NOTES

Introduction 1. Throughout this book the islands in question will be referred to as "'the (Malvinas)," following the practice adopted in 1964 by the U.N. Special Committee on the situation with regard to the implementation of the Declaration on the Granting oflndependence to Colonial Countries and Peoples (see 19 U.N. GAOR Annex 8 (Agenda Item 21, addendum item part 1), at 439, U.N. Doc. A/5800/Rev. 1 (1964- 65))-or as "the Falklands/Malvinas," for short. Places in the islands will be referred to according to the names given by those living in the islands.

Chapter 1 I. Falkland Islands Letters of Patent of July 21, 1908 (1912), 101 British and Foreign State Paper.1· (hereinafter cited as B.F.S.P.), 76 (1907-08) 2. B.F.S.P., supra note 1, amended by the Letters of Patent of March 28. 1917 (1912), 111B.F.S.P.16 (1917-18). 3. British Antarctic Order in Council, 1962. issued February 26, 1962. 1962 S.I. No. 400. See also "British Antarctic Territory/Report for the Years 1961 to 3 March 1967" (London, 1967). 4. For text of the Antarctic Treaty, see A.J.l.L. 54 ( 1960). at 476. Article 4 reads in part: "No acts or activities taking place while the present treaty is in force shall constitute a basis for asse11ing, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present treaty is in force." 5. The Falkland Islands (Malvinas) has been the central dispute between Britain and . Britain offered in 1947 to submit the dispute concerning the so-called Falkland Islands Dependencies (which included the Antarctic territory also in dispute at the time) to judicial settlement by the International Court of Justice (ICJ ). but Argentina (and Chile, which also had competing claims to the Antarctic area) refused to accept. On May 4, 1955, Britain submitted a unilateral application instituting proceedings before the ICJ against Argentina and Chile. The application was rejected on grounds that neither Argentina nor Chile were subject to compulsory jurisdiction. See 1955-1956 l.C.J. Y .B. 77-78 ( 1956). On the legal claims by Britain and Argentina to South Georgia and South Sandwich. see Ferrer Vieyra, Las Islas Malvina.1· y el Derecho /11tenwti01wl (, 1984) (hereinafter cited as Ferrer Vieyra 1984 ), Ch. 5: Waldock, "Disputed Sovereignty in the Falkland Dependencies," I 948 British Y.B. <>( /11ternllfio11al Law (hereinafter cited as Waldock), at 311; Hope, "Sovereignty and Decolonization of the Malvinas (Falkland) Islands," Bo.1·to11 College International and Comparatii·e Llfw Rei·iew 6 ( 1983) (hereinafter cited as Hope), at 394-97: R. Perl, The Falklallll /sla11ds Dispute in International LJ.1w and Politics (1983) (hereinafter cited as Perl), at 8-12. On the relation between the Falkland Islands (Malvinas) and Antarctica. see Beck. Looking at the Falkland Islands from Antarctirn: The Broader Regional Perspectii•e. 30 Polar

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Record (174) (1994) at 167-180. Though not dealing with the legal claims to South Georgia and the South Sandwich Islands, this book approaches these territories as integral part of the problem to be solved by the parties through negotiations. In 1965 the accepted that negotiations over sovereignty between Britain and Argentina extended not only to the Falkland Islands (Malvinas) but also the South Georgia and South Sandwich Islands. Further, Britain and Argentina included such territories in their negotiations before the 1982 military conflict (see Chapter 5). The inclusion of these territories as part of the Falkland Islands (Malvinas) "problem" presents challenges but also opportunities in the search for a peaceful solution to the Anglo-Argentine dispute. 6. See Chapter 3. 7. United Nations General Assembly, Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, Falkland Islands (Malvinas ), working paper prepared by the Secretariat, U.N. Doc. NAC.109/2105, at 3. See also British Foreign and Commonwealth Office, ''Falkland Islands (Malvinas) Report 179. August 1986 (NAC.109/878)" (hereinafter cited as "British Report 1986"), at I. 8. South Georgia, an island of 3,592 square kilometers, is situated about 1.300 kilometers east-southeast of the Falkland Islands (Malvinas) group, and the South Sandwich Islands. covering an area of 311 square kilometers, lie about 750 kilometers east-southeast of South Georgia. "British Report 1986," supra note 7, para. I. Neither has an indigenous or permanent population. 9. Strange, The Falkland Islands (1972) (hereinafter cited as Strange) at 33. 10. Id. 11. Officer of the Geographer, "U.S. Dept. of State Geographical Fact Sheet on the Falkland Islands (Malvinas)," 1982 (hereinafter cited as "Geographical Fact Sheet"). In total the Falkland Islands (4.700 square miles) are a little smaller than the state of Connecticut (5,900 square miles). 12. See Strange, supra note 9. for a description of the islands' topographical features and climatic conditions; see also Davis, The Grassland.1· of the Falk/and Islands (1939). 13. See http://www.fco.gov.uk/news/keythemepage.asp? 113. For details on demographic composition. see Conrado Etchebarne Bullrich. Falklands or Malvina.I'? (2000) at 124- 127 (hereinafter cited as Bullrich). The full text of this book may be found at http:/www .americanos.org/ful ltext.htm. 14. See http://www.falklands.gov.fk/4.htm. 15. "Ordinance of the Colony of the Falkland Islands 1915." in The law.1· Of The Falklands (revised in 1951 ). 16. Bullrich. supra note 13, at 125-126. As of this writing. the estimated population exceeds this number. 17. A detailed outline of the new constitutional provisions is set out in British Foreign and Commonwealth Office, "Falkland Islands (Malvinas) Report (A/AC !09/835)," para. 4-39 (hereinafter cited as "British Report 1985"). 18. "South Atlantic Territories: The Falkland Islands Constitution Order, 1985"

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(Statutory Instruments 1985/444). 19. U.N. Doc. A/AC,109/2105, at 3. 20. "South Atlantic Territories: The South Georgia and South Sandwich Islands Order, 1985" (Statutory Instruments 1985/449), cited in "British Report 1986," supra note 7, at para. 5. 21. Statement by the Secretary of State for Foreign and Commonwealth Affairs, in Parliamenwry Debates. Commons, 14 March 1985, 492-494. 22. Sir Geoffrey Howe speaking in the House of Commons, Parliamentary Debates. 14 March 1985, col. 492; see "British Repmt 1985," supra note 17. 23. The Parliamentarian. July 1985, LXVI No. 3, Blake at 110. 24. Elections were held on October 9, 1997. Fourteen candidates stood for the eight seats: five from the and nine from . Three new councilors were voted and five were reelected to the new council. , Lewis Clifton. and are the new ones, and John Birmingham, . . , and Mike Summers are the reelected ones. Falkland Focus. Number 63 (December 1997) at http://www.falklands.gov .fk/9d.htm. 25. The first executive and legislative councils were set up in 1845. Members of both councils were appointed by the governor until 1949. In 1949 popular elections were introduced for four of the twelve seats on the Legislative Council. In 1964, the size of the Legislative Council was reduced to eight, half of the members being elected. In 1977, an amendment was passed providing that the Executive Council would consist of two elected and two ex <>tficio members of the Legislative Council and two nominated members. The Legislative Council would consist of two ex <~tflcio and six elected members. 26. S.I. 1985/445. 27. "Falklands Islands Economic Survey 1982" (London. H.M. Stationery Office. September 1982. 8653) (hereinafter cited as the "l 982 Shackelton Report"). 28. The dominant role of the FIC in the economy of the islands has been pervasive for most of the life of the British colony. Newsweek. in its issue of May 3, 1982. at 68, styled the Falkland Islands Company as a "privately owned monopoly enforced by the British Government." At that time it owned 43 percent of the land, an equivalent proportion of the sheep. warehouses. and ships, and employed 80 percent of non-government employees in the islands. It was the sole agent for sale of the wool crop-hence the territory's development has paralleled the growth of "the Company." For details about FlC' s current operations, see http://www.the-falkland-islands-co.com. 29. Strange. supra note 9. chs. 7 and 8. 30. Id., ch. 8. 31. See http://falklands.gov.fk/lOb.htm. 32. "Geographical Fact Sheet," supra note 11. at 4. It requires approximately four acres to support one animal. In 1983/84 the total number of sheep was estimated to be 679.000. Currently it is estimated to be 712,650. Source: http://falklands.gov.fk/lOb.htm. 33. British Foreign and Commonwealth Office, "Falklands Islands (Malvinas) Report. August 1983 (A/AC 1091752)" (hereinafter cited as "British Report 1983"). para. 65.

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34. Id .• para. 52. 35. For an abstract of the estimated revenue and expenditure for the Falkland Islands government for the 1998-99 financial year, see http://www.falkland.islands.gov.fk/7.htm. 36. For further details, see Chapter 6. 37. For further details, see Chapter 6. 38. Reisman, W. 'The Struggle for the Falklands," 93 YALE L.J. 260 (1983) (hereinafter cited as Reisman). 39. As Michael Reisman puts it, "Under the British, the Falkland Islands became 'Falklands Ltd.,' essentially a company town." Id. According to the Guardian of 21 June 1983. the House of Commons Foreign Affairs Committee, which visited the territory in February 1983. concluded in a report unpublished as of that date, that "the continued dominance of the economy of the colony by a single company with both a major stake in the basic industry and effective conu·ol of the colony's activities is both anachronistic and a serious inhibition to the development of a confident. independent and self-reliant community in the Falklands" (cited in British Report 1983, supra note 33. para. 73). Alejandro Betts. a former islander now living in Argentina, records the sentiment of many islanders towards the FIC in the prewar era: see Alejandro Betts, Mi Tierra Natal ( 1987) ( hereinafter cited as Betts). 40. HMSO, "Disputed Islands," at 10. 41. British Report 1985, supra note 17. 42. HMSO. "Disputed Islands" at 10. 43. British Report 1985, supra note 17. para. 80-84. For further details see Chapter 5. 44. These flights were suspended in March 1999 (for reasons related to the extradition of former Chilean president Augusto Pinochet before the British House of Lords) and resumed in August 1999. See Chapter 6. For further current information on the islands and their inhabitants, see the following internet sources. On the economy: the Falkland Islands Government website at http://www.falkland.islands.gov .fk/7 .htm (general information); fk/ I Oa.htm (development): fk/lOb (agriculture); fk/IOc.htm (industries and services): fk/!Oe (fisheries): fk/ IOh (oil).On fisheries in particular: http://www.falkland• malvinas.com/statistic/fishstat_2000_06.html (statistics on monthly catch). On oil in particular. see the FIG website at fk/oildept.htm (with bi-monthly newsletters by the Department of Mineral Resources of the FIG). On communications. see FIG website at fk/!Og.htm. On islanders, see FIG website at fk/4 (people). Mercopress has a website (http://www.falkland-malvinas.com) including news updates on the islands: cover page of the local weekly paper. Pe11g11i11 News: a business directory: and census and economic information on fisheries and oil. Other websites include the Falkland Islands News Network (http://www.sartma.com/) and the Falkland-Malvinas Forum (http://www.falklands-malvinas.com/). Books and articles of the earlier period include A Brief Acco1111t ()j' the Falkla11d Islands a11d Tierra di!! Ful!go, with an Appntl f(n· F1111d.1· for Chri.1·t Church, by Waite Hockin Stirling. Bishop of the Falkland Islands ( 1891 ): Nuestra Mafrinw: Viaie de Eswdio y Observaci011, by Juan Carlos Moreno (1938 ): 33 Aiio.1· de Vida Malvinera. by Jose Luis

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Migone. a Catholic priest of Uruguayan nationality who served on the islands for thirty• three years, from 1905 until his death in 1937. In its issue of March 1956. National Geographic Magazine carried an article entitled "People and Penguins on the Faraway Falklands." Worthwhile general interest books on the islands and their people (besides those cited here in notes and bibliography) include Wigglesworth, Falkland People (1992): Trehearne, Falkland Heritage (1987); Morrison, The Falkland Islands (1990); Chater, The Falkland.\' (1993); Strange, The Falkland Islands and Their Natural History (1987). Other titles may be found at http://www.falklands.gov.fk/9a.htm.

Chapter 2 1. See Goebel, The Struggle for the Falkland Islands ( 1927) (hereinafter cited as Goebel), ch. 1; Munoz Aspiri. Historia Comp/eta de las Malvinas (Buenos Aires, 1966) (hereinafter cited as Munoz Aspiri). vols. 1, 2, and 3; Boyson, The Falkland Islands (1923), (hereinafter cited as Boyson). 1-25: Cawkell, The Falkland Story 1592-1982 ( 1983 ), (hereinafter cited as Cawkell), at 1-8; Groussac, Las Islas Malvinas (1982) (hereinafter cited as Groussac), ch. 2; Barcia Trelles, El Prob/enw de las Malvina.1· (1943); Hidalgo Nieto, La Cuestion de las Malvina.1· (1947) (hereinafter cited as Nieto), ch. 6: Callet Bois, Una Tierra Argentina, Las Malvina.1· (1982) (hereinafter cited as Callet Bois), ch. l; Destefani. Las Malvina.1· en la Epoca Hispana: 1600-181 I (1981) (hereinafter cited as Destefani), ch.2; F. Hoffman and 0. H. Hoffman. Sovereignty in Dispute: The Falkland!Malvinas, I 493- I 982 (Colorado. 1984) (hereinafter cited as Hoffman), ch. 2; Beck. The Falkland Islands as an International Problem (1988) (hereinafter cited as Beck), part 2; and Perl. The Falkland Island Dispute in lmernational Law and Politics (1983) (hereinafter cited as Perl). at 4-5. 2. The famous navigator Americo Vespucci, during his third voyage in 150 I. claimed to have sighted land that could have been the Falkland (Malvinas) archipelago. In his letter dated September 1504 to Piero Francisco Soderini. Gonfalonieri of Florence from 1502 to 1512. Vespucci wrote that while sailing on a southeasterly course from the South American coast, at a latitude close to the location of the Falkland (Malvinas) Islands, he discovered "a land with neither harbor nor inhabitants and very cold." Goebel, supra note I. at 3. 3. In his famous voyage around the world. Magellan left the port of Sevilla on August 10. 1519. and reached the southern region early in the following year. After traveling through the Rio de la Plata estuary, the expedition sailed toward the Antarctic and encountered two islands where the crew reported finding geese and sea wolves. Goebel, supra note 1, at 12. Spanish maps and charts of 1522-23. 1526-27. and 1529 .. and the famous 1541 lslario of Santa Cruz. official cosmographer of Charles V, portray these islands with the name of Sanson or Patos and located off Port Deseado in a 48-49 South latitude. For a further description of the Magellan expedition and copies of the maps see Hoffman. supra note I. at 18-25. 4. In 1539, Alonso de Camargo. commanding three vessels equipped by Gutierrez Carbajal, the Bishop of Plasencia. sailed towards the west coast of South America through the Magellan Strait. While entering the strait in early 1540. the flagship was wrecked due to bad weather. The captain-general and his crew were rescued by one of the

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access 240 I Breaking the Deadlock other vessels and proceeded to Peru. The third vessel, however, turned back to the mouth of the strait and was driven by a gale to Cape Virgins. Unable to rejoin the captain• general, it was forced to anchor. The wind continued to blow so violently that the anchor cable parted and the ship was forced to set sail. The log of the vessel records that while sailing "on its way back to Spain sighted eight or nine islands ... bare, with no trees, very cold and very windy, the prevailing winds being from the southwest and west ... (with) many ducks, foxes and seals." Goebel, supra note I, at 18. 5. Louis Antoine de Bougainville, a Frenchman who established the first colony in the islands, affirmed in 1771 that Vespucci had been the discoverer. Hoffman, supra note I. at 17; Goebel, supra note I, at 3, 4. Goebel concludes that "one cannot determine with any degree of scientific accuracy the identity of the lands sighted by Vespucci." Id., at 7, 8. In support of Goebel's position, see Callet Bois, supra note I. at 17, and Destefani. supra note I. at 54-55. 6. In support of Magallanes, See H. Ratto, Hombres de Mar en la Historia Argentina (1941 ), at 19; Ruiz Guinazu, Proa.1· de Espana en los Mares de Magallanes (1945), at 83- 86; De Gandia, "Las Islas de San Antonio," 146 Revista Geogrqfia Americana, 265 (1945). According to the statement made on September 9, 1964. by Jose Maria Ruda, the Argentine delegate before the Sub-commission III of the Special Committee of the United Nations for the Application of Resolution 1514 (XV). the first discoverer was the pilot Esteban Gomez of the Magellan expedition in 1520. See Perl. supra note 1, at 353. See also Hoffman, supra note 1, at 18 (claiming that they were probably the small group of islands lying at the northwest point of the Falkland (Malvinas) archipelago. known as the Jason Islands). Goebel argues that in the /slario of the expedition. the islands are depicted at 18 leagues from the San 1ulian Bay. Such distance makes it improbable. in Goebel's opinion. that the nearest of the Falkland (Malvinas) archipelago (about 75 leagues away) could have been discovered by the Magellan expedition. Goebel. supra note 1, at 14. In support of Camargo. see E. Ravena!, Isles <>l Discord: A File on the Falklands ( Malvina.1") (1983) (hereinafter cited as Ravena!). at IO. I I. Goebel affirms that ''having examined the data with some care, I come to the conclusion that the land discovered by the Jncognita was the Falkland Group. and that any other conclusion is excluded by the peculiar climatic and oceanic conditions of this region. and by the details of the voyage given in the log." Goebel. supra note I, at 23. See also. in agreement, Destefani, supm note 1, at 56. 7. Boyson, supra note 1, at 19. But even Argentine scholars are ready to state that there is no conclusive evidence that the Spanish discovered the Falkland Islands (Malvinas). Destefani. supra note I. at 55. See also Beck, supra note I. at 63. 8. John Davis was part of the expedition of Thomas Cavendish to the Indies in 1591. Davis, commanding the Desire. lost sight of Cavendish in Po11 Deseado and sailed towards the Magellan Strait. There he encountered a severe storm which drove the ship into a group of islands about 50 leagues from the Patagonian coast. John Jane. a crew member who compiled an account of the expedition, wrote. "We were driven in among certain isles never before discovered by any known relation. lying fifty leagues or better from the Shoare East." See Boyson, supra note I . at 22. See also Ravena!, supra note 6. at 12,13.

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9. Two years after the Cavendish expedition, Sir Richard Hawkins. also commanding an expedition to the South Atlantic, sighted land off the Patagonian coast which he described as a mountainous land with great rivers, fires, and temperate climate. and with inhabitants. See Goebel, supra note 1, at 36-37. 10. Cawkell, supra note 1, at 1. See also other references in Gustaffson. The Sovereignty Di.vpute Over the Falkland (Malvinas) Islands (1988) (hereinafter cited as Gustaffson), at 3. 11. Goebel is pretty skeptical about the claims of discovery made by the above British navigators. First, the location of the islands provided by Davis and Hawkins are either imprecise or incorrect. Indeed, Davis provides no latitude measures, although he estimates that they were about 50 leagues away from the strait. Hawkins himself asserted that when they sighted the land, they were "next of anything in 48 degrees" rather than the actual figures of 51-53. Second, the description of the land sighted by Hawkins does not conform to the topography of the islands. In the Falklands/Malvinas there are no great rivers that run into the sea; the land is not low but high and mountainous; there are only about 30 leagues of coast available for exploration and not the sixty leagues as pointed out by Hawkins; and there were no inhabitants. Goebel suggests that Hawkins was off the Patagonian coast in the region south of Port Deseado. and he further asserts that there is no cai1ographical evidence that supports the claims made by Hawkins and Davis. Indeed, no record of Davis and Hawkins's discoveries are found in the British charts and maps of the period. Other maps, including the great map published in 1600 and attributed to Molyneaux and Wright, continued to show the Sanson Islands dose to the Patagonian coast. It may be assumed that the map makers considered that the lands sighted by Davis and Hawkins were the same ones discovered by the Spaniards long before. Goebel concludes that "'whatever view of the discoveries we take. there seems little excuse for accepting without challenge the statement that the Falklands were discovered either by Hawkins or Davis on the basis of data by no means more detailed or convincing than the accounts of the Spaniards that we have already examined." Goebel, supra note I. at 38- 42. See also in agreement Destefani, supra note 1. at 58. A British historian remarks that the claims of British discovery of the Falkland Islands (Malvinas) are uncertain and obscure. Beck, supra note 1, at 36-38. Boyson cites Commander B. M. Chambers, who argued that what Hawkins really saw was Cape Tres Puntas on the Patagonian coast. Boyson, supra note 1, at 24. See also Hoffman. supra note 1 at 22 ("(Davis) was ce11ainly not the first man to see (the Islands), as the British claim. Many others saw them before him.") and 26 ("(Hawkins's) description does not fit the islands."). 12. The Dutch navigator Jacob Mahu left Rotterdam in 1598 in charge of an expedition to the East Indies. Bad weather caused several of the vessels to be wrecked in the Magellan Strait. However. the Geloog. commanded by Sebald de Ween. was able to turn back to Holland. On his return, Sebald de Weert viewed three islands which he named the Sebaldees. According to Weert's reports, these islands had an extraordinary number of penguins but no inhabitants. Goebel. supra note I. at 45 13. According to several authors, the islands sighted by Sebald de Weert were most probably the Jason Islands, located in the northwest point of the Falklands (Malvinas) archipelago; the Argentinian Paul Grousacc and the Spanish authors Barcia Trelles and Hidalgo Nieto claim that Sebald de Weert discovered the Falklands/Malvinas. C. Diaz

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Cisneros, La Soberania de la Republica Argentina en el Archipielago (1951) (hereinafter cited as Diaz Cisneros), at 352; Destefani, supra note 1, at 59 ("Sebald de Weert is thus the first indisputable discoverer of the (archipelago).); and Boyson, supra note 1, at 25 ("the Sebald Islands are now known as the Jasons."). 14. Destefani, supra note 1, at 59. 15. L. Destefani, Sintesis de la Geogrt(fia y la Historia de las Islas Malvina.\". Georgias y Sandwich de/ Sur (1982), at 29. This strait was named "Falkland" probably in honor of Viscount Falkland, commissioner of the British Admiralty at the time and later First Lord. Goebel, supra note 1, at 136-137. 16. Id., at 37. 17. On December 17, 1698, an expedition left the Port of La Rochele under the command of Jacques Gouin de Beaucherne. Beaucherne sighted one of the islands of the Falklands (Malvinas) archipelago and named it Beaucherne. Six years later, an expedition organized by the French outfitter Danycan sighted a group of new islands. also a pa11 of the archipelago and named them the Isles Danycan. In 1706, the ship Saint Louis reached a point on the southeastern coast of the eastern island of the Falklands/Malvinas and named it Port Saint Louis. As we shall see, fifty-eight years later the French navigator Bougainville would establish the first European settlement at that point. Subsequently other French navigators such as Chabert, in 1707, and Poiree and John Doublet. in 1708. traveled through the archipelago giving names to new islands that were sighted. By 1711. the whole group of the Falklands/Malvinas archipelago had clearly been discovered. See Destefani, supra note I, at 66. The results of the St. Malo expeditions were compiled by Amadeus Francis Frezier. His map and descriptions, published in 1732, contained all the islands of the archipelago that had been discovered by 1711. The maps show the two main islands, the north and south entrance of the San Carlos Strait. the Sebaldines, Danycans. and Port Saint Louis. These French navigators called the groups of islands the Iles Malouines, after the Port of Saint Malo. This name occurs for the probably the first time in Delisle's printed map published in Paris in 1722. This eventually gave origin to the Spanish name of Islas Malvinas. For further details on the St. Malo expeditions see Destefani. supra note L at 62-67. See also Boyson, .1·111;ra note I, at 33. The British captain Woodes Rogers was the first one in 1708 to name the Islands as Falkland Islands. See Boyson, supra note I, at 35. 18. Beck, supra note I, at 38. 19. The Utrecht Treaties consisted of three treaties: the Assiento Treaty signed on March 26, 1713; the Treaty of Peace, signed on July 13, 1713; and the Treaty of Commerce, signed on December 9, 1713. Under the Assiento Treaty, Britain was allowed to bring to Spanish America 4,800 slaves a year for thirty years and one ship of 500 tons burden a year with British goods to be sold in present-day Mexico and Panama. It also gave Britain the use of ce11ain parcels of land in present-day Argentina for the housing and feeding of slaves to be sold under the treaty. Under the Treaty of Commerce. Britain was granted the right to trade in Spain and its colonies only insofar as previous treaties permitted. Most importantly for the Falkland Islands (Malvinas), under the Treaty of Peace. it was and has been argued, Britain agreed that except for the slave trade and the 500-ton permission ship. the seas around Spanish dominions were closed to outsiders. 20. Boyson, supra note 1, at 38.

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21. Two publications appeared in the 1740s on Anson's voyage: A true impartial journal of voyage to the South Seas and round the globe in H.M. 's the Centurion, under the command of Commodore George Anson. in 1745; and A Voyage round the world in the years 17 40-17 44 by George Anson esq ., commander in chief of a squadron of His Majesty's ships, sent upon an expedition to the South Seas, in 1748. The writings belonged to Benjamin Robbins on the basis of the notes of Richard Walter, chaplain of the expedition. 22.Gustaffson, supra note I 0, at 7. 23. Goebel, supra note 1, at 198. 24. Id., at 200-20 l. 25. For fmther detail see Destefani, supra note 1, at 84. 26. Goebel, .mpra note l, at 56. 27.For further details on the initial activities of the colony see Destefani . .l"!lpra note 1, at 82. 28. Cawkell, supra note I, at 12. 29. Hope, supra note 5 of Chapter 1, at 403 . 30. Differing opinions exist on the rationale behind the British decision to occupy the islands. Some scholars argue that Britain wished to take possession of the islands as a bargaining chip in its ongoing negotiation with Spain over the Manila ransom. (The Manila ransom concerned a dispute over the payment of a ransom to the East India Company. On the surrender of Manila in 1762, the archbishop-governor, prisoner in British hands. agreed to pay a ransom to avoid plunder of the city. Part of the ransom was paid on the spot and the remaining balance was to be payable in drafts drawn by the archbishop of Manila on the Spanish treasury. Spain refused to honor such an obligation on grounds that it was a violation of international law.) Other scholars believe, however. that Britain simply intended to put into practice the earlier recommendations made by Anson. In support of this latter view. they refer to the instructions given to Commodore John Byron, commander of the British expedition, which ordered Byron to "make better surveys (of the Falklands and Pepys islands) than had yet been made, and to determine a place or places, most proper for a new settlement or settlements thereon." Goebel, supra note I, at 231. 31. Ravena!, supra note 6, at 58. 32. As the Argentine colonizer Luis Vernet put it, "without leaving a hut or a single man." Then he added that "the harbour at which Byron had arrived. had not only been discovered by the French, but it had received from them the name of Port de la Croisade." Perl, supra note 1, at 249. 33. Goebel, supra note I, at 233. 34. Id., at 236. 35. Id., at 234-235. 36. Id. 37. Ravena(, supra note 6. at 60. 38. Goebel, supra note 1, at 237.

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39. The first public notice of the French presence in the islands was found in the Gazzette of Amsterdam of July 13, 1764. Callet Bois, supra note 1, at 94. 40. Goebel, supra note 1, at 230. 41. Perl, supra. note 5 of Chapter 1, at 309. 42. Goebel, supra note 1, at 243. 43. Id., at 250. 44. Id., at 244. 45. Id., at 272. 46. Id., at 274. 47. Id. 48. At this time. relations between Britain and were tense. In June-July of 1770 an incident occurred in India which prompted a demand for reparation from France to Britain. Choiseul was inclined to go to war with Britain, but Spain was unwilling to support France. 49. The British ambassador in Spain was then instructed to ask Grimaldi "whether his Catholic Majesty by disavowing a measure which his ambassador here acknowledges not to have been authorized by his particular instructions. and by restoring things to the precise state in which they stood before M. Bucareli undertook this rash expedition, will put into his Majesty's power to suspend those preparations, which, under the present circumstances. his honor will not permit him to postpone.'' Ravena!. supra note 6. at 81- 82. 50. Goebel. supra note I, at 294-295. 51. Ferrer Vieyra. Segunda Cronologia Legal Anotada Sobre las Islas Malvinas (Falkland Islands) ( 1992). (hereinafter cited as Ferrer Vieyra). at 276. ('"Que en justicia. estando la Isla en situaci6n jurfdica discutida. y habiendo una de las partes usado de la violencia. corresponde una reparaci6n por los efectos de la violencia y que se reestablezcan las cosas al estado precedente antes de proceder a juzgar el fondo del derecho.") 52. It is unclear whether Choiseul favored a peaceful resolution or wanted war with Britain. In his correspondence it would appear that he was trying to avoid war. However. an author argues that he really preferred war since it would strengthen his internal political standing. See Call et Bois. supra note 1, at 139. 53. As one scholar notes, the proposal of mutual evacuation of the islands was not an absurd one. Neither settlement, Port Egmont or Port Soledad. were of any economic advantage. In addition, it was not feasible for Spain to incorporate the islands into the defensive system of the Viceroyalty of Peru: therefore Spain preferred the islands to be unpopulated. Ra venal. supra note 6, at 87. 54. In letter of November 27, 1770. Grimaldi informed Masserano that the Spanish king found Weymouth's demands inadmissible. According to Grimaldi, the agreement should ensure that (i) the British return to Port Egmont on their own account and without notice to Spain: (ii) once restored. they leave Port Egmont after a few months: and (iii) both Spain and Britain would declare to be ''irritated" as a result of the actions of Bucareli and Hunt, respectively. On the issue of abandonment. Grimaldi recognized that it was the most difficult one to negotiate. Masserano was instructed to invoke Spanish rights

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access Notes I 245 recognized by the Treaty of Utrecht, prior occupation ("'posesi611 primitiva") and original rights tacitly recognized by all nations. In the event that Britain refused to unilaterally abandon Port Egmont, Masserano would propose a mutual abandonment. Ferrer Vieyra. supra note 51, at 225-227. 55. In a letter of November 29. 1770, Choiseul stated to Frances that, after examining the whole situation. it had become difficult not to believe that the British ministers favored a war and that the Falkland issue was simply a pretext. Id., at 310. 56. In the letter of November 27. 1770, Frances wrote to Choiseul explaining that negotiations had been suspended. He found the behavior of the British ministers unexplainable in light of several factors which favored peace. including the desire of the British people and the lack of interest of the merchants in the Falklands. His only explanation was that the British king favored war to increase his popularity. Ferrer Vieyra. supra note 51, at 305-306. In a later letter of November 29. however. Frances wrote to Choiseul that a decision for war had not yet been taken and that there appeared to be differing opinions between Weymouth and North. Id .. at 309. 57. Goebel. .\'llpra note l. at 319. 58. Choiseul was upset with the lack of progress in the negotiations. Rather than follow his earlier advice. Spanish negotiators got muddled in declarations and counter• declarations and contradictory demands. He was not surprised that the British would keep the thing simple: there was an insult that required redress and no other matter would be discussed until satisfaction was granted. He added that the satisfaction should not make Spain lose its rights. Thus he proposed a reservation clause. ·The mutual evacuation should be dealt with later, otherwise it annulled the satisfaction of the insult. Ferrer Vieyra. supra note 51. at 311. 59. In a letter dated November 29. 1770. Frances wrote to Choiseul stating that Rochford and North affirmed that Britain had no interest in the islands. that Rochford assured that Britain had no intention of retaining the islands. In a letter of December 9. 1770. Frances informs Choiseul that the Duke of Grafton mentioned that the islands were of little importance to the British government. and that Lord Hillsborough had stated that Spain would face no difficulties on the question of rights after satisfaction was granted. Ferrer Vieyra . .rnpra note 51, at 307-316. 60. Goebel. .rnpm note l. at 315. 61. Ferrer Vieyra states that no document has been found on the alleged secret pact between Spain and Britain whereby the latter would leave the islands after Port Egmont was restored. What cannot be denied is that verbal promises of abandoning the islands were made on several occasions. Ferrer Vieyra. supra note 51, at 23. 62. Choiseul then wrote to Grimaldi suggesting that they accept and sign the declaration without any reservation. He felt that no question of honor w0L1ld be compromised: The French minister admitted the fact that Britain had set up an establishment in territory that arguably belonged to Spain. As a matter of general principle, however, Choiseul affirmed that a deprived possessor must be reestablished in his possession prior to any discussion of the underlying rights. Ferrer Vieyra. supra note 51. at 99-100. 63. Goebel. supra note I. at 339. 64. This declaration read in its most part as follows:

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(On) June 10 some Spanish frigates. having been advised that the English established at Port Egmont had threatened to drive off the Spaniards established in another island, had with force obliged the British to quit the port. His Britannic Majesty having complained of the violence as offensive to the honor of his crown in a matter which should have been previously arranged before res01ting to violence, the Prince de Masserano was ordered to declare that his Catholic Majesty in view of his love for peace and for the maintenance of good relations with Great Britain, and considering that so petty an object should not disturb the peace, had viewed with displeasure the expedition, and, assured of the reciprocity of his Britannic Majesty's sentiments in not wishing to authorize anything which might disturb the good understanding between the two courts. disapproved of the enterprise. In consequence Masserano declared that his Catholic Majesty consented that things at Port Egmont be restored to the condition they were prior to June 10, 1770, for which purpose a Spanish officer would be charged with returning the British effects .... (T)he sole object of the present declaration is to give an authentic proof of the sentiments of his Catholic Majesty on a mater which might disturb the good intelligence between the two Crowns, and this declaration shall not prejudice the anterior rights of his Catholic Majesty to the Islands called Malvinas and by the English Falkland, but is solely to restore things as a matter of law and of fact, to the state they were before the expulsion of the English from the establishment in question. (Id .. at 341-343) 65. Id .. at 345. 66. Id .. at 343. 67. Ravena!. supra note 6. at 99-100. 68. ld .. at 100-101. 69. Hoffman, supra note 1. at 55. 70. Goebel, supra note l, at 36 l. 71. On this last point. there was a last-minute attempt to change the wording of the declaration. The day after the signing of the declaration. Rochford's secretary personally delivered the final counterdeclaration and requested that the phrase '·and its dependencies" be included in the declaration. Masserano. however. refused to make any change. Id .. at 366. See also Ferrer Vieyra . .rnpra note 51. at 235. 72. Goebel. supra note I. at 370. 73. R. Zorraquin Becu. Jnglaterra Prometio Aha11do11ar las Malrinas ( 1975) (hereinafter cited as Becu), at 89. 74. Ra venal. supra note 6. at 107. 75. Hoffman argues that such unusual attitude in Rochford was due to the fact that the British minister was in financ.:ial straits and was attempting to influence the market. Hoffman, supm note 1. at 58. 76. Goebel. .rnpra note 1, at 385. 77. Id .. at 407. 78. Boyson, supra note 1. at 72.

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79. Benrad Penrose, one of the surgeon's mates in Clayton's expedition, wrote a spirited account of the voyage in his book An account of the last expedition to Port Egmont in Falkland's Islands in the year 1772, published in 1775. 80. Gustaffson, supra note 10, at 19. 81. The plaque was brought to Buenos Aires in 1775 by Captain Juan Pascual Callejas. In 1806, during his invasion of Buenos Aires, the British general Beresford took the plaque and sent it to London. 82. For further details about this period, see Callet Bois, supra note 1, at 159-176; and Destefani, supra note 1, at 173-355. 83. These governors were: in 1774, Francisco Gil y Lemos: in 1777, Ramon de Carassa: in 1781, Jacinto de Altolaguirre; in 1783, Fulgencio Montemayor; in 1784, Agustin Figueroa; in 1786, Pedro de Mesa y Castro; in 1787, Ramon Clairac; in 1788, Pedro de Mesa y Castro; in 1789, Ramon Clairac (Clairac would lead one of the more progressive administrations); in 1790, Juan Jose de Elizalde (at this time preparations were carried out in anticipation of war with ); in 1791, Pedro Pablo Sanguineto: in 1792, Juan Jose de Elizalde (at this point the colony had 183 settlers): in 1793, Pedro Pablo Sanguineto; in 1794, Jose Aldana y Ortega; in 1795, Pedro Pablo Sanguineto; in 1796. Jose Aldana y 01tega; in 1797, Luis Medina y Torres; in 1798, Xavier de Viana; in 1799. Luis Medina y Torres: in 1800, Luis Medina y Torres: in 1801. Ramon Fernandez de Villegas; in 1802, Bernardo Bonavia: in 1803, Antonio Leal de Ibarra: in 1804. Bernardo Bonavia; in 1805, Leal de Ibarra; and in 1806, Bernardo Bonavia. Callet Bois, supra note 1, at 159-176. 84. Goebel, supra note I. at 427. 85. Goebel. supra note 1. at 428; I B. F.S.P., supra note 1 of Chapter I. at 663 ( 1790). 86. Perl, supra note l, at 257-258. 87. Events not very well known outside Argentina are the failed attempts by the British to conquer Buenos Aires in 1806 and 1807. Britain was trying to establish a base in the South Atlantic. On both occasions, the British forces were defeated by a quickly organized army of colonials with no help from Spain. These events are known by the as the English Invasions and the Reconquest. 88. Boyson. supra note I. at 83. Boyson refers to incidents of shipwrecks occurring during this period. Among them was the Uranie. under the command of Desaulses de Freycinet, on a scientific expedition around the world. 89. For a list of most of these foreign vessels see Perl. supm note 1. at 26 l. 90. Vernet was German born and naturalized as Argentine. At age fourteen he went to live in Philadelphia. United States, where he remained for eight years. There he became well versed in matters of trade and shipping. In 1817 he traveled to Buenos Aires to establish his commercial activities. Pacheco was a local citizen who had fought during the war of independence. In 1819. Vernet became acquainted with Pacheco through a business deal in which Vernet lent some money to Pacheco for a meat salting plant. The Buenos Aires government owed money to Pacheco with which he promised he would pay back Vernet. As payment of its debt to Pacheco. the Buenos Aires government offered him the cattle concession on the East Falkland Island. On August 5, 1823, Vernet and Pacheco signed an agreement whereby they would share equally in the profits of the

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access 248 I Breaking the Deadlock concession. 91. In referring to this first attempt, Vernet stated that "an expedition was, in effect. fitted out, composed of the Brigs Fenwick and Antelope, which carried out, among other things, a quantity of horses-and of the schooner, Rafaela (which was armed) for the seal• fishery; all under the direction of Mr. Robert Schofield. The difficulties attendant on every new undertaking, were in this instance so great, as to discourage the Director Schofield, who abandoned it the following year, losing more than 30,000 dollars and ruining himself so that, dying shortly afterwards in Buenos Aires, he left his widow and small children in a state of indigence." Perl, supra note 1, at 261. 92. Perl, .l'Upra note 1, at 262-263.In explaining the origin of this decree, Vernet stated, Fully aware of the great advantages which the Republic would derive from establishments in the south; and some experiments which I had made in agriculture having been attended with success; I resolved to employ all my resources. and avail myself of all my connections, in order to undertake a formal colonization, which should secure those advantages and lay the foundation of a national fishery, which has been at all times. and in all countries. the origin and nursery of the navy, and of the mercantile marine. But wishing, as was natural. not to hazard my own labor and money, as well as that of the colonists and those who had assisted me, I solicited from the Government not only a grant of land. but also the exclusive right to the fishery, for the benefit of the colony. The Government, convinced of this necessity, of the utility which would accrue to the Republic from the enterprise, although it were nothing more than having a port to the southward for maritime operations. in case of a war like that which was then being carried on; and of the expenses which the undertaking required; issued a decree on the 5th January, 1828. whereby. in conformity with the spirit of the law enacted by the Honorable House of Representatives, on the 22nd October 1821, it granted to me the right of prope11y to the waste land on the Island (after deducting the tracts conceded in 1823 to Don Jorge Pacheco and IO square leagues which the Government reserved itself in the Bay of San Carlos) and likewise to Staten Island. It also conceded to the colony exemption from taxation for 20 years and for the same period the exclusive right to the fishery in all the Malvinas, and on the coast of the Continent, to the southward of the Rio Negro; under the condition that within three years I should have established the colony. (Id.) 93. Ravenal. supra note 6, at 129. 94. Perl, supm note 1, at 265. 95. Goebel. supro note 1, at 438. 96. Decree of the government of Buenos Aires dated June 10, 1829, 20 B.F.S.P .. supm note I. Ch. 1, (1832-33), at 42 (1836). The decree first laid out the grounds on which the government claimed ownership. It stated that at the time of the May 25, 1810, revolution. Spain held the Islands based on the right of prior occupation, the consent of the European maritime powers, and the proximity of the Islands to the continent. The government of the new nation, as successor of Spain, continued to exercise acts of dominion over the Islands. The placement of the Islands under the new political commandancy was a precautionary measure to secure Argentina's advantages. At such time, newspapers

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access Notes I 249 reported the issuance of the decree and added that the Islands were of benefit because there existed about 40,000 cattle and many wild horses. They also referred to Vernet's new colony indicating that he had settled with his family and about forty British and German colonists. 97. Perl. supra note 1, at 222. 98. For further details of the colony see CALLET BOIS. supra note l, at 211-231. It is interesting to note that Vernet offered to Woodbine Parish, the British ambassador in Buenos Aires, to participate as a private individual in the venture. Parish declined the offer. 99. For a more in depth understanding of the whale and seal hunting activities in the South Atlantic on the part of New England fishermen, see the bibliography in John R. Spears, Captain Nathaniel Brown Palmer: An Old-Time Sailor<~{ the Sea (1996). 100. Perl, supra note 1, at 264-265. 101. The three schooners were aware of Vernet's office and had been warned earlier on several occasions. Indeed, in 1829 Vernet wrote, "I found the Harriet loaded with seal skins which had been taken in that jurisdiction. I generously permitted her to depan with her Cargo, warning her that in case of the recurrence of the offence, both Vessel and Cargo would be confiscated." Perl, supra note 1, at 212. In March 1830. the Harriet returned to Port Soledad, where Vernet "delivered the Captain a Circular containing the same general warning." Id. In November of that same year, with Gilbert Davison as captain, the Harriet reached San Salvador, where it was ordered not to carry out fishing in the area. It did not, however, obey. ln March 1831, it reached Port Soledad and its captain informed Vernet that no killing of seals was made in the area under jurisdiction of the commandancy. In July, one of the shipmen of the Harriet deserted and informed the Argentines in Port Soledad of Davison's illegal hunting. After Davison refused to deliver the logbook of the ship for his examination. Vernet proceeded to confiscate the Harriet. In May .1830 and January 1831, the Breakwater and the Superior, respectively, were also officially notified of the fishing regulations. I 02. Vernet was convinced not only of the material benefit of the agreement but also that it would protect the colony from a major security risk posed by the presence of the captain and the crew of the Superior in Port Soledad. 103. Goebel, supra note 1, at 440. 104. Hoffman . .Htpra note Lat 73. !05. Goebel. .rnpra note 1 at 441. I 06. Id .. at 442-443. I 07. As for the role played by the British representatives in Buenos Aires, Goebel states that "Duncan having depai1ed, the United States consul turned to his British colleagues for comfort. The British minister. Fox. and Parish, the consul general. exhibited to Slacum the protest delivered two years before and advised him that they had filed this simply to keep alive a dormant right of which they intended to avail themselves when convenient. In repot1ing this interview to his government, Slacum disclosed for the first time a sense of disquiet over what the English might possibly do. At the same time. he had gone too far in his protests to the Buenos Aires government to support in any way the right of the latter to the islands and so he painted fer his government a gloomy picture of

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what would happen to American trade if the Falklands remained in Argentine hands." Goebel, supra note 1, at 443-444. 108. Perl, supra note 1, at 225. 109. On July 10, Baylies sent another note to Maza with a detailed discussion of the sovereignty issue. The note made the following points: (i) Baylies had not received an answer to the communication of. June 26 requesting "to know. distinctly, from this Government whether it claimed, on its part, any right or authority. to detain or capture, or in any way to molest. interrupt or impede. the Vessels of the Citizens of the United States of America, while engaged in fishing in the waters or on the shores of the Falkland Islands. and the other places included in the Decree of June 10th 1829." (ii) Baylies assumed that the inquiry was considered futile by the Buenos Aires government in view of the many acts proclaiming sovereignty over the islands, however, the inquiry was justified in that none of the mentioned acts had been communicated officially to the United States and the communications with Slacum were not, as argued by the Buenos Aires government. with an accredited representative. (iii) On the sovereignty issue, Baylies introduced his arguments with two questions: Has Spain ever had sovereignty rights over the disputed places? Did Argentina succeed to such rights? Then he proceeded to state that Argentina had no rights, offering the following arguments. (a) Davies was the first to set eyes on the Falkland Islands. as it has been asserted with confidence, 'There is not, on the part of Spain. the slightest pretense of having made the original discovery of these Islands. Spain, indeed. does not pretend to have made it-but has adopted even the French name." (b) The instructions to Byron dated June 17, 1764, stated, ·' ... and whereas His Majesty's Islands. called Pepy's Island and Falkland Islands, lying within the said track (i.e .. the track between the Cape of Good Hope and the Straits of Magellan) notwithstanding their having been first discovered and visited by British navigators, have never yet been so sufficiently surveyed as that an accurate judgment may be formed of their coasts and product, His Majesty. taking the premises into consideration. and conceiving no juncture so proper for enterprises of this nature as a time of profound peace. which his Kingdoms at present happily enjoy. has thought fit that it should now be undertaken.'' (c) ··At the time of forcible dispossession (in 1770). the title of Great Britain was ce11ainly placed on very strong foundations: she had prior discovery. formal possession and actual occupation to urge; and there were no aboriginal rights to be extinguished. (d) The reservation made by Spain in the 1771 declaration was a nullity since Spain had no claim either by prior discovery. prior possession. prior occupation .or even the shadow of a name; the restoration of Port Egmont gave the claim of title by Great Britain more strength and stability for it was a virtual acknowledgment. on the part of Spain of its validity. (e) Great Britain voluntarily abandoned these distant lands and took every possible precaution at such time to show that. though she abandoned. she did not relinquish them: the lapse of time cannot prevent her from resuming possession. (f) That Article VI of the Nootka Sound Treaty left an open fishery

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in these regions. and (g) that there was no compelling evidence that the rights of the Viceroyalty of the Rio de la Plata had passed on to the Argentine Republic as opposed to the other independent nations derived from the former Viceroyalty. (iv) As for fishing rights. Baylies made several claims. (a) The United States had the right to ocean fishery extending to within a marine league from the coast. and the right to land on the shores if not injurious to the nation. such as in uninhabited regions or those inhabited by savages; indeed, this right to land remained even if settlements existed, if there had previously been constant and uninterrupted use of the site. (b) Furthermore, even if Argentina had a right to exclude vessels from fishing, there was a duty to give official notice and not simply a warning to individuals. There was no official notice of the l 829 decree. He concluded by saying that once this controversy was settled he was invested with powers to conclude a commercial treaty on fair and reciprocal terms. See Perl, supra note I. at 180-197. I 10. A summary of the charges and Vernet's defense follows: Charge I: Vernet captured three American vessels engaged in lawful business. confiscated their provisions and papers, and placed their crews in confinement. Response: Vernet alleged that the competent tribunal had declared that the vessels were lawful prizes and that his actions were totally justified. Further. the Harriet had been warned in l 829 and l 830 about the fishing regulations. In spite of such warnings. it breached the regulations and admitted to such breach in the contract entered into with Vernet in September of 1831. Charge 2: Vernet forced part of the crew of the Breakwater to go to Rio de Janeiro. Response: Vernet alleged that the respective crew went to Rio de Janeiro of their own free will. Charge 3: Vernet forced the captain and crew of the Superior to be under his personal service and private interest. Response: Vernet alleged that, on the basis of proposals made by captains Davison and Congar. a contract was signed on September 8. 1831. whereby one of the vessels would sail to Buenos Aires to stand for trial while the other vessel would conduct a sealing voyage. The benefits of the sealing voyage would be distributed in accordance with the result of the trial. Vernet added that (a) the contract was signed under no coercion or pressure: (bl the contract removed a potential danger to the colony resulting from a potential seduction from British colonists; (cl the contract would produce a utility for the colony; it made no sense to have the vessel, a potential lawful prize. lay up and rot in the harbor of Buenos Aires rather than conduct seal fishery: (d) the contract could be legally signed by Vernet as director of the colony. Charge 4: Vernet forced most of the crew of the Harriet to go to Rio de Janeiro. Response: Vernet alleged that the Harriet crew sailed to Rio de Janeiro of their own free will.

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Charge 5: Vernet abandoned seven men from the Superior to perish on Staten Island. Response: Vernet alleged that the Harriet, under the command of Brisbane. was sent to assist these men; that an American schooner prevented such assistance when attempting to take the Harriet by force and then send it back to the colony: that the Lexington showed no urgency in assisting these men; and~ in any event. it was the fault of the Superior for leaving them on Staten Island. Charge 6: Vernet seduced Americans from their own flag for personal gain. Response: Vernet alleged that he accepted no services from the crews without authorization of their respective captains. Charge 7: Vernet compelled the crew on the schooner Belville to work under him to capture other Americans. Response: Vernet alleged that these Americans were arrested after being accused by other Americans, including captains Congar and Davison. for committing piratical acts. Absent any evidence against them, Vernet set them free. Later they carried out. at their own will, seal fishing under the Argentine flag until the arrival of the Lexington. Charge H: Vernet discriminated against American vessels as opposed to British vessels. Re.l'/)(111Se: Vernet alleged that British ships ceased to carry out fishing after he was appointed as governor. Charge 9: Vernet committed acts of violence against the three ships after notice of the decease of the American representative Forbes in l 831. Response: Vernet alleged that the ships were warned in November 1830 and January and May l 831 that they would be confiscated if they continued the illegal fishing. The warnings were in a circular that was published in October of 1830 in two Buenos Aires newspapers. the Gw.:eta Mercantil and the British Packet. For a full description of the charges and responses see Perl. supra note I, at 211-240. 111. The report went into great detail on the issue of sovereign rights and served as a reference for future Argentine legal documents. The salient points made in the report included the following: (i) British occupation of the islands was out of ''interest and force-nothing else: and at a time when the civilized world was reduced to the very nations which broke the law of Nations, the general silence, or the applause of cupidity. succeeded almost in legitimating those means of acquiring dominion. which in process of time will perhaps inspire horror." (ii) Spain had enforced fishing regulations off the Patagonia coast in several instances in the 1780s. 1790s and 1800s. (iii) Discovery is not sufficient to assign sovereignty over the islands. (iv) Spain's rights were recognized by Britain with the withdrawal of Anson's proposed expedition in 1749.

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(v) France recognized Spain's superior rights with the transfer of Port Louis in 1766. (vi) The first British expedition under Byron left no hut or a single man in the islands; the harbor at which he arrived had already been discovered by the French, who named it Port de la Croisade. (vii) Britain abandoned Port Egmont by virtue of the 1771 convention. (viii) After 1774, "Spain was the exclusive mistress of all the Islands-no nation disputed her rights-none dared to establish itself in the archipelago-she legislated over it, and exercised without interruption acts of sovereignty which were respected by some of them." (Id., at 247-278.) 112. In supporting Argentina's right to prohibit and restrict fishing off the Malvina islands, Vernet cited the example of Newfoundland. There England was able to allow, prohibit, or restrict fishing in its condition of owner of the territory. By treaty of 1818, England granted the United States the right to fish in Newfoundland within certain limits. Vernet stated: "It will be seen from this, and many other acts, that England appropriated itself the exclusive enjoyment of the Cod-fisheries; interdicted other Nations from the use of them, and pointed out the limits which they should respect. We likewise see here an instance of sovereignty acknowledged and exercised over an island whose coasts were either uninhabited, or peopled by Esquimaux Indians, who, as in Labrador and Hudson, do not acknowledge the British dominion, and live independent." Id .. at 270. Vernet also made it very clear that Argentina was not attempting to prohibit fisheries or whaling in the high seas, as had been erroneously reported after the capture of the American vessels. Indeed. he argued, this distortion had been advanced by the owners and parties with interests in the captured vessels in order to recover on their insurance contracts. 113. Id .. at 208. 114. On August 8, 1832, the Buenos Aires government sent a letter to the American secretary of state in which Maza laid out the views of the Argentine authorities on the substance of the dispute and on the behavior of all of the American representatives. Regarding the substance, Maza defended the seizure of the ships and Argentine sovereignty. He affirmed that the Horriet. with two other schooners. the Breokwater and the Superior, had been detained by the political and military commandant of the said islands for having persisted in the fishery notwithstanding that since 1829 they had been formally notified that their vessels and cargo would be confiscated if they continued their illegal activities. Maza also strongly protested the denials made by the American representatives of Argentine sovereignty over the islands: "On what grounds could Mr. Slacum call this right into question? Could he be ignorant that the Malvina Islands, Coasts of Patagonia and its adjacencies unto Cape Horn, were comprehended in the territorial delineations of the Kings of Spain. as constituting an integral part of the former Viceroyalty of Buenos Aires, since erected into a Nation by the will and efforts of its sons? Could Mr. Slacum doubt that the right acquired by the Court of Spain. to what it had discovered, conquered, possessed and occupied, as well on the Continent as on the Islands adjacent to the aforesaid Viceroyalty has descended. as a fundamental right to the Argentines, from the instant they asserted their nationality and Independence, and formed themselves into a Republic; in the same manner that the right to those territories which had been discovered, conquered, possessed and occupied by England in North America

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access 254 I Breaking the Deadlock descended to its Sons with jurisdictional authority, which the United States duly appropriated themselves?" The performance of the American representatives had outraged the Buenos Aires authorities. Maza informed the United States secretary of State that they were not in a position to continue negotiating with Baylies. They found him to be totally influenced by Slacum to the extent that he demanded that Slacum be restored to his consular office five days after reaching Buenos Aires. About Slacum's behavior the letter noted "repeated incivilities of Mr. Slacum" and "the known circumstances of his mercantile connection." It added that "the Government of Buenos Aires was surprised by the receipt of the unexpected news of the attack made by the Ship-of-War Lexington. on the colony established in Malvinas, on the island of Soledad,-which has effected. without any resistance, on the 31st December last, by her Commander Duncan, who spiked the artillery. fired the magazine. disposed of the public and private property. and carried on board, in arrest, the person entrusted with the preservation of the Colonial Fishery• loaded with irons 6 Citizens of the Republic, and atrociously destroyed the fruits of many years' honest industry." Id., at 200-206. 115. Goebel, supra note Lat 454. 116. Id. 117. Perl, supra note 1, at 296. 118. Pinedo was court-martialed under suspicion of failure to comply with military rules in defense of Port Soledad. Finally. he was acquitted. See J. Arce, The Malvina.1·: Our Snatched Little Isles (195l)(hereinafter cited as Arce). at IOI. For a full transcription of the cou1t proceedings. see Munoz Aspiri. supra note I, Vol. l. at 429-527. 119. In his protest, Moreno stated the following: (a) The protest was presented upon the proceedings of his Britannic Majesty's government in assuming the sovereignty and possession of the Malvinas. otherwise called the Falkland Islands, and in forcibly stripping the said United Provinces of a part of their territory and dominion. (b) Three armed boats with marines and seamen landed from the Clio in Port Luis and fixing a staff on the dwelling of an Englishmen at some distance from the house of the Commandancy. hoisted the English flag. and then proceeded to lower, with their own hands. the flag of the Republic. (c) The history of the Malvinas is one of the simplest and best authenticated upon record. (d) The French were the first to settle in the Islands, two years before the English settlement. (e) Why no counter-reservation in the January 22. 1771 agreement? "(T)his gives birth to a very strong suspicion" that the British promised to leave the islands. (f) The abandonment of 1774 ··comes singularly in support of the reality of the cession," or, as some English writers explain it. the fulfillment of the contract by each party for "the Spaniards fulfilled their engagement by restoring Port Egmont, and the English fulfilled theirs by abandoning it after such surrender."

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(g) There was no legal value in the inscription left by Clayton when departing Port Egmont in 1774. (h) Spain's claims resulted from formal occupation, the purchase of the islands from France and the cession, or relinquishment of them, by England. (i) The United Provinces succeeded Spain in her rights. For a full transcription of the protest. See Perl, supra note I at 301-322. 120. Lord Palmerston made the following points: (a) First he "'draws Mr. Moreno's attention to the contents of the Protest which Mr. Parish" addressed to the Minister of Foreign Affairs on November 19. 1829. Palmerston outlined the grounds on which the protest was made and then stated that "no answer was. however, at any time returned. nor was any objection raised on the part of the Government of the United Provinces of the Rio de la Plata, to the rights asserted in that Protest: but the Buenos Aires Government persisted. notwithstanding the receipt of that Protest, in exercising those acts of Sovereignty against which the Protest was specially directed." (b) The government of the United Provinces could not expect Great Britain to "silently submit to such course of proceeding'' nor could the government of the United Provinces "have been surprised at the step which His Majesty thought proper to take. in order to the resumption of rights which had never been abandoned, and which had only been permitted to lie dormant. under circumstances which had been explained to the Buenos-Ayrean Government." (c) "The claim of Great Britain to the Sovereignty of the Falkland Islands having been unequivocally asserted and maintained during the Discussions with Spain. in 1770 and 1771. which had nearly led to a War between the 2 Countries. and Spain having deemed it proper to put an end to those Discussions. by restoring to His Majesty the Places from which British subjects Had been expelled: the Government of the United Provinces could not reasonably have anticipated that the British Government would permit any other State to exercise a right. as derived from Spain, which Great Britain had denied to Spain herself; and this consideration alone would fully justify His Majesty's Government in declining to enter into any futther explanation upon a question which, upwards of half a century ago, was so notoriously and decisively adjusted with another Government more immediately concerned.'' (d) Palmerston denied any existence of a secret understanding to evacuate the islands. The reservation of rights in the 1771 declaration. he wrote. "cannot be deemed to possess any substantial weight. inasmueh as no notice whatsoever is taken of it in the British Counter-Declaration." The other evidence proceeds from ··unauthentic Historical Publications." Palmerston enclosed extracts of the official correspondence to show that no secret understanding existed. Id .. at 323-33. 123. For developments in the islands from 1833 until the mid-twentieth century. see H Foulkes. Los Kelpers en las Malvi11a.1· y en fo Patllgo11ia (1983 ): Bullrich. rnpra note 13 in Chapter I: Byson. supra note I: Cawkell. supra note I; Cal let Bois, supro note 1: A Norman. Falkland Islands: Their Kinship I.vies ( 1986) (Norman's three-volume work

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provides great detail on the islands in the nineteenth century, particularly the relations with the United States); Tesler, El Gaucho Antonio Rivero {l97l); Callet Bois, El Espisodio Ocurrido en el Puerto de la Soledad de Malvinas el 26 de Agosto de 1833 (1967).

Chapter3 1. See United Nations General Assembly, Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, Sub-Committee III, Summary Record of the 25th Meeting, U.N. Doc. A/AC.l09/SC.4/SR.25 (1964) (hereinafter cited as Ruda Statement); protest by Manuel Moreno, minister plenipotentiary of the United Provinces of Rio de Ia Plata, on June 17, 1833, in 20 B.F.S.P. 1366 (1833-34); response letter by Manuel Moreno on December 29, 1834, to the note of January 8, 1834, by Lord Palmerston, in Dolzer, The Territorial Status for the Falkland Islands (Malvinas): Past And Present (1993), at 285 (hereinafter cited as Dolzer); letter and memorandum from Argentine foreign minister Francisco J. Ortiz to British minister Edmond Monson dated January 2, 1885, in Mufloz Aspiri, Historia Comp/eta de las Ma/vinas, 213 ( 1966) (hereinafter cited as Mufloz Aspiri); protest by Argentine minister Vicente G. Quesada to American Secretary of State Thomas F. Bayard. dated May 4, 1887. Id .. at 277: and letter dated 18 October 1982 from the Permanent Representative of Argentina to the United Nations, addressed to the Secretary General, in U.N. Doc. A/37/553. 2. S. Z. Ehler and J.B. Morrall, Church and State Through the Centuries (1954), at 72-78 (Latin) and 78-84 (English). For a Spanish text see Calvo, Co//eccion Comp/eta de /os Tratados, Convenciones, Capitulaciones, Armisticios y Otros Actos Dip/omaticos de Todos /os Estados de la America Latina Desde el Ano de 1493 hasta Nuestros Dias (1862), at 1 (hereinafter cited as Calvo). A Latin and Spanish text may also be found in Perl, supra note 5 in Chapter I, at 90-10 I. 3. F. G. Davenport, European Treaties Bearing on the History ofthe United States and its Dependencies to 1648 (1917) [hereinafter cited as Davenport] at 13-20 (Latin) and 20-26 (English). A Spanish text may be found in Calvo, supra note 2 , at 19; and Perl, supra note I in Chapter 1, at l03. 4. Davenport, supra note 3, at 86-93 (Spanish) and 93-100 (English). 5. Ruda Statement, supra note I. 6. lO The Consolidated Treaty Series {l 168-1671), at 63 (English translation at 115) (C. Parry, ed .. 1969). 7. I The Consolidated Treaty Series (1168-1671), at I (French translation at 67). For a Spanish text, see Calvo, supra note 2, at 67. 8. Arce, supra note 118 in Chapter 2, at 149. 9. Id. · 10. 11 The Consolidated Treaty Series (1168-1671), at 383 (English translation at 395). For a Spanish text, see Calvo, supra note 2, at 162. An English text may also be found in Perl, supra note 1 in Chapter I, at 133. 11. 27 The Consolidated Treaty Series (1710-1713), at 455 (English translation at 462) (C. Parry, ed., 1969).

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12. 28 The Consolidated Treaty Series (1713-1714), at 295 (English translation at 325) (C. Parry, ed., 1969). 13. 31 The Consolidated Treaty Series (1718-1724), at 303 (C. Parry, ed., 1969). 14. 33 The Consolidated Treaty Series (1727-1732). at 253 (C. Parry ed. 1969) 15. 38 The Consolidated Treaty Series (1746-1750), at 297 (C. Parry. ed., 1969). 16. 42 The Consolidated Treaty Series (1763), at 279 (English version at 320) (C. Parry, ed .. 1969). 17. See the text in French in 44 The Consolidated Treaty Series (1767-1772). at 421 (C. Parry, ed., 1969); see the text in English in 3 C. Jenkinson, Treaties 234 (1875); see the text in Spanish in II Calvo, supra note 2, at 393, 395. 18. Diaz Cisneros, supra note 13 in Chapter 2, at 404. 19. Id., at 475. 478, 479. 20. Ruda Statement, supra note 1. It is interesting to note that the Argentine representative, Mariano Moreno. pointed out· in his letter dated December 29. 1834. to Viscount Palmerston that "if the expedition of the Clio had limited itself to the West Island (Port Egmont) it might be said that the Government of H.B.M. had re-instated itself in the status quo which the [January 22, 1771] convention left." See Dolzer, supra note I. at 287. And Argentine Foreign Minister 011iz stated in his letter dated January 2, 1885. to the British ambassador in Buenos Aires that if any claim could be asse11ed by Britain in 1833 it could only be limited to Port Egmont or . where a settlement existed from 1766 to 1774 and then was abandoned. See Muiioz Aspiri. supra note I. at 228. 2 I . Ruda Statement, supra note I . 22. See letter from Lord Palmerston to Manuel Moreno dated January 8. 1834, British and Foreign Swte Paper.1-, Vol. 22. 1833-34. at 1384 (hereinafter cited as Palmerston Letter); Great Britain, Reference Services. Central Office of Information. 'The Falkland Islands and Dependencies" (April 1982) (hereinafter cited as British Reference Services); Great Britain, Foreign and Commonwealth Office. "The Falkland Islands: The Facts" (1982) (hereinafter cited as The Facts): letter dated 28 October 1982 from the Permanent Representative for the to the United Nations, addressed to the Secretary General. in U.N. Doc. A/37/582 (hereinafter cited as British Statement): and House of' Commons Foreign Affairs Committee. Session 1982-83 (hereinafter cited as HCFAC). Minutes of Evidence, JO November 1982, HC31-i. and Minutes of Evidence, 13 December 1982. HC31-v. 23. Greig. "Sovereignty and the Falkland Islands Crisis." Aust.J. B. of" /11t'l l.. 1978-80. at 40 (hereinafter cited as Greig). 24. Beck, "The Anglo-Argentine Dispute over Title to the Etlkland Islands: Changing British Perceptions on Sovereignty Since 1910." Mille1111ium Journal of" lntemational Swdies 12, no. I, at 6-25. 25. See British Statement. supra note 22. This letter includes an appendix with a brief "British version" of the history of the islands. 26. British Reference Services . .rnpra note 22. at 2. 27. British Statement. supra note 22. at 1.

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28. Palmerston Letter, supra note 22, at 1384; British Reference Services, supra note 22: The Facts, supra note 22; British Statement, supra note 22; and Greig. supra note 23, at 20. 29. In 1964 title by prescription was advanced by the British representatives in the United Nations discussions. U.N. Doc. A/58000/Add.7, at 63 (1965). See also Ferrer Vieyra. 1984, supra note 5 in Chapter 1, at 156-157. 30. Arce, supra note 118 in Chapter 2, at 130. 31. Id. See also Hope, supra note 5 in Chapter 1, at 407 (note 39), where he provides arguments that the papal bulls were binding on England by operation of the principle of intertemporal law. 32. See Dolzer, supra note 1, at 18-19 ("In examining the legal basis of the claims presented in relation to this period, the question must first be raised as to the legal relevance of papal bulls-in particular with reference to their universal effects on states which did not at the time consider themselves subject to the jurisdiction of the Pope [footnote omitted]-Von Der Heydte correctly referred to the wording of the bulls and concluded that these were meant only to legalise and recognise a certain situation, but were not intended to render inapplicable the requirement of effective occupation of the territory, the state privileged by the bull could, according to this view. only acquire a jus ad occupationem [footnote omitted, emphasis added]); J. Fisch, 'The Falkland Islands in the European Treaty System. 1493-1833," German Yearbook of' fllternational Law 26 (1983), at 108 (affirms that neither Spain nor Portugal considered the papal bulls as valid titles in international law); Alfred P. Rubin, "Historical and Legal Background of the Falkland/Malvinas Dispute," in The : Lcs.1·011.1 for Strategy. Diplomacv. and International Law. ed. A. Coll and A. Arend (hereinafter cited as Coll), at 10, I I ("The [ 1493] Bull itself did not purport to grant sovereignty to Spain against any adverse claim, only the right to conquer non-Christian princes and otherwise to acquire territory within the Spanish zone to the exclusion of equivalent Portuguese rights .... It seems irrational to attempt now to base a claim of right under current concepts of international law on the Bull's eternal validity"); Malcolm Deas. in HCFAC. supra note 22, Minutes of Evidence, 13 December 1982, HC3 l-v. (considers the papal bulls to be legally irrelevant): Greig. supra note 23, at 21-24 (provides a detailed analysis showing that the papal bulls were not widely accepted as a basis for title to land); Waldock, ''Disputed Sovereignty in the Falkland Islands Dependencies"' (1948), Brit. T.B. Int'/ Low. at 311 (hereinafter cited as Waldock)('The Bull Inter Caetera is a hopeless root of title to territory in dispute today"'). For a detailed analysis on international law in the fifteenth and sixteenth centuries, see A. Rubin. "International Law in the Age of Columbus,'' 39 Netherland.1· Int'/ Law Review. at 5 (1992). 33. Bring. "The Falkland Crisis and International Law."' Nordisk Tidsskr!ft fin· International Ret 51-52 (1982-83). at 138. 34. Strange, supra note 9 in Chapter 1. at 20. 35. Palmas Island Case (Netherlands 1•s. U.S.). 2 R. Im'/ Arb. A ll'ords ( 1929). at 345. 36. Hoffman. supro note I in Chapter 2, at 38. 37. Goebel. supra note I in Chapter 2, at 201-202. 38. Beck, supra note I in Chapter 2. at 63-64: Gustaffson. supra note IO in Chapter 2. at

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7 ("This statement indicated British recognition not of Spanish right to the area but only of current predominance there"). 39. Dolzer, supra note 1, at 36-37. Other supporting arguments are that (a) it may appear doubtful whether Spain could have derived any rights from these treaties in the period after 1750; the frequency with which the parties had violated treaty provisions seems to indicate that the treaty had been set aside by implicit conduct; (b) the Islands were not mentioned explicitly in any of the treaties, which fact raises additional doubts as to whether these related to the status of the Islands; and ( c) the approval by Spain in 17 63 of a plan to send a ship to declare the rights of Spain on the Islands. Id., at 25 and 37. 1.0. Arce. supra note 118 in Chapter 2, at 53, 54. Arce states, "The British Government most certainly had an inkling of what Spain's rights were, since it had resolved to submit her initiative to the Government of Madrid for consideration and since she professed her purpose to be purely a scientific one and averred that she did not intend to effect any landings or occupations ... she implicitly recognized that Malvinas belonged to Spain since it was Ambassador Wall's [Spanish Ambassador in Great Britain] protests in the first place and the observations of the Government of Madrid, in the second which forced her to drop the projects." Id. 41. Greig. supra note 23, at 28. 42. Goebel. supra note I in Chapter 2, at 227-28. 43. Diaz Cisneros, supra note 13 in Chapter 2. at 403. 44. HCFAC, supra note 22, Minutes of Evidence. 13 December 1982. HC 31-v. 45. Ravena!. supra note 6 in Chapter 2, at 52. 46. Dolzer. .mpra note 1, at 42. 47. Northedge, "'The Falklands: Origins of Involvement.'' Int"! Relations 7 ( 1981-83 ). 2167-89 (hereinafter cited as Northedge ). 48. Goebel. supra note I in Chapter 2, at 362. 49. Dolzer. supra note I, at 47. As noted by Hope. the word '"counterdeclaration," which is used in Palmerston's note to Moreno of January 8. 1834. was an inaccurate reading of the 1771 State Papers. The text in French sets out the English declaration under the heading of "Acceptation de la Grand Bretagne." Hope. supra note 5 in Chapter l. at 410 (footnote 48). 50. Dolzer, supra note I, at 46, 47. In addressing the legal effects of the restoration of Po1t Egmont. Dolzer states the following: In conclusion, it appears that the Spanish declaration of 1771 and the British counter-declaration did not lead to a change in the territorial status of the Islands: the Islands remained within the territorial domain of Spain. Nevertheless. Spain granted Britain the right to occupy the Western Island and thus contributed to a legal situation which. after the resettlement by the British on the Island. was not entirely clear. Moreover. no time limit was set on the right of the British to occupy the Islands in the wording of the declaration. Were these facts opposed to the assumption that the Islands remained Spanish? Legally speaking. the Spanish declaration can well be construed to indicate that Spain conceded to Britain the right to settle on the Spanish Islands for an unlimited

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period as a measure of satisfaction for the illegal conduct on the Islands in 1770. In view of the clear and unequivocal wording of the Spanish declaration. this interpretation seems to be correct. However, it will not be overlooked that this evaluation would have been considerably weakened had the British maintained the Islands and continued to assert their own claims. If this had been the case. the question of a separate legal status of the two islands would indeed have been raised. However, the subsequent course of events does not make it necessary to pursue these issues. (Id., at 49.) 51. Arce. supra note 118 in Chapter 2, at 156-160. 52. Diaz Cisneros, supra note 13 in Chapter 2, at 419. 53. Diaz Cisneros, supra note 13 in Chapter 2, at 429. Goebel, supra note I in Chapter 2, at 409-41 O; Groussac, supra note 1 in Chapter 2, at 138; Callet Bois. supra note 1 in Chapter 2, at 150; Becu, supra note 73 in Chapter 2 (this whole book is dedicated to proving the existence of the so-called secret pact). 54. Robert Phillimore, referring indirectly to the Falkland/Malvinas issue. stated that "a fictitious possession, such as the erection of a sign which is not followed by effective possession does not constitute an acquisition for the State." R. Phillimore. Commentaries upon International law (1869), at 263, cited in Diaz Cisneros, supra note 13 in Chapter 2, at 431. See also Ferrer Vieyra, 1964, supra note 5 in Chapter 1. at 223-224. 55. M. F. Lindley, The Acquisition and Government of Backward Territory in International Law ( 1926), at 51. 56. Dolzer. supra note 1, at 54. 57. Id., at 56. Alfred Rubin on this point affirms that "if anybody abandoned a claim. it was the British between 1774 and 1811," in Coll, supra note 32, at 16. 58. See Diaz Cisneros, supra note 13 in Chapter 2. at 442; V. Quesada, Historia Diplomatica Latino Americana ( 1918), at 230; Barcia Trelles, las Isla.I" Malvi11a.1·, at 94. 95; Arce, supra note l 18 in Chapter 2, at 166 ("Great Britain waived discussion of sovereign rights to the Malvinas by the Agreement of 1771 and ratified that waiver by subscribing to the Convention of Nootka Bay in 1790"); and Goebel, .rnpra note I. at 432 ("From what has been said it will have been observed that subsequent to the British abandonment of Port Egmont in 1774. the Spanish exercised the fullest sovereignty over the whole group of islands, not limiting their acts of government and control to the islands themselves, but extending their powers over the surrounding seas in an effort to prohibit or at least make more difficult fishing activities of other nations in the South Seas. Their acts appear at no time to have been disputed. The British acquiesced in them and through the Nootka Sound Convention gave their formal consent by recognizing the status quo in the southern half of Latin America"). Malcolm Deas states that the cu11\cntion would apply depending on whether Port Egmont existed or not in 1790. HCF.\C. Minutes of Evidence, 13 December 1982, HC 31-v. 59. Hope. supra note 5 in Chapter I. at 413. This author cites the French writer Louis Cavare, who noted that this convention recognized the Spanish occupation of the Malouines as a "titre juridiquement valable." L. Cavare, le Droit fllternmional Public Posit~f; 587 ( 1962). 60. Goebel, supra note l in Chapter 2. at 468. See also Reisman, supra note 38 in

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Chapter 1, at 303 ("Upon acquiring independence, a former colony ordinarily inherits all the territory of that colony"). 61. Malcolm Deas does not accept that Spain abandoned the islands in 1811 and is of the opinion that the United Provinces of the Rio Plata succeeded Spain's rights over the islands. Deas states, "It is not legally correct to ignore the Old Spanish Empire altogether and say that, for example, uninhabited parts of Patagonia were up for grabs." HCFAC, supra note 22, Minutes of Evidence, 13 December 1982, HC31-v. 62. Perl, supra note 5 in Chapter 1, at 33. Perl, however, notes that '"one might also contend that Spanish abandonment took place much later. ... Such a position might be supported by the decision of the Permanent Court of International Justice in Legal Status of Eastern Greenland ( 1933)." Id., footnote 11. Peter Beck agrees that the islands became res nullius in 1811 and that there was no automatic inheritance of the islands by Argentina. Beck, supra note l in Chapter 2, at 64. Alfred Rubin disagrees with this finding and, referring to the Clipperton decision, argues that the hiatus of 1811-1820 is legally irrelevant. Coll. supra note 32, at 17. 63. Dolzer, supra note 1, at 61-62. 64. Metford, "Falklands or Malvinas? The Background to the Dispute." Int'/ Affairs 44 (1968). at 461-73. It should be noted that Spain accepted Argentine independence in 1823. 65. Bologna, "Argentine Claims to the Malvinas under International Law" Millennium Journal of/nternational Studies 12 (1983 ). at 46 (hereinafter cited as Bologna). 66. Greig, supra note 18, at 42. 67. Waldock, supra note 32. at 315 (the doctrine "has proved to be so indefinite and ambiguous that it has become somewhat discredited even as a criterion for settling boundary disputes between the Latin-American states"). 68. Hope, supra note 5 in Chapter l, at 418. See text of the 1825 treaty in 12 B.F.S.P. ( 1824-1825 ), at 29 (1846 ). 69. These include Malcolm Deas ("Between 1820 and 1833 there are series of 'state actions' in the Islands"; "Argentina has a superior claim in 1833": "A court sitting in 1833 would have found a heavy points victory for the Argentines"). HCF AC, supra note 22. Minutes of Evidence. 13 December 1982. HC3 l-v. See also Beck. supra note 1 in Chapter 2. at 80; Reisman, supra note 38 in Chapter 1. at 302-303; Goebel. supra note I in Chapter 2. at 437. 468: Dolzer. supra note 1, at 74-75: and Gustaffson. supra note 10 in Chapter 2, at xii. 70. Hope. supra note 5 in Chapter 1. at 419-420. Also Dolzer, who says that "the measures taken by Argentina in 1820 satisfied the requirements of formal possession of territory." Dolzer, supra note I. at 65.

71. Dolzer, supra note I. at 73. See Arbitral Award 011 rhc Sul!iec·t

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access 262 I Breaking the Deadlock clearly meets the standards required by international case law for establishing, in the absence of any competing title, an open, peaceful, actual, sufficient, continuous, and given the circumstances, reasonable effective display of state activities over the Malvinas. If one considers the distances involved, the means of communication available during the first half of the nineteenth century and the fact that the Malvinas were uninhabited, these acts were indeed more than responsive for purposes of acquiring good title." Hope, supra note 5 in Chapter 1, at 422. Hope also cites the Eastern Greenland case, where it was stated that "it is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights provided that the other state could make out a superior claim." Id. 74. Perl, .rnpra note 5 in Chapter l, at 33. 75. Dolzer. .rnpra note 1. at 80. 76. Id., at 77. 77. Hope, supra note 5 in Chapter l, at 423. 78. These documents include: (a) The Bernhardt memorandum of 1910, which "cast the seeds of doubt in the Foreign Office thereby shaking official confidence in the strength of a case which had been taken for granted for such a long time." See Beck, "The Anglo• Argentine Dispute over Title to the Falkland Islands: Changing British Perceptions on Sovereignty since 19 IO." Mille1111i11111 Journal <~f' International Swdies 12 ( 1983 ). (b J Statement by Ronald Campbell. assistant secretary in the American Department in July 1911. This official stated that "the only question is who did have the best claim at the time when we finally annexed the Islands. I think undoubtedly the United Provinces of Buenos Aires. Spain had occupied the Islands for about thirty years after an evacuation of Port Egmont. The subsequent Spanish evacuation was followed by a period of about ten years during which the islands were uninhabited before the United Provinces turned their attention to them and occupied them in some form or another for about ten years before they were elected by us .... We cannot easily make out a good claim and we have very wisely done everything to avoid discussing the subject with Argentina." See id., at 13. (c) Letter from Sir Malcolm Robertson. then British ambassador in Buenos Aires, dated December 15, 1927, to Arnold Hodson. governor of the Falklands at that time. The letter said, "If you read with care the Foreign Office memorandum of 7 December 1910, you must surely have realized that the Argentine attitude is neither ·ridiculous' nor 'childish,' as you describe it and as I myself thought it to be. I confess that until I received that memorandum myself a few weeks ago. I had no idea of the strength of the Argentine case nor of the weakness of ours. I freely admit that my attitude has changed since I wrote to you on 5th October. This has been caused by the Foreign Office memorandum. I had assumed that our right to the Falkland Islands was unassailable. This is very far from being the case." See id.

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(d) The opinion of Gerald Fitzmaurice. the British Foreign Office's legal advisor on February 6, 1936, in which he admitted that "our case has [a] certain weakness mainly on account of the uncertainty concerning the status of the Falkland Islands in 1833." See id .. at 15. (e) John Vyvyan, official of the British Foreign Office, admitted in July of 1935 that "we can have no confidence in our claim to the Falklands succeeding in the event of it being submitted to arbitration and we do not therefore wish to press the question to extremes since this might lead Argentina to appeal to third party arbitration such as the International Court." See id., at 16. (f) Statement of John Troutbeck, head of the American Department in the Foreign Office, in 1936 that "the difficulty of our position is that our seizure of the Falkland Islands in 1833 was so arbitrary a procedure as judged by the ideology of the present day that it would prove not easy to explain our position without showing ourselves up as international bandits." See id. Olivieri Lopez and Ferrer Vieyra are two Argentine authors who have expanded on this point. See Olivieri Lopez, Key to an Enigma: British Sources Disprove Brirish Claims to the Falkland!Malvinas Islands (1995) (hereinafter cited as Olivieri Lopez). and Ferrer Vieyra . .wpm note 5 in Chapter 1, particularly pp. 2-64. 79. U.N. Security Council, Doc. S/PV.2350, 3 April 1982. 80. Dolzer. supra note 1, at 106. 81. Greig. supra note 23. at 43. 82. See Decision of April 5, 1933, on the Legal Status of Eastern Greenland (Den. v. Nor. l. 6 I.LR. 95 (Perm. Ct. of Int' 1 Justice, 1933 ): Clipperton Island Award (Fr. v. Mex.). 6 I.LR. 95, 99-100 (Victor Emmanuel III. King of Italy, Sole Arbiter. 193 ll. See also Hope. supra note 5 in Chapter I. at 425-426. 83. Dolzer. supra note I. at 118. 84. Greig. supra note 23, at 55. 85. Dolzer. supra note 1, at 118-119. Referring to Ian Brownlie and other international law specialists. Dolzer finds that the use of force in times of peace was not acceptable to conquer or annex territory. Accepted state practice at the time. he adds, would only have justified Captain Onslow' s actions on two different legal grounds: the enforcement of rights not recognized or affected. or the preservation of the security of the state to which he owed allegiance, including, occasionally. significant changes of the status quo without any direct proof of the impact upon that state. Dolzer then concludes that there was no legal justification under the conventions of a the day for Britain to take the islands under threat of force. Objectively, Britain was neither enforcing existing rights. which it did not possess. nor did the situation in the islands involve a threat to British security or a negative impact upon British security relative to the status quo. Britain may have thought at the time that the use of force was legal. based on the information it had received that the islands were res nullius and that acquisition of the islands by another competing maritime power was a change in the status quo in detriment to its own global maritime position. However. this erroneous factual assessment is attributable to British officials and thus not opposable to Argentina. After receiving Onslow's report, Britain should have reconsidered its actions.

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86. Id. See also G. Cohen Jonathan, Les Isles Falkland (Malouines). 17 A.F.D.l. 235 (1972); and Hope, supra note 5 in Chapter I, at 426-427. 87. Dolzer, supra note I, at 136-137. 88. As Hope notes, "Whereas in domestic law the sanction of usucapio and the conditions of its operations are clearly spelled out by a civil code, special statute or well-settled rule derived from precedents-and, therefore, the owner whose property rights have been obstructed by adverse possession is 'on notice' that unless he sues within the established time frame his rights will be lost-in international law there is: (I) an element of frustration in that there is no compulsory jurisdiction where the adverse possessor can be compelled to appear; (2) an element of uncertainty both with respect to the time frame and other conditions of its operation and, indeed with respect of the very existence of usucapio as a general legal category sanctioned for all types of cases; and perhaps (3) an element of scandal in that even writers who tend to admit usucapio, such as Hall for example, have cautioned that [it may lend itself as a sanction for wrong]". See Hope. supra note 5 in Chapter I, at 428-429. There are two cases, those of the Bering Sea and the Alaska borders, where Britain rejected, in its pleadings before the respective adjudicators, acquisitive prescription as an institution of international law. See Ferrer Vieyra, 1984, supra note 5 in Chapter I, at 224. 89. Id., at 226. See also N. G. Sabia de Barberis, "Las Islas Malvinas(, Puede Gran Bretana Fundar su derecho en la Prescription Adquisitiva," in Malvinas, Georgias y Sandwich de/ Sur: Perspectiva Historico-Juridica I (Consejo Argentino para las Relaciones Internacionales, 1992) (hereinafter cited as Barberis), at 44, 48. 90. 20 B.F.S.P. (1833-34) at 1366. 91. Muiloz Aspiri, supra note 1, at 158. 92. 31 B.F.S.P.(1842-43) at 1003. 93. Munoz Aspiri, supra note I. at 185. 94. Id., at 189. 95. Id., at 195. 96. See text in Memoria de/ Ministerio de Re/aciones Exteriores presentada al Congreso de la Nacion, 1888, at 118; Munoz Aspiri, supra note 1. at 2 f 3. The text may also be found in Dolzer, supra note 1, at 141. 97. Hope, supra note 5 in Chapter l, at 434 (note 131). 98. Muiloz Aspiri, supra note 1, at 351. 99. Id., at 354. 100. Id., at 360; 101. Id., at 277. 102. Barberis, supra note 89, at 51. 103. Id. 104. Muiloz Aspiri, supra note I, at 364-365. 105. Id., at 366. 106. Id., at 371-372.

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107. Id., at 395. 108. Id., at 369-371. 109. Id., at 389-392. 110. Id., at 393. 111. Id., at 394. 112. Hope, supra note 5 in Chapter 1, at 434 (note 138). 113. Diaz Cisneros, supra note 13 in Chapter 2, at 449-500. 114. Munoz Aspiri, supra note 1, at 375-382. 115. See inter alia 1 U.N. GAOR C.4 (25th mtg.) at 156, U.N. Doc. A/C.4/SR. (1946); 2 U.N. GAOR C.4 (36th mtg.) at 34, U.N. Doc. A/C.4/SR. 36 (1947); 2 U.N. GAOR C.4 (47th mtg.) at 107, U.N. Doc. A/C.4/SR. 47 (1947); 3 U.N. GAOR C.4 (52nd mtg.) at 7, U.N. Doc. A/C.4/SR. 52 (1948); 4 U.N. GAOR C.4 (l lOth mtg.) at 107. U.N. Doc. A/C.4/SR. 110 (1949); 5 U.N. GAOR C.4 (21Hh mtg.) at 62, U.N. Doc. A/C.4/SR. 211 (1951); 7 U.N. GAOR C.4 (256th mtg.) at 48, U.N. Doc. A/C.4/SR. 256 (1952); 8 U.N. GAOR C.4 (324th mtg.) at 52, U.N. Doc. A/C.4/SR. 324 (1953): 9 U.N. GAOR C.4 (41 lth mtg.) at 91, U.N. Doc. A/C.4/SR. 411(1954);10 U.N. GAOR C.4 (472nd mtg.) at 14, U.N. Doc. A/C.4/SR. 472 (1955). 116. Munoz Aspiri . .rnpra note 1, at 382. 117. Id .. at 398. 118. Id., at 437. 119. "The Falkland Islands Dispute in International Law and Politics: A Documentary Sourcehook by R. Perl," book review by A. Rubin. in 78 American Journal <>f"/nt'l Ll1w, 308 (1984). For a detailed and thorough analysis see Dolzer. supra note 1, at 144-169. 120. M. Akehurst, in his memorandum submitted to the House of Commons Foreign Affairs Committee, indicated that the legal effect of the 1849 note by the Argentine representative Mariano Moreno is uncertain and it is impossible to predict how an international court would decide this point. See HCFAC, rnpra note 22, Minutes of Evidence. 13 December 1982. HC3 l-v. Greig suggests a loss of Argentine title during its relative "silence" of over thirty years between 1849 and 1884. See Greig. supra note 23. at 44. However, Dolzer, who maintains that the protests made by Argentina during that time were formulated clearly and with reasonable frequency, explains that the Argentine representative explicitly stated in his protest in 1849 that Argentina would discontinue its protests in view of the lack of response on the part of Britain. but that his nation would continue to affirm that Argentine sovereignty remained in force. Dolzer adds that in analyzing the implications of the absence of protests during this period one must take into account the dignity of the state concerned as well as the fact that no settled period exists for loss of title. Dolzer, supra note I. at 155. See also Hope. supro note 5 in Chapter I. at 433. 121. On this same point, Akehurst stated that the controversy about whether protests are sufficient or not to prevent the acrual of a title of prescription is of little impo11ance as far as the present dispute is concerned. because Argentina's protests against Britain's presence on the islands have been accompanied by further steps. In the nineteenth century Argentina offered to refer the dispute to arbitration (but the UK did not accept the offer);

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access 266 I Breaking the Deadlock later Argentina refused to recognize the British nationality of the islanders and tried to conscript them into the Argentinian anny when they visited Argentina; and in recent years Argentina has taken the dispute to the UN General Assembly. See HCF AC, supra note 22, Minutes of Evidence, 13 December 1982, HC3 l-v. 122. Hope, supra note 5 in Chapter I, at 431 ("There are clear indications that there is no general conviction on the part of the international community that Britain's continuing occupation of the Islands is in conformity with the international order"); Dolzer, supra note I, at 148 ("The relevant UN resolutions do not express any clear position on one side or the other"). 123. "The Falkland Islands Dispute in International Law and Politics: A Documentary Sourcebook, by R. Perl," book review by A. Rubin, in American Journal ofInt'/ Law 78 (1984): 307-309. 124. Greig, supra note 23, at 44. 125. See Dolzer, supra note 1, at 155-165. 126.See HCFAC. supra note 22, Minutes of Evidence, 13 December 1982, HC 31-v. 127. Id. 128. Id. Fawcett declared that the British occupation of the islands in 1833 was not an act of force and that Argentina surrendered. On prescription he adds that politically it is unlikely that a court would rule against Argentina. 129. Coll, supra note 32, at 17 ("The application of the rule of the 1928 Isle of Palmas [Miangas] arbitration to quiet title is foreclosed. The reasoning applied by Max Huber to find that Spain and the United States lost their adverse claim by extinctive prescription cannot apply to the Falklands").

Chapter4 l. For further information on self-detem1ination, see H. Johnson, Self-Determination within the Community of Nations 27 (1967) (hereinafter Johnson); Franck and Hoffinan, "The Right of Self-Determination in Very Small Places," N.Y.U. J. Int'/ L. & Pol. 8, at 331 (1976) (hereinafter Franck); Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995)(hereinafter cited as Cassese). See also Hannum, Autonomy, Sovereignty, and Self-Determination (1990); H. Gross Espiell, "El Caso de las Malvinas y el Derecho a la Libre Determinacion de los Pueblos," Annuario Hispano-Luso• Americano de Derecho Internacional 7 (1984); J. A. Corrillo Salcedo, "Libre Determinacion de los Pueblos e Integridad Territorial de los Estados en el Dictamen de! Tribunal de Justicia sobre el Sahara Occidental," Revista Espanola de Derecho Internacional 29, no. 1 (1976); A. Critescu, The Right of Self-Determination ( 1981 ); Halperin, Self-Determination in the New World Order ( 1992); The Rights of Peoples, ed. J. Crawford (1988). 2. Cassese, supra note 1, at I. 3. The origin of the principle of self-determination is traced back to the American Declaration of Independence and the French Revolution (see Franck, supra note 1, at 332-333). 4. See J. Barros, The Aaland Islands Question: Its Settlement by the League of Nations

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(1968) .. 5. Cassese, supra note 1, at 43. 7. Id., at 46. 8. G.A. Res. 1514, 15 U.N. GAOR Supp. (No. 16), at 66-67. 9. Cassese, supra note I, at 46. 10. Dolzer, supra note 1 in Chapter 3, at 172. 11. G.A. Res. 1541, 15 U.N. GAOR Supp. (No. 16), at 29-30, U.N. Doc. A/4684 (1961). 12. G.A. Res. 1654, 16 U.N. GAOR Supp. (No. 17), at 65, U.N. Doc. A/4684 (1961). 13. Cassese, supra note 1, at 72-73. 14. Most of these cases involve small island territories. See U.N. A/Res/54/85,; U.N. AlAc.109/ 1999/L. 16. 15. G.A. Res. 2065, 20 U.N. GAOR Supp. (No. 14), at 57, U.N. Doc. A/6014 (1965). 16. The United Nations General Assembly also issued declarations of consensus on 20 December 1966, 19 December 1967, 16 December 1969, and 20 December 1971. See Consejo Argentino para las Relaciones lntemacionales, Malvinas, Georgias, y Sandwich def Sur: Dip/omacia Argentina en Naciones Unidas (hereinafter CARI), Vol. 1 (1983), at 289, 308, 352, and 409. 17. G.A. Res. 3160, 28 U.N. GAOR Supp. (No. 30), at 108-109, U.N. Doc. A/9030 (1973). 18. G.A. Res. 31/49, 31 U.N. GAOR Supp. (No. 39), at 22, U.N. Doc. A/3139 (1976). 19. U.N. A/10217, annex at 87; and U.N. A/31/197. Annex I. at 119 .. 20. United Nations General Assembly Resolutions 37/9 of 4 November 1982; 38/12of16 November 1984; 40/21 of27 November 1985; 41/40 of25 November 1986; 42/19of17 November 1987; and 43/25 of 17 November I 988. 21. G.A. Res. 379, U.N. Doc. A/379 (1982). 22. Sir Anthony Parson's notes of 21 and 28 April 1982, U.N. Doc. S/14988, S/15007, and in debate in the Security Council Meeting of 3 April I 982, Provisional Record of 235th meeting of the U.N. Security Council, 3 April 1982. 23. GAOR, 19th Session, Annex 8 (part I), at 440 (para. 10). 24. Id., at 440 (para. 1). 25. Britain, in a discussion relating to Gibraltar, sought to reconcile the inconsistency between the two paragraphs by stressing the word "attempt" and confining the paragraph to situations arising in the future; the paragraph is clearly aimed at protecting colonial territories or countries which have recently become independent against attempts to divide them at a time where they are least able to defend themselves (Special Committee for . U.N. Doc. A/ACI09/PV 284.1: "The [Argentine] meaning had clearly never been intended in Resolution 1514 (XV), since that would have meant that almost any Colonial Territory could have become subject to a claim by an immediate neighbor"). 22 U.N. GAOR C. 4 (174lstMtg.,), at409, U.N. Doc. A/C 4/S.R. 1741, (1967). 26. Franck, supra note l, at 383 ("Infinitesimal smallness has never been seen as a reason to deny self-determination to a population").

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27. See letter dated 18 October 1982 from the Permanent Representative of Argentina to the United Nations, addressed to the Secretary General, in U.N. Doc. A/37/553; presentation by Argentine foreign minister Aguirre Lanari to the U.N. General Assembly on 2 November 1982, U.N. A/37/PV.51; Ferrer Vieyra, 1984, supra note 5 in Chapter I, at 249-253. For a full record of all presentations by the Argentine government to the United Nations on the subject of the Falklands/Malvinas from 1946 to 1985, see CARl, supra note 16, Vols. 1-5. 28. Ferrer Vieyra, 1984, supra note 5 in Chapter l, at 249. 29. Id., at 249, 250. 30. Id., at 239. 31. Id., at 250. 32. Id,. at 250. 33. Id. 34. Id. 35. Id., at 252. 36. Id., at 251. 37. Id. 38. Sanchez, "Self-Determination and the Falklands," Columbia Journal of Transnational Law 21, at 571 (1983) (hereinafter cited as Sanchez) ("The Falkland Islands resolutions represent another case in which the General Assembly has subordinated a colonial population's right of self-determination to claims of pre-colonial sovereignty"). 39. Dolzer, supra note I in Chapter 3, at 183. 40. Id., at 184. 41. Id., at 184-185. 42. Sanchez, supra note 38, at 567. 43. Id., at 568. 44. Id. 45. Id., at 568-569. 46. Id., at 575. 4 7. Shaw, "The Western Sahara Case," Brit. Y.B. Int'/ L. 49, 119, 148 (1978) (hereinafter cited at Shaw). 48. Western Sahara, 1975, I.C.J. 12, 120 n.l (Advisory Opinion of October 16), at 33 (hereinafter cited as Advisory Opinion). 49. Shaw, supra note 47, at 148. 50. Dolzer, supra note 1 in Chapter 3, at 179. 51. Advisory Opinion, supra note 48, at 79-80. 52. Id., at 114. (Sep. Op.). 53. Schwed, "Territorial Claims as a Limlt.ation to. ~he Right of Self-Determination in the Context of the Falkland Islands Oispute," Fordham Int'/ L.J 6, at 459 (hereinafter cited as Schwed).

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54. Id., at 461. 55. G.A. Res. 2523, 22 U.N. GAOR Supp. (No. 16), at 53, U.N. Doc. A/6716 (1967). 56. Dolzer, supra note I in Chapter 3, at 181. 57. For a discussion of the decolonization of Hong Kong. see Chapter 7. For further reference, see The Future <~f Hong Kong: Toward 1997 and Beyond, ed. H. Chiu, Y. C. Joo, and Y. L. Wu (1987). at 182-197. 58. See Perl, supra note 5 in Chapter 1, at 46-47. 59. J. Robert Maguire. "The De-colonization of Belize: Self-Determination vs. Territorial Integrity," Virginia Journal <~flnternational urw 22, at 862-863. 60. Id., at 872. 61. Advisory Opinion, .mpra note 48, at 68. 62. Perl, supra note 5 in Chapter 1, at 44-45. 63. HCFAC, supra note 22 in Chapter 3, Minutes of Evidence. 13 December 1982. HC 31-v. 64. Id. 65. Coll. supra note 32 in Chapter 3, at 19. 66. Reisman, supra note 38 in Chapter 1, at 307-308. 67. Cassese, supra note 1. at 88.

Chapter 5 1. Hoffman . .\'llpra note 1 in Chapter 2, at 89, 90. 2. Latin America Bureau. Falkland/Malvinas: Which Crisis'! (Britain 1982) at 102. 3. For further reference on Britain's influence in Argentina in the nineteenth century, see H. S. Ferns, Briwin and Argentina in the Nineteemh Centllry (1960); Wright Lo.1· Ferrocarriles Inglese.1· en Ill Argentina (1974 ): Fernandez-Gomez, Argentina: Ge.1·w Britanica. Part I (1993). Part 2A (1995). Part 2B (1998). 4. Id. 5. See note 78 in Chapter 3. 6. Hoffman. supra note 1 in Chapter 2, at 98, 99. 7. Douglas Kinney notes. however, that in 194 7 Argentine cruisers and six conducted maneuvers off the islands themselves. After Britain sent a naval task force to the area, the Argentine navy subsided. Kinney, Nmimwl lnterr:st!National Honor: The Diplomllcy of" the Flllkland Crisis (1989 ). at 44 (hereinafter cited as Kinney). 8. Hoffman. supra note 1 in Chapter 2, at I 00. 9. G.A. Res. 1514 (XV>. 15 U.N. GAOR Supp. 16, at 66-67. U.N. Doc. A/4684 (1960). IO. The Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. established by G.A. Res. 1654, 16 U.N. GAOR Supp. 17. at 65, U.N. Doc. A/5100 (1961 ). 1 I. On December I 8. 1961. Indian military invaded the Portuguese territories of Goa,

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Damao, and Diu. India subsequently annexed these territories. The United Nations Security Council failed to adopt a resolution dealing with the use of military force by India. See Perl, supra note 5 in Chapter 1, at 46, 47. 12. Beck, supra note 1 in Chapter 2, at 88. 13. For fm1her reference on this whole period, see Beck. supra note 1 in Chapter 2, at 96- 132; and Hoffman, supra note 1 in Chapter 2, at 102-151. 14. Beck, supra note 1 in Chapter 2, at 97. 15. For a detailed explanation on the external and internal factors that influenced the change in British position see Beck, supra note 1 in Chapter 2. at 97, 98. 16. For further details on this event see Hoffman. supra note 1 in Chapter 2, at 104-106. 17. See BBC News, "1968 Secret History: Top Secret Papers Reveal 1968 Truth" (hereinafter cited as BBC News) athttp://www.pro.gov.uk/docimages/FC0/7_140 l .gif. 18. Id. 19. The British and Argentine positions are revealed on many occasions as follows: (a) Mr. Trafford Smith of the Commonwealth Office and Mr. Hohler of the Foreign Office had lunch with the Argentine ambassador in London on January 12, 1967. They explained that there was simply no question of handing over the Falkland Islanders to another power against their will. They felt. however. that given time and good will. the problem was capable of solution. What was needed was for the Argentine government to restore freedom of communication between the Falkland Islands and the Argentine. so that the islanders could become accustomed once more to doing their shopping in Buenos Aires and sending their children to school there and thus learn the advantages of closer association with Argentina. BBC · News. .rnpra note 17. at http://www.pro.gov.uk/docimages/FC0/7 _236a.gif. (b) Mr. Hohler stated, in a letter to the British ambassador in Buenos Aires dated May I. 1967, that the essential condition was no cession of sovereignty unless it was acceptable to the islanders: "As the secretary of state pointed out. if the only kind of agreement that the Argentine Government can sign is one that ignores the wishes of the islanders altogether. then there is really nothing left to discuss." Id., at http://www.pro.gov.uk/docimages/FC0/7_140f.gif. (c) A May 4, 1967. document shows that British officials were considering drafting techniques to maintain Britain's position regarding consultation with the islanders. They also realized that contact between Argentines and islanders was key to changing the views of islanders so "that the Argentines are not quite the ogres that the islanders seem to think (understandably, in the view of the Condor affair)." Id .. at http://www.pro.gov. uk/docimages/FC0/7 _I 40f.gif. (d) Mr. Edmonds wrote on May 8. 1967, to Mr. Hohler that '"the nub of the matter is the question of the wishes of the islanders." Id.. at http://www.pro.gov.uk/docimages/FC0/7 _I 40j .gif.) (e) A telegram of May 16. 1967. to the British ambassador in Buenos Aires states that Mr. Hohler informed the Argentine ambassador in London that ''it was simply impossible for a British Government to hand over British subjects to

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another government against their will. H.M.G. had made a substantial advance in offering to cede sovereignty, but this offer was conditional. Given a period of transition, we sincerely believed that the problem was capable of solution." The Argentine ambassador replied that "Argentine public opinion would think nothing of an offer to cede the territory if it were made subject to this condition." Id., at http://www.pro.gov.uk/docimages/FC0/7 _140o.gif. (f) A document of June 1967 shows that no progress was made since the Argentine ambassador had merely repeated the Argentine line that the islanders interests should be taken into account but that their wishes are irrelevant. Again it repeats the British line that no document would be signed which ignored the wishes of the islanders. (http://www.pro.gov .uk/docimages/FC0/7 _l 40r.gif.) 20. See id., at http://www.pro.gov.uk/docimages/FC0/7 _130b.gif. 21. Id. 22. On February 27, 1968, the unofficial members of the Executive Council. Arthur Barton, Dick Goss. Sidney Miller. and G. C. R. Bonner. wrote to every MP and to the British national press as follows: ARE YOU AWARE THAT-Negotiations are now proceeding between the British and Argentine Governments which may result at any moment in the handing-over of the Falkland Islands to the Argentine. TAKE NOTE THAT-The Inhabitants of the Islands have never yet been consulted regarding their future-they do NOT want to become Argentines-they are as British as you are. mostly of English and Scottish ancestry. even to the 6th generation-five out of six were born in the Islands-many elderly people have never been elswhere-there is no racial problem-no unemployment-no poverty. and WE ARE NOT IN DEBT. See Clive Ellerby, "The Role of the Falkland Lobby 1968-1990," in Danchev. lnternlltional Perspectives 011 the Falklands Conflict ( 1992). at 87 (hereinafter cited as Ellerby). 23. The report of the so-called Franks Committee, investigating the pre-1982 conduct of British policy in the negotiations, indicates that Mr. Stewart and other Foreign Office ministers "made clear on several occasions that there would be no cession of sovereignty against the wishes of the Islanders" and refers to debates in the House of Commons of March 26, 1998. March 28, 1998, and April 1. 1998. Lord Franks, '·Falkland Islands Review: Report of a Committee of Privy Counselors." Cmnd. 8787 (HMSO. 1983). at 6 (hereinafter cited as the Franks Report). The British historian Peter Beck. however. takes a different view. In his words. and citing to the April 1 debate at the House of Commons, Beck remarks that "FCO spokesmen. having accepted as ·an absolute condition' the significance of the interests and wishes more than they preferred at first. managed to avoid a categorical statement when asked whether sovereignty would be transferred 'if it was not the desire of the people."' Beck. supru note 1 in Chapter 2. at 10 I. Clive Ellerby agrees when he states that "in March 1968 Michael Stewart. the Foreign Secretary. told Parliament that the government wanted to resolve the sovereignty dispute in the interests of the islanders but he was ambiguous about the importance of their wishes." See Ellerby, supra note 2 I, at 86. In fact. Michael Stewart said to the Parliament, ''In what event or in

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access 272 I Breaking the Deadlock what time could the transfer of sovereignty be considered? To that my answer would be first, only as part of an agreement which would secure a permanently satisfactory relationship between the islands and Argentina ... in which, if there were a transfer of sovereignty there would be the fullest safeguards for the special rights of the islanders, forthe fact of their dissent, their language, and so on .... (S)econdly, only if it were clear to us, the government in the United Kingdom, that the islanders themselves regarded such an agreement as satisfactory and in their interests." See Par!. Deb., H.C. (5th ser.) 1464 (1968 ), cited in Reisman, supra note 38 in Chapter 1, at 309. 24. Transcribed in Olivieri Lopez, supra note 78 in Chapter 3, at 127. 25. Letter dated August 29, 1968, from Sir Cosmo Haskard to Michael Stewart (FCO 7/235, in http;//www.pro.gov.uk/docimages/FC0/7_235f.gif). Members of the Executive and Legislative councils included Thompson, Rowlands, Goss, Pitaluga, Clement, Hills, and Mrs. King. Cosmo Haskard added that only Thompson was privy to the contents of the agreed memorandum. The discussion took place on the basis of a July 1968 paper produced by the FIEC, which ''stimulated some fresh thinking out here." The July 1968 paper was presented as no more than an attempt to outline solutions and some of the arguments for and against them. In this document. several courses of action were mentioned, including an immediate transfer of the islands, holding a plebiscite. condominium, an act of desagravio, putting the islands up for sale, association with another South American country, status quo and a "Channel Islands" status. See http://www.pro.gov.uk/docimages/FC0/7 _235a.gif. The paper reveals that there were British economic interests that would benefit from the handing over of the islands. 26. See http://www.pro.gov.uk/docimages/FC0/7 _155a.gif. 27. It is reported that this meeting was quite stormy. Chalfont explained to the islanders the benefits for the islanders if a cession to Argentina took place. but the six members were opposed. It appears that those with strongest objections were the two nonelected members representing the sheep industry. See Hoffmann, .rnpra note 1 in Chapter 2, at 108. 28. Cawkell, supra note 1 in Chapter 2, at 63-64. 29. Hoffman provides a lengthy discussion as to the factors that contributed to the failure in approving the memorandum of understanding and a transfer of sovereignty over the Islands to Argentina. Besides the opposition of the .. Falkland lobby" and the Parliament. other factors include the announcement by the general manager of Alginate Industries Limited of the existence of marine algae in the Islands and its economic potential and a counterproductive news conference of Argentine officials with the British media. Hoffman, supra note I in Chapter 2, at 110-113. 30. Beck, supra note 1 in Chapter 2, at 103. 31. These events of over thi11y years ago, which have determined British policy ever since, are recorded by the Franks Repo11 and Peter Beck as follows: Lord Chalfont. Minister of State at the Foreign and Commonwealth Office. visited the Islands in November 1968 to explain the policy that the Government had been pursuing in their talks with the Argentine Government. On his return the Government made statements in both Houses of Parliament on 3 December 1968 about Lord Chalfont's visit. [footnote omitted] They received a critical

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reception and were widely reported in the press. In view of the Parliamentary and press reaction, the Government decided at a Cabinet meeting on 11 December not to continue to attempt to reach a settlement on the basis of the Memorandum of Understanding, since Argentina was not prepared to accept either that the Memorandum should include a statement that any transfer of sovereignty would be subject to the wishes of the Islanders; or that the unilateral statement, enshrining this safeguard, should be specifically linked to the Memorandum. It was recognized. however, that failure to reach an understanding with Argentina carried the risks of increased harassment of the Islanders and the possibility of an attack. The Government therefore decided to endeavor to continue negotiations with Argentina while making clear the British attitude on sovereignty. Mr. Stewart made a statement in Parliament later the same day, which announced the decision to continue negotiations and which confirmed that the British Government would continue to insist on the paramountcy of the Islanders' wishes. [footnote omitted] (Franks Repott, supra note 23, at 6-7.) For the moment the Islanders had triumphed and the government back-tracked on the Memorandum of Understanding and sovereignty. Increased priority was given to self-determination, and the Islanders' "interests" were elevated to '·wishes" as the "paramount" condition for any transfer. The strong and articulate backing given to the '·Islanders" case by the Falklands lobby contrasted with the relative lack of support for Stewait inside and outside Parliament. His ministerial colleagues opted out of the policy initiative. Anxious to avoid controversy at a time of more important preoccupations at home and abroad (such as Rhodesia), and generally lacking any firm purpose or interest on the matter. the government followed rather than led opinion-even if that "opinion" constituted little more than the views of a relatively small number of MPs. These had secured all-pa1ty support. creating a lot of noise as the so-called "voice of parliamenf' on "a peripheral issue" and giving ministers a hard time. and had succeeded in attracting press coverage. including the support of The Times. By contrast. there existed no pro-Latin American lobby, and only a few Labour MPs (including Austen Albu. Frank Hooley and David Winnick) supported Stewart through an advocacy of dialogue and anticolonialism. (Beck . .1·upra note I in Chapter 2. at 104. 105.) 32. Beck, supra note 1 in Chapter 2, at 106. 33. Id .. at 104. 34. Hastings and Jenkins, The Battle for the Falklwuls (1983). at 23 (hereinafter cited as Hastings). 35. U.N. Doc. A/7785 and A/8234. 36. Letter dated August 15, 1973. from the Argentine representative before the United Nations to the Secretary General of the United Nations. in U.N. Doc. A/912 L cited in 11 CARL supra note 16 in Chapter 4. at 33. 37. Condominium had been proposed in 1966 by Sir George Bolton, chair of the London and South American banking group. See Beck. supra note 1 in Chapter 2, at 151.

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38. Hoffman, supra note 1 in Chapter 2, at 123. 39. Franks Report, supra note 23, at 9. 40. The British Foreign Office and the Falklands lobby did not have the same agenda about this economic survey. British officials expected that the survey would show that integration with Argentina was inevitable. The Falklands lobby felt quite the opposite. Some of its members, particularly Bill Hunter Christie, had been recommending since I 974 a comprehensive economic review of the colony and the establishment of a development agency. They saw that economic development of the islands was key to strengthening their ties with Britain and also to creating a self-sufficient population more likely to win international support for a right to self-determination. Hastings. supra note 34. at 28-30; Ellerby, supra note 22, at 92-98. 41. II CARI, supra note 16 of Chapter 4, at 143-146. See also U.N. Doc. A/31/23. Rev. I. 42. The Franks Report notes that several newspapers had advocated invasion of the Islands ''in veiled terms." Franks Report, supra note 23, at 10. 43. Beck. supra note 1 in Chapter 2. at 113. 44. Peter Beck refers not only to statements of British officials in the labor and conservative governments but also to statements from the Times and Coalite Ltd .. owner of FIC. Id., at I 15. See also Hastings, supra note 34, at 28-33 (shows that the Shackleton Report really supported the interests of the Falklands lobby to maintain the islands as a British colony); and Cawkell, supra note l in Chapter 2, at 70-74. 45. Costs estimates wer~ about 3 to 4 million pounds for the runway extension and I million for the road construction. Id .. at 116. For a summary of the recommendations of the Shackleton Report and actions taken by 1982. see Annex D of the memorandum by the Foreign and Commonwealth Office in HCFAC. supra note 22 of Chapter 3. Minutes of Evidence 10 (November 1982). HC3 l-i_ 46. Franks Report. supra note 23, at 13. 4 7. Beck, supra note I in Chapter 2, at 116-117. 48. Olivieri Lopez, supra note 78 in Chapter 3, Appendix 3. Cawkell states that the islanders were not informed that the negotiations would specifically deal with the sovereignty issue. Cawkell, supra note 1 in Chapter 2. at 76. 49. Franks Report. supra note 23. at 17. 50. This may be attributed in part to the adverse results for Argentina with the Beagle Channel dispute with Chile and River Plate basin questions with Brazil. 51. Franks Report, supra note 23. at 23. 52. Beck. supra note 1 in Chapter 2. at 120. 53. Olivieri Lopez, supra note 78 in Chapter 3. at 70. 54. Betts. supra note 39 in Chapter I. at 143. 55. Ellerby, supra note 22, at 99. 56. See strong and critical statements by MPs in Beck. supra note I in Chapter 2. at 121. Human rights was also made an issue by the Times to oppose any handover of the islands to Argentina. Id. 57. British officials, including the British ambassador in Buenos Aires. spoke of the

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"unguided wishes of the Islanders" as an obstacle to any accommodation with Argentina. Id., at 122. 58. Cawkell, supra note l in Chapter 2. at 85. 59. Id., at 82 .. Islander Patrick Welts believed the speech to be the real turning point in the change of mind of many islanders. Ellerby, supra note 22, at 99-100. 60. Betts, supra note 39 in Chapter I, at 143. 61. Ellerby, supra note 22, at 99. 62. Declaration by Mrs. Malcolm, HCFAC, supra note 22 of Chapter 3, Minutes of Evidence, 13 December 1982, HC31-v. 63. Several events raised doubts about British commitment to the islands and their defense, including the failure to extend British nationality to the islanders in 1981 and, most notably, the decision announced in June 1981 to withdraw HMS Endurance in March 1982. 64. Declaration by Mr. Ure, HCFAC, supra note 22 of Chapter 3, Minutes of Evidence, 10 November 1982, HC31-i. 65. There is an extensive literature that deals with those aspects. In addition to the other sources listed in this section, the reader interested in reviewing those aspects may consult Hastings, supra note 34; Freedman and Gamba-Stonehouse. Signals <~f" War: the Falklands Conflict <~f 1982 ( 1990). 66. The Thatcher government protested against the violation of British sovereignty. and on March 23 sent HMS Endurance-the only gunned ship in the area-to expel the Argentines from the islands. Argentina, reluctant to comply with the removal of the party under the threat of force, escalated the situation by sending the warship ARA Bahia Parafao to South Georgia. On the following day, the British nuclear submarine HMS Superb departed for the islands. On March 26, a hundred marines under the command of Captain Astiz joined the workers at the South Georgia Islands and the following day Argentina's missile corvettes ARA Drummond and ARA Grandville were sent to South Georgia. 67. S.C. Res. 502. U.N. Doc. S/RES/502 (1982). 68. "I recalled [to] the Secretary of State that the islands had only 1.800 inhabitants ... I told him that the entire population could fit in a large theater or tennis court," Nicanor Costa Mendez, Malvina.1·: Esta es la Historia (Buenos Aires: 1993), 216 (hereinafter cited as Costa Mendez). 69. Oscar R. Cardoso, R. Kirschbaum, and E. van der Kooy, Ma/vi11ll.1·: La Trama Secreta (Buenos Aires. 1983 ), 139 (hereinafter cited as Cardoso): Alexander Meigs Haig. Cllreat: Realism. Rellgan. lllld Foreign Policy (1984), 241 (hereinafter cited as Haig). 70. Cardoso. supra note 69. at 147. 71. Margaret Thatcher. The Downing Street Years. !st ed. (1993), 193 (hereinafter cited as Thatcher). 72. The historical memories of Chamberlain appeasing the expansionist Nazis in the late 1930s were too fresh. Besides. the prime minister was aware of the potential implications of a response perceived as weak qy the international community for the cases of Hong Kong or Gibraltar. Plus. she stressed. the credibility of a NATO country was at stake-a

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access 276 I Breaking the Deadlock point on which Haig agreed with her. Kinney. supra note 7. at 111. "I told Mr. Haig that the issue was far wider than a dispute between the United Kingdom and Argentina. The use of force to seize disputed territory set a dangerous precedent. In that sense, the Falklands mattered to many countries." Thatcher. supra note 71. at 192. 73. Cardoso, supra note 69, at, 159. 74. Id. 75. Haig, supra note 69, at 280. 76. Cardoso, supra note 69, at 159. 77. Richard C. Thornton, The Falklands Sting: Reagan. Thatcher, and Argentina's Bomb. 1st ed. (1998). at 147. 78. Id .. at 148. 79. Cardoso. supra note 69, at 166. Haig offers a very different account of that negotiation. The former U.S. secretary of state claims that during that long negotiating session, Argentine negotiators gave up the demand of an Argentine administration during the interim period: "Finally, between midnight and one in the morning. the impasse broke ... Argentinean troops would leave the islands and the British administration would be restored [emphasis added]. But economic and financial measures against Argentina would be terminated within two weeks, the flags of the six nations would be displayed at the residences and on the official automobiles of all countries represented on the islands." Haig. supra note 69, at 282. 80. According to Costa Mendez. that paper ··repeated in actuality the positions already stated during the negotiations . . . although it added a few new ideas with regards to the withdrawal of troops." Costa Mendez, supra note 68. at 224. In sum, the administration of the islands would remain under Argentine control. On the other hand. Haig claims that what was said in that paper "constituted a retreat from everything we had accomplished at the Casa Rosada the night before. The Argentineans were demanding either de facto military authority over the islands through administrative arrangements that would give them immediate control of its government, or a British promise that sovereignty would be transferred to Argentina no later than December 31, 1982. regardless of the outcome of the negotiations. This was a formula for war." Haig. supra note 69, at 283. 81. On April 12, Haig introduced a novel idea that had not been considered so far in the negotiations. He asked Secretary Pym to evaluate the possibility of an Argentine-British condominium of the islands. Pym did not reject it outright-he even acknowledged publicly the merits of this avenue-but the idea eventually was dropped as both parties saw it as difficult to implement. Haig and Pym agreed that the Argentines would reject it since it did not prom.ise them full sovereignty over the islands. Besides. the islanders' support could not be taken for granted either. Cardoso. supra note 69. at 167. 82. Thatcher. supra note 71. at 194. 195. 83. Cardoso supra note 69. at 17 J. 84. "The fact was that should Thatcher agree to recall the fleet from England domestic political pressures ... would preclude its return .... The cost of mobilizing and outfitting the fleet a second time would be prohibitive and the pressure for a settlement overwhelming." Thornton, supm note 77, at 153.

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85. Thatcher, supra note 71, at 195. 86. Costa Mendez, supra note 68, at 226. Cardoso, supra note 69, at 180. 87. "Later that day events took another bizarre turn. Al Haig told Francis Pym of the contents of a further discussion he had had on the telephone with Sr. Costa Mendez. Apparently, the Argentineans had now dropped their five demands (i.e .. their 'minimum requirements') .... Mr. Haig thought there was a chance of a settlement ... if we would agree to language about decolonization, subject to the wishes of the islanders." Thatcher, supra note 71, at 199. 88. Cardoso, supra note 69, at 177. 89. Thornton, supra note 77, at 159. 90. The entire text can be consulted in Cardoso, supra note 69, at 327. 91. Costa Mendez, supra note 68, at 231. 92. Cardoso, supra note 69, at 186. 93. Id., at 179. 94. Thornton, supra note 77, at 166. 95. The complete text of the proposal can be seen in Cardoso, supra note 69. at 330-333. 96. Thatcher, supra note 71. at 205. 97. Id .. at 206. 98. Thornton. supra note 77, at 170. 99. Thatcher, supra note 71, at 207. 100. Id., at 209. 101. Id., at 207. 102. Id .. at 211. 103. Haig. supra note 68, at 292. 104. Costa Mendez, supra note 68. at 244: Cardoso supra note 69. at 225. I 05. Costa Mendez. supra note 68. at 245. I 06. Thornton, supra note 77. at 191. 107. Costa Mendez, supra note 68, at 246-48. 108. "If we retouch one or two details. I believe it will fly." Cardoso. supra note 69. at 228. I 09. Thornton argues that Thatcher decided to escalate militarily to preempt a scenario whereby she would be pressured by the British Parliament to accept an agreement that she found unacceptable and a compromise of her leadership. Thornton. supra note 77, at 192 and 199. Understandably enough. Thatcher strongly denies this interpretation: "The decision to sink the Belgrano was taken for strictly military not political reasons: the claim that we were trying to undermine a promising peace initiative from Peru will not bear scrutiny." Thatcher, supra note 71, at 215. 110. Thornton. supra note 77. at 204. 111. Thatcher. supra note 71, at 217.

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112. By then it was announced that the liner Queen Elizabeth II and other ships would be utilized as troop and hardware carriers, to reinforce the task force. Thornton. supra note 77. at 206. 113. Thornton, supra note 77, at 212. 114. Thatcher, supra note 7 L at 217. 115. Thornton, supra note 77. at 213. 116. Costa Mendez, supra note 68, at 269. 117 Cardoso, supra note 69, at 241. 118. Thornton, supra note 77. at 213. 119. By late April, the task force was mostly ready to launch an attack, excepting a few ground units that were being held in reserve at Ascension Island. Id .. at 180. On May 9, British warships started to bombard Argentine military installations around Port Stanley. 120. Thatcher, supra note 71, at 218. 121. The complete text of the Secretary General's first draft. contained in an aide memoire, can be seen in Cardoso, supra note 69, at 342-43. 122. Costa Mendez, supra note 68. at 278. 123. Thatcher, supra note 71, at 222. 124. Id. 125. The entire text can be consulted in Cardoso, supra note 69. at 352-54. 126. Costa Mendez, supra note 68. at 288. 127. Id .. at 289. 128. Id. 129. The entire text can be consulted in Cardoso. supra note 69, at 355-57. 130. See Costa Mendez, supra note 68. at 288-292. 131. Cardoso, supra note 69, at 265. 132. The aversion to any risk derived from a vague agreement is captured in the following quote, in which Costa Mendez assessed the text negotiated with Haig on April 19: "The terms that we have agreed to use here, which are so diffuse and ambiguous so as to be acceptable to the British Government today. will add a very risky threat to our position as of 31 December." Lawrence Freedman and Virginia Gamba-Stonehouse. Signals r~( War: The Falklands Co1!flict <>f 1982 ( 1991 ). 21 l. As stated before. this text was one of the few where Argentina showed flexibility in both columns '"B" and "C." In order to "correct" this vagueness. the so-called mad clause was quickly added to the text. 133. The diplomacy of President Menem has attempted to deal with this problem by offering financial incentives to the islanders so as to encourage them to leave the islands. The problem with this remedy is that it ignores (or denies) the islanders' attachment to their soil and their own identity. It reflects the same narrow and legalistic mindset of an Argentina acting as if it where a landowner who. after finding a trespasser in her backyard. offers money for lack of a better way to make him leave the prope11y. Fu11her, it reinforces the negative perceptions that remain at the core of the conflict: that of the Islanders as "intruders, desce11dants from the colonial invaders.·· and that of the

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Argentines as "yesterday's invaders, now tryinJ? to take over our land through bribes." This approach can only make more harm than good, as it is likely not only to reinforce the islanders' attachment to a land they perceive as rightfully theirs but also to consolidate their collective identity in a way that is totally incompatible with any form of association with the mainland. 134. The most comprehensive study on this subject is still Ted Robert Gurr' s Minorities at Risk: A Global View of' Ethnopolitical Conflicts (Washington, D.C.: United States Institute of Peace Press, 1993 ).

Chapter6 1. II CARI, supra note 16 in Chapter 4, at 28. 2. In the letter, the Argentine representative declared that: (i) Argentina held irrefutable sovereign rights over the Islands; (ii) Falkland/Malvinas was a special case different from the classic colonial cases; (iii) the right of self-determination could not be enjoyed by settlers of a territory that is part of an independent nation and which was separated from such nation by force and against the will of its inhabitants; and (iv) Argentina is committed to preserve and protect the lifestyle of the islanders. It went on to say that "this is not a sudden passion, but a long-sustained national concern that stretches back 150 years." Olivieri Lopez, .1·upra note 78 in Chapter 3, at 97. 3. At the proceedings. the Venezuelan and Cuban delegates first objected the presence of Islanders' representatives before the committee. The Venezuela delegate then offered the most extensive presentation in favor of Argentina: it affirmed that the General Assembly had accepted the distinction between colonies and occupied territories (Malvinas is '·a colonized territory and not a colonized people"). that Argentina had an indisputable right to recover the islands, that the right of self-determination was not applicable in this case and that Britain had not shown good faith in its negotiations with Argentina. For the Venezuela delegate, only a negotiation within the United Nations framework will provide a satisfactory solution to the dispute. The Argentine delegate made a long speech on the Argentine claims. First, he provided a summary of Argentina's legal and historical rights. Second, he made the case that self-determination is not applicable on the basis of the terminology of the relevant U.N. resolutions. the distinction between a "people" and a "population." that the Falklanders were an "imposed population" and that the U.N. has favored the principle of territorial integrity in other similar cases (i.e. the island of Mayotte). Lastly. and notwithstanding the above. Argentina was ready to offer safeguards to protect the interests of the Islanders. It did not. however, accept the legitimacy of the Islanders to stand before the decolonization committee. IV CARI, supra note 16 in Chapter 4, at 99-124. 4. On November 2. 1982. the Argentine representative. Aguirre Lanari, made an extensive speech on the legal arguments supporting Argentine title over the Islands. In such speech we find the common themes of historical rights. anti-colonialism, non• applicability of self-determination and Britain's lack of good faith. Aguirre Lanari called the "Malvinas" an "anachronistic form of colonial domination." The following are summaries of the arguments made by Aguirre Lanari: (a) The Malvinas question involves a sovereignty dispute between the UK and Argentina over the Mal vinas, South Georgi as and South Sandwich Islands.

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Argentine sovereignty is founded on solid legal grounds; Argentina succeeded to Spain's rights and in virtue of such rights it exercised the administration of the islands by appointing 6 governors and through many other acts of jurisdiction and administration. Further, Britain raised no objection to the Argentine occupation of the Islands at the time of the 1825 treaty with Argentina. Moreover, Britain's occupation in 1833 was illegal in that the islands were neither without owner or abandoned. (b) The principle of territorial integrity and not self-determination is applicable to this case as other analogous situations such as Gibraltar, Mayotte, Malagaches and the islands off Namibia. United Nations has accepted the individuality of each colonial case and the need not to prejudge on the applicable principle. In support of such position, Aguirre Lanari referred to the United Nations decisions on the Gibraltar question and the ICJ advisory opinion on Sahara showing that self-determination is not the only principle to be applied in de-colonization cases. Britain has declared that the wishes of the islanders are conditioned to the wishes of Parliament. The only "people" entitled to self-determination is the Argentine people that were deprived of a part of their territory. (c) If one assumes that Britain could hold title by conquest, such title became extinguished with the new decolonization law embodied in United Nations Resolution 1514 and other decisions. The basic premise of such decolonization law is that the colonial powers have no sovereignty but only a temporary administration until the colonial situation has ended. (dl The United Nations has favored the Argentine claim. In 1946 Britain included the Falklands/Malvinas in its list of 43 dependent territories and Argentina made reservations of such claim in such year and every year thereafter. On April 20. 1964 Argentina decided to submit the sovereignty issue to the de-colonization committee and affirmed that self-determination was inapplicable. Britain denied any jurisdiction of the U.N. on the matter. On September 18. 1964, the special committee made recommendations essentially accepting Argentine position. Resolution 2065 is approved on December 16. 2065. In January of 1966 both parties agree to negotiate on the basis of 2065. In August of 1968 a memorandum of understanding is signed but no final settlement is reached. Thereafter Britain was never open to negotiations over sovereignty in defiance of the international community. Argentina wishes a negotiation that is profound, frank. honest and guided by good faith (mi pois quiere llllll 11egociacio11 profi111da, .flw1ca. hone.1·ta, presidida por la lmena fe). Id .. at 287-304 5. Beck. .mpra note 1 in Chapter 2, at 137. 6. Id 7. Id .. at 172. 8. U.N. Doc. NAC.!09/PV.1261, at 14/15. 9. U.N. Doc. NAC.109/PV.1261, at 8. l 0. Beck, supra note 1 in Chapter 2. at 181. 11. Id.

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12. Report of the Foreign Relations Committe of the House of Commons. chaired by Sir Kemshaw. House of Commons Foreign Affairs Committee (1982-4) Falkland Islands Minutes of Evidence and Reports, HMSO, London. 13. Olivieri Lopez, supra note 78 in Chapter 3, at 88. 14. Id .. at 88. 89. 15. Forty days after the surrender by the Argentine forces, on July 23, 1982, the United Kingdom declared a protection zone with a 150 nautical-mile radius, around the Falkland Islands. The Falkland Islands Protection Zone (FIPZ) was created with the purpose of preventing any Argentine warship or military aircraft.. from entering such zone. 16. Ratified by Law 23, 494, enacted on January 1, 1987. 17. For fishing quotas and their allocation, please refer to http://www.sea• world.com/fis/companies/falkland%2Bislands/statistics/tipoaee.htm 18. See Falkland Islands Interim Conservation and Management Zone, "Fisheries Report 87/88," Falkland Islands government, Stanley,.1989. 19. U.N. Doc. A/AC.109/PV.1327, at49, 50. 20. Olivieri Lopez, supra note 78 in Chapter 3, at 90. For further reference, see Bisbal, "Fisheries Management on the Patagonia Shelf," 1993 Marine Policy. at 213. 2 I. Statement by islander Mrs. Norma Edwards (member of the Legislative Council) in U.N. Doc. A/AC.109/PV.1446, atl5. Another Islander remarked at the proceedings of the U.N. decolonization committee that, after JOO years of work on a sheep farm owned by an absentee landlord, his family was able to register a company and purchase the 200,000 acre fann ,and added that "(t)oday my brother and 1 are very optimistic about the future of agriculture in the Falklands." Statement by Mr. Robin Lee in U.N. Doc. A/AC.109/PV.1339, at I 1.. 22. Statement by Mr. Derek William Rozee in U.N. Doc. A/AC.109/PV.1238, at 64-<>5. 23. Statement by Mr. Alexander Betts in U.N. Doc. A/AC.109/PV.1339, at 18. 24. Statement by Mrs Norma Edwards in U.N. Doc. A/AC.109/PV.1446, at 16. 25. Statement by Mr. Robin Lee in U.N. Doc. A/AC.109/PV.1339, at 11. 26. Statement by Ms. Norma Edwards in U.N. Doc. AlAC. I 09/PV.1446. at 15. 27. Little, Low, and Townsend, "The Falkland/Malvinas: British Political Opinion," in W. Little and C. Mitchell, In the Aftermath: Anglo-Argentine Relations Since the War for the F alkiand!Malvinas Islands (1989), at 67 (hereinafter cited as Little and Mitchell). 28. Falklands Islands (Malvinas) working paper prepared by the Secretariat, U.N. Doc. AlAC.I 09/1198, at 11. 29. Statement by Mr. Alexander Betts in U.N. Doc. A/AC. 109/PV.1339, at 18-20. 30. Statement by Mr. Alexander Betts in U.N. Doc. A/AC.109/PV. 1354, at 18. 31. U.N. Doc. A/AC.109/2083. at 3. 32. Statement by Mr. John Cheek in U.N. Doc. AlAC.109/PV.1238, at fi2. 33. Statement by Mr. John Cheek in U.N. Doc. A/AC.109/PV.1285, at 8-10. 34. Statement by Mr. Anthony J. Bl~ in U.N. Doc. AlAC.109/PV. 1238, at 58.

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35. Statement by Mr. Anthony J. Blake in U.N. Doc. NAC. !09/PV.1261, at 4. 36. Statement by Mr. Alexander Betts in U.N. Doc. NAC.109/PV.1354, at 18. 37. Statement by Mr. John Cheek in U.N. Doc. NAC.!09/PV.1223, at 31. 38. Statement by Mrs. Norma Edwards in U.N. Doc. NAC.!09/PV.1446, at 17. 39. Statement by Mrs. Norma Edwards in U.N. Doc. NAC.!09/PV.1387, a~ 52. 40. Statement by Mr. Eric Miller Goss in U.N. Doc. A/AC.109/PV.1446, at 14. 41. Id. 42. Statement by Mr. John Cheek in U.N. Doc. NAC.!09/PV.1285. at 13-15. 43. Id. 44. Statement by Mr. John Cheek in U.N. Doc. NAC.!09/PV.1285, at 12. 45. Statement by Mr. Lewis Clifton in U.N. Doc. NAC.109/PV.1369. at 16-17. 46. Statement by Mr. T. J. Peck in U.N. Doc. A/AC.109/PV.1420. at 57. 47. Statement by Mr. Lewis Clifton in U.N. Doc. NAC.109/PV.1387, at 59. 48. Statement by Mrs. Norma Edwards in U.N. Doc. A/AC.109/PV.1446, at 16. 49. Statement by Mr. T. J. Peck in U.N. Doc. A/AC.109/PV.1420. at 52. 53. 50. Statement by Mr. John Cheek in U.N. Doc. N AC. !09/PV.1223. at 27. 5 l. Statement by Mr. Eric Miller Goss in U.N. Doc. A/AC. I 09/PV.1446. at 14. 52. Statement by Mrs. Norma Edwards in U.N. Doc. NAC.109/PV. 1387. at 52. 53. Statement by Mr. L. G. Blake in U.N. Doc. A/AC.!09/PV.1339. at 9-IO. 54. Statement by Mr. Blake in U.N. Doc. A/AC.109/PV.1327. at 37. 55. Statement by Mr. L. G. Blake in U.N. Doc. Al AC.109/PV.1339. at 3. 56. Statement by Mr. Eric Goss in U.N. Doc. NAC.109/PY.1446. at 13. 57. Statement by Mr. Derek William Rozee in U.N. Doc. A/AC.109/PV.1238. at 64-65. 58. Statement by Mr. Alexander Betts in U.N. Doc. Al AC. I 09/PY.1238, at 67-70. 59. Statement by Mr. Alexander Betts. id. and in U.N. Doc. A/AC.109/PV.1285. at 17. 60. Statements by Mr. Alexander Betts in U.N. Doc. NAC.109/PY.1446. at 19. In 1993 Alexander Betts stated that the Islanders ··assume an attitude of distrust and vexation with the Argentine Government. which wishes to re-establish normal relations with the Malvinas Islands. So emotional is their posture that they confine themselves to a blunt and unfriendly refusal to become involved in any way with either mainland Argentina or the Argentine people." U.N. Doc. A/AC.109/PV.1420. at 42. 61. Statement by Mrs. Susan Coutts de Maciello in U.N. Doc. A/AC.109/PV.1261. at 11. 62. Statement by Mr. Alexander Betts in U.N. Doc. Al AC. I 09/PV .1261. at 7. 63. Statement by Mr. Alexander Betts in U .N. Doc. A/ AC. I 09/PV.1285. at 16. 64. Id. 65. Id., at 16, 17. 66. U.N. Doc. A/AC.109/1198, at 5. 67. Id.

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68. Olivieri Lopez, supra note 78 in Chapter 3, at 109. 69. The British delegate regretted that Argentina turned the debate into a bilateral dispute about land and not people. But also regretted that the De-colonization Committee and the General Assembly adopted resolutions "that have failed even to mention the right of self• determination of the Falkland Islanders" and " ... have also prejudged the outcome of negotiations in Argentina's favor." U.N. Doc. A/AC.109/PV.1261, at 13. 70. David Thomas, "The View from Whitehall," in Toward Resolution? The Falklands!Malvinas Dispute, ed. W. Smith (1991 ), at 33 (hereinafter cited as Smith). 71. Beck, supra note I in Chapter 2, at 140. 72. Little and Mitchell, supra note 27, at 57. 73. U.N. Doc. A/AC.109/2048, at4. 74. U.N. Doc. A/AC.109/PV.1420, at 67. 75. The Argentine government has stated that this was an ex-gratia offer and did not imply acceptation of any responsibility. U.N. Doc. A/AC.109/2048, at 7. 76. U.N. Doc. A/AC.109/2048, at 18. 77. U.N. Doc. A/AC.109/1198, at 6. 78. The only Argentines to travel have been next-of-kin of war victims and journalists. There have been Argentines who have traveled on the basis of a foreign passport. 79. U.N. Doc. Al AC.109/2083, at 10. 80. U.N. Doc. A/AC.109/PV.1420, at 68. 81. U.N. Doc. A/AC.109/PV.1446, at 25. 82. U.N. Doc. A/AC.109/2048, at 23. 83. Id .. at 22. 84. U.N. Doc. A/AC.109/2083, at 10. 85. U.N. Doc. A/AC.109/PV.1446, at 25. 86. Id. 87. Statement by Mr. Alexander Betts in U.N. Doc. A/AC.109/PV.1285, at 16. The Constitution of Argentina, inspired by the United States model, adopts a federal system of government (see Garay, "Federalism, the judiciary. and Constitutional Adjudication in Argentina: A Comparison the U.S. Constitutional Model.'' Inter-American um· Rnirn 22, 162). Argentina's federal scheme basically comprises powers delegated to the Federal Government. powers reserved by the provinces. and concurrent powers of the Federal Government and the provinces. The Constitution provides that the provinces retain all power not delegated to the Federal Government. Each province in Argentina enacts its own constitution (not subject to the approval of the Federal Government), which must provide for a republican and representative system of government, a bill of rights no less than those of the Federal Constitution, and a system of administration of justice. municipal government. and primary education. In examining the constitutions of the provinces which form the Patagonia region (with geographical proximity and also economic and certain cultural affinities with the Falklands/Malvinas. one finds a striking similarity with the Falklands constitution. These provinces (Rio Negro. Chubut. Santa Cruz. Neuquen. Tierra del Fuego) provide for systems of government with tripartite

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access 284 I Breaking the Deadlock powers. Each one has a governor and legislature elected by the people. They also provide for a judiciary with an organization chosen by the province. These provinces, in the exercise of their own self-determination, provide for rights and institutions in their own constitutions not found in the Federal Constitution (e.g., judicial councils for appointment of judges). They also provide for a bill of rights that includes those same rights guaranteed under the Constitution of Falkland Islands, namely: protection of life (Rio Negro const. art.16; Chubut const. art. 12; Tierra del Fuego const. art. 14 (l); personal liberty (Rio Negro, art 17; Chubut, art.12; Santa Cruz, art. 26; Tierra del Fuego art. 14 (4); protection from inhuman treatment (Rio Negro, art 16; Tierra del Fuego, art 33; SantaCruz art. 30); freedom of movement (Chubut, art 13; Tierra del Fuego, art.14(I1 ); protection of private property (Chubut, art. 14; Tierra del Fuego, art. 14 (13, 14); protection from unlawful search or entry ((Rio Negro, art. 21; Chubut, art. 25: Santa Cruz. art. 26; Tierra del Fuego. art. 41); freedom of conscience (Rio Negro, art. 26, Chubut, art. 15; Tierra del Fuego, art. 14 (6)); freedom of expression (Rio Negro. art.26; Chubut, art. 15; Santa Cruz, art. 11; Tierra del Fuego, art. 14 (IO) and (46)); freedom of assembly (Rio Negro, art. 24; Chubut, arts. 22, 23; Tierra del Fuego. art. 14 (8)); equal treatment (Rio Negro, arts. 18, 19, 22; Chu but, arts. 27, 28, 29, 32; Santa Cruz, arts. 22, 23, 24, 25: Tierra del Fuego, arts. 34, 35, 36, 37, 39). The above list serves to show the striking resemblance in language and spirit of the supreme laws in the islands and each of the Patagonian jurisdictions. 88. U.N. Doc. AfAC.109/PV.1420, at 71. 89. Id., at 72. 90. Statement by Mrs. Bertrand de Jamieson in U.N. Doc. NAC.I09/PV.1327. at 41. 91. Statement by Mr. Raul Milton MacBumey in U.N. Doc. NAC.109/PV.1285. at 21 92. Id., at 22. 93. Id. 94. The South Atlantic Council is one of the lobbies concerned with the Falklands/Malvinas case. Formed in late 1983, it resulted from a "workshop" on the conflict held at the University of Maryland in September 1983 (two more workshops were held in 1984 and 1985 respectively). For further reference, see Little and Mitchell, supra note 27. at 3-9, 64-65. 95. '·Contrasting Approaches to Relations Between the Falklands. Britain. and Argentina:· South Atlantic Council Occasional Papers, No. 9 (February 1998). at 2-4. 96. Id., at 9-14. 97. Penguin News, 6 March 1998, at IO. 98. Id .. at I. 99. Id. 100. Id. 101. Statement by Mr. Robin Goodwin, Penguin News, 29 May 29 1998, at 3. 102. Penguin News, 13 March 1998, at 2. I 03. Statement by Mr. P. J. Pepper, Penguin News, 10 April 1998. I 04. Statement by Mr. Richard Cockwell, Penguin News, 6 March 1998. at I.

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105. Statement by Mr. John Cheek, Penguin News, 15 May 1998, at 1. 106. Penguin News, 29 May 1998, at 3. I 07. Penguin News, 22 May 1998, at I. I 08. Statement by Ms. , id. 109. Id. It should be noted that in July of 1998, Bullrich and Forsyth published a revised version of their proposal, taking into account comments received during the consultation process. The text, reproduced in the Penguin News on July IO, 1998, reads as follows: FALKLAND-MALVINAS A Way Forward Draft Proposal (July 1, 1998) Basis for settlement of the dispute between the United Kingdom and Argentina over the Falkland/Malvinas Islands · l. Both countries would jointly undertake to guarantee permanently the islands' autonomy, democratic constitution, territorial integrity and marine boundaries; and to consult and act together on defense and foreign affairs matters relating to the islands. 2. Autonomy would be defined as full responsibility for internal affairs as now. and specifically the right to choose language, law, currency and system of education and to determine immigration and tourist policy. 3,.._ The Islands' present Constitution would be maintained except that provision would be made for the Governor to be elected in future by the Islanders. 4. The Islanders would have the right to British and Argentine citizenship and could hold both passports if they chose to do so. 5. The treaty would provide for the establishment of a three man tripartite Commission (one man. one vote) to oversee the implementation and functioning of the agreement. The Falkland Islands representative would be the future elected Governor of the Islands. The Argentina and British representatives would be appointed by their respective governments. 6. No Argentine troops would be sent to the Islands. The base at Mount Pleasant would be leased to Britain for a fixed period, to be approved by the tripartite commission, and the islanders would take responsibility for the civilian operation of the airport 7. The Commission would oversee the existing joint hydrocarbon and fishery commissions. These would be reconstituted on a tripartite basis. 8. The Commission would be the forum for coordination between the islands and the two guarantors in matters relating to defense and foreign affairs. 9.No taxes of any kind would be levied in the Islands by Britain or Argentina. However Argentina's right to a 3% royalty on oil or gas produced in Falkland waters would be recognized. There is a case equivalent payment to Britain. IO. Cost of defense, which should be much reduced. and foreign relations would be borne by Britain and Argentina.

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11. Britain, Argentina and the Islands would jointly declare the Islands a special ecological protected zone. 12. The Islands would have their own flag (which could be the present flag with the Islands' badge but without the Union Jack). The liaison office of the Commission on the islands would normally fly all three flags. 13. The official name of the Islands would be Falkland Islands in English and Islas Malvinas in Spanish. Place names on the Islands would be a matter for the Islanders. 14. The agreement would be understood as settlement of the dispute. With the signature of the treaty claims and counterclaims would lapse. There would be a time limit for the ratification of the treaty by Britain and Argentina and for the modification of the Argentine and Falkland Islands constitutions. 15. Provision could be made for a referendum to be held in Argentina and the Falkland Islands. 16. The terms of the agreement would be notified to the United Nations as constituting settlement of the dispute. 110. Falkland Islands Newsletter, 14 March 1998, in http://sartma.com/newletter/40safe.htm. 111. Id. 112. Statement by Mrs. Jan Cheek, "Financial Information and News." Falkland J;;lands News Network, 9 May 1998, at 2 in http://sartme.com/financial/48part.htm. 113. Statement by Mr. Michael Summers, id .. at 4. 114. Falkland Islands Newsletter. 14 March 1998. at I. in http://sartma.com/newletter/40safe.htm. 115. Id .. 116.ld. 117. Id. 118. "Financial Information and News," Falkland Islands News Network. 25 April 1998. at 1, in http://sai1ma.com/financial/4611oyd.htm. 119. Falkland Islands Newsletter, 14 Mai·ch 1998. at 1. in http://sar1ma.com/newletter/40safe.htm. 120. Penguin News, 25 December 1998. at 1. 121. Id. 122. Id. 123. Penguin News. 2:2 January 1999. 124. Falkland Islands News Network. athttp://www.sartma.com/story.cfm'?id= 175. 125. Olivieri Lopez. supra note 78 in Chapter 3. at 87. 126. Id. 127. U.N. Doc. A/AC.109/PV.1055. at 22. 128. U.N. Doc. AlAC.109/PV .1446. at 21.

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129. Id., at 22. 130. U.N. Doc. NAC.109/2048, at 4-5. 131. The prohibition was lifted for licensed vessels from the Falkland Islands as (Malvinas) from January 1994. 132. Ley de Pesca 24.922. 133. Penguin News, 4 December 1998, at 1. 134. Id. 135. U.N. Doc. NAC.109/1198, at 14. 136. Id. 137. Argentine representatives stated that it was also verbally agreed in New York that the Argentine government would be entitled to collect a 3% royalty, in case any oil were found in the Islands. An amendment of Argentine Hydrocarbons Law No. 17,319 would be necessary in order to enable the Argentine government to collect the 3% royalty. Section 59 of Law 17 ,319, provides that in no case a reduction in the payment of royalties would be authorized beyond a minimum of 5% of the liquid hydrocarbons extracted. computed at the wellhead. At present there exists a bill for a new hydrocarbons law. which has been approved by the Chamber of Deputies. This bill amends section 59 of Law 17 ,319 to allow for a lower percentage of royalties. 138. The semi-submersible Borgny Dolphin, an enhanced Aker H3 design. which had been contracted by Amereda-Hess on a three-year contract at a fixed rate of $130,000/day. It took eighty days to transpo11 the rig from the North Sea. 139. In total, six wells were drilled. 140. See news update from the Department of Mineral Resources. November/December 1999 Newsletter at http:///wwww.falklands.gov.fk/9ah.htm. 141. http://www.falklands.gov.fk/9ak.htm. 142. http://www.falkland-malvinas.com, visited on 14 July 2000. 143. U.N. Doc. NAC.109/2048, at 12. For fu11her reference on oil matters in the Falklands/Malvinas. see for general information the Falklands Department of Mineral Resources bimonthly newsletter at http://www.falklands.gov.fk/ and Mercopress at http://www.falklands.gov.fk/. For reaction in Argentina to drilling activities, see La Naci<)11 (all dates 1998) 23 April, 30 April. 3 May (at 12). 6 May (at 7). 8 May (at 9). 22 May; and Clarion (all dates 1998) 29 April (at 10). 28 April (at 12). 30 April (at 8). 4 May (at 2-3). 5 May (at 17). 6 May, 12 May (at 18). 20 May (at 16), 22 May (at 22-23 ). 3 June (at 20J. 6 June (at 15), 11 June (at 12). 144. The text of the joint statement and side letter read as follows: UK/ARGENTINA MEETING: JOINT STATEMENT I INTRODUCTION United Kingdom and Argentine delegations met in London on 13 and 14 July 1999 in a constructive and friendly atmosphere. to continue the dialogue begun in London on 25/27 May and continued in New York on 2 July. The United Kingdom delegation was led by the Secretary of State for Foreign and Commonwealth Affairs, Robin Cook, and the Argentine delegation by the

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Minister of Foreign Affairs. Trade and Worship, Guido Di TelJa. The United Kingdom delegation included members of the Falkland Islands Legislative Council. The two Ministers recalled the Joint Statements made by the UK and Argentine delegations in Madrid on 19 October 1989 and 15 February 1990, which made possible the normalisation of relations between the two countries. and the re• establishment of successful co-operation in the bilateral sphere. They agreed that the formula on sovereignty in paragraph 2 of the Joint Statement of 19 October 1989 applied to this Joint Statement and to its consequences. They welcomed the improved understanding and degree of reconciliation in the bilateral relationship marked by the exchange of visits of the President of Argentina in October 1998 and HRH The Prince of Wales in March 1999. The two Parties reached agreement on the following points. II ACCESS AND AIR SERVICES 1. Argentine citizens will be able to visit the Falkland Islands, on their own passports. This provision applies equally to Argentine citizens travelling by air and by sea 2. Full support for the immediate resumption of direct scheduled civil air services between Chile and the Falkland Islands, operated by Lan Chile or any other carrier agreed between the Parties. From 16 October 1999, these services will include stops in mainland Argentina, where they will be able to take on and discharge passengers, cargo and mail. 3. The possibility of flights between the Falk.land Islands and third countries was welcomed with the option, from 16 October 1999. of making stops in mainland Argentina. III FISHING In the light of the shared commitment to the maintenance and conservation of fish stocks in the South Atlantic, existing levels of co-operation between the United Kingdom and Argentina will be enhanced. In this context officials will meet shortly to consider the question of the relative stability of fish stocks, poaching, and other questions related to it and to recommend coordinated programmes of practical measures with the objective of putting them in place before 9 October 1999. IV CONFIDENCE-BUILDING With a view to the further development of reconciliation and mutual understanding: i) A memorial to members of the Argentine armed services killed in action in 1982 will be constructed at the Argentine cemetery in the Falkland Islands. (ii) The Argentine Government is prepared to look at the question of toponomy in the Falkland Islands. To that end it will continue to consult the appropriate national institutions. iii) As the Prime Minister of the United Kingdom and the President of the Argentine Republic agreed in October 1998, the two Governments will continue

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access Notes I 289 to work together to evaluate the feasibility and cost of clearing the land mines still present in the Falkland Islands. V PROCEDURES i) The implementation of the arrangements detailed in this Joint Statement will be recorded in an exchange of letters between the two Governments. ii) The Governments will jointly send the text of the present statement and the accompanying letters, in English and Spanish, to the Secretary-General of the United Nations for distribution as an official document of the General Assembly under the appropriate item of the Agenda of the next regular session. (iii) This joint statement, as well as the arrangements deriving from it, will bP. kept under review by the two Governments. SIDE LETTER 14July 1999 (To) His Excellency Dr Guido Di Tella Minister of Foreign Affairs, Trade and Worship Republic of Argentina I have the honour to refer to our Joint Statement signed in London on 14 July 1999. This Statement provided for an exchange of letters. to which the formula on sovereignty in paragraph 2 of the Joint Statement issued at Madrid on 19 October 1989 applies, to record the understandings between our Governments on its detailed implementation. Irr this respect I have the honour to propose the following arrangements: I VISITS ( 1) An Argentine passport valid for the duration of the intended stay will be needed by an Argentine citizen for visits to the Falkland Islands. 2) Argentine passports presented by visitors to the Falkland Islands will be stamped on the same basis as all other passpons presented by visitors to the Falkland Islands. (3) The numbers of visitors to the Falkland Islands at any one time needs to reflect local capacity including the availability of accommodation. Visitors will be required to arrange accommodation in advance and to have a return ticket and sufficient funds for their intended stay. II AIR SERVICES ( 1) The Argentine Government will seek the consent of the Chilean Government to the immediate resumption of civil air services between Chile and the Falkland Islands, operated by Lan Chile or any other carrier agreed between the Parties. (2) It is envisaged that civil air services between Punta Arenas and the Falkland Islands will take place once a week. From 16 October 1999 they will make initially two stops per month at Rio Gallegos, one in each direction. This arrangement will be kept under review. (3) In the event that the Punta Arenas service does not continue, one of any successor or substituting civil air services will make a stop in mainland

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Argentina, initially at a rate of two stops per month, one in each direction. ( 4) Flight clearances issued by the Argentine authorities for civil air services to the Falkland Islands will enable the carrier or carriers to postpone flights for natural or technical reasons. (5) Should civil air services between the Falkland Islands and third countries be operated then the option of making stops in mainland Argentina may only be exercised after 16 October 1999 by the operators based on overall commercial considerations and subject to the appropriate authorisation by the parties. (6) The Argentine Government will seek the support of its Mercosur partners for these arrangements. III TRANSIT The Argentine authorities will consider as '·in transit" all passengers. cargo and mail arriving by air in the Argentine mainland which is en route to or from the Falkland Islands when they are not destined for the Argentine mainland. IV FISHERIES (I) The British and Argentine Governments will convene a meeting of the South Atlantic Fisheries Commission. It will discuss ways of developing their mutual interest in the conservation of fisheries resources of the South Atlantic including the relative stability of stocks and their economic significance for the area. The meeting's agenda will also include consideration of multilateral arrangements relating to high seas fisheries. (2) They will, also. explore and recommend practical ways of dealing with poaching in the South Atlantic including amongst other things the exchange of information and data. ways of enhancing fisheries protection measures and helping develop secure fisheries communication channels. V CONFIDENCE-BUILDING The details of the memorial referred to in Paragraph IV ( 1) of the Joint Statement of 14 July 1999 will be agreed mutually. VI HUMANITARIAN VISITS (1) The Joint Statement of 14 July 1999 replaces the special arrangements based on humanitarian considerations and the provisions in Paragraph 10 of the Joint Statement of 15 February 1990 for visits to the Falkland Islands by close relatives of Argentine nationals buried there. including civil charter flights between the Argentine mainland and the Falkland Islands for the purpose of these visits. (2) Argentine nationals visiting the Falkland Islands will continue to be able to visit cemeteries where members of the Argentine armed services killed in action in the 1982 conflict have been buried. VII DETAILED ARRANGEMENTS Officials of our two Governments will discuss the detailed implementation of these arrangements as a matter of urgency. I should be grateful if you could confirm that the foregoing represents the

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understanding of our two Governments with regard to this matter. (Signed,) Robin Cook See http://www.falklands.gov.fk/jointstatement.htm and the same site at /exchange-of• letters.htm. See also Penguin News, 16 July 1999. See transcript of press conference by Argentine Foreign Minister Guido Di Tella and British Foreign Secretary Robin Cook. at http://www. fco.go v. uk/news/newstext.asp ?264 3. 145. http://www.fco.gov.uk/news/newstext.asp 2643. 146. Id. 147. Id. 148. Penguin News, 16 July 1999, at I. 149. Id. 150. Penguin News, 23 July 1999, at I. On July 19, 1999, a public meeting was held at Town Hall in Stanley, at which councilors explained the rationale of the July 14 agreement. For a transcript of the meeting, see Falkland Islands News Network. at http://www. sartme .com/story .cfm ?id+4 5 8, 460.464. 151. Penguin News, 20 August 1999. 152 On October 8, 1999, a joint statment on fisheries cooperation in the Falklands/Malvinas was signed between the British and Argentine governments. See Mercosur News. 8 October 1999, at http://www.falkland• malvinas.com/noticias/noticia_en_malvinas.htx?id=246 and 247. Councilors issued a statement on the same date. declaring. We have previously welcomed the progress made on anti-poaching measures. and are further encouraged by the steps that have been taken towards practical implementation. This, together with our own deployment of an effectively armed fisheries protection vessel should send a powerful message to those who have previously engaged in illegal fishing in the South West Atlantic. We await further action from the British Government in support of unopposed boarding parties, armed for self defense. to be fully confident of our effectiveness. There has also been significant progress on relative stability. There is evidence that agreements reached in Madrid with the Argentine Government on practical measures to ensure the conservation and sustainability of fish stocks are being implemented. Exchanges of information on the terms of licenses and permits and license numbers has begun. A further meeting of the South Atlantic Fisheries Commission is scheduled for November from which the Falkland Islands Government will expect to see a more detailed statement of objectives. and further progress on matters to do with the scientific assessment of fish stocks and convergence of access conditions. Moves towards the establishment of a multi-lateral fisheries agreement to underpin conservation objectives have begun. and we look forward to further

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developments in this area. They also stated that they would be seeking an early indication of goodwill and an endorsement of progress to date from the next Argentine government. Id. For further reference on the controversy in the islands concerning the provisions of the July 14 agreement on fisheries, see Penguin News, 27 August 1999, 3 September 1999, 10 September 1999, 17 September 1999, 24 September 1999, 1October1999, and 8 October 1999; see also Mercosur News, 19 September 1999, 20 September 1999, 21 September 1999, 2 October 1999, 5 October 1999, 6 October 1999, and 8 October 1999, at http://www.falkland-mal vinas .com/noticias/noticia_en_mal vinas.htx? id=197,199,202,229,233,235,245. On October 16, 1999, the first commercial flight to the islands directly from the Argentine mainland since the hostilities occurred without disruptions. Councilors warned, however, that flights would be suspended if Argentina failed to cooperate on fisheries. See Penguin News, 15 October 1999; Mercosur News, 16 October 1999, 21 October 1999, at http://www.falklands• malvinas.com/noticias/noticia_en_mal vinas.htx?id=26 l ,270. 153. Id. Councilor Norma Edwards (the only councilor opposing the July 14 agreement) commented to Penguin News, "It is pleasing progress has been made," and "the joint statement is a factual account of what has been undertaken by both countries' fisheries departments since the July 14 agreement this year." "However." she went on. we still have no fisheries agreement, only a renewed promise that they hope to achieve that objective. Let us hope they will, but I am not planning to hold my breath until they do. I find it amazing that after 17 years of telling the Argentines that their only hope of even talking on an official basis with the Falklands' Government was to drop their claim to sovereignty over us. or at the very least to recognise our right to self determination. that in little more than a month and a half not only did we change our policy completely. but we also have opened wide our doors in the hope that we would get at least a fisheries agreement out of it all. The magic day was 9 October and, as quick as a flash-no fisheries agreement. what a surprise! It has been said frequently and publicly. If the agreement is not in place by 9 October we will stop the Lan Chile flight on the 16th. 154. Penguin News. 14 July 2000. 155. Id. 156. Id. 157. Id.

Chapter 7 I. Smith, in Olivieri Lopez. supra note 78 in Chapter 3. at xii (foreword by Wayne Smith). 2. I recognize that many scholars, especially during and in the aftermath of the armed conflict in 1982, proposed solutions outside of an Anglo-Argentine negotiated accommodation, including judicial adjudication. A first group of these proposals encompasses political/institutional arrangements without any participation of Argentina. These are "Fortress Falklands." associated statehood. free association. independence with

Roberto C. Laver - 9789004478442 Downloaded from Brill.com10/05/2021 04:23:03PM via free access Notes I 293 agency agreement, and full independence. See Little and Mitchell. supra note 27 in Chapter 6, at 141-152. Fortress Falklands was ruled out as the least appropriate alternative before the 1982 war. See Olivieri Lopez, supra note 78 in Chapter 3, at 81, 82. A second group of proposals involves some sort of a global/regional solution. Among these options are the establishment of a NATO or a SA TO base, a United Nations trusteeship, an Antarctic solution or an adjudication by the ICJ or other arbitral body. See Smith, supra note 78 in Chapter 3 at 121-133. 3. U.N. Doc. A/AC.109/PV.1223, at 36-5. 4. Id.; see also U.N. Doc. A/AC.109/PV. 1224; U.N. Doc. A/AC.109/PV. 1225. 5. Id. 6. See recent resolutions adopted by the committee in U.N. Doc. A/AC.109/1999/23 (1999); U.N. Doc. A/AC.109/2122 (1998); and U.N. Doc. A/AC.109/2096 (1997). 7. It is beyond the scope of this book to analyze in detail the substantial transfonnations in the concept of absolute state sovereignty as accepted in international law in the Peace of Westphalia, ending the Thirty Years' War in 1648. Scholars refer to the waning, erosion, and decline of state sovereignty, even to the end of the state. Major elements contributing to this weakening of state sovereignty, and the lessening of the importance of national borders, are global capitalism and the resurgence of particularisms. States are increasingly restricted in their capacity to manage their domestic economies with the growing delegation of powers to international organizations such as the World Bank Group and the International Monetary Fund. States are also delegating authority in the face of self-detennination claims, either by separatist movements or groups that demand self-rule <1r greater autonomy There are many other areas, such as human rights and environmental protection, where state sovereignty has been limited. Both Britain and Argentina show examples reflecting these developments, such as greater autonomy to regions within their borders (Scotland) and regional integration beyond their borders (European Union, MERCOSUR). This continual evolution of state sovereignty clearly impacts the thinking on ways to approach a dispute over territory as the Falkland/Malvinas. On the concept of sovereignty and its contemporary evolution, see J. Camilleri and J. Falk, The End of Sovereignty: The Politics of a Shrinking and Fragmenting World (1992); Henkin, International Law: Politics and Value (1995); H. Steinberger, "Sovereignty," in Encyclopedia ofPublic International Law IO (1987): 397; A. James, Sovereign Statehood (1986); 0. Schachter, "The Decline of the Nation-State and Its Implications for International Law," Columbia Journal of Transnational Law 36 (1997). 8. "The Aland Islands Question," report presented to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Doc. B.7.21168/106 (1921 ). 9. League of Nations Off. J., Supp. 5, resolutions adopted by the Council of the League of Nations at its thirteenth session (1921 ), at 24; statement by M. Hymans, id., at 25 I 0. H. Hannum, Autonomy, Sovereignty and Self-Detennination: The Accommodation of Conflicting Rights (1990), at 374 (hereinafter cited as Hannum). 11. For a brief background on Hong Kong, see P. H. Palumbo, "Analysis of the Sino• British Joint Declaration and the Basic Law of Hong Kong: What Do They Guarantee the

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People of Hong Kong After 1997?" Connecticut Journal ofInt'/ Law 6 (1991): 667, 669- 672. 12. Id. 13. Id. 14. M. K. Chan and D. J. Clark, The Hong Kong Basic Law: Blueprint for "Stability and Prosperity" Under Chinese Sovereignty? (1991), at 250. 15. H. Chiu, Y. C. Jao, and Y. L. Wu, eds., The Future of Hong Kong: Toward 1997 and Beyond ( 1987), 182-96. 16. Id. 17. See 29 l.L.M. 1511 (1990). 18. See http://www.andorra.org. 19. Id. 20. Id. The relevant articles of the Andorran constitution read as follows: TITLE III Article 43 l . In accordance with the institutional tradition of Andorra, the Coprinceps are, jointly and indivisibly, the Cap de l'Estat, and they assume its highest representation. 2. The Coprinceps, an institution which dates from the Pareatges and their historical evolution, are in their personal and exclusive right, the Bishop of Urgell and the President of the French Republic. Their powers are equal and derive from the present Constitution. Each of them swears or affirms to exercise their functions in accordance with the present Constitution. Article 44 1. The Coprinceps are the symbol and guarantee of the permanence and continuity of Andorra as well as of its independence and the maintenance of the spirit of parity in the traditional balanced relation with the neighbouring States. They proclaim the consent of the Andorran State to honour its international obligations in accordance with the Constitution. 2. The Coprinceps arbitrate and moderate the functioning of the public authorities and of the institutions, and are regularly informed of the affairs of the State by their own initiative, or that of the Sondic General or the Cap de Govern. 3. Except for the cases provided for in this Constitution, the Coprinceps are immune from suit. The acts of the Coprinceps are under the responsibility of those who countersign them. Article 45 1. The Coprinceps, with the countersignature of the Cap de Govern. or when appropriate, of the Sondic General, as politically responsible: a) Call for general elections in accordance with the Constitution. b) Call ·for a referendum in accordance with articles 76 and 106 of the Constitution.

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c) Appoint the Cap de Govern following the procedure provided for in the Constitution. d) Sign the decree of dissolution of the Consell General following the procedure of article 71 of the Constitution. e) Accredit diplomatic representatives of Andorra to foreign States. Foreign envoys present credentials to each of the two. f) Appoint the holders of office of the other institutions of the State in accordance with the Constitution and the laws. g) Sanction and enact the laws in accordance with article 63 of this Constitution. h) Express the consent of the State to honour its international treaties under the provisions of chapter T1T of Title lV of the Constitution. i) Perform such other functions as may specifically be conferred to them by the Constitution. 2. The dispositions provided for in letters g) and h) of this article shall be simultaneously brought to the attention of each Coprincep, who shall sanction and enact them or express the consent of the State, as may fit the case, and the Coprinceps shall ordain their publication within the period between the eighth and the fifteenth days thereafter. In that period the Coprinceps, individually or jointly, may send a reasoned message to the Tribunal Constitucional, so that this institution may render judgment on their constitutionality. If the resolution is positive the act may be sanctioned with the signature of at least one of the Coprinceps. 3. When there may be circumstances impairing one of the Coprinceps from formalising the acts listed in part I of this article within the periods constitutionally provided for, his representative shall make it known to the Sondic General, or when appropriate, to the Cap de Govern. ln that case, the acts, norms or decisions in question shall take effect once the aforementioned days have elapsed with the signature of the other Coprincep and the countersignature of the Cap de Govern, or, when appropriate, the Sondic General. Article 46 I. The Coprinceps may perform the following acts of their free will: a) The combined exercise of the prerogative of grace. b) The creation and structuring of the services considered to be necessary for the performing of their institutional functions, the appointment of the holders of these services and their accreditation to all effects. c) The appointment of the members of the Consell Superior de la Justicia in accordance with article 89.2 of the Constitution. d) The appointment of the members of the Tribunal Constitucional, m accordance with article 96.l of the Constitution. e) The requirement of a preliminary judgment of unconstitutionality of the laws. f) The requirement of a judgment about the unconstitutionality of international

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treaties, prior to their ratification. g) The lodging of conflict before the Tribunal Constitucional in relation to their constitutional functions, under the provisions of articles 98 and I 03 of the Constitution. h) The granting of the agreement for the adoption of the text of an international treaty, in accordance with the provisions of article 66, before its parliamentary approval. 2. The acts derived from articles 45 and 46 are exercised by the Coprinceps personally, except for the faculties provided for in letters e), t), g), and h) of this article, which may be performed by delegation. Article 47 The General Budget of the Principality shall assign an equal amount to each Coprincep, for the functioning of their services, which amount they may freely dispose of. Article 48 Each Coprincep appoints a personal representative in Andorra. Article 49 In case of vacancy of one of the Coprinceps the present Constitution recognises the validity of the mechanisms of substitution provided for in their respective legal systems, so as not to interrupt the normal functioning of the Andorran institutions. 21. Little and Mitchell, supra note 27 in Chapter 6, at 121. 22. Olivieri LopeZ, supra note 78 in Chapter 3, at 110. 23. Little and Mitchell, supra note 27 in Chapter 6, at 36. 24. Olivieri Lopez, supra note 78 in Chapter 3, at 114. 25. Beck, supra note l in Chapter 2, at 161. 26. Little and Mitchell, supra note 27 in Chapter 6, at 41. 27. Id., at 47. 28. Id., at 112. 29. Id., at 153. 30. Id., at 155. 31. Id. 32. Id., at 127. 33. Olivieri Lopez, supra note 78 in Chapter 3, Chapter 5 and Annex 6. 34. Statement by Mr. T. J. Peck in U.N. Doc. A/AC.109/PV.1420, at 54-55. 35. First transitory provision of the 1994 Constitution. 36. Kinney, supra note 7 in Chapter 5, at 41. 37. Little and Mitchell, supra note 27 in Chapter 6, at 141. 38. Id., at 70.

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39. Olivieri Lopez, supra note 78 in Chapter 3, at 100. 40. Little and Mitchell, supra note 27 in Chapter 6, at 60. 41. Id., at 55, 59, 60; Smith, supra note 70 in Chapter 6, at 73, 74. 42. Smith, supra note 70 in Chapter 6, at 114. 43. Id., at 115. 44. Little and Mitchell, supra note 27 in Chapter 6, at 67.

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