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.