Thursday, 24 January 2013

Falklands and the right to self-determination

The referendum is a reality. The world is going to be watching how the Falklands Islanders exercise their right to self-determination. Yet, it seems the use of the term itself is not very clear either in Argentina or the United Kingdom. Therefore, one of the elements to be better understood before the referendum is exactly that one, the concept of self-determination.

In order to put the things into context let us see some examples of the use of the term since the Falklands war. Both in Argentina and the United Kingdom there are speeches in favour and against it.

Mrs Margaret Thatcher (26/04/1982):
“The Falklanders' loyalty to Britain is fantastic. If they wish to stay British we must stand by them. Democratic nations believe in the right of self-determination. . . . The people who live there are of British stock. They have been for generations, and their wishes are the most important thing of all. Democracy is about the wishes of the people”.

Mrs Margaret Thatcher (14/04/1982):
“We have a long and proud history of recognizing the right of others to determine their own destiny”.

But even in the United Kingdom there is no uncontested position. Mr Edward Heath, House of Commons (14/04/1982) made it clear. His words mean that the principle of self-determination should not apply to the Falklands case.
“[…] the Foreign Secretary is right to say that the wishes of those in the Falkland Islands must be given full consideration, but not to resume our previous position, which was certainly adopted by the Government of 1970 to 1974, that they could veto any solution that was put forward”.

Argentina’s government has been and still is against the application of the principle of self-determination.
Mr Dante Caputo (25/02/2012) sums up Argentina’s position:
“To defend self-determination equals giving up the Islands”.

Nevertheless, there are many in Argentina that supports the opposite idea. As an example, the open letter entitles “Falklands: an alternative vision” (23/02/2012).

Between Argentina and the United Kingdom, the myriad of legal and political documents and speeches, we find the Falkland Islanders. The official website of their government states (accessed 24/01/2013):
“In exercising this right [of self-determination], the people of the Falkland Islands have decided to retain their status as an Overseas Territory of the UK”.

So far, an just with a glimpse of what has been said and written about it, we can easily see that the same term is applied to the same situation in a very different manner. We have here a twofold problem:
a) Firstly, although it seems as the same situation, the way in which is understood is different depending on which side of the Atlantic we are.
b) Secondly, the term self-determination and its interpretation.
On the one hand, and in what it has to do with the first point, we have already seen how and why both the governments of Argentina and the United Kingdom refer to the Falklands case in a different form and why this only grants a never ending conflict. See:
Falklands: another never ending story? (part 1 of 2)
Falklands: another never ending story? (part 2 of 2)
On the other hand, in relation to the second point, and in order to better understand the concept of self-determination, we have to review what International Public Law (IPL) says about it. To discuss the meaning and reasons behind political speeches and documents may be entertaining but does not offer any real or legal useful tool to understand the issue. So we will focus now on some of the documents that are nowadays part of IPL and that both the governments of Argentina and the United Kingdom so often mention. To illustrate the point:

Chapter 1, Article 1, part 2 of the UN Charter states amongst its purposes: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”

UN General Assembly Resolution 1514 Article 2: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”

UN General Assembly Resolution 2649 Article 1: “Affirms the legitimacy of the struggle of peoples under colonial and alien domination recognised as being entitled to the right of self-determination to restore to themselves that right by any means at their disposal”

UN General Assembly Resolution 2625 Article e: “The principle of equal rights and self-determination of peoples”

and others.

And here we can immediately see the origin of the disparity in interpretation and the key to use the same concept of self-determination in different forms depending on the interest we support. Because of the vagueness and ambiguity of language legal norms will necessarily have an open texture. And because of the open texture of language, there will be a core of settledness and a penumbra of unsettledness in every legal rule. In simpler terms, any word (and it also happens in law) can have different meanings; for example, a norm banning “vehicles” from city centres would easily be understood for cars;  what about bicyles?

Self-determination as a legal concept has the same problems. The term itself and its components are not clearly defined (what do “people”, “nation”, and “right” mean?). And that is “translated” in arguments coming from the United Kingdom used to validate their policy in regards Falklands. But it is also “translated” in counterarguments coming from the Argentinean government to show exactly the opposite.

We will see on Monday why and how the term self-determination and its components can be understood. From there, we will see more clearly why this same term is so ample that can embrace positive change, yet it may be used to secure the cero sum game through the status quo. We will see that however the concept is understood, the Falklands Islanders do have the right to be listened.


  1. The right to Self Determination is one of the most fundamental rights of all human beings. It ranks alongside the right to life itself. It has so much significance in the Falkland Islands dispute, that Argentina would prefer to ignore it, or claim that the Islanders have no right to it at all, because they are transplanted from the United Kingdom.

    This is patently untrue and Argentina knows this. The majority of Falkland Islanders were born in the Islands to people who were also born in the islands. Some can trace their ancestory back 9 generations. Longer than the state of Argentina has existed. The Islanders did not solely originate from Great Britain. They come from many nations, including Britain, France, Germany, Norway, Sweden, Finland, Russia, Italy, Gibraltar, United States, Australia, New Zealand, South Africa, St Helena, Ascension Island, Uruguay, Chile and even Argentina.

    Argentina’s claims to the Islands are based on a number of factors, but sadly, many of them are built on historical lies. That’s a very strong statement to make but ultimately true, because the Argentine Government is aware of the true facts. Any sovereignty claim based on lies is legally invalid from the start. It does not matter how many times Argentine politicians repeat these lies, it will not make them true. Documentary proof is available which refutes the lies.

    As you point out in your post, Argentina knows full well that accepting any right to Self Determination for the Falkland Islanders would be tantamount to giving up any claim to the Islands forever. Argentina gave up any legitimate claim to the Falkland Islands in 1850 when they signed the Arana-Southern Treaty, the Convention of Settlement.

    Any international court has to give priority to the rights of the people who have peacefully lived on the Islands and developed them for the betterment of the inhabitants. The term peaceful prescription is appropriate and that peace was only interrupted in the past 180 years by the aggressive Argentine invasion of 1982.

    Questioning the very meaning of Self Determination not only indicates recognition of the strength of this right in respect of the ownership of sovereignty, but could be construed as intellectually dishonest. The United Nations has codified Self Determination perfectly adequately:

    “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”

    Self-Determination is a simple concept. It has meaning for the individual, the community or the state, but all three are based on the principle of the right to freely determine or choose your own future, be it economic, social, cultural or national identity.

    In your previos blog posts, you’ve suggested that the Islanders should be given an ‘equal’ say in the sovereignty discussions, but only if they participate. As I pointed out though, their right of Self Determination gives the Islanders the trump card. This right supercedes any claim by Argentina or Britain. It is for the Islanders to decide their own future and any International Court would give priority to their wishes over and above any national claim by anyone else, especially any nation that has engaged in aggressive conquest.

    Your statement that the Islanders should be accorded an equal right in discussions was to suggest that their right to Self Determination should be diminished in value, so that the rights of others (Argentina) can be strengthened. The very fact that Argentina pointedly ignores the Falkland Islanders and refuses to acknowledge them at all in any negotiations, demonstrates that Argentina is aware that the Islander’s right to Self Determination overwhelms and cancels any claim Argentina might make.

    So to question the very nature of Self Determination in order to diminish its significance is acknowledgement of the overriding strength of this right for the Falkland Islanders and demonstrates the bankruptcy of the Argentine claim.


  2. Firstly, many thanks for the opinion. And in particular, for being so thorough. As in your previous opinions, I agree with most of your statements. However, as I have made clear before, the intention behind these posts is to have an open floor for discussion both formed and mature. The main reason, because of the lack of such discussion at governmental level while having almost 3000 people in the middle waiting for their destinies t be decided (and not only them but also future generations of Falkland Islanders).
    Therefore, I am and will discuss concepts and notions, opinions and facts from an objective point of view without any value judgement. As stated before in one of my previous posts, we will always have two accounts of historical events. And even if both governments, Argentina and the United Kingdom, agreed on the fact, it seems almost impossible for them to agree on which ones grants sovereignty. So not only: I came first! No, I came first! But also: I came first! Yes, sure, but I saw them first!
    In one case or another, to call "liar" the other party doesn't have more effect than securing this never ending story. Argentinians have their "true facts". Britons have their "true facts". They don't agree. They won't ever agree. Let's face it and move onto a more proactive solution.
    I personally and academically have experience in both ways of understanding this reality. The same speech delivered in English and Spanish in the United Kingdom and in Argentina, respectively, has a very different reaction.
    As expressed before in another post, I won't discuss the facts. And I have also made clear why.

    Indeed, Argentina's government knows that accepting self-determination may mean giving up any claim. However, I don't agree it literally means that. Even in the best case scenario in which Argentina was granted sovereignty over the Falklands islands, that would need to be discussed and accepted by the Islanders (at the end of the day, the ones mainly affected by any decision).

    Self-determination is not a simple concept. If it was so simple, why then so many worldwide problems in applying it? And here, I not only refer to the Falklands case. Moreover, why more than 30 countries signed a document recognising Argentina's sovereignty over the islands?

    I did no suggest the Islanders should have an 'equal' say. I maintain it. Being independent, being United Kingdom overseas territory, sharing sovereignty or being part of Argentina, in any case their natural and closest main market (amongst many other things) is and will always be Argentina. In addition to Argentina, the rest of the Latin-American countries.
    Furthermore, not letting Argentina have a say would be basically "being intolerant with the intolerant", far from British way of being and values.

    I'll be writing further about self-determination on Monday so some of the points you rightly make will be addressed then. Once again, many thanks for your insight. I find I extremely clear and well developed. And more than that, although having a position taken, very respectful.