her Side

By Eloisa Raya de Vera

The legal arguments that support Argentina’s sovereignty over Las Islas Malvinas are numerous. If we analyze the various original methods of acquisition of territory, Argentina has clear rights over the islands.

First, the allocation of land in the Americas conducted by the papacy, which assigned to Spain title to all the new lands west of the meridian passing 100 leagues west of the Cape Verde Islands. This was done through papal bulls — Inter caetera and Dudum siquidem — in the 15th and 16th centuries. Following the Treaty of Tordesillas between Spain and Portugal, the dividing line was moved to the west.

Then, the occupation. Acquisition in international law exceeds mere discovery, and requires the objective of settlement and permanent control, which involves the fulfillment of certain hard facts.

In this case, although the first effective settlement was French (1764), France returned — facing an explicit Spanish claim — the islands to Spain, and the Spanish kingdom immediately sent a governor and built dwellings and a chapel.

Even granting value to the mere discovery, it must be emphasized that all the published documents of that time provide evidence that the islands were discovered by Spanish sailors.

In the same vein, derivative methods of territorial acquisition are also part of the legal arguments that support Argentina’s sovereignty over the Malvinas.

Uti possidetis juris, a doctrine that is based on the expression of Roman law “as you possess under law,” became the main argument to define the borders of the independent states that succeeded the Spanish Empire. In the case of the Malvinas, it justifies Argentinean rights as successors of Spanish rule in the region.

Moreover, the British government agreed not to settle the islands after the Peace of Paris and the Treaty of San Lorenzo, which also prohibited the British to sail in the South Atlantic.

As it is clearly expressed in Argentina’s 1964 Ruda claim, all these arguments determine that the occupation conducted by Great Britain in 1833 in the Malvinas was: (1) illegal, because it violated the treaties and general principles of international law; (2) resisted, first by Spain, and then by Argentina making international protests; (3) late, since it happened after the French and Spanish; (4) partial, as occupation was limited to the British settlement at Port Egmont.

Furthermore, the factual arguments that the Malvinas are embedded in our continental shelf and are twinned with our weather and geography are just as important as the above.

Argentina, faithful to what has been agreed in international treaties and the different sources of international law, has historically claimed sovereignty over the islands in all kinds of forums, opposing the illegitimate British occupation and its fallacious arguments — such as the right of the kelpers, the island’s residents, to self-determination.

International bodies involved must advocate — subject to international law — for an end to the illegitimate British occupation of the Malvinas. To do so will demonstrate that international law and international institutions are far from being instruments of the powerful.

Eloisa Raya de Vera is an Argentinean lawyer who holds masters degrees in international relations and international economic relations from the University of Barcelona. She also holds a diploma in human rights (CUDH). Raya works as a lecturer in private law (UM), and is the director of the Institute of International Law of the Moreno-Gral.Rodríguez Bar. Follow @EloisaRaya.

Sovereignty Resides with the Kelpers

By Guillermina Sutter Schneider

EspañolThe dispute over the Falkland Islands has lasted far longer than most people think. The issue has been manipulated very adeptly by contemporary politicians in order to hide the most important issues, such as poverty, inflation, corruption, and the precipitous economic and institutional situation in Argentina.

To recap the history of these islands, we must go back to the 16th century, when Amerigo Vespucci, at the service of Portugal, was the first to arrive in this territory. He was later followed by French, Spanish, British, German, and Dutch explorers.

In 1833, the United Kingdom of Great Britain and Northern Ireland took possession of the archipelago, at the time possessed by Argentina. Five years later, Juan Manuel de Rosas, through Manuel Moreno — who served as foreign minister in London — proposed the cancellation of a loan agreement with the British government, in exchange for conferring sovereignty over the islands.

Subsequently — and here is where I want to stop to make my point — as a result of the irresponsibility of Argentina’s military government, the Falklands War broke out in 1982.

Galtieri embarked on a military adventure that had no objective other than to distract the population from Argentina’s severe internal problems. As Benegas Lynch has argued, he aimed to stir the xenophobic passions that arose from that flawed, abstracted concept known as the “national being.”

In June of that same year, Argentinean troops surrendered to the British. The final toll of the war was atrocious. More than 900 soldiers from both sides lost their lives, many of them young Argentinean conscripts who were taken like animals to fight a war everyone already knew was lost.

Ricardo Rojas states that both countries raise historical, geographical, and political arguments, from which they find reasons worthy of consideration to defend their positions.

However, one might well ask: can sovereignty be reclaimed over something that was already lost? Can Argentina’s surrender to British troops be erased? Even if they were able to do this, it would be detrimental for the kelpers (the long-term residents), most of whom support the archipelago remaining under British jurisdiction.

In a referendum held on the islands in 2013, with the presence of international observers, 1,513 people voted (with turnout at over 90 percent) to remain part of the United Kingdom — in contrast to just three votes against.

Surely the desire of the individuals and the community to self-determination should prevail over the will of the state?

Guillermina Sutter Schneider has a masters degree in economics and political science (ESEADE), and she works as a researcher at the Center for Social and Economic Studies at Fundación Libertad in Rosario, Argentina. In addition, Sutter is EsLibertad Regional Director for Argentina. Follow @gsutters.