Falkland Islands – What the ICJ (International Courts of Justice) Might Say About Argentina’S Claims

Falkland Islands – What the ICJ (International Courts of Justice) Might Say About Argentina’s Claims Stephen Potts Table of Contents 1. Introduction 2 1.1 Argentina’s Claim and Initial Protest 2 The Treaty of Peace 2. Convention of Peace Treaty 2 2.1 Treaty Law, the Convention of Peace and the Falklands 2 2.2 Carlos Pereyra 3 2.3 Absalon Rojas 3 2.4 Ernesto Fitte 3 2.5 Juan José Cresto 4 2.6 Lord Palmerston 4 2.7 Convention or Treaty? 4 2.8 Acquiescence and Estoppel; the 1882 Latzina Map 5 2.9 Sovereignty Protests 6 Modes of Acquiring Title to Territory 3. Proximity 8 3.1 Prescription (effective control) 8 3.2 Argentina’s Claims of Sovereignty by Effective Occupation 1820 – 1833 10 3.3 Immemorial Possession and Historical Consolidation 14 3.4 Military Occupation leading to Conquest and Subjugation 16 3.5 Uti Possidetis Juris and Nootka Sound Convention 17 Self-Determination 4. Territorial Integrity and Argentinean Stance 20 4.1 A People 21 4.2 Indigenous People 22 4.3 Self-Determination 23 4.4 Erga Omnes 24 4.5 Implanted Population 25 4.6 Population Size 26 4.7 Free Association With the UK and the UN C24 Decolonization Committee 27 4.8 ICJ Individual Opinions 28 Historical Context 5. Snapshot of Falklands History 1826-1833 29 5.1 UN Charter & Resolution 2625 (XXV) 30 5.2 UN Resolution 2065 (XX) Question of the Falkland Islands 30 Argentina's Record & Arbitration 6. Argentina’s Record 31 6.1 UN Conventions & Argentina’s Declarations 31 6.2 Falkland Islands’ Territorial Waters 32 6.3 Extinctive Prescription – Argentina’s Failure to Submit its Claim 33 6.4 Argentina Has Acquiesced to British Title 34 6.5 The International Courts of Justice and International Arbitration 36 Conclusion 7. Conclusion 37 1 1. Introduction If Argentina and the UK both agreed to submit the Falklands issue to the International Courts of Justice for an opinion, what might the ICJ decide? The information provided below will examine Argentina’s claims, the Convention of Peace of 1850, acquiescence and estoppel before dealing with proximity, modes of acquiring territory, Argentina’s claims and territorial integrity arguments; moving on to social and cultural aspects of self- etermination, the UN Charter, applicable UNGA resolutions and concluding with Argentina’s history of dealing with treaty obligations. The attached information based on previous ICJ Judgments, Advisory Opinions, UN resolutions and associated matters might provide the answer as to how the ICJ would deal with such a case. 1.1 Argentina’s Claim and Initial Protests Argentina claims that it inherited the Falklands from Spain, a process known as uti possidetis juris and that in 1833 Britain usurped an Argentine settlement in the Falkland Islands, expelled the population (which is Argentina’s best-known falsehood), and then settled the Islands by implanting a population (Argentina’s second- best-known falsehood). 1 The Argentine government then protested about the British presence on the Falklands in its annual opening statement to Congress every year from 1833 right up to the ratification of the Convention of Peace in 1850. Furthermore, Argentina protested to Britain in 1833, 1834, 1841, and 1849 (when Argentine ambassador Manuel Moreno, unaware that Rosas was preparing to agree the Convention of Peace, queried the comment by Secretary of State for Foreign Affairs Lord Palmerston that Argentina was giving up its claim). 2 2. Convention of Peace Treaty The Argentineans now deny that the Convention of Peace, which Britain and the Argentine Confederation ratified in 1850, affected the Falklands, but many authors say that it did. The main purpose of the treaty was to put an end to the Anglo-French naval blockade of the Rio de la Plata. Although no mention was made of the Falkland Islands in the treaty, the pre-amble of the treaty clearly states: “Convention for re-establishing the perfect Relations of friendship between Her Britannic Majesty and the Argentine Confederation”. It was signed at Buenos Ayres on November 24, 1849, and ratifications were exchanged on May 15, 1850. 3 2.1 Treaty Law, the Convention of Peace and the Falklands It is a principle in law that any land/territory not mentioned in any peace treaty remains with the possessor. The law applicable and in force at the time states, ‘The treaty of peace leaves everything in the state in which it found it unless there is some express stipulation to the contrary. The existing state of possession is maintained, except so far as altered by the terms of the treaty. If nothing is said about the conquered country or places, they remain with the conqueror and his title cannot afterwards be called into question.’ 4 International law on treaties is determined by the Vienna Law of Treaties, 1969. Article 31 (3) states: There shall be taken into account, together with the context, (c) Any relevant rules of international law applicable in the relations between the parties. 5 On the interpretation of subparagraph (c) Professor Lindefalk writes, ‘If it can be shown that the thing interpreted is a generic expression with a referent assumed by the parties to be alterable then the decisive factor for determining the meaning of the ‘’relevant rules of international law’’ shall be the law applicable at the time of the interpretation. In all other cases, the decisive factor shall be the law applicable at the time when the treaty was concluded.’ 6 The principle in law at the time of the signing of the treaty is also relevant. Sir Gerald Fitzmaurice in the Law and Procedure of the International Courts of Justice writes, ‘In a considerable number of cases, the rights of states (and more particularly of parties to an international dispute) depend or derive from rights, or a legal situation existing at some time in the past, or on a treaty concluded at some comparatively remote date… 1 Falklands War: the First 400 Years, Claims, Chronology & Counter-Claims, Lorton R. 2012, P80 & 115 quoting PRO Adm 1/2276. & AGN Sala Vll Legajo 60, p22. 2 False Falklands History at the United Nations, Pascoe & Pepper, 2012. 3 Convention of Peace Treaty, British and Foreign State Papers 1848-1849. 4 Elements of International Law: With a Sketch of the History of the Science, Wheaton, H. 1836, p288 and Elements of International Law, Halleck, H.W., 1866, p353. 5 Vienna Convention Law on Treaties, Article 31 (3) C, 1969. 6 On the Meaning of Treaties, Linderfalk, U. p182, 2007. 2 It can now be regarded as an established principle of international law that in such cases the situation in question must be appraised and the treaty interpreted, in the light of the rules of international law as they existed at the time, and not as they exist today.’ 7 The above principle was adopted by the Institute of International Law in 1975 when they adopted the following resolution: Any interpretation of a treaty must take into account all relevant rules of international law which apply between the parties at the time of the application. 8 The above was supported by Vice President Weeramantry in the ICJ Danube Dam Case of 1997 when he stated, ‘It may be observed that we are not here dealing with questions of the validity of the Treaty which fall to be determined by the principles applicable at the time of the Treaty…’ 9 The wording of the Treaty is important – ‘Convention for re-establishing the perfect Relations of friendship between Her Britannic Majesty and the Argentine Confederation’, is written as the pre-amble of the treaty. In the ICJ case between Libya and Chad judgment the ICJ ruled regarding the meaning of the text and stated, ‘a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in light of its obligations and purpose. Interpretation must be based above all on the text of the treaty.’ 10 The Treaty was initially called, ‘the Convention of Peace’ by both Britain and Argentina:- ‘November 24th, the Chamber of Representatives authorizes Governor Rosas to ratify the convention of peace between the Argentine Confederation and the United Kingdom of Britain,’ when Britain’s ratification is presented. The Treaty is recognized as ‘a convention of peace, signed by the Argentine and British plenipotentiaries.’ 11 This fact confirms that it was indeed a peace treaty and both sides interpreted it as settling ALL outstanding differences. Four important Spanish language sources confirm that this convention did in fact end the Falkland’s dispute and put an end to Argentina’s claims. 2.2 Carlos Pereyra Carlos Pereyra, Mexican diplomat and historian in his book, Rosas Y Thiers – La diplomacia europea en el Rio de la Plata (1838-1850) published in Madrid in 1919, says that he believes that Rosas (Argentine Head of State) was willing to buy Britain’s departure from the River Plate by ceding Argentina’s claims to the Falklands (page 202). He also states that Britain keeping the Falklands was an unwritten 8th article of the convention (page 206).12 2.3 Absalon Rojas On 19th July 1950, Deputy Absalon Rojas, in the Argentine Chamber of Deputies (Lower House of Congress) clearly believes that the convention should have made mention of the Falklands to exclude them, but did not. He then continues in this official record by stating that this might not have harmed Argentina’s claims judicially – but it has. 13 2.4 Ernesto Fitte Well known Argentine historian Ernesto Fitte also wrote about the convention of 1849/50 in his book ‘Cronicas del Atlántico Sur,’ published in 1974.

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