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Falklands / Malvinas Dispute

More than 30 years have passed since Britain and Argentina fought a 10-week war over the Falkland Islands, a British overseas territory in the southwest Atlantic Ocean, but their dispute continues. Argentina invaded the remote South Atlantic islands, which it calls the Malvinas, in 1982, but withdrew after 74 days. About 650 Argentinean and 255 British military personnel died in the conflict.

The Falklands have been continuously, peacefully and effectively inhabited and administered by Britain since 1833. The Falkland Islands are one of fourteen British Overseas Territories. As such, the UK recognises and encourages the Islanders’ right to self determination, including their right to remain British if that is their wish. The Islands’ democratically elected leaders frequently state that wish. The islanders are due to vote in a March 2013 referendum on whether they want to remain part of Britain’s self-governing overseas territories. They are expected to vote in favor of remaining part of Britain. The Falkland Islands government called for the referendum. The vote has been rejected by Argentina, which says it considers the few thousand people living on the islands as an “implanted British population."

In an open letter published as an advertisement in two British newspapers 04 January 2013, Fernandez accused Britain of having “forcibly stripped” the islands from Argentina in a “blatant exercise” of 19th century colonialism. She called for Britain to begin discussions over the islands’ sovereignty and said Britain had breached U.N. resolutions urging a negotiated resolution.

British Prime Minister David Cameron has rejected a call by Argentina’s president for Britain to give control of the Falkland Islands to Argentina. Cristina Fernandez de Kirchner wrote an open letter to the British leader accusing his country of colonialism. A spokesperson for Cameron, though, said he would “do everything” to protect the interests of the islanders.

Falkland Islands government representative in London, Suki Cameron, said that Falkland islanders do not want to be part of Argentina. “If they think that by writing letters like this it is going to bring us to talk to them, they have another thing coming,” she said. Suki Cameron said the referendum will show the world how the islanders feel about their political status. “It is important to show that we are an overseas territory by choice,” she said.

As a result of recent rising oil prices, the waters surrounding the Falkland Islands have again become an attractive area for oil companies to explore for new reserves of oil or gas. This potential sector is still in its infancy. Some exploratory drilling was carried out in 1998. But the major oil companies pulled out of the area when the price of oil dropped dramatically in the late Nineties. In 2008, the UK approved the Falkland Islands Government's request to resume Open Door Licensing for offshore oil exploration and production in five blocks. A second phase of exploratory drilling began in 2010. This is continuing.

The Papal Bulls and the Treaty of Tordesillas of 1494 were the first instruments to reflect Spain s titles in accordance with the international law prevailing at the time. The whole southern region of the American continent, with its coasts, seas and islands, was indisputably preserved under Spanish sovereignty through several treaties signed in this period, such as the American Treaty of 1670, between Spain and England. The Peace of Utrecht, signed in 1713, ensured the integrity of Spain s possessions in South America and confirmed its exclusive right to sail the South Atlantic. England agreed to such terms as a signatory to the Utrecht agreements and subsequent treaties of the 18th century ratifying it.

In 1690 John Strong, a British Naval captain, took part in the first recorded landing of the then uninhabited Falkland Islands. He named the Islands after Viscount Falkland, who shortly afterwards became the First Lord of the Admiralty. A few years later, the French called the Islands 'les Iles Malouines' after the port of St Malo, and it was from this that the Spanish designation, las Islas Malvinas, originated. In 1764, a small French colony, Port Louis, was established on East Falkland. Three years later this was handed over to Spain on payment of £24,000. The Spanish renamed the settlement Puerto de la Soledad.

A British expedition reached West Falkland in 1765, and anchored in a harbour which it named Port Egmont. It took formal possession of it and of 'all the neighbouring islands' for King George III. The following year, another British expedition established a settlement of about 100 people at Port Egmont. This settlement was withdrawn on economic grounds in 1774, but British sovereignty was never relinquished or abandoned. In 1790, when the Treaty of San Lorenzo de El Escorial was signed, Great Britain undertook not to establish any settlement on neither the Eastern nor the Western shores of South America, nor on the adjoining islands occupied by Spain, which was the case of the Malvinas Islands. The succession of Spanish governors in the Malvinas Islands, thirty-two in total, was continuous until 1811. The Spanish settlement on East Falkland was withdrawn in 1811, leaving the Islands without inhabitants or any form of government.

In November 1820, Colonel David Jewett, an American national, visited the Islands and claimed formal possession of them in the name of the Government of Buenos Aires, but only stayed on the Islands for a few days. At the time, the Government of Buenos Aires, which had declared independence from Spain in 1816, was not recognised by Britain or any other foreign power. The United Kingdom claims that no act of occupation followed Jewett's visit and the Islands remained without effective government. Agentina claims that duing this period Puerto Soledad thrived, with its inhabitants raising cattle, hunting sea lions and servicing the vessels that docked there.

On 10 June 1829, the Buenos Aires Government issued a decree setting forth its rights, purportedly derived from the Spanish Viceroyalty of La Plata, and purported to place the Islands under the control of a political and military commandant, Louis Vernet. Britain protested that the terms of the decree infringed British sovereignty over the Islands, which the UK asserts had never been relinquished.

Agentina is of the view that, following over half a century of silence since the brief episode of Puerto Egmont, with successive uncontested Spanish and Argentine administrations in the Malvinas Islands, it was only in November 1829 that the UK, driven by a renewed strategic interest in the South Atlantic, presented a protest against the decision of 10 June that year.

In 1831, a United States warship, the Lexington, broke up Louis Vernet's tiny settlement at Puerto de la Soledad as a reprisal for the arrest of three American vessels by Vernet, who was attempting to establish control over sealing in the Islands. The captain of the Lexington declared the Falklands free from all government and they remained once again without visible authority until September 1832, when the Government of Buenos Aires appointed Juan Mestivier as Civil and Political Governor on an interim basis. The British Government once again protested to the Buenos Aires Government that this appointment infringed British sovereignty over the Islands. Mestivier sailed to the Falklands at the end of 1832 and was murdered shortly after his arrival by his own soldiers.

In January 1833, after receiving instructions to visit the Islands to exercise British rights of sovereignty, the British warship HMS Clio arrived at Puerto de la Soledad and told the 24-man garrison that had arrived with Mestivier to leave. British administraton was therefore resumed and a naval officer arrived the following year to administer the Islands.

In 1841, a civil Lieutenant Governor was appointed and, in 1843, the civil administration was put on a permanent footing by an Act of the British Parliament. The Lieutenant Governor's title was changed to Governor and, in 1845, the first Executive and Legislative Councils were set up.

The majority of the population of the Falkland Islands are British by birth or descent. Indeed, many can trace their family origins in the Islands back to the early nineteenth century. The last census (in 2006) recorded 2,478 Falkland Islanders. Although there was a majority of official members in the Legislative Council until 1951, nominated members played an increasingly important part, and in 1949 members elected by universal adult suffrage were introduced into the Council.

Argentina's claim to the Falklands is based on the grounds that, at the time of British repossession of the Islands in 1833, Argentina had sovereignty over them through her inheritance, upon independence, of Spain's possessory title (uti possedetis), through her attempts to settle the Islands between 1826 and 1833, and through the concept of territorial contiguity.

The traditional system of international law was greatly developed in the 1885 Congress of Berlin, which sanctioned the division and colonialization of Africa. The Berlin Act was an important change in international affairs. It created the rules for “effective occupation” of conquered lands. Subsequently, a European nation could no longer simply raise its flag on the African coast and claim everything that lay behind it in the hinterland. After 1885 it was not sufficient to paint the country on a map with the national colors of the state that aspired to own it. Subsequently states disregarded claims which were merely paper claims, and compelled states to show effective occupation before their rights were respected.

Titles of acquisition of territorial sovereignty in international law were either based on an act of effective apprehension, such as occupation or conquest, or, like cession, presuppose that the ceding and the cessionary Power or at least one of them, had the faculty of effectively disposing of the ceded territory. With the formation of the UN and the specific prohibitions against the use of force contained within its Charter, war has been outlawed as a legitimate instrument of national policy. Consequentially, logic would dictate that a state can no longer acquire sovereignty over territory by conquering an enemy and declaring an intent to annex this state. This was not the case prior to 1945, and the right to acquire territory through military conquest was generally recognized and understood to be a natural object of warfare.

The principle of extinctive prescription, under which the passage of time operates ultimately to bar the right of a prior owner to pursue his claim against one who, having wrongfully displaced him, has continued for a long time in adverse possession, is recognized in almost all systems of municipal law, and it appears equally to be admitted by international law. It is debatable as to exactly how far diplomatic and other paper forms of protest by the dispossessed state act to 'disturb' the possession of the occupying state, so as to prevent the latter from acquiring a title by prescription. Paper protests may undoubtedly be effective for a certain length of time to preserve the claim of the dispossessed state.

If, however, the latter makes no effort to carry its protests further, by referring the case to the United Nations or by using other remedies that may be open to it, paper protests will ultimately be of no avail to stop the operation of prescription. Thus, it was largely for the purpose of avoiding any risk of the extinguishment of its claims by prescription that in 1955 the United Kmgdom filed a unilateral application with the ICJ, challenging alleged encroachment by Argentina and Chile on the Falkland Islands Dependencies.

In 1960 the United Nations General Assembly adopted its Declaration of the Granting of Independence to Colonial Countries and Peoples (GAR 1514). A committee was set up to oversee implementation of this resolution. This Committee, which became known as the Committee of Twenty-four, considered the question of the Falklands for the first time in 1964. Following its recommendations, the General Assembly adopted Resolution 2065 in 1965. The Resolution invited the British and Argentine Governments to begin negotiations 'with a view to finding a peaceful solution to the problem, bearing in mind the provisions and objectives of the UN Charter and of GAR 1514 and the interests of the population of the Falkland Islands (Malvinas).'

During 1967 and 1968 Britain entered into negotiations with Argentina based on a willingness to transfer sovereignty. Although the British Government had no doubt about British sovereignty of the Falklands, they were concerned by the difficulty of defending the Islands, and by the threat to the Islands' economy from declining world demand for wool and from their isolation without links to the mainland. However, Britain maintained throughout that any transfer of sovereignty must be subject to the wishes of the Islanders. It was on this issue that negotiations foundered.

Argentina’s approach towards the Islands has deteriorated recently. In 2003 Argentina imposed a ban on chartered aircraft flying from, or through, their airspace to the Falkland Islands. They have also introduced legislation designed to penalise hydrocarbons operators in Argentina who also have interests in the Falkland Islands. In March 2007 Argentina withdrew from the 1995 Anglo-Argentine Joint Declaration on Co-operation over Offshore Activities in the South West Atlantic. In 2008 they introduced legislation designed to penalise fishing companies operating in both Argentine and Falkland Island waters.

The position of the US Government is that "This is a bilateral issue that needs to be worked out directly between the governments of Argentina and the United Kingdom. We encourage both parties to resolve their differences through dialogue in normal diplomatic channels. We recognize de facto United Kingdom administration of the islands but take no position regarding sovereignty."



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