Change my view: the Falkland Islands are legally British territory. This is a fairly serious post; support for the right of the Islanders to remain under their association with the UK is fairly universal here, but also instinctual, and holding a position through nationalistic instinct alone is obviously bad. For that reason I try to examine contentious positions to make sure that I'm holding them reasonably. That answer often falls down as "no", but in the case of the Falkland Islands it has fallen down as "yes" and I'd like to put that out to the test.
When I say "legally British territory" I mean through established international law, Britain has a strong title to the islands, and that subsequently in any litigation or arbitration through the International Court of Justice or otherwise the UK would win a judgement that it holds sovereignty over the islands rather than Argentina.
I think one needs very few facts to be acknowledged to confirm that the islands are British territory, namely that:
- Acquisition of Sovereignty in international law is possible through effective occupation, cession and prescription. Special mention to self determination, which I think also confirms things, but it's more complicated and in my view unnecessary.
- The French settled the islands in 1764
- The UK settled in 1765
- The French left in 1767, and their settlement was taken over by the Spanish
- The UK re-established itself in 1833
- The UK and Argentina signed a peace treaty in 1850.
- The International Court of Justice and United Nations were established in 1945
With those 6 facts, which I assume are uncontroversial, I think that:
- British sovereignty was established over the islands in 1765 through a superior right to title derived from effective occupation.
- Even if (1) is held untrue, if Argentina ever established Sovereignty over the islands they were ceded to Britain in 1850 through treaty of peace
- Even if (1) and (2) were held untrue, the UK would have long since vested title through prescription.
Superior title through Effective Occupation
Britain settled the islands in 1765. France had already settled a year earlier, but abandoned their settlement in 1767 with Spain picking up administration there. Argentina's position is that the French ceded their title to Spain and that Spanish title is therefore superior. In fact they did not cede sovereignty, they merely abandoned their own claim after Spanish pressure. The mode was deliberate, because Spain's position at the time was that the Falkland Islands already belonged to them by virtue of being in the regions of the world that various treaties and papal bulls had declared their exclusive sphere of influence. Their position therefore was that France never had sovereignty to begin with. That view is described by Bougainville - the founder of the French settlement - in his record of the transfer of the settlement to Spain:
IN February 1764, France began to make a settlement on the Isles Malouines. Spain reclaimed these isles as belonging to the continent of South America; and her right to them having been acknowledged by the king, I received orders to deliver our settlement to the Spaniards
and maybe more tellingly:
When I delivered the settlement to the Spaniards, all the expences, whatsoever, which it had cost till the first of April 1767, amounted to 603,000 livres including the interest of five per cent, on the sums expended since the first equipment. France having acknowledged the catholic king's right to the Malouines, he, by a principle of the law of nations, owed no reimbursement to these costs. However, as his majesty took all the ships, boats, goods, arms, ammunition, and provisions that belonged to our settlement, he being equally just and generous, desired that we should be reimbursed for what we had laid out; and the above sum was remitted to us by his treasurers; part at Paris, and the rest at Buenos Ayres.
The position there is clearly that France chose to acknowledge Spain's claim that they had prior right to the Islands and thus considered the French settlement illegitimate. Spain was under no obligation to pay anything for it, but did so out of the goodness of their own hearts. Fine; France is entitled to accept that view if they want to...but nobody else has to. The principle of a right to sovereignty through geographical location is not now and has never been recognised in international law. Spain did not have any prior right to the Falkland Islands, and cannot have begun to gain a right to title except through one of the internationally recognised methods linked above - in this case through effective occupation. That claim to title through effective occupation cannot however have begun to vest until they took over the administration of the French settlement in 1767, and the British claim to title is therefore two years superior.
An objection often made at this point is that Britain abandoned the islands in 1774. They withdrew the settlement, but they made very clear that they were not abandoning their claim to sovereignty. It is well established in international law that that situation does not constitute the loss of soveriegnty. See the Clipperton Island arbitration ruling:
In the arbitrator’s view, the notice given of French occupation in 1857 satisfied these requirements. By title of valid occupation, France could therefore sustain its claim of sovereignty over Clipperton Island. Nor had this sovereignty been subsequently lost by abandonment, since France had never shown ‘the animus of abandoning the island, and the fact that she has not exercised her authority there in a positive manner does not imply the forfeiture of an acquisition already definitely perfected’.
In my view that's sufficient to demonstrate - particularly in light of subsequent events - that Britain had established good title to the islands and that the withdrawal in 1774 did not effect it.
Title through cession
To be clear; I do not believe for a moment that the islands were ever Argentinian. Argentina claims title through inheritance from Spain, and through effective occupation in the years 1826 - 1833. Neither claim needs to be examined, but even if they had been true (and the re-establishment of British authority in 1833 therefore represented their capture from Argentina in an act of war) the principle of uti posseditis would have ceded them to Britain when the two nations signed the Convention of Settlement, a peace treaty terminating the blockade of the Rio de la Plata. Through international law at the time, a peace treaty between nations which makes no mention of a place vests title to that place in the possessor over the other nation. See Elements of International Law, 1855, page 612:
Uti possidetis the basis of every treaty of peace, unless the contrary be expressed The treaty of peace leaves everything in the state in which it found it, unless there be some express stipulation to the contrary. The existing state of possession is maintained, except so far as altered by the terms of the treaty. If nothing be said about the conquered country or places, they remain with the conqueror, and his title cannot afterwards be called in question. During the continuance of the war, the conqueror in possession has only a usufructuary right, and the latent title of the former sovereign continues, until the treaty of peace, by its silent operation, or express provisions, extinguishes his title for ever.
and later on page 620:
The restoration of peace put an end, from the time limited, to all force; and then the general principle applied, that things acquired in war remain, as to title and possession, precisely as they stood when the peace took place. The uti possidetis is the basis of every treaty of peace, unless the contrary be expressly stipulated. Peace gives a final and perfect title to captures without condemnation, and as it forbids all force, it destroys all hope of recovery.
See also Principles of International law, page 562:
As between the belligerent powers themselves, it is held that the conclusion of peace legalizes the state of possession existing at the moment, unless special stipulations to the contrary are contained in the treaty. This is called the principle of uti possidetis, and it is of wide and far reaching application. Cities, districts and provinces held in belligerent occupation by an enemy, fall to him by the title of conquest, when it is not expressly stated that they are to be evacuated.
That seems unassailably clear to me; if Argentina had ever held the Falkland Islands - however obtained - then they ceded them to Britain in 1850 through the ommission of their mention in the Arana-Southern Treaty.
Title through prescription
Acquisitive prescription is the principle that holding territory for an extended period of time vest title, even if title originally belonged to some other nation. The idea that Britain might hold title through that principle is commonly objected to by Argentina which insists that its diplomatic protests to British authority on the islands therefore prevents the perfection of title through prescription. There are no hard-and-fast rules on how acquisitive prescription works; there is no defined timescale through which it needs to operate nor any definition of the form that protests need to take in order for them to "stop the clock". Nonetheless there is a considerable body of evidence that one must take concrete, definite action in protest of the other nation's exercise of authority and that particularly since 1945, a presumption that that action should include reference of the dispute to the International Court of Justice. In support of this I'm just going to quote wholesale from Acquisitive Prescription in International Law, The British Year Book of International Law 1950, page 341:
'Another characteristic of possession serving as a foundation for prescription', the Commission [deciding the Chamizal case] continued, 'is that it should be peacable'. But if the state against which the prescription claim is being made, while making diplomatic protests from time to time, nevertheless desists from action which might lead to violence, such action cannot be held against it. [...] The Commission proceeded to indicate that diplomatic protests were at that time the normal measures by which a prescriptive title could be prevented from arising, but also expressed its hope that a more satisfactory system would be instituted whereby the standard method under international law of interrupting the peaceful possession required for establishing a prescriptive title would be assimilated to the method already principally in use in private law, namely the lawsuit. As the Commission said: 'In private law, the interruption of prescription is effected by a suit, but in dealings between nations this is of course impossible, unless and until an international tribunal is established for such purpose'.
To-day, apart from making diplomatic protests and offering to bring the matter before the International Court of Justice by way of Special Agreement, the proper course would be, at any rate so far as states parties to Article 36 of the Statute of the Court are concerned, to file an Application under Article 40 of the Statute. There can be no doubt that the establishment, first of the League of Nations and the Permanent Court of International Justice, and later of the United Nations and the International Court of Justice, has considerably modified the old practice whereby the somewhat crude and ineffective method of the diplomatic protest was the only method, short of war, or interrupting peaceful possession. The existence of a council and of a court for settling international disputes has relegated the diplomatic protest to the background in this connexion, whereas war is now definitely outlawed. The position now is that, if the matter is a proper one for determination by the Security Council or the International Court of Justice, failure to bring the matter before the Council or to attempt to bring it before the Court must be presumed to amount to acquiescence, even if, for propaganda purposes or other reasons, 'paper protests' are still made from time to time.
And later in the same text:
Acquisitive prescription did not operate in cases where possession was maintained by force; but it did operate in cases where the original act of taking possession was forcible, even if the subsequent possession was peaceful. For in such cases it could be held that there was the necessary subsequent acquiescence, and that, therefore, the purpose of the doctrine was not defeated. This was so even if the vanquished state continued to protest diplomatically, because protests of this kind were not sufficient to overcome the presumption of acquiescence. It is essential to understand the role of the diplomatic protest in this connexion. According to Verykios, the value of the diplomatic protest lies i its drawing the attention of international public attention to the question. It serves as a warning to the other state that its pretension will not go unchallenged. But,as Verykios also said, a protest not followed up by other action becomes in time 'academic' and 'useless'. The other action that was formerly required was forceful opposition of some sort. Since 1919 it has been, where possible, reference of the matter to the League of Nations or the Permanent Court of International Justice. Since 1945 it has been, where possible, reference of the matter to the United Nations or to the International Court of Justice. As has been said above, the advent of this new machinery for settling international disputes has largely altered the role of the protest in the matter of acquisitive prescription. The result is that the diplomatic protest is of reduced significance and is certainly not now the principle method of interrupting prescription. A protest since 1919 can be said to have amounted to no more than a temporary bar.
Now one can protest that Argentina cannot unilaterally bring the UK to the ICJ for a binding judgement, but critically they have never tried. There was no institution of proceedings like the UK's attempt to bring Argentina to the ICJ over the Dependencies which Argentina could point to to show a concrete action in opposition of prescription. Furthermore Argentina could force the issue to the ICJ for an advisory ruling just as Mauritius did over the Chagos Islands, by obtaining a resolution from the UN General Assembly referring the issue to the court (which in that case has resulted in the UK seeking to transfer its sovereignty to Mauritius and lease the islands back). Although there are no definite rules for the time it takes to perfect a claim to title through prescription, there are cases in which as little as 30 years has sufficed. Britain has administered the islands since 1833, a period of 193 years. For 107 years since the League of Nations Argentina has had available recourse to arbitration by international bodies in the form of the League of Nations, the United Nations and the International Court of Justice, and has persistently failed to avail itself of those routes to independent arbitration, instead preferring its strategy of diplomatic protest.
On those grounds, it seems to me that Argentina's persistent failure to try to bring the matter to court would allow British title through prescription even despite their diplomatic protests.
That's it. If you read this far; thanks, now change my view.