蔡沛倫：Dispute over the Falkland Islands (Malvinas) and the Plan for Referendum
Ph.D. student, School of Law,
University of Nottingham
On 12 June 2012, the Falkland Islands Government announced the plan of holding a referendum on the islands’ political status. Sovereignty over the Falkland Islands, located in the South Atlantic Ocean and with a population of approximately 3,000, has been a subject of long-term dispute between Argentina and the United Kingdom (UK). This year marks the 30-year anniversary of the Falklands War, the conflict between the two countries that attracted the attention of the international community and the United Nations (UN) Security Council. Various theories have been put forward to justify the respective claims of sovereignty over the Falkland Islands, among which are some of the modes of acquisition of territory, such as occupation, prescription, and conquest. The right to self-determination may also be of relevance in light of the Falklanders’ campaign for their entitlement to exercise such a right.
Spanish and British records show that the Falkland Islands (or Malvinas, as referred to by Argentina) were first discovered in the 16th century, while the two sides present conflicting stories as to which country discovered them first. Although the islands were discovered in the 16th century, it was not until 1764 that the first settlement was established by the French on East Falkland. Spain later acquired the settlement in 1767. Around the same period, a British settlement was built on West Falkland. In 1770, Spain attacked the British settlement, and the settlers were expelled. After a brief return the following year, the British presence was eventually withdrawn in 1774, albeit a flag and a plaque were left behind to assert British possession. A few decades later, the Spanish settlement was also withdrawn on account of Spain’s decreasing power in the Americas, but a plaque affirming Spain’s ownership was similarly left on the islands.
Argentina declared independence in 1816 and took possession the Falkland Islands in 1820. Subsequently, Argentina attempted to occupy the islands by appointment of governors, granting of land and fishing rights, and appointment of Political and Military Commander of Malvinas. Meanwhile, the British Government registered protests against Argentina’s activities and sought to resume its presence on the Falkland Islands. After a military confrontation between the two countries on the islands in 1833, Britain occupied the islands despite Argentina’s repeated formal protests. Hence, except for a scientific research station on Southern Thule, Argentina had not occupied the islands before 1982.
On 2 April 1982, Argentina, relying on its claim of sovereignty, invaded the Falkland Islands. The next day, the UN Security Council adopted Resolution 502 demanding “an immediate cessation of hostilities” and “an immediate withdrawal of all Argentine forces from the Falkland Islands (Islas Malvinas)”. In response to Argentina’s action, the British Government dispatched military forces, and, although efforts were made to achieve a peaceful resolution, the conflict between the two States continued for 74 days before Argentina surrendered. The Falkland Islands have remained a British Overseas Territory until today, and since 1983, the Falklanders have been granted British citizenship, instead of British Dependent Territories citizenship.
Recent developments and the Plan for Referendum
Since 2004, the issue of the status of Falkland Islands has been on the permanent agenda of the UN Special Committee on Decolonization. As the dispute between Argentina and the UK continues, the Special Committee regularly, through the adoption of resolutions, reiterates the importance of the “peaceful and negotiated settlement” to “put an end to the special and particular colonial situation in the question of the Falkland Islands (Malvinas)”.
While the two States struggled to reach agreement on this issue, the Falklanders have been vocal in expressing their views on the political status of the islands. In a poll conducted in 1986, 94 per cent of Falklanders supported retaining the association with the UK. Their tendency to maintain status quo has been consistently shown. As the Falkland Islands Government announced the plan for a referendum to be held next year, the Chairman of the Legislative Assembly again emphasised that the Falklanders wished to “remain a self-governing Overseas Territory of the United Kingdom”, and the international observers would be invited to monitor the process and verify the outcome of the referendum. It came as no surprise that this plan for referendum was welcomed by the UK but denounced by Argentina as illegitimate. In addition, after the announcement, Argentina continued to stress the necessity of renewing diplomatic negotiations between the two States. Although the referendum has been noted by some as a historical move, doubts were expressed by others as to whether the Falklanders could be considered as a “people” entitled to exercise the right to self-determination. Taking into consideration the attitude of the Argentine Government, it is likely that, even if the majority of the Islanders vote to remain British, Argentina will not cease the claims for sovereignty, and the dispute between the two States will persist.
Information on the recent developments:
- Statement from the Falkland Islands Government
- Statement of the Argentine President before the UN’s Special Committee on Decolonization (Spanish)
- Statement from the UK Minister of State for Europe
- Recent Meeting of the UN’s Special Committee on Decolonization on the “Question of the Falkland Islands (Malvinas)” (14 June 2012)
Background and other information:
- Argentina’s Position on Different Aspects of the Question of the Malvinas Islands
- UN Security Council Resolution 502 (1982)
References and suggested readings:
- Foreign Affairs Committee, Falkland Islands (HC 1983-84, 268-I) (UK House of Commons)
- Thomas M. Franck, ‘Dulce et Decorum Est: The Strategic Role of Legal Principles in the Falklands War’ (1983) 77 AJIL 109.
- Peter Beck, The Falkland Islands as an International Problem (Routledge 1988).
- C. H. M. Waldock, ‘Disputed Sovereignty in the Falkland Islands Dependencies’ (1948) 25 British YB Intl L 311.