Historic background: Origins of the dispute
In literature the discovery of the islands by the English navigator John Davis in 1592 is the majority view, while there are also authors who credit the first sighting to Spanish, Portuguese or Dutch explorers respectively Vespucci, Magellan or van de Weert. The first recorded landing on the islands is ascribed to British Captain John Strong in 1690. However, the first to settle on the islands were the French in 1764, who sold their settlement to Spain in 1767 to avoid a dispute. The British on the other hand had also established a settlement on the other side of the islands just after the French in 1765. Since Spain had bought the French settlement and thus argued that it owned the islands, Spanish ships were sent to the British settlement and ordered them to leave the islands. However in the face of a war with England, the Spanish agreed to let the English return to their settlement, although they reaffirmed their claim to sovereignty over the islands. Not long afterwards in 1774, the British abandoned their settlement for economic reasons and because of a lack of strategic importance according to several British government officials at the time. Nonetheless the British flag and a plaque confirming British sovereignty over the islands were left behind. From then on Spain was the sole administering country of the islands, until it also abandoned its settlement in 1811. Following a revolutionary movement in South America, the Spanish colony would become Argentina which reasserted its right to the islands in 1820 and 1829 and tried to revive its establishment in 1932. Then following a series of events involving the United States, the Argentine settlement was too weak to repel the British landing in 1833. From this point on the islands have been continuously, except for a short period during the Falkland war in 1982, under British administration.
The claims of both parties from a legal perspective
Since in every peaceful method of international dispute settlement the parties tend to base their title on certain claims, most of which with a certain legal standing, it is important to review these claims. They are after all a major factor of influence on the decision of the parties concerning which method they wish to apply, since the degree of importance of these claims can vary between the different methods. This will be discussed later on, but first a summary of the claims expressed by both parties.
British claims
Concerning the British view, one can discern three main arguments asserting British sovereignty over the Falkland Islands. The first one is based on the first discovery of the island, which in British view can be ascribed to Captain John Davis of the Desire in 1592. However, under early as well as modern international law, mere discovery does not suffice to create a legal title to ‘terra nullius’. The act of discovery should be followed by the actual possession of the islands, as has been stated by Emmerich de Vattel in 1758 and by Judge Max Huber in the Island of Palmas case. In the case of the Falkland Islands, the first to actually occupy the islands were the French about 172 years after their discovery. The first argument is thus rather weak regarding its legal standing.
The second argument, and most debated one in recent years, is the right to self-determination of the inhabitants of the Falkland Islands as a people. Although since the negotiations in the ’70 up until the war in 1982, successive British governments were ready to make constitutional changes like a condominium or a lease-back agreement and to convince the inhabitants of the merits of such an agreement, this position changed after the war. The islanders were never inclined towards ties with Argentina, and after the war no British government could be seen trying to persuade the islanders to agree to an Anglo-Argentine brokered settlement. Since then, in British view, the islanders have become a third and independent party to the dispute. Any agreement to settle the dispute thus needs to have the assent of the Falkland inhabitants. However, this right to self-determination for the islands population has not been recognised by Argentina, nor by any relevant UN organisation. According to Argentina the inhabitants are a transplanted British population and thus do not possess this right. The UNGA resolutions and recommendations of the Special Committee on Decolonization of the UN that have been adopted concerning the Falkland situation speak of a population, whose interests should be born in mind when trying to find a peaceful solution for the dispute. This language is chosen as opposed to speaking of a people and their wishes, which is almost always used in the context of defining the right to self-determination. This means that the right to self-determination of a people as laid down in art.73 UN Charter and UNGA Resolution 1514, is not necessarily applicable in the case of the Falkland inhabitants. This point of view of the concerned UN organisations follows from the fact that the inhabitants are seen as British colonials and thus granting them the right to self-determination would uphold a colonial situation, which would stand opposite of the principle of decolonization. On the other hand some authors put forward that the recognition of a right to self-determination of a people is mainly a bilateral business between the people claiming this right and the central government that is internationally exercising the territory’s sovereignty. In this view the recognition of the right by third parties like the UN is desirable, but not a substantial condition. This all leads to the conclusion that the second argument’s legal standing is rather unclear.
The third argument is based on Britain’s presence on the island. Since 1833 there has been a continuous and effective British administration over the islands which in Britain’s view amounts to a superior title to sovereignty over the islands. Of course this is closely entwined with the arguments of first discovery and the early British settlement of the islands in 1765. Although effective occupation/control can over time establish a legal title, so called acquisitive prescription, protests of non-recognition can prevent that this title could be invoked against the protestor if the protests have a certain periodicity and intensity. But the fact that Argentina has not acquiesced in the situation, does not per se affect the legal situation that results from peaceful and effective British administration for more than 180 years. Even regardless of the question if the British action in 1833 was actually allowed or not under International law. Although this third argument does not create a full legal title because of Argentina’s repeated protest, it could provide a qualified title based on the de facto recognition by the international community. This could follow from the international community being realistic about how borders have actually been defined, and because forcing a change in title could be worse for world order.
In evaluating the legal perspective of Britain’s main arguments, it is clear that especially the second and third argument are of relevance. The fact that Britain has had peaceful and effective control over the islands for 183 years, the short period during the 1982 war being excluded as an illegal act of aggression, could be seen as a negative title. Furthermore, the present day reality that the inhabitants’ interests are paramount in resolving the dispute, especially since Britain won’t agree on anything without their assent, thus granting them de facto the right to self-determination could be seen as a positive title. These two arguments combined could provide quite a good title for British sovereignty over the islands.
Argentine claims
Regarding Argentina’s claim to sovereignty over the islands, there are two main arguments that rule each other out. So the Argentine claim is in essence based on one argument, which is either the principle of ‘uti possidetis’ or the principle of ‘res nullius’.
When ‘uti possidetis’ would be applicable, the Argentine title would be derived from the succession of the Spanish title. This was transferred to the new government that took control over the former colony after its independence from Spain in 1816. The new government claimed sovereignty over the territory, usually defined by the former colonial borders. This means that the islands were normally included. But as mentioned in the historic background, the British did not renounce their claim after departing from the islands in 1774. Since they left a plaque to indicate that they still held sovereignty, they have not recognised the Spanish title so that it would still not provide Argentina with a full legal title.
On the other hand some say that the islands were ‘res nullius’ after the departure of Spain in 1811. The islands were thus unoccupied from 1811 until 1820 when the government of the United Provinces of the Rio de la Plata, which would be become Argentina, sent an expedition to raise its flag at Puerto Soledad. This would means that the Argentine title was directly derived from the occupation the islands. However, the fact that the Spanish left the islands due to economic and military reasons concerning the Napoleonic war, does not mean that they renounced their sovereignty. Although sovereignty might deteriorate in time, the 9 years between Spain’s departure and Argentine’s occupation can hardly be seen as sufficient. This argument is thus rather weak.
Next to the main ‘uti possidetis’ argument, Argentina also invokes additional arguments to support its case involving its territorial integrity, territorial contiguity. The territorial integrity claim is based on art.6 of UNGA Resolution 1514, which states that “any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of Charter of the United Nations.” But this argument’s strength depends on whether Argentina exercised sovereignty over the islands before 1833 which is thus unclear. The territorial contiguity argument, that only stresses the fact that the islands lie on the continental shelf close to the Argentinian mainland, is of no legal relevance but is just to incite national sentiment.
On the issue of the Argentine claims, one can conclude that the succession of the Spanish title after the independence struggle provides a rather strong legal argument. Although some say that Britain never recognised the Spanish title since it claimed sovereignty for itself, Britain also did not restate its claim since 1774 until 1829 which renders this argument rather weak.
Conclusion regarding the parties’ claims
Since both parties have claims whose full range of legal implications is rather unclear, the impact of these on their choice of a dispute settlement method is considerable. This uncertainty will lead to a preference for the more open diplomatic/political methods like mediation or conciliation, rather than binding judicial remedies like adjudication by an arbitral tribunal or a court.
Methods of peaceful dispute settlement
Since the foundation of the United Nations, the peaceful settlement of international disputes in order to maintain international peace has been its main objective. To this end, a prohibition on the threat or the use of force in international relations can be found in art.2 UN Charter, which on the other hand also contains the obligation to settle international disputes by peaceful means. A non-exhaustive summary of these peaceful means can be found in art.33 UN Charter. These two principles of international law have also been reaffirmed and interpreted in the unanimously adopted UNGA Friendly Relations Declaration of 1970. In this declaration, it is explicitly stated that the prohibition on the threat or use of force includes the solving of territorial disputes by forceful means. To show that the principles were very important to the international community, they were once again reiterated in the UNGA Manila Declaration of 1982. Although there were already many bilateral and multilateral treaties and conventions on peaceful dispute settlement before the UN, it was only after the establishment of the UN and its Charter that it became the general rule in international relations that it is today.
Regarding the Falkland/Malvinas dispute, the parties have been repeatedly urged to settle their differences by peaceful means. First by the UNGA in Resolution 2065 of 16 November 1965 and in Resolution 3160 of 14 December 1973, and after an act of aggression by Argentina in 1982 by UNSC Resolution 502 of 3 April 1982. Furthermore, since the Falkland situation is considered a colonial one, the UN Special Committee on Decolonization has adopted successive resolutions yearly since 1983 reiterating its call upon the parties to peaceful settlement of the dispute. Although attempts have been made to peacefully settle the dispute, both before and after the war, none has been successful. This has resulted in the present stalemate in which no progress can be achieved. In order to break the deadlock, an evaluation of the previous attempts could help in determining which dispute settlement methods are best equipped to achieve a lasting solution and which elements such a solution could contain.
Art.33 UN Charter
All the generally known methods of peaceful dispute settlement are listed in art.33 UN Charter, which are: negotiation, enquiry, mediation, conciliation, arbitration and judicial settlement. These will be discussed below with regards to their key features and their merits in the present case and other similar cases. Although the article also refers to ‘other peaceful means of their own choice’, this vague description does not lend itself to structural evaluation so that it cannot be included. Furthermore, most of these other peaceful means can be linked to the handful of well-established types that are mentioned above. The article also refers to ‘resort to regional agencies or arrangements’, but since the parties to the Falkland dispute are situated in entirely different regions, this method is rather irrelevant to the present case.
Negotiation
In any dispute, be it between private individuals or sovereign states, opening negotiations is the often the first act taken in order to settle it. Although art.33 UN Charter does not set out any order of priority regarding the different methods it mentions, one can see that negotiation is employed more frequently. This follows from the fact that at one point or another, negotiations between the parties are inevitable to find a solution. Because even if they do not wish to negotiate on the core issues of the dispute, they will have to reach an agreement on another way of settling their differences.
First feature to notice regarding negotiation is that it has an anticipating version called conciliation. While the former is used to settle a dispute that has already emerged, the latter is meant to prevent disputes. This means that a state, planning to take a decision or action that might affect another state, will fist discuss those plans with the possibly affected state in order to work out an agreement if necessary. Although it is thus not relevant concerning the settlement of existing disputes, it already has been used in the Falkland dispute to prevent a deterioration of the situation. Accordingly, the parties involved have established an agreement concerning a reciprocal information and consultation system to regulate the movement of their respective military forces in the disputed region.
A definition of negotiation: Negotiation is a process whereby the parties directly communicate and bargain with each other in an attempt to agree on a settlement of the issue. By choosing to use this technique, the parties retain maximum control of the process and outcome.
This definition immediately includes the main feature of this method, which is also the main reason for parties to try negotiating as a first option, namely the fact that the parties retain full control. Only they can decide what will be discussed and choose which elements they deem useful in reaching some sort of agreement, be it legal arguments are political ones. Furthermore, regarding an agreement reached by negotiations between the parties to the dispute, it is presumed that they freely agreed to reach this solution and is thus deemed to have maximum acceptability and stability. It is also the method that leaves the most room for compromises to be made, which is most likely to preserve good long-term cooperative relations between the parties involved.
However, the main merit of the method is also its main flaw. In order to reach an agreement through negotiations, it is paramount that the parties have a genuine interest in solving their differences. Although this is a requirement in every method of dispute settlement, with negotiations it is all the more important since there is no third party that could intervene in case of a deadlock. Nevertheless, this cannot be the case if an agreement would require one side to yield all or most of its position, which means that an intention of making compromises needs to be adopted by the parties. Furthermore, the public aspect of negotiations should be minimized if states have a serious interest in negotiating. Although expressing ones views on international fora, like the UNGA, could engage the attention of outside states which might have something to contribute to the solution of a dispute, it has the mayor disadvantage of often making unrealistic statements that might be difficult to abandon afterwards. These statements will often be influenced by the political and public opinion, and should thus best be avoided in order to keep the negotiations constructive.
Regarding the Falkland dispute, many negotiation attempts have been made. These were mainly in the period before the war and were all unsuccessful in reaching a solution. The reason of this failure can be found in the UK’s unwillingness to genuinely discuss the subject of sovereignty, and Argentina’s refusal to make concessions on its full sovereignty claim. Since they also could not reach an agreement regarding another method of peaceful settlement, the dispute aggravated and led to the 1982 Falkland war.
The only somewhat successful negotiations took place in 1989 and resulted in an agreement to discuss various aspects of the Falkland Islands issue, while the question of sovereignty would be put on hold under a so-called ‘umbrella’. Since then no real progress has been achieved through negotiations in relation to the actual sovereignty dispute.
Although many negotiation attempts have thus already been made, this does not mean that negotiations are meritless in the future. Since domestic situations can change as a result of certain actions, mainly because of elections, government policy concerning an issue could change. Concessions on a party’s position that were unthinkable yesterday might be plausible today. However, a new approach will possibly be necessary in order for new negotiations to have a chance of success.
Such a new approach could be establishing a tripartite forum for negotiations between Argentina, the UK and the Falkland inhabitants. Such a forum is not unprecedented, since one was established in 2004 in relation to the Gibraltar dispute between the UK and Spain. In this dispute the parties have agreed to negotiate on two levels: one being a bilateral framework in which only the states can negotiate on the sovereignty issues, and another being a trilateral interstate framework in which all aspects regarding cooperation between the parties can be discussed. In this trilateral forum, the Gibraltar government can also rise topics that affect sovereignty, but no agreements can be made on the historical sovereignty dispute. The agreement establishing the forum has safeguard clauses to that effect, in which the parties state that this agreement does not affect their respective historical claims to Gibraltar’s sovereignty.
The same system could be established in relation to the Falkland dispute. It would give the government of Falkland Islands the chance to formally submit their views on the future of the islands and its sovereignty, while also safeguarding the Argentine position by including safeguarding clauses regarding the sovereignty claim and the non-recognition of the islanders’ right to self-determination. Such a forum can only be instigated if Argentina conceives it in a way like Spain, which conceived it to be ‘a qualitative change in strategy’. This might very well be possible, since already under the Menem administration in 1995 statements were made that the readiness to engage in civilised discussions on the subject is of vital importance. Furthermore, these statements included preservation and respect for the islanders way of life and culture, a more open and flexible attitude toward the concept of sovereignty and to approach the
sovereignty question from a modern position without any a priori conditions from either party.
Once this forum would be established, it should have two purposes with regard to the Falkland island dispute. One purpose should be discussing aspects of the current cooperation relations, and the second purpose should be discussing each party’s point of view regarding the sovereignty dispute and evaluating how far each is prepared to go in terms of making concessions to their positions.
On this issue, it is important to notice that establishing such a trilateral forum would already be a concession by Argentina on its current position, and thus it might be time for a sign of goodwill from the other parties. Especially the islanders, clinging to their position on opposing any political settlement with Argentina would make any settlement through diplomatic/political means impossible. This leads to the conclusion that if a solution is to be achieved through negotiations, the islanders will have to alter their position towards ties with Argentina. It is the only way in which gradually reaching an agreement acceptable by ‘all’ parties is plausible.
Mediation
When parties seem unable to reach an agreement between them by means of negotiating, a third party intervention might be able to get them out of a deadlock. This is when mediation, or in a minor form ‘good offices’, can play a vital role.
A definition of good offices and mediation: Good offices and mediation are techniques in which the parties, unable to resolve a dispute by negotiation, request or agree to limited intervention by a third party to help them break the impasse. In the case of good offices, the role of the third party is usually limited to simply bringing the parties into communication and facilitating their negotiations. In the case of mediation, the mediator usually plays a more active part in facilitating communications and negotiations between the parties, and is sometimes permitted or expected to advance informal and nonbinding proposals.
However, such a third party intervention can only work if the parties can agree to a suitable mediator, which on his part needs to be willing to play this role. Mediation can be performed by international or regional organisations, by states or by individuals both as a certain official or as a private persons. The importance of finding the right mediator for a certain dispute in order for his efforts to have an impact can hardly be underestimated. A good example in this regard is the Beagle Channel mediation. In this case between Chile and Argentina over delimitation and sovereignty of certain islands, an arbitral award was already rendered under the auspices of Queen Elisabeth II of the UK. However, Argentina refused to implement it and thus the two states were on the brink of war. Since they are both catholic states, the pope was a suitable mediator with a strong moral authority in both countries. This is why he had the power to influence their actions without a loss of military honour on the part of both military governments. The strength of mediation is that no prior commitments are involved, so that the parties retain control over the dispute, while on the other hand a third party can try to find a compromise. When a third party is proposing a compromise through mediation, it may be politically easier to make concessions than in direct negotiations.
In relation to the Falkland dispute, third parties have already offered to intervene without success. First, it was the USA, in the person of Secretary of State Alexander Haig, that offered to mediate. After the war, the UNSC had stressed that peaceful settlement should be reached and thus called upon the UN Secretary-General, who answered with offering his good offices. Although, the parties agreed to the mediation, it was more to project an image of political reasonableness than out of an expectation of success. Also the timing was ill perceived, since at that time in 1982 both parties were unwilling to abandon their original claims and were still thinking in terms of a possible solution.
Since then the parties have not expressed any willingness to allow a third party to mediate. Furthermore, since the parties are situated in different regions of the world and do not have many links in common, like for example religion was a link between Chile and Argentina, finding an acceptable and authoritative mediator will be hard. Especially since even the UN Secretary-General could not break the impasse with his good offices. Nevertheless, the situation has changed since 1982 and has brought a more friendly Anglo-Argentine relation. So while mediation could be useful in the future of the dispute, reaching a solution through the direct application of this method seems highly unlikely.
Conciliation
Concerning this method, a key feature is the impartial examination of the dispute and/or investigating or determining certain facts. While conciliation involves a commission tasked which such an investigation that is also tasked with attempting to define the terms of a settlement susceptible of being accepted by the parties, inquiry or fact-finding is its minor form in which a commission examines the disputed facts but does not offer any proposal on terms of settlement.
A definition of fact-finding, inquiry and conciliation: These are methods of settlement in which the parties request or agree to the intervention of a third party, usually on a more formal basis, for the purpose of determining particular facts or otherwise conducting an impartial examination of the dispute and, if the parties so agree, attempting to suggest or define the terms of a mutually acceptable settlement. Like mediation, the report of a fact-finding body or conciliation commission is normally non-binding, although the third party finding or recommendation may, of course exercise an important influence on the settlement.
Although the terms on what and how such a commission will work are dependent of the establishing agreement between the parties, they normally have the duty to examine the nature and the background of a dispute. This means that they ought to be equipped with wide powers of investigation. Using these powers to gain information on certain views and facts concerning the dispute will enable it to form a set of proposals regarding possible terms of an arrangement agreeable by all parties. While these methods could be used in any dispute, inquiry tends to be mainly useful in disputes with a factual basis and conciliation in cases with a legal basis. This is why conciliation could be seen as the non-binding alternative of arbitration, with a difference being that a conciliation commission makes proposals on possible terms of arrangement, while an arbitral tribunal makes a fixed decision.
In the Falkland dispute, no attempt at inquiry or conciliation has been made so far. Although many of the facts between the parties are disputed, and that they base their claims on legal arguments, the fact that a commission could provide progress toward reaching a solution by examining these elements is doubtful. In order to achieve results by means of such a commission, the parties have to acknowledge that their version of events might be shown to be wrong. This will not easily happen since the dispute has lingered on for so long that the claims of both parties became a fixed government policy. Together with fact that neither party is eager for third party involvement, as mentioned above in relation to mediation, this renders the event of establishing a conciliation commission by the parties rather unlikely.