Falklands Title Deeds
- The Struggle for the Falkland Islands by Julius Goebel, introduced by J.C.J. Metford
Yale, 482 pp, £10.00, June 1982, ISBN 3 00 023944 8
- The Falklands Islands Dispute: International Dimensions edited by Joan Pearce
Chatham House, 47 pp, £2.75, April 1982, ISBN 0 905031 25 3
- The Falkland Islands: The Facts
HMSO, 12 pp, £50.00, May 1982, ISBN 0 11 701029 4
Territorial disputes are, in the Spanish phrase, matters de mucha teologia. These matters of much theology can easily cause violence; short statements about them are nearly always wrong; intensive study of individual problems can drive you round the bend. Experts in public international law, like theologians, frequently disagree, and like theologians they are not at all immune to national bias. There is also usually much mist surrounding what they are trying to get at. Arguments are frequently both inconclusive and unrewarding. Most editors in recent months avoided going into the background of the Falklands dispute in any detail – it would have taken up too much space. If one had to go into it at all, it was best to be brisk and muscular about it. On page 6 of Chatham House’s ‘Special’ The Falkland Islands Dispute – International Dimensions Professor James Fawcett agrees on line 3 that ‘the determination of territorial title, when it is disputed, is a complex issue of fact and law,’ and asserts on line 31 that ‘the territorial title to the islands... must be accorded to the United Kingdom.’ On this issue our public legal opinions have always been... robust.
Julius Goebel’s The Struggle for the Falkland Islands was first published in 1927. Its reappearance now has not aroused much enthusiasm – Professor H.S. Ferns has called it, in the TLS, ‘intellectually naive and priggish’ – and when it first came out it was greeted by British reviewers with bewildered astonishment. ‘CD.’, in the British Year Book of International Law, Vol. 9, 1928, at first appeared winded (Peter Beck, Guardian, 26 July, has since I wrote this revealed that the review was a Foreign Office plant and that ‘C.D.’ was Sir Cecil Hurst, the Foreign Office’s chief legal adviser. Corps Diplomatique?). According to D.C., ‘although the reader may, on closing the book, ask himself what is the good of it all from a practical point of view, he cannot but admire the extraordinary patience and erudition of Dr Goebel in having gathered together such a mass of interesting historical material.’ But C.D. recovers, hauls himself into an upright position with the aid of a few distortions and irrelevances and a bit of suppressio veri, and finishes in the unusually commonsensical style that comes naturally to our lawyers on this question:
One would think that... the occupation of the Falklands by Great Britain, their development for sheep farming and their use as a whaling-station by British subjects during the last hundred years, and their complete neglect by possible settlers from the Argentine, would be sufficient to convince most people of the sovereign right of England... No political party in the Argentine now thinks an agitation on the subject to be worth while. On the other hand, the commercial links between the two countries, and the extremely friendly diplomatic relations that have long existed, are assets too valuable to be endangered by an academic squabble regarding rights that have long since been settled by the good sense of both parties. In conclusion, while Dr Goebel deserves to be complimented for a statement which, within purely academic limits, is excellent, one cannot but feel that his book is likely to be more valuable to minor politicians in the Argentine... than it will be to men of vision.
A.P. Herbert in the Law Quarterly Review, Vol.44, 1928, came to much the same conclusion: ‘One may well ask whether it was worth while raising the question of British rights, even academically.’ Misleading Cases, in the same volume, gets a better notice.
Dr Goebel did not have much success, therefore, among even academic lawyers here. His book was probably not much read by Argentine politicians, who had always had their own sources, or by ‘men of vision’, who were looking in some other direction. It was read by the Foreign Office, which had begun to have doubts about our case in 1910 (Sunday Times, 20 June 1982). Although parts of it are out-of-date, and although it has nothing to say about anything after 1833 and does not cover the separate, but related, question of the Dependencies, it still has to be read by anyone interested in the dispute. Professor Metford’s preface and introduction, the latter an article from International Affairs, July 1968, Vol.44, No 3, are tendentious and unreliable on a surprising number of important points and show no knowledge of Argentina: he thinks it is an ‘agrarian feudalistic society’ with a ‘small urban middle class’. Dr Goebel, he speculates, was an anti-colonialist from the ‘vociferous’ Yale Law School, which gave him the ‘subconscious motive’ for writing on this subject. Perhaps, but the single-minded grind looks more like the eternal PhD student to me, with touches of international courtroom-drama fantasy on a page here and there.
It makes a long book, and as the argument is intricate and much of it unfamiliar, it is often hard going. It might be a public service to summarise it, with fair warning of the risks involved – of overlooking some crucial element, of seeming naive and priggish and lacking in vision.
From The Struggle of the Falkland Islands the reader may learn the doctrine of Inter-Temporal Law: ‘the situation in question must be appraised... in the light of the rules of international law as they existed at the time, and not as they exist today.’ This has to be borne in mind throughout. Goebel starts with the discovery of the islands, and makes it clear that, according to this generally accepted doctrine, it should not matter a damn for the purposes of sovereignty who discovered them. That did not prevent us, in 1764 and on subsequent occasions, from asserting our claim on this dubious ground, and has not prevented both sides in the controversy from producing quantities of chauvinistic historical geography. ‘Our sea-dogs,’ repeat the heirs of Drake, ‘were doggeder than theirs,’ until one wonders how such land-bound creatures as the Spaniards managed to get to America at all. Did Sir Richard Hawkins say his latitude was 48°, three degrees north of where he ought to have been? Then he meant 50° 48' – ‘how so obvious an error got into the text is immaterial.’ He saw a peopled country with many fires? That could easily be the uninhabited Falklands, where lightning can ignite the tussock-grass in spring. You can make a case for John Davis or Sir Richard Hawkins, just as if you are not English you can make a case for some earlier Iberian voyage. The articles ‘Falkland’s Islands’ in the last two editions of the Encyclopedia Britannica give the honour to the English as if there was no doubt about it, but then one is written by a former Governor of the Islands, and the other by a former bishop. Here one could quote, to some purpose, the actress Mandy Rice-Davies.
Fifty-five years after Goebel’s book first came out it is still not clear who discovered the islands. It is doubtful if it ever will be. Goebel follows his energetic examination of all the known claims with an exhaustive account of why, in the light of 16th and early 17th-century rules, they do not matter anyway in determining sovereignty.
Wherever it was that Davis was in 1592 or Hawkins in 1594, Sebald de Weert and other Dutchmen in the early 17th century put the islands more firmly on the maps. Then sailors from St Malo, and others, visited them. The British reappear in the strange voyage of the Batchelors’ Delight, 1683-5, captained by William Ambrosia Cowley and controlled by the more piratical William Dampier. A storm blew them to the Falklands – they had been ‘discoursing of the intrigues of women’, which brings bad weather – and they saw ‘foul rocky Ground, and the Islands barren, and destitute of trees, but some Dildo-bushes growing near the sea-side’. This has no bearing on the question of sovereignty, and is included merely for the purpose of decoration. Nor does the first recorded landing on the islands by Captain John Strong in 1690 in any way decide the question, though he gave them their present English name. Dr Goebel shows that we had no intention at that time of taking possession of the islands anyway.
That idea first occurred to Admiral Anson on his voyage round the world in 1740-1744. It would make it easier to round Cape Horn to molest the Spaniards in the Pacific if we had a base in the region – Pepys’ Island or the Falklands (Pepys’ Island did not exist – it had somehow got thought up by William Ambrosia Cowley): ‘If, on examination, one or both of these places should appear proper for the purpose intended, it is scarcely to be conceived of what prodigious import a convenient station might prove situate so far to the southward, and so near to Cape Horn.’
Anson was not interested in the niceties of title – he also thought Tierra del Fuego would do, whose discovery by us was never claimed even by the most patriotic geographer. A projected expedition to the islands, which we were careful to present as peaceful and scientific, was in 1749 abandoned in the face of Spanish protests, though with some mutterings about their ‘whimsical notions of exclusive right in the south seas’. The degree to which these whimsical notions were recognised by the European treaties of the time Dr Goebel also examined at great length.
In 1763 there began a period of what international lawyers call ‘competing state activity’:
15 September 1763: Antoine Louis de Bougainville, with the consent of the French Government, sailed from St Malo to colonise Les Malouines.
31 January 1764: Bougainville makes landfall on ‘West Falkland’.
17 March 1764: he begins building Fort St Louis on ‘East Falkland’.
5 April 1764: he takes formal possession of all the islands in the name of Louis XV.
11 June 1764: The Spanish Ambassador in Paris is instructed to inform Choiseul that these islands were not on the way to India and that French colonisation was against the terms of the ‘Family Compact’ between France and Spain.
21 June 1764: Commodore John Byron sets sail in HMS Dolphin, HMS Tamar accompanying, to visit ‘His Majesty’s Islands call’d Falkland’s and Pepys ‘Islands situate in the Atlantick Ocean near The Streights of Magellan in order to make better surveys thereof, than had yet been made, and to determine a place or places, most proper for a new settlement or settlements thereon.’
13 August 1764: notice of Bougainville’s colony appears in the Gazette de Hollande.
11 January 1765: Byron makes landfall on ‘West Falkland’.
23 January (?) 1765: Byron takes formal possession of all the islands in the name of George III. On his voyage no settlement was left behind, though the surgeon of the Tamar planted a garden ‘with many esculent vegetables... for the benefit of those who hereafter come to this place’.
20 July 1765: decision made to send out another expedition to ‘compleat the settlement began last year at Port Egmont’ – the surgeon’s garden. The news of the French settlement being out, this second expedition is to warn off subjects of any foreign power, ‘acquainting them that the said islands having been first discovered by the subjects of the crown of England, sent out by the government thereof for that purpose’. No violent measures were to be taken by the expeditionaries.
8 January 1766: Captain McBride in HMS-Jason, accompanied by the sloop Carcass and storeship Experiment, arrives at Port Egmont, with 25 marines, prefabricated blockhouse etc. In April: France having decided to yield to Spain’s protests, Bougainville is sent to Madrid to arrange to be compensated for his établissements illégitimes.
25 March 1767: A Franco-Spanish fleet, with Bougainville aboard, arrives at Port Louis. April 1: Bougainville formally hands over this ‘infant colony’ to Spain. Some of the families remain under Spanish rule.
November 1769: first contacts between Port Louis, now Soledad, and Port Egmont. Exchanges between Captain Hunt and Governor Ruiz Puente, of assertions of possession, warnings to leave. Captain Hunt is ‘bluff, Governor Ruiz Puente esquisito, as the Argentinians would say.
June 1770: Spanish expedition under Madariaga, five ships and 1, 400 men, expel the British settlement. Violence avoided by superior Spanish numbers. (This is sometimes referred to as the ‘Bucareli expedition’ after the name of the Viceroy of the Rio de la Plata.)
Here begins the crisis which brought Britain and France to the verge of war, and which ended in April 1771.
15 September 1771: Port Egmont formally restored to the British.
20 May 1774: British evacuate Port Egmont, leaving a plate set up, and his Britannic Majesty’s colours left flying.
Most of this information is necessary for an understanding of what happened in 1770-1774, and that understanding is needed to explain what occurred in 1833, which (would that it were not so, but it is the case) in its turn has to be grasped to understand 1982. Plain men, practical men, will say it is all long ago, all academic. Keynes said that practical men, politicians, civil servants, often turned out to be ‘the slaves of some defunct economist’. He was thinking of the Treasury. Elsewhere the plain practical men may on a close look turn out to be the slaves, via dead lawyers, of inaccurate historians. When the facts do not suit us, we look at them through the wrong end of a powerful telescope, and find they are thus diminished. They blur together, and then we can call what we see ‘confused’ – the diplomatic Nelson touch. We can see better, if we want to, with the instrument the right way round.
The list just made is mostly of events directly related to the islands. The diplomatic crisis of 1770-1771 can itself be summarised as follows. Neither the British nor the Spanish were eager to go to war. The Spanish were further weakened by the reluctance of France to fulfil the terms of the Family Compact, a reluctance confirmed by the fall of Choiseul in December 1770. The British House of Commons, convinced, then as now, that the islands were British, threatened to bring Lord North’s ministry down if he yielded, and hoped to bring him down anyway if he fought and failed. The result was a compromise. The Spanish agreed to restore matters in the islands to the exact state they were in before the Bucareli expedition, to repair the affront to the British crown signified by the removal of the Fort Egmont settlement. The Spanish Ambassador’s formal declaration reserved the question of sovereignty: ‘the engagement... to restore to his Britannick Majesty the possession of the port and fort called Egmont cannot nor ought in any wise to affect the question of the prior right of sovereignty of the Malouine islands, otherwise called Falkland’s Islands.’
This declaration the British Government accepted. There is also evidence that there was ‘a secret promise’ made to Spain that after a decent interval we would withdraw – there were certainly several strong hints, and there is a guarded admission of this in Dr Johnson’s government-commissioned pamphlet on the subject, 1776 printing. We gave our leaving in 1774 a different colour with the flag, the plate and talk about defence economies. The Spanish concluded that this double-faced British behaviour had to be suffered ‘because of the nature of their system of government’: por la constitucion de su gobierno. Anson, it was said, had died of chagrin because his plan had been left aside, but he had left a lobby behind him.
What was left at the end of this flurry? The French were the first to perform an act of ‘symbolic annexation’, and to follow it with effective occupation. The Port Louis/Sole-dad colony, founded in 1764, handed over to Spain in 1767, lasted at least until 1811. The British performed a later act of ‘symbolic annexation’, and later still established a settlement (Port Egmont) that endured eight years: 1766-1774. We made much of the argument of discovery. This was acceptable neither to the Spaniards nor to the French, nor to most legal authorities of the mid-18th century. It appears that the Admiralty had been reading the innovative Vattel, who favoured grounds of discovery followed promptly by real possession. But, as Goebel points out, given the lapse between Davis and Hawkins, the putative discoverers, and Byron and McBride, the real possessors, we were not prompt, Vattel or no Vattel, discovery or no discovery. It could be argued, plate and flag left behind and declarations of economy notwithstanding, that we left the islands in 1774 with the intention of abandoning them, with animus dereliquendi. Plates and flags, at this time and in these circumstances, cannot be held to decide anything.
It is impossible to assert that we had established and upheld a right to the sovereignty of the Falklands in these years. We settled on a de facto compromise, as is clear from the same orders to Captain Stott, who received back Port Egmont in 1771, which Herbert Jenner, the Law Officer to the Crown in 1833, used to argue for ‘the absence of all idea of compromise in the assertion and maintenance of His Majesty’s right to the sovereignty over those islands’. Stott was to avoid arguments about rights and only to go to Port Soledad, where he was not to salute the Spanish flag, if no one was there to receive him at Port Egmont. It was obviously hoped that no arguments would occur.
Some time between 1777 and 1780 the Spanish demolished Port Egmont. In 1790 Britain signed with Spain the Nootka Sound Convention, by which she renounced future establishments on ‘the eastern and western coasts of South America and the islands adjacent’. Goebel argues that this constitutes estoppel against reviving our claim. We were still using the Convention in arguments elsewhere with the United States in 1826. We made no comment on Spanish activity in the Falklands from l774 to 1811. In 1809 Admiral Sir William Sidney Smith reported that Viceroy Liniers had deported the leaders of the Buenos Aires cabildo, or town council, to ‘the Maloinas or Falkland Islands’. In the same year he assured Liniers that ‘Great Britain would aim at neither sovereignty nor territorial occupancy and would confine her views to forming such a connection with the Spanish dominions in South America as might best be calculated to protect their independence and resources against the designs of the common enemy’ (France). Such assurances were needed after the British invasions of the River Plate Viceroyalty under Popham and White-locke (1806 and 1807). Whether we were at war with Spain or hot in these years, we showed no interest in the islands.
1811 is the start of another period of ‘state activity’ or inactivity, which we find it again convenient to call ‘confused’, and which for legal arguments goes like this:
1811: the junta of Buenos Aires withdraws the colony from the islands.
9 July 1816: the United Provinces of the Rio de la Plata declare their complete independence from Spain.
6 November 1820: Colonel Daniel Jewitt, of the United Provinces’ frigate Heroina, takes formal possession of the islands for the United Provinces, informing the masters of some fifty whalers present in the Islands, British included, that he is doing so.
1823: Pablo Aregusti appointed Governor. A concession on the islands made to Jorge Pacheco and Louis Vernet. A settlement formed. 1824: the settlement abandoned. 1826: the settlement re-established by Vernet.
28 January 1828: a decree published granting Vernet further concessions.
10 June 1829: Vernet appointed Military and Political Governor. 19 November: Woodbine Parish, British Consul in Buenos Aires, protests against the occupation of the Falklands by the Buenos Aires Government.
30 July 1831: Vernet seizes three American sealers for contravening sealing rights; later he takes the Harriet to Buenos Aires to answer charges. 28 December: Captain Duncan, of the USS Lexington, enters Soledad flying the French flag, arrests Vernet’s lieutenant Matthew Brisbane, spikes the guns, sacks ‘the habitations’, and declares the islands ‘free of all government’. This action cannot be held to have any legal consequences. HMS Rattlesnake and Consul Parish report these events to London.
11 February 1832: Buenos Aires government proclamation denounces Duncan and pledges to secure satisfaction. HMS Clio and HMS Tyne dispatched to the Falklands. 20 December: HMS Clio arrives at Port Egmont.
2 January 1833: Commander Onslow, HMS Clio, arrives at Port Luis (Soledad), and finds present Jose Maria Pinedo, of the Argentine armed schooner Sarandi. He requests him to lower the Argentine flag and depart. 3 January: Pinedo refusing, Onslow raises the British flag, lowers the Argentine flag and sends it on board the Sarandi. 17 June: Manuel Moreno, Argentine Minister to the Court of St James’s, protests formally against the British action.
Some conclusions can be drawn from all this, and some comments made on it, and on the commentators. First, it is no good asserting, as does Professor Metford, that in 1833 the islands were terra nullius, abandoned or unclaimed territory up for grabs. We never based our argument on these grounds at the time. Second, it is most doubtful that our action, as Professor James Fawcett argues in The World Today, June 1982, was justifiable. He writes: ‘It is reasonable to suppose that the Court [a hypothetical 19th-century international court] would have found that the taking of the islands in 1833 was not contrary to the law applicable at that time.’ A few lines later this becomes: ‘The taking of the Falkland Islands by force in 1833 was not contrary to such law as was applicable at the time.’
A dubious hypothesis thus becomes a pseudo-fact. He then assimilates this action with the acquisition of Ascension Island (terra nullius, occupied in 1815 to keep Napoleon safe in St Helena) and Aden (acquired by purchase and force from a local sultan in 1838). Given the level of Argentine’state activity’ and state presence in the islands, that will not do. Jewitt, for all that he came from Pennsylvania, that his uniform was odd and that his men had scurvy, was the officer of an established government. Vernet was a civilised man and a civilising influence – see his memorandum (10 August 1832) on the Lexington affair and its antecedents in British and Foreign State Papers, 1832-1833. The piratical actions were committed by the United States, and find no defenders among American lawyers or historians – I believe the Argentine claims on the Lexington are still outstanding, a minor oddity of the whole business. Argentina was the successor state to Spain in the region, which gave her a status not easily challengable, and our law officer, Jenner, asked for an opinion on Brisbane as a pirate, declared that he was ‘acting in execution of the orders of a regular and acknowledged government, and in indication of what were conceived to be their territorial rights.’ What then did we think we were doing?
Jenner gave an affirmative answer to the Foreign Office on the question of our sovereignty on 28 July 1829, his arguments being grounded on original discovery and subsequent occupation, 1765-1774. His opinion was founded on the facts that were furnished to him by the Foreign Office – the text is in McNair, International Law Opinions, Vol. I, pp. 299-300 – and these facts were incomplete, even, as Professor Fawcett might say, by the standards applicable at the time. The most startling hint of omission is this: ‘Lord Dunglass finally observes that it does not appear that any settlement has since [since 1774] been formed upon these islands; that the Buenos Aires government have recently laid claim to them, as an appendage to their Territory on the ground of right derived to them from the Crown of Spain.’ The continuance of the Bougainville-Spanish settlement from 1764-1811 is either forgotten or overlooked. Argentine activity in the islands was considered irrelevant, in so far as it was considered at all. There is no evidence that when giving his opinion Jenner knew any more than what he was told. He regarded the symbols of property and possession left upon the islands as sufficient evidence against abandonment, and rejected, predictably, any notion of a ‘secret promise’ in a later opinion – 30 November 1833. His conclusion then is worth quoting: ‘Under these circumstances, I am very humbly of opinion that a wise discretion has been exercised in declining to enter into any discussion as to the title to be derived from the first occupation or possession of these islands, as it is impossible not to foresee, that a discussion of that nature must necessarily lead to a protracted correspondence, which would probably not end in any satisfactory result.’
Goebel is the best guide in English to most of this, though Samuel Flagg Bemis, reviewing it in the Harvard Law Review, Vol. 41, 1927-8, was probably right in considering that it was not the last word at all points, ‘even academically’, and that for most readers it ‘will taste too much of the style of a case presented before the Hague Permanent Court of Arbitration’. Bemis conceded that it looked from this evidence as if Spain (and presumably her successor Argentina) had the better case. Certainly nobody has published as strong a British case for the years up to 1833. Judging by page three of The Falkland Islands – The Facts, it cannot be done for that ‘critical date’. Since Goebel wrote, Spanish and Argentine scholarship has sustained many of his conclusions. None of his fundamental arguments was new to the Argentines, who had plenty of good lawyers. Carlos Calvo, one of the greatest 19th-century authorities, was an Argentine.
The ‘protracted correspondence’ Mr Jenner ‘found it impossible not to forsee’ of course ensued. As Professor Ferns observed more than twenty years ago, one of the extraordinary things about this dispute is its length. Moreno repeated his protest in 1834, and according to one 19th-century Argentine account, received no answer for seven years. In January 1841 he wrote to Aberdeen, whose rapid reply on 29 December informed him that his note had been passed to the appropriate department, ‘where,’ says this 1851 pamphlet, ‘it probably lies to this day’. The point is that Argentina kept up a fair rate of protest: it is not true that the whole issue was revived by Peron. E. N. Hunter Christie’s The Antarctic Problem of 1951 (the author dealt with Falklands issues in our Buenos Aires Embassy in the late 1940s and has been much concerned with the islands and dependencies since) says that, formally revived in 1884, ‘since 1908’ protests have ‘increased in frequency and force’.
What are the causes of this ‘increasing frequency and force’? We like to attribute it to shabby populism, anti-imperialist demagogy. There has been some of both in Argentina, but that is not a sufficient explanation. The argument (see Professor Ferns, TLS) is suspiciously convenient to the possessors, ourselves, who of course do not have to make a fuss. It can contribute to the cycle of inertia: if they are making a fuss, it is shabby populism and demagogy at the root of it, so we should not do anything about it; if they are quiet, there is no need to bother anyway. This may then be called a refusal to negotiate under pressure. But this explanation has its doubtful features. One is that the correlations are not all that precise: there have been plenty of bad times when the issue has been left dormant. Perhaps there is a better general correlation with the decline of British prestige and influence in Argentina. There has also been the tendency, in the last fifteen years, for negotiations between the two governments to generate their own pace, as readers will be aware. We have, ourselves, had no irredentist experience for centuries, not-since Bloody Mary died with ‘Calais’ written on her heart. (Or was it ‘The wishes and interests of the Burghers must be considered paramount’?) Irredenta are like neuroses, even in that they are worse when the damage is suffered in infancy, as in the case of the infant Argentine republic. They are a nuisance, a bore, they can be alleviated by fresh air and exercise and keeping the house in order and the mind on other things. But they come back. They are not the mere creation of demagogues and populists: in Venezuela sensitivity about frontiers is, I would guess, far more widespread than it was in Argentina; in Venezuela it has some moral connection with pro-democratic feelings – la constitucion de su gobierno, as the Spanish put it about the British in 1774. Intense feelings are awkward, but they do not, one way or another, affect rights.
A parenthesis: it is the Dependencies, not the Islands, that in 1947 and subsequently we have offered to submit to the International Court of Justice. The Argentine Government has always made clear that it would refuse such recourse for either the Dependencies or the Islands. There are strong political reasons for that, but it would be rash to jump to the conclusion that it shows that for the Islands the case is weak. To judge by the list of cases the Court has decided – Palmas Island, Clipperton Island, East Greenland and the Minquiers and Ecrehos case – it is not common for states to refer to it disputes of this magnitude. If you believe that the Foreign Office’s long-term aim was to do a deal of some sort over the Falklands, then in any case it could not possibly lose from such an offer: win or lose, for us there was no danger in it at all. Our case for the Dependencies is much stronger. Professors Fawcett and Ferns get this important point wrong – professors can write as rashly as Argentine generals act. Professor Ferns also misunderstands the Uti possidetis principle, which is essentially an accord on boundaries between successor states of the same (Spanish) empire, not an assertion of sovereignty against outsiders.
The continuous Argentine protests – one could not make much of the 30-year 19th-century gap, even if it did not disappear under further study – are an important argument against notions of Argentine acquiescence in British claims. The Foreign Secretary, in a letter to Tam Dalyell (Sunday Times, 11 July 1982), writes: ‘Our case rests on the facts, on prescription and on the principle of self-determination.’ It is not clear what facts are meant. On prescription, the Sunday Times says that title from ‘continuous peaceful occupation’ became ‘an accepted principle in international law in the Thirties’. Professor Rosalyn Higgins argues from ‘acquisitive prescription’ in the Observer, 2 May 1982, that Britain ‘has established a good title’. Professor Ian Brownlie, however (Principles of Public International Law, third edition, 1979), shows hardly any faith in this principle at all. He concludes his last paragraph ‘Acquisitive prescription: an epitaph’: ‘one may doubt whether there is any role in the law for a doctrine of prescription as such.’ Professor Brownlie’s argument, to the layman, is more convincing than Professor Higgins’s assertion. It seems (Sunday Times, 20 June 1982; Peter J. Beck, Journal of Interamerican Studies, Vol. 24. No 1, February 1982) that it would be truer to say that rather than becoming an ‘accepted principle’ in the Thirties, prescription then became just one of the Foreign Office’s preferred grounds of argument. At that time we appear to have been resolved to hold the islands for strategic reasons.
If international law is too complicated a matter for the educated layman, then international lawyers might themselves show more reluctance in making public misleading statements about these issues. Academics are paid to be academic. It may sound priggish, but that is their first obligation.
There remains ‘self-determination’, the latest principle brought to bear. It is certainly far from clear that it can be used in this case to determine the sovereignty of a disputed territory. Argentina’s argument in the United Nations, from its foundation, has always been, stated crudely, that a nation cannot invade another’s territory, settle it with its own people, and then demand that the will of the colonisers should settle the status of the territory. The debate between the ‘wishes’ and the ‘interests’ of the islanders has already gone on in the United Nations, where Argentina bases her case on territorial integrity. Argentina has never regarded the islands as a British colony. I suspect that someone, somewhere, thinks our case for self-determination would be strengthened if the Falklanders could be made to look more colonial – ‘non-patrial’, as we now call it. As I write this, the BBC World Service, the best place for such news, reports (24 July 1982) arguments beginning on the islands between Civil Commissioner Hunt, in favour of ‘loosening ties’ and moving towards Falkland independence within the Commonwealth and British management of defence and foreign affairs, and some of the islanders who favour ‘strengthening ties’. In anticipation, it appears that this sort of sleight-of-hand cannot affect the question of sovereignty: nemo dat quod non habet – if you have not got it in the first place, you cannot give it away. It will hardly gain us any allies we have not got already, it will lose us some, and will not improve our reputation for plain dealing. It would be best to leave it all for a while and think.
These are all more or less interesting academic points, inspired by reading Goebel, about how far international law can take one, in considering the origins of this small war, beyond’the good old rule’:
the simple plan
That they should take, who have the power,
And they should keep who can.
(From R. B. Armstrong’s History of Lid-desdale and the Debateable Land.) There are severe limits to what we should expect from international law, and, in Professor Brownlie’s words, ‘there is no obligation in general international law to settle disputes.’ This review is not ‘a defence of Argentina’, and the questions of the invasion, the desirability of stopping Galtieri, of what to do next, are outside its scope. As I have cavilled at his misreading of the Uti possidetis and his mechanistic view of irredentism in the TLS, let me do justice to Professor Ferns, with a quotation from his Argentina (1968): ‘If the problem of the Falkland-Malvinas Islands leads to tragedy, the disaster will be a prime instance of the effects of non-communication all round; of a national dilemma rendered lethal by separate and total ignorance from which the political neuroses of the parties prevent escape. The combination of ignorance, patriotism and devotion to the dogma of self-determination on the part of the British is perhaps more dangerous than Argentine legal pedantry and nationalist zealotry, because the British government is too frightened or complacent to give the British public a lead. And yet it could.’ Post-Chalfont, pre-Ridley, that was neither priggish nor naive. It has the singular distinction of having been wiser before than after the event.