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New alternative approaches to solve international territorial disputes: The Falklands/Malvinas case
The blog series considers today why currently available international law procedures and remedies are consistently failing to address peacefully and permanently the most controversial international territorial disputes. In doing so, the post will use the Falklands/Malvinas dispute as the central example. The post will finish with a section explaining exploring new approaches like those proposed by Dr. Jorge Emilio Nunez is crucial:
Why Current International Law Procedures and Remedies Fail
- Sovereignty and Self-Determination:
- Non-Negotiable Sovereignty: Both Argentina and the UK fundamentally see sovereignty over the islands as non-negotiable due to historical claims, national identity, and political prestige. Negotiations often fail because any compromise might be perceived as a loss of sovereignty, which is politically costly.
- Self-Determination: The principle of self-determination, supported by the islanders’ referendums favoring British sovereignty, complicates matters. Argentina disputes the validity of these referendums based on historical claims and demographic changes. This creates a deadlock where international law’s emphasis on self-determination clashes with historical territorial rights.
- Arbitration and Mediation:
- Lack of Binding Mechanisms: Arbitration or mediation outcomes are often non-binding unless both parties agree beforehand to accept the decision, which they haven’t in this case. Even if binding, there’s resistance to accept outcomes that don’t align with national interests.
- Bias Perception: Both countries might perceive third-party mediators or arbitrators as biased, especially given the geopolitical context and historical alliances.
- International Court of Justice (ICJ):
- Jurisdiction Issues: Neither Argentina nor the UK has unconditionally accepted the ICJ’s jurisdiction for this dispute. The UK has excluded territorial sovereignty from ICJ jurisdiction, and while Argentina has accepted it conditionally, this mutual non-acceptance makes legal recourse through the ICJ unlikely.
- Enforcement Problems: Even if the ICJ were to rule, enforcement of such decisions can be problematic without both parties’ consent, especially when it involves territory.
- United Nations:
- Political Deadlock: The UN Security Council, where both nations are involved indirectly through allies or veto power, has not been effective in pushing for a resolution due to geopolitical interests.
- Decolonization Narrative: While the UN’s decolonization agenda might support Argentina’s historical claim, the self-determination of the islanders, also a UN principle, counters this narrative, leading to no clear path forward within existing frameworks.
- Conciliation:
- Limited Success: Conciliation efforts have been hampered by the same issues as negotiation – lack of willingness to compromise on core issues and the political cost of appearing to back down.
Why New Approaches Like Nunez’s 2017 and 2023 Proposals Are Necessary
Without claiming Núñez’s 2017 and 2023 are the solution to international territorial disputes like the Falklands/Malvinas case, it is of utmost importance to do both, question current viability of traditional international law procedures and remedies for conflict resolution that are consistently failing to do what they are meant to do; acknowledge intricate international territorial disputes require more comprehensive approaches.
- Innovative Sovereignty Concepts:
- Núñez ‘s idea of “Egalitarian Shared Sovereignty” offers a way out of the zero-sum game by redefining sovereignty in terms of shared governance, which could align with international law principles while addressing the unique aspects of this dispute.
- Inclusion of Multiple Stakeholders:
- By recognizing the roles of individuals, communities, and states in different capacities (hosts, participants, attendees), Nunez’s frameworks provide a more comprehensive understanding of the dispute, potentially leading to more inclusive solutions that respect all parties’ rights.
- Cosmopolitanism and Justice:
- Núñez ‘s 2023 work introduces cosmopolitanism, advocating for solutions that go beyond state-centric views to consider global justice, which is crucial in disputes where human rights, cultural identity, and self-determination are at play.
- Dynamic Game Theory Application:
- Traditional game theory might predict ongoing stalemates or conflicts, but Nunez’s integration of game theory with new legal and political theories could provide insights into strategic shifts towards cooperation, showing how all parties could benefit from peace rather than war.
- Breaking the Deadlock:
- The traditional mechanisms have entrenched the conflict in a pattern of inaction or escalating rhetoric. Nunez’s proposals could provide a theoretical breakthrough by offering conceptual tools to reframe the dispute in terms of shared benefits, thus potentially unlocking a dialogue that has proven elusive with current methods.
In summary, the persistent failure of traditional international law mechanisms in the Falklands/Malvinas case stems from their inability to reconcile deeply held national interests with the evolving principles of international law, particularly self-determination. New theoretical approaches like those from Núñez could introduce innovative ways to conceptualize, discuss, and resolve territorial disputes by considering a broader spectrum of interests and rights, potentially leading to a more just and peaceful outcome.
NOTE:
This blog series introduces, explains and assesses issues pertaining territorial disputes in the Americas including law, politics, culture, history and religion. There will be new posts every Monday, Wednesday and Friday.
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Prospect theory, game theory and international territorial disputes
AUTHOR’S SAMPLE PEER-REVIEWED ACADEMIC RESEARCH (FREE OPEN ACCESS):
State Sovereignty: Concept and Conceptions (OPEN ACCESS) (IJSL 2024)
AUTHOR’S PUBLISHED WORK AVAILABLE TO PURCHASE VIA:
Friday 24th January 2025
Dr Jorge Emilio Núñez
X (formerly, Twitter): https://x.com/DrJorge_World
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