The Falklands (Rlaiwnas) Islands. An Internatmnal Law Analysis of The Dispute Between Argennna and Great Britain

• Author: by Major James Francis Graveile
• Pages: 02

nLm, too, in the case of a state in its eztenal relations, the rights of i~armwt be strictly observed. For sime there are two ways of settling a dispute,-first by discussion;second by physical force, and since thefomer is charac-tdstic of man, the latter of the brute, we m u t iesovt to force only in erne may not avail ourselues of dtsm-sion.

Cicero (B.C.

106.43)

1. PROLOGUE: PURPOSE AND METHODOLOGY OF THE ANALYSIS

   On Apnl2, 1982, the armed forces of Argentina invaded the Faik-land (Maivinas) Islands.' Argentina and Great Britan faced each

   Ihc. iruprion of rh ad bwn fcitrnny f c diipiite had fail

   F?a

   This article w1i discuss the acceptability to the a d d

   ~ornrnun~t~ of the clams of Argentina and Grear Brlram C O ~ C ~ ~ I U I I ~

   rhe dlspute particularl) those claims relating to the use of armed force The dispute concerning the right of sowreignty over the Isiands and the apphcabiiity of the principle of self-determination to the peoples that inhabit the Islands will be discussed. In regard to the use of armed force. that both states base their use of armed force upon rh? nght of self-defense. each state claiming the other was the aggressor, ivlll be examined Discussion of the claims will overlap. ar the) are interrelated. and a correct legal conclusion respecting one of the claims would be difficult absent an understanding of the others Additionall), the methodology used to anal>ze the claims of Argentina and Great Britain will emphasize the facts and history of the Islands Detail in this area is necessarr for purposes of perspec-tiv? and because of the exrent to which the facts are disputed

   While anal~sis of these substantive issues IS the main purpose of this article. another inquiry that hill be made may be eien more significanr The articie w11 examine the failure of the procedural aspects of peacefully resolving the dispute U-hy had a dispute lasting almost 150 years not been settled by peaceful means? Were the peaceful means available inadequate. or u as the problem a failure of the panicipants TO properly make use of the available means' Answers to these questions are important to the resolution of the dispute under examination and other disputes. current and future. The use of farce to resolve disputes not only can be indicative of the failure of the Community's methods of settling disputes. but, in addition. can result in an undesirable precedent

   11. THE CENTRAL LEGAL ISSUES

   The dispute between Argentina and Great Britain concerning the Islands raises four mqor legal issues, three substantive, and one procedural

   'An example oi this IS that bared U ~ L I iour~ei rhpChriirianscienreYanirar Apr

   i

   1981 at 1 ciil 3 ha, imred that rhe Islandr *ere dircorered hv the English in 1591 On the other hand the Intei-.4merican Jurrdirial Committee on the Problem of the >lalvmai har clarrned that the Irland, sere discorered earlier b\ the Spanish Sir Deilarafion of the Infei-menran Juridical Committee on the Problem of the ilalwnar. 31 GAOR Supii lho 231 at 188.90. I' Y Doc 4 JL 23 Rei 1 118761

   First, the bases for the territorial claims of Argentina and Great Britain must he examined to determine If they conform to the recognized legal modes on which a state may haie its clam that territory was acquired or lost. The applicability of legal modes not directly raised will also be examined

   Second the applicability of the principle of self-determination w11 be examined Because self-determination IS a relative$ recent prin~ ciple of international law and still in an evolutionary state. Its development will he reriewed. The issue of whether or not the Islanders qualify as peoples to which the principle can he applied will then be examined The expressions of the Umted hations concerning the criteria necessary to qualify as a people to which the principle of self-determination should be applied and the past application of the principle of self-determination, generally. and smcifically to the Islanders. will he discussed

   Third, the use of armed force by Argentina and Great Britain will he examined in terms of the applicable international law. An assess-ment of the competing clams of Argentina and Great Britain. both based upon the nght of self-defense, will be analyzed in light of the legal requirements of necessity and proportionality Specific criteria will he applied to determine if the use of armed force by Argentina or Great Britain can he justified on the basis of self-defense.

   Fourth, the procedural issue of the failure of the peaceful means of settling disputes will be examined. The examination of this issue is particularly critical concerning the Islands, for, although some peaceful means were attempted in an effort to settle the dispute, the situation ultimateiy erupted into a serious disruption of mematmnal peace Whether the failure was a result of ineffectiveness of the methods or a lack of desire or inability on the part of the participants to properly use the available means is the critical question. the answer to which will be valuable in resolving the issues sur-rounding this particular Situation and other disputes.

   111. SIGNIFICANT FACTS AND HISTORY

   Having the necessary facts is as important 8s applying the right law in reaching a correct legal concl~sion.~

   In this section, the facts necessary to reach correct legal conclusions concerning the Issues

   'Harmg an understanding of the correct facti cannot be o\eremphaseed I" this case As will be seen in the analgilr there has been 4nife a problem m deferminlng Lhe carreel facts. BQ well as the applicable law

   will be set forth. These facts will be pertinent later TO discussion of the issues of sovereignty. self-determination. aggression. and self-defense In addition to the facts directls bearing an the issues, some facts of a tangential nature are 10 place the situation in its proper perspectile Of course. some of the facts presented have changed since Apnl 2. 1982

   1. GEOGRAPHY

      The Island5 are located m the South Atlantic Ocean approximately 500 mile5 off the east coast of Argentina and approximately 8.000 miles from Great Britain The Falklands consist of about 200 i3lands 5

      The largest of these Islands are East and &\-est €alkland Thp total land area of the 200 islands 1s approximately 4,iOO square milei

      2. Topography, Cltmal~, Flora and Fauna

      The Islands are generally hilly, with elevations as high as 2,312 feet.' The coastlines are rugged. resultmg in many exceilent

      The Islands experience a narrow temperature range. with the mean temperature being 4Q°F in the summer and 3 6 T ~n the

      The winds are strong, the skies are almost never free from clouds, and overcast days are cammon.l0 Rainfall IS relatively light. about twenty-five inches a year, although light snowfall has been recorded in each month of the year." Fog IS Generally, the weather conditions are much like those experienced in England and Sc~tland.'~

      As could be expected after reviewing the climate conditions, trees are a rarity on the Islands I4 The vegetation is mainly grass, with same smaller shrubs 'j The native animal life is composed of "geese.

      1. Location and Land Area

      penguins, seabirds, and seaIs."la Land mammais are not native to the 1slands.I'

      3 Inhabitants

      The 1980 census reflected that there were 1,813 people living onthe Islands.18This compares to a total population of 1,967 m 1972, as reflected m that census.'8 In 1980, the census also indicated that 1,360 of the inhabitants were barn in the Islands, only 302 of them were born in Great Britain zo Generally, the msjority of the inhabitants have ancestors who had iived on the Islands in the nineteenth

      In 1980, 1,050 of the inhabitants iived in Stanley, the capital and only town.2a The second largest concentration of people is the settlement of Goose Green, also on East Falkland, which was then inhabited by 96 people.23 The Islanders speak English and there are "Anglican, Roman Catholic and Nonconformist churches ''w

      4 Administration and Defense

      The Islands are administered as a non-self-governing colony, with the governing bodies consisting of an Executive Council and a Legislative Council, each body contains some elected members.z6 The Governor IS an appointed member of the Executive Council.26 The Islands have had universal sufferage since 1949.27 The most recent constitution came into effect in 1977.28 The Judiciary consmts of a Supreme Court and two infeiior c~urts.~~The

      Chief Justice 1s a nan- resident and the appellate court for the colony 1s located in

      Prior to April 2, 1982, the Islands were defended by a part-time voluntary militia, which was trained by a resident Royal Marine Deta~hment.~'

      'lid,-id"Id'Talkland Islands (hlalnna~j Uorkrng Paper Prepared by the Secretariat 2, U Z l"Rnrlrh Information Office. siiprn note 5 at 1"'Id'lid'"id 2.1d'$Strange supra note iat 36"Id"Id"Bnfish Infarmation Office, supia nore 6, at 3 *#id'"Id"Id

      Doc A AC 108 67 (1981)

      5. Economy

      Sheep farming is almost totally the mainstay of the economy of the Islands 32 There are approximately 660,000 sheep on the Islands 33

      The economy is closely tied to the Faikland Islands Company. which oans approximately one-half of the sheep and it also IS in control of other economic institutions, such as the banks 3s The Islanders depend upon Great Britain for most of their imports and exports.s6 Efforts to dwerafy the economy, such as to establish a fishing zone or obtain investment capital, had been stymied b) the political situation It has been realized that closer economic ties with Argentina would be very advantageous to the economy, but, although efforts have been made along these lines, little progress has been reahzed

   2. HISTORY

      I . Htstory of the Dispute Concaing Sovereignty mer fhe Islands

      Basically, history is nothing more than an accumulatmn of facts set forth seriatim. It in itself 1s not necessarily relevant to the legal analysis of a particular situation. However, the building blocks af history, the relebant facts, are of equal importance...