Two Conflicting Legal Principles – The Argentinean Diplomatic Campaign Regarding the Falklands-Malvinas Islands

Published on May 23, 2012

Almost thirty years to the Argentinean invasion of the Falklands/Malvinas Islands and the conflict is once again in the headlines. Although not violent, the current dispute has assumed a confrontational rhetorical character not seen since the Argentinean invasion of the Islands on the 2nd of April, 1982.

Whereas every democratically-elected government in Argentina since 1983 has continued to claim sovereignty over the Islands, it is the current administration of President Cristina Kirchner that has elevated its claim into an active diplomatic campaign.

This diplomatic campaign has coincided with the announcement that drilling for oil in the area of the Islands would commence. The prospect of the discovery of oil and the revenues that might accrue would not have left any government in Argentina apathetic; nor, for that matter, would it have left any government in Britain apathetic. Of course, the stance adopted by Argentina is not just pragmatic in nature, prompted exclusively by economic motives. There is a genuine national consensus in Argentina about the Malvinas. I can recall, as a child, being taught in school that the Malvinas were an integral part of Argentina. Indeed, the Islands figured prominently in any map of Argentina shown to us in school as part of the sovereign territory of the country.

The current diplomatic campaign conducted by Argentina, though, seems to be linked to the possible discovery of precious natural resources in the Islands and their adjacent areas, and is not merely a reflection of an understandable legal claim of sovereignty.

Also, to be sure, being a cause that unites almost all Argentineans, the Malvinas can distract public opinion from domestic problems and internal divisions. In this context, it is interesting to note that even such a prestigious newspaper as La Nacion, known for its consistent criticism of the Kirchner Administration, has come out in favour of its diplomatic campaign. Thus, politically this campaign has already reaped fruits.

Further, diplomatically Argentina has managed to enlist Latin American countries to its cause. So much so, that even some of Argentina’s neigbours (including land-locked Paraguay) have declared that no ship bearing the Falklands Islands flag would be permitted to anchor in any of their ports.

In this regard, Argentina’s rhetoric seems to have been successful. The repeated negative references to Britain as a colonial power could not but have resonated in the collective Latin American consciousness so sensitive to the perils of colonialism.

The problem with this kind of rhetoric is that, in a sense, it preaches to the converted. In other words, it is aimed at persuading those that didn’t need to be persuaded.

Further, it has led to a display of overconfidence on the part of Argentina’s government, leading it to urge at the latest conference of American countries meeting in Colombia to adopt an unequivocal pro-Argentinean stance regarding the Malvinas, which was politely rejected. References to the British as “pirates” and singularly critical allusions to their colonial past have hardly helped in this regard.

This kind of diplomatic campaign also leads the other side to the dispute, in this case Britain, to adopt a confrontational language in defence, not only of its cause, but of its national pride. Prime Minister David Cameron’s retort that Argentina behaves in a colonial manner by wishing to impose its sovereignty on an unwilling population should be understood in this context.

No matter how solid its legal claim may be, Argentina’s current campaign is in part disingenuous. The current government either does not even allude in its public statements to the military invasion of 1982 or just refers to it as a decision by an unelected Junta, totally unconnected to the current democratically-elected government.

What it omits to say is that the Peronist Party, an offspring of which currently rules in Argentina, openly and enthusiastically supported the decision to invade the Islands back then in 1982. To be fair, almost all political parties backed the decision.

This is a weak point, to say the least, which the Argentinean government cannot dismiss lightly or pretend it never happened.

After all, the nature of the dispute changed radically as a result of the invasion. What was until then a diplomatic/legal dispute, in which both sides were trying to find a mutually-agreed solution, suddenly became a violent confrontation, which resulted in a heightened sense of fear on the British side. Evidence of that can be found on the ground, on the Islands, where a strong British military force is ever ready to defend them.

To be sure, Britain’s claim that only the right of self-determination of the local population should determine the status of the Islands, though politically sound, is legally questionable. After all, the United Nations has called on both sides to negotiate, something Britain has refused to do. Also, the matter of decolonization is clearly defined in international law, something that could back up Argentina’s claim.

What makes this dispute rather sui generis is that two conflicting legal principles seem to be at stake: decolonization and self-determination. In the past, in cases where decolonization was concerned, the two were one and the same. In this case, they are not.

The Author

Yoav Tenembaum

Dr. Yoav J. Tenembaum is a lecturer at the graduate Diplomacy Program (Political Science Department), Tel Aviv University, Israel.

One of the courses he taught is on Diplomacy and Conflict Resolution in Modern History, which places much emphasis on the development of International Law and its application in the resolution of international conflicts. He also taught on Diplomacy and International Crises, The Shaping of Foreign Policy and Decision-Making, and others.

Dr. Tenembaum has lectured widely on various aspects of the Arab-Israeli dispute, in Israel, South America and Britain. He has been invited on several occasions to lecture on the subject by the Centre of International Studies at Cambridge University.