FactCheck Q&A: Why are the Falklands British?
The Falkland Islands have been in British hands for nearly 180 years, despite lying 7,900 miles away in the South Atlantic.
Argentina has repeatedly challenged Britain’s claim to sovereignty and wants the islands, 300 miles from the Argentine coast, to fly its flag.
Thirty years after the conflict that left nearly 900 people from both sides dead, FactCheck delves into the murky waters of the South Atlantic to try to shed some light on the dispute.
What does history tell us about who owns the Falklands?
The first sighting of the islands have been variously attributed to Portuguese, Spanish, English and Dutch sailors, all in the 16th century.
We’ll probably never know the truth and it may not matter very much. You have to take possession of an empty territory, settle it and govern it continuously to have a hope of claiming ownership.
Royal Navy Captain John Strong made the first recorded landing on the then uninhabited islands in 1690, and named them after his patron Lord Falkland.
France founded the first settlement on the archipelago in 1764. A year later British Captain John Byron (the poet’s grandfather) claimed the Falklands for George III, apparently not realising that the French were already established in a different part of the islands.
The Spanish bought the colony from the French in 1767, then expelled the British settlers in 1770. Britain protested and war was narrowly averted when the Britons were allowed to return. The dispute over who owned the islands was very much alive even then.
By 1811 Spain and Britain had abandoned the outpost altogether, both leaving plaques asserting their rival claims.
The Falklands were left to the sheep until 1820, when a ship from the United Provinces of the River Plate, the newly independent Spanish colony which would later become Argentina, claimed the islands. They would remain in “Argentinian” hands until 1833.
But in 1828 when Luis Vernet, a naturalised Argentinian of Franco-German ancestry, established a colony, he did so only after seeking the permission of both the United Provinces and the British government, aware that London still claimed the Falklands for the British crown.
Five years later came the notorious incident the Argentinian government still relies on to back up its claim to the Falklands.
By 1833 the United Provinces had declared that the Falklands were theirs and that Vernet was to act as their governor, sparking protest from London.
Keen to reassert its claim and concerned about lawlessness and piracy in the area, Britain sent two warships and expelled the Argentinian garrison.
Contemporary accounts written by Charles Darwin and Robert FitzRoy, captain of the HMS Beagle, suggest however that some settlers of various nationality who had been living there were actually encouraged to stay. So it doesn’t appear to be true that whole of the existing settlement was uprooted and replaced with an imported British population, as many Argentinians believe.
The period of British settlement from 1833 to the present day marks the longest period the islands have spent under the ownership of one country, and the islands’ current population of more than 3,000 is the largest in their history.
Argentina’s legal case
Argentina relies on the ancient legal principle of uti possidetis juris, widely used in post-colonial South America and Africa, which says that all the territory of the former Spanish colony became Argentinian after independence.
So the argument is: the Falklands were rightfully Spanish; then they became Argentinian until 1833, when they were illegally taken by force.
Various Argentinian governments have also made the point that the archipelago is much closer geographically, which is certainly true but not usually relevant in law. If it were, the Faroe Islands would be British, the Channel Islands French and Alaska Canadian.
It’s possible to have some sympathy with some of the Argentinian case, but it is equally possible that Britain could contest several points, including the terms of the various treaties that gave the islands to Spain in the first place and the applicability of uti possidetis juris in this case.
Laywer Charles Claypoole from Latham & Watkins, an expert in sovereignty disputes, told FactCheck: “I don’t think it can be taken for granted that, even if you set aside the question of self-determination, Argentina’s claim, based on historical title, is right. There will be two sides to that story.
“One of the problems we would have in this case relates to the date when the dispute crystallises.
“I think the International Court of Justice or an arbitration tribunal would be unwilling to try to unpick what was happening 200 years ago and ignore the intervening 200 years of administration.”
Britain’s position is that it should be up to the residents of the Falklands to decide whether they want to remain British or not. That is the principle of self-determination, as enshrined in the United Nations charter.
But the UN also stands for de-colonisation, and Argentina says the ownership of the archipelago is a hangover from the days of British Imperialism.
As far as the UN is concerned, the Falklands dispute essentially boils down to the question of which principle – the dismantling of the old colonial system or the right of self-determination – should prevail.
The UN maintains a list of 16 “Non-Self-Governing Territories” which it defines as “non-decolonised”. The Falkland Islands are among 10 former British colonies on the list, which the UN began compiling in 1946 as a kind of roll-call of shame for the remaining colonial powers.
But the UN recognises the right of those territories to self-determination. In other words, they can’t be forced to accept a change in sovereignty or national status if they don’t want it. The principle of “equal rights and self-determination of peoples” is one of the founding principles of the UN Charter and would appear to trump the competing interest of de-colonisation.
Argentina’s answer is that the Falklands Islanders are not “a people” in the sense intended by the UN charter, although the organisation does not define what it means by the term.
Professor Malcolm Shaw QC, a leading expert on territorial disputes, said: “‘People’, as I see it, has always been defined as the population of a recognised colony, and on that basis, they are a people. He added: “Self-determination is one of the planks of international law.”
Professor Shaw said there was a lack of hard evidence surrounding the origins of both Britain and Argentina’s claims but said: “The balance, it seems to me is in favour of the UK. But whatever the rights and wrongs of what happened in the late 18th and early 19th century, you can’t simply ignore a peaceful possession which has gone on for 200 years. The British maintained possession and control, and peopled it.”
There are good reasons why this dispute is still raging after more than 200 years – there are rights and wrongs on both sides.
Argentina’s case though, does seem to hinge on historical facts which are very difficult to prove now and will presumably only become less clear with the passage of time.
Ironically, given that the Argentinian government says it is against colonialism, its claim also rests on the Falklands once having been a colonial possession of Spain.
Practically speaking, we will never be able to test the legal force of the competing arguments unless they are put in front of the International Court of Justice or a tribunal.
But both Britain and Argentina would have to agree to be bound by the panel’s decision, making it unlikely.
For the record, Britain offered to go to international arbitration several times in the 1940s and 1950s to settle the sovereignty issue.
In 1948 the then Foreign Secretary Ernest Bevin said: “The policy of His Majesty’s Government is that the question of rival claims in the Falkland Islands Dependencies should, in the first instance, be brought before the International Court of Justice.
“International discussions could scarcely be profitable until the question of title has been subjected to international legal examination.”
Argentina declined on every occasion, saying it did not recognise the jurisdiction of the court.
By Patrick Worrall