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 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.