“When people are free to choose, they choose freedom”

(1)

“When people are free to choose, they choose freedom”

The Falkland Islands & the Right to Self-Determination:

Human Rights as a basis for settling international territorial disputes.

DECLARATION BY CANDIDATE

I hereby declare that this thesis, “The Falkland Islands & the Right to Self-Determination: Human Rights as a basis for settling international territorial disputes“, is my own work and my own effort and that it has not been accepted anywhere else for the award of any other degree or diploma.

Where sources of information have been used, they have been acknowledged.

Name: Jeremy Paul Bellamy Signature: J.Bellamy

Date: Monday 15th_{February 2016.}

This thesis is dedicated to Trudi McPhee,

(2)

that you can help to change the fate of a whole country without ever firing a shot.

Chapter One: Introduction

(3)

two years later.

The right to self-determination, as demonstrated by the Montenegrin case, offers a promising means by which borders can be drawn without loss of life and destruction of property. This is an approach that is very much in line with the “human security” branch of International Relations theory- a school of thought that emphasises the idea that individuals, and not states, are the referent object of security. However, not every case is a matter of one state seceding from another, and the desire to redraw borders can manifest itself in many different ways. As such this thesis will seek to examine a less conventional example- the role of the right to self-determination in the context of the Falkland Islands sovereignty dispute. In this instance two sovereign states, the United Kingdom and Argentina, stake a claim to an area of territory, and the right to self-determination has been invoked by the former in defence of their claim, while it is dismissed as an irrelevance by the latter. As such the main research question for this thesis will be as

follows-“To what extent is the right to self-determination in the context of the Falkland Islands sovereignty dispute exemplary of a human security approach to

international territorial disputes?”

The broader significance of this issue, in terms of the presumed ability of self-determination to settle sovereignty and border disputes peacefully, is greater than some might imagine. From islands in the Congo River, to Kashmir and the South China Sea, there is no shortage of examples of territorial disputes in the world and no apparent consensus on how they should be settled. The purpose of this thesis therefore is to establish whether, both in general terms and in the specific case of the Falkland Islands, the right to self-determination provides a viable way of peacefully settling disputes over the political status of territory.

The recent Russian aggression towards Ukraine and the annexation of territory there demonstrates as starkly as ever the way in which populations can quickly fall victim to overwhelming force, and as such it is as more important than ever that a clear set of rules governing when and how borders can be redrawn is formulated. The importance of such a rulebook lies in its potential to ensure that the world’s population is free to make decisions regarding political status, without fear of violence or coercion. In short, this thesis will seek to establish whether the right to self-determination could be the rulebook that ends the fear and uncertainly felt by those living in disputed territories, including in the Falkland Islands.

As will be discussed in later chapters, history provides us with ample evidence that democracy and peaceful means were not always employed when determining ownership of territory. The colonial period in particular shows a stark alternative- huge swaths of the world were taken as colonies primarily by European powers in particular, but also the United States, Japan to name just a few others. In these circumstances the wishes of the people living within the colonised territories were little taken into account- their homes were taken by force and force was employed to remove any

resistance. However, as time has moved on these means of controlling territory have become

increasingly ineffective- it is arguable that colonialism was largely underpinned by the overwhelmingly superior firepower of the colonisers. Those states doing the colonising were generally more

technologically advanced than the people being colonised- this difference is typified by the Anglo-Zulu Wars where a British Army equipped with rifles, rockets and artillery guns faced off against an army of Zulus armed with short spears and hardened leather shields. Despite a decidedly spirited effort on the part of the Zulus the result was pretty inevitable from the outset.

However following on from two World Wars in which millions of colonial subjects fought, either for their Empire to which they belonged or against it, the world was flooded both with weapons and with

(4)

with a multitude of other factors this contributed to the rapid decline of imperialism. More recent examples in Afghanistan and Iraq indicate the difficulties that even the most advanced modern armies have holding territory when elements of the local population are hostile.

Modern communications, an abundance of effective weaponry and transnational networks of like-minded individuals have all contributed to changing the rules of the game when it comes to resisting traditional military forces. In the case of the Falkland Islands the Islanders themselves offer plenty of examples of this phenomenon. When Argentina invaded the Falklands in 1982 the islands certainly were not awash with weapons in the way that some parts of the world are, owing to the relative unavailability of weaponry under British law and the isolated position of the islands, but that did not stop the Islanders resisting in their own ways. Whether it was reporting Argentinian military positions back to the United Kingdom, refusing to drive on the right-hand side of the road even when Argentine military vehicles were driving straight towards them, actively guiding the British Taskforce across the terrain, or even the case of a nurse smuggling a British flag inside her uniform past the guards at Port Stanley Hospital (so as to unfurl it at a birth so that the baby came into the world beneath the Union Flag) the Islanders certainly had their own ways of resisting (Telegraph, 2012).

The shift away from the era of colonialism is summarised well in an article by Mike Summers OBE of the Falkland Islands Legislative Assembly who stated in February 2016 that “We [the Falkland Islanders] are not a commodity to be traded between two nations; we are a people, we have a home, and we have the universally-recognised human right to determine our own political future. Any decision about the sovereignty of the Islands absolutely must include Falkland Islanders. Anything else smacks of a return to colonialism” (MercoPress, 2016). The determination of the Falkland

Islanders and those like them to determine their own future, and the demonstrable willingness of such groups to actively resist attempts to ignore their wishes, is very much indicative of why a new rulebook for determining territory is required. As aforementioned, the purpose of this thesis is to determine whether the right to self-determination might be that rulebook which the international system now requires.

Chapter Two: Structure

To establish whether the right to self-determination is indeed a “human security” approach to solving international territorial disputes, and thus one that allows for the peaceful settlement of such

disagreements, there are a number of issues that must be addressed.

Given the importance that this thesis places on the case of the Falkland Islands, as an illustrative example of a complex international dispute involving the right to self-determination, an account will be given in Chapter Three of the current situation regarding the islands. This will include both an overview of the current domestic situation on the Islands, and also an introduction to the complexities of the case. The purpose of providing such an overview is to familiarise the reader with the specific case so that the relevance of the right to self-determination is apparent from the outset. Following on from that, in Chapter Four the history of the Islands will be examined in some detail for two significant purposes. Firstly the background will further enhance the reader’s background knowledge of the case, but much more significantly it will provide an account of the Islanders themselves. This information both contextualises the issue in a broad sense, but also lays the foundation for later analysis by giving an account of the Islanders who, owing to the nature of the relevant international legislation, are the key to the right to self-determination and thus pivotal to answering the main research question.

(5)

jumping to the famous manifestation of self-determination promoted by United States’ President Woodrow Wilson in 1918. Following on from that the more substantive body of material created in the post-war period will be summarised and analysed. This process will properly contextualise the

research question, examine the potential of self-determination to resolve territorial disputes, and of course begin to build an answer the main research question.

Chapter Five will then be dedicated to the topic of International Relations theory, in attempt to explain why self-determination and human security have developed in the way that they have. These key terms (self-determination and human security) are included within the research question, and as such will need to be adequately explained before the final analysis of the issues takes place. A theoretical explanation for the right to self-determination will be provided by the Liberal school of International Relations theory, particularly those works relating to the means by which individuals and groups influence states’ preferences, and equally importantly the ways in which states then seek to

externalise those preferences within the international system. The concept of human security will be explained in the context of the Peace Research branch of International Security Studies, and the linkages with self-determination spelled out in terms of how both place people at the centre of decision-making. The relevance to the case of the Falkland Islands, and more importantly the Islanders who inhabit them, will be spelled out throughout the theoretical analysis.

The concluding chapter will, as the name suggests, draw the various strands together and seek to provide an answer the main research question.

Chapter Three: The Falkland Islands Today

It was stated in the introduction that the Falkland Islands is an unconventional case when it comes to the right to self-determination, and other than the similar case of Gibraltar there is perhaps no other case in the world quite like it. Much is written about self-determination in the context of independence movements in cases such as South Sudan, but the case of the Falkland Islands is unconventional quite simply because it’s the opposite- the Islanders want their political status to remain the same. The position as of 2016 is that the Falkland Islands Government wishes the Islands to remain an Overseas Territory of the United Kingdom, in line with the referendum results (Falkland Islands Government, 2015, p.13), the British Government state that it is for the Islanders to “determine their own political and economic future” (Government of the United Kingdom, 2016), and the Government of Argentina claims that the Falkland Islands are a part of Argentina (Argentine Embassy London, 2014). In short the situation is complex and can be interpreted in an array of different ways, but in a de facto sense the Falkland Islands are a Self-Governing Overseas Territory of the United Kingdom; that is to say that if you were arriving by ship in Stanley today you would find yourself under the jurisdiction of the Falkland Islands Government.

The United Kingdom has fourteen of them, but no written constitution to make clear exactly what the status of the SGOTs actually is (The Constitution Society, 2009). France’s Départements et territoires d’outre-mer are a good example of how other former colonial empires in Europe have dealt with the “confetti of empire” by incorporating them into state structures (Sénat, 2015), but this has never taken place in the UK. The fourteen SGOTs are not independent countries, nor are they a part of the United Kingdom with representation at the British Parliament in London, and given the huge variation that exists between the territories it is hard to see that there could ever be a one-size-fits-all solution. Described by British Prime Minister David Cameron the SGOTs “include one of the world’s richest communities (Bermuda) and the most remote community (Tristan da Cunha). They include thousands of small islands, vast areas of ocean, but also, in Antarctica, land six times the size of the United Kingdom” (Foreign & Commonwealth Office, 2012). This massive variation in circumstances is perhaps why no uniform constitutional status for the territories has ever been devised.

(6)

means the only case in the world like it. The aforementioned case of Gibraltar is in fact remarkably similar in a number of ways. “The Rock”, as it known due to its geography, is geographically much smaller than the Falklands but has a much larger population, with over 28,000 residents. The situation differs slightly due to Gibraltar being in Europe and having a land border with the other state party in the sovereignty dispute, Spain, but in many ways the situation is the same. Having lost Gibraltar to Great Britain in 1704 successive Spanish governments have tried everything possible to regain control of the territory- military sieges, economic blockades, cutting communications, closing the border, seeking to bar Gibraltar from sports tournaments, United Nations General Assembly resolutions, and much more (Gold, 2005, pp.1-3). Like the Falkland Islands the people of Gibraltar elect their own government, and the territory is governed as a self-governing overseas territory of the United Kingdom; other than foreign policy and defence the Government of Gibraltar is responsible for governing the territory.

However there are other examples and other means by which former colonies are governed. The example of Puerto Rico contrasts sharply with that of the Falkland Islands or Gibraltar. Situated in the Caribbean Puerto Rico is home to around four million people, putting it on a whole different scale to any of the British self-governing overseas territories, and what is more the status of the territory is much less clear-cut and easy to define. For instance the residents of Puerto Rico are full US Citizens (unlike the Falkland Islanders who do not hold full British citizenship) and contribute “billions of dollars annually to the Federal Treasury, mostly through Social Security, Medicare and a few other taxes and fees” (Malavet, 2007, p.2). Puerto Rico is considered and “unincorporated territory” of the United States, and as such the islands do not have full representation in the United States Congress, and Puerto Ricans cannot vote in Presidential elections, though Federal institutions are active on the islands in addition to the work of the Puerto Rican government (Malavet, 2007, p.3). These circumstances are made significantly different to the Falkland Islands case for one reason in

particular- while neither Puerto Ricans nor Falkland Islanders are represented in the legislatures of the sovereign power (the United States Congress and the Parliament of the United Kingdom respectively) the Falkland Islanders do not pay taxes directly to Her Majesty’s Treasury in London in the same way that the Puerto Ricans contribute to the Federal Treasury in Washington D.C. What this says about the American principle of “no taxation without representation” is an interesting debate in itself, but that is a topic for another thesis.

These examples are illustrative of the fact that the Falkland Islands case, while it may be unique in terms of the specifics of the Islanders’ situation, is far from the only case where issues of government and self-determination are raised regarding former colonial territories that maintain links with their former colonial masters. But despite the confusing political status, there are some undisputable points of fact regarding the Falkland Islands. To try and retain academic impartiality the source of these facts will be the Central Intelligence Agency World Factbook- the United States is not a party to the dispute and has normalised relations with both the United Kingdom and Argentina and as such should be a reliable source of impartial information.

The facts are that, in reality, the Falkland Islands are an archipelago consisting of over two hundred islands located in the South Atlantic Ocean, approximately 500km east of Tierra del Fuego at the southern tip of South America. The two main land masses, which are substantially bigger than any of the other islands, are West Falkland and East Falkland; a sea channel known as Falkland Sound runs between the two. Overall the archipelago covers an area of twelve thousand square kilometres.

The capital city, Stanley, lies on East Falkland and is home to approximately 2000 people, while the total population of the island group is 3361. There are a variety of nationalities present on the Islands with the largest, unsurprisingly, being Falkland Islander (57% of the population), followed by British (24.6%), St Helenian (9.8%) and a number of other smaller groups. The main and official language is English, while Spanish is also spoken by some on the Islands (particularly by migrants from the South American mainland).

(7)

consists of a unicameral Legislative Assembly elected by universal suffrage of Islanders aged over 18, a new constitution was adopted in 2009 and the de facto Head of State is Queen Elizabeth II,

represented by Governor Colin Roberts. The government deals with all domestic matters concerning the Islands and represents them at a variety of international forums, while foreign affairs and defence remain the responsibility of the United Kingdom. A British military garrison consisting of land, naval and air forces is responsible for the Islands’ defence, supplemented by the volunteer Falkland Islands Defence Force.

The Islands’ economy is reasonably diverse with sheep farming, venison production, tourism and fishing all playing a large part.

(CIA World Factbook, 2015).

What should be taken away from this brief chapter is that while the status of the Falkland Islands is very complicated, both in terms of the disputed sovereignty between the United Kingdom and

Argentina and in terms of the ambiguous constitutional relationship as a British Overseas Territory, the reality is that on the ground the Falkland Island are a relatively normal place to live. Despite the

isolated position of the Islands, both geographically and politically, the islands do have a functioning political and economic system, the Islanders generally go about their daily business in a perfectly normal manner as people do all over the world, and on the face of it a visitor might not even realise that they were standing on ground that has been disputed for nearly two centuries.

(8)

As alluded to in the introduction, the main reason the history of Falkland Islands is important to the issue of self-determination relates to the issue of whether not the Falkland Islanders are a “people” in the legal sense. This distinction, for reasons that will be explained at length in the next chapter is, is a core concern for this study. The right to self-determination applies to “peoples” rather than to

individuals, and as such an understanding of the Falkland Islanders as a people is pivotal to understanding the case for self-determination.

As with nearly everything related to the Falkland Islands, the history varies depending on who you ask, and as such this thesis will need to steer as neutral a path as possible in the circumstances. In

pursuance of that goal, two accounts of the islands’ will be examined. The first is the 1984 book by Fritz and Olga Hoffman entitled “Sovereignty in Dispute: The Falklands/Malvinas, 1493-1982”. This publication, while starting off with at least a reasonably impartial tone, does tend to very much favour the Argentinian version of events, as evidence by the increasingly frequent use of the Argentinian name for the islands in later sections of the book, and the academically unusual use of exclamation marks to express what seems to be outrage at certain apparent events in the history. To balance that partiality the Falkland Islands Government’s online publication “Falkland Islands Facts & Fictions: 50 years of Argentine Falsehoods at the United Nations” and the history section of that same

governments’ website will be cited; these publications are of course very much biased towards the Islanders’ version of events, but by steering a path between it and our other source it might perhaps be possible to get a version of events that is somewhere near the truth. What follows is a brief, not comprehensive, account of key events in the history of the Falkland Islands.

Depending on who you ask, the islands were either first sighted by Italian explorer Amerigo Vespucci on his second expedition to the Americas in 1500 (Hoffman & Hoffman, p.17) or by English seaman John Davis in 1592 (Falkland Islands Government Website, Our History). The Hoffmans’ book does include a number of maps, dating back at far as 1522 (pp.19-25) where they have circled what they believe to be the Falkland Islands, but it is of course extremely problematic to know for certain whether they are in fact the islands we know today, because the same maps also feature various other islands and geographical features that do not exist in reality. Navigation in the stormy waters of the South Atlantic cannot have been easy during the 16th_{Century, and producing accurate maps and}

coordinates for landmasses was likewise difficult. The Hoffmans’ seem convinced that Vespucci did indeed sight the Falkland Islands and provide accurate reports of their coordinates, but then go on to dismiss Davis’ sighting (p.26) despite, by their own account, the location of the islands having

apparently been known in Europe for the better part of a century.

Both sources then go on to mention a 1594 expedition, at the instruction of English Queen Elizabeth I, by Englishman Richard Hawkins. The Hoffmans again deny that Hawkins ever sighted the Falkland Islands (p.26) whereas the Falkland Islands Government contend that not only did Hawkins sight the Falklands, but actually claimed them for England in the name of his Queen (Falkland Islands

Government Website, Our History). Both sources also agree that English Captain John Strong visited the islands in 1690 and named the Islands for Viscount Falkland of the Royal Navy, but while one account cites this as the first ever landing on the islands (Falkland Islands Government Website, Our History) the other doesn’t mention a landing at all (Hoffman & Hoffman, p.29).

(9)

that was pursued.

While France and Spain wrangled, verbally at least, over the issue, the British (in the form of Commodore John Byron) arrived in 1765 and established another settlement named Port Egmont, unaware of the French presence (Falkland Islands Government Website, Our History). From the point of view of the Falkland Islanders this new settlement represents a confirmation of England/Britain’s sovereignty of the islands, reinforcing John Hawkins earlier claims. The Hoffmans meanwhile, who of course contend that John Hawkins was never in the islands, present this episode as Britain and France intruding on Spanish territory.

In 1767 the French came to an agreement with Spain to hand over Fort St Louis, and most of the settlers there left as the settlement became Puerto Soledad (Hoffman & Hoffman, p.41). At this stage the British and Spanish became aware of each other, and each demanded that the other leave, citing their respective sovereignty claims. In 1770 the Spanish attacked and destroyed Port Egmont, only to then restore it to its previous condition and hand it back to Britain to avoid an all-out war (Hoffman & Hoffman, p.55). What comes next is as contentious as most of the rest of the history. The Hoffmans contend that, supplementary to the written public agreement restoring the settlement to Britain, there was a private gentleman’s agreement of sorts, whereby Britain promised to leave the islands after an unspecified period of time and indicating that they only wanted the settlement restored to save face (Hoffman & Hoffman, p.55).

The Hoffmans’ account at this point remains inclined towards the point of view that Spain was the legitimate power in the Falkland Islands, and contends that Britain acknowledged that to be true in the unwritten agreement. Without going into too much discussion on the topic, for that to be true beyond any doubt it would be necessary to accept firstly the idea that the Pope had the authority to dictate sovereignty over half the world without even knowing what land existed there, and secondly that this gentleman’s agreement, of which there is naturally no hard evidence, actually existed. As this thesis is not about the islands as a landmass but rather about the people on them, this matter is not particularly important, but it does go to show how frankly bizarre some parts of the history are and how shaky some of the arguments can be.

In 1774, four years after Spain forcibly evicted the British settlement and then restored it, Britain withdrew the settlers voluntarily. The Hoffmans claim this was the fulfilment of the aforementioned unwritten agreement (Hoffman & Hoffman, p.60) while the Falkland Islands Government state this was due to economic circumstances and a need for military resources in North America with revolution looming there (Falkland Islands Government Website, Our History). Whatever the reason, both accounts agree that when the British withdrew they left a metal plaque on Port Egmont’s blockhouse that read as

follows-“Be it known to all nations that the Falkland Islands, with this fort, the storehouses, wharfs, bays, and creeks thereunto belonging are the sole property of His Most Sacred Majesty George the Third, King of Great Britain, France, and Ireland, Defender of the Faith, etc. In witness whereof this plate is set up,

and His Britannic Majesty’s colours left flying as a mark of possession by S.W.Clayton, commanding officer of the Falkland Islands, A.D. 1774”

(Hoffman & Hoffman, p.60)

If Britain was honouring a gentleman’s agreement recognising Spain’s sovereignty over the islands they were going about it in a strange fashion. Of course leaving a plaque is somewhat of a ridiculous basis for a sovereignty claim, but can it be said to be any more ridiculous than a sovereignty claim based on the say-so of a long-dead Pope? The abandoning of Port Egmont due to unrest in North America in 1774 was followed in 1811 by the abandoning of Puerto Soledad due to a revolt against Spain on the South American continent (Falkland Islands Government Website, Our History).

(10)

until 1863 (Hoffman & Hoffman, p.65). The United Provinces sent an expedition to the Falkland Islands in 1820 to repopulate Puerto Soledad, which they did, however in 1831 the United States naval vessel Lexington arrested the United Provinces’ governor of the islands for piracy after a dispute over fishing rights. The United States’ vessel declared the islands free of all government and left with the governor and other key figures aboard (Hoffman & Hoffman, p.74). At this stage, with the governor gone and all law and order with him, the United Province’s colony on the islands essentially

descended into chaos, a situation that persisted until a small garrison from the mainland arrived in 1833 to try and salvage the colony.

Unfortunately for the new garrison however, after only three months the British ship HMS Clio arrived to reassert Britain’s claim to sovereignty over the islands, and the United Provinces’ garrison

surrendered without a fight (Hoffman & Hoffman, p.70). Thereafter the 26 man United Provinces garrison along with 19 dependents were ordered to leave, while those settlers who remained after the turmoil of the previous years were invited to stay, which many did, including Antonita Roxa and Antonio Rivero, who were both notable figures on the islands at the time (Falkland Islands Government, p.5).

The Falkland Islands Government’s publication cites a quote from an Argentinian government representative at the UN in 1964, stating that the British “evicted a peaceful and active Argentine population (Falkland Islands Government, p.5), and this is a claim that is still often made by Argentinian authorities today. However, even José María Pinedo, the commander of the United Provinces ship “Sarandi”, which was present at the time of the British arrival, stated in his report of the incident that only the garrison and their companions were actually evicted (Falkland Islands

Government, p.5). Those settlers who voluntarily chose to leave with the garrison would have been resident there for a maximum of 13 years at the point the British arrived and took de facto control of the islands.

During the 1840s British settlers began to arrive in the islands to supplement those inhabitants who remained from the United Provinces. The Falkland Islands Government also states that families from Scandinavia, Canada, Gibraltar and elsewhere also arrived on the islands, and even some from continental South America, citing the example of José Llamosa who arrived in 1847 and whose family celebrated the birth of their sixth generation on the Falkland Islands in 2014 (Falkland Islands

Government, p.7).

It is really this period in particular, the arrival of the ancestors of the people whom we now call the Falkland Islanders, that is significant for the purposes of this thesis. The next chapter, concerning the legal basis for the right to self-determination, will discuss at some length the fact that the right is only applicable to “peoples”, and according to definitions that will be examined later in this thesis, a shared history is a big part of what makes a people a people (Roepstorff, 2013, p.35).

Barring a brief period during 1982, when Argentina forcibly invaded the islands before being expelled again by a task force from the United Kingdom, the Falkland Islands have been under exclusive British control since 1833. The only remaining historical events that should be noted are that in November 1849 a “Convention of Peace” was signed between the United Kingdom and the Argentine

Confederation, which restored what was called “perfect friendship” between the two countries, and it was not until the opening of the Argentine Congress in 1941 that the issue of the islands was actually mentioned formally by the Argentinian government (Falkland Islands Government, p.9). In 1863 when Spain formally recognised Argentinian independence they conferred upon them the rights to all the land Spain claimed when the United Provinces declared their independence in 1816, which (if the long-dead Pope is to be believed) included the Falkland Islands, which had of course been populated by Britain 30 years prior to the Spanish recognition of Argentina.

(11)

Firstly the issue of who actually discovered the islands, who was there when, and what rights that entitles them to is hotly disputed. Spain and France, the two nations who settled the islands in the first instance, no longer claim any sovereignty rights over the Falklands, however the Argentinian

argument hinges on having inherited the rights that Spain at one time claimed to have had. The second and most important point is that the ancestors of at least some of the present day Islanders arrived on the Falkland Islands in 1833, meaning a continuous unbroken presence for over 180 years. As will be discussed in the following chapter, it is not a wild leap of the imagination that such a

prolonged period of continuous settlement by individuals of various nationalities might have served to create a homogenous community with a unique identity. The idea of an identity created by a long period of settlement in a particular location is certainly in line with the assertions made regarding Gibraltar in the previous chapter. Such a community might reasonably be referred to as a “people” in their own right rather than still being a part of the community their ancestors originated from, a point that will now be thoroughly examined in the following chapter.

Chapter Five: Legal Basis and Precedents

The previous two chapters sought to establish what and where the Falkland Islands are, and far more significantly they sought to establish who the Falkland Islanders are, and how they came to live on a small group of islands in the South Atlantic.

The Falklands have undergone a number of phases of change in their history, and simultaneously so too has self-determination as a norm within the international system. This chapter, therefore, will be dedicated to recounting how the means by which international territorial disputes have been settled has changed over time, and more importantly how the development of a right to self-determination has altered the way in which states perceive their interests and seek to achieve them.

As a feature of the international system the development of self-determination has not been a linear evolution, rather it has ebbed and flowed over time as events have unfolded. At the time of the bickering over the Falkland Islands prior to 1833 certainly self-determination had no role to play- having the military power to capture and hold the territory was the only justification that was required. However times have changes significantly since then, and one important milestone to note is that the right to self-determination in the way that we might recognise it today was first given legal force by United States’ President Woodrow Wilson’s famous Fourteen Points at the end of the First World War. While this was the first proper articulation of the right, the result of which is that President Wilson is famed as almost a kind of founding father of self-determination, the right to self-determination stems from a far longer ideological tradition and is not simply something that Wilson alone thought up. It is arguable that the right to self-determination first began to develop through the work of Enlightenment philosophers such as Jean-Jacques Rousseau, John Locke and Thomas Paine; these philosophers, either specifically or implicitly, discussed the ideas of “the natural rights of Man and popular

sovereignty”, and this is the thought process that led to self-determination (Roepstorff, 2013, p.10). The 1776 United States Declaration of Independence is cited as an early manifestation of the right to self-determination, though the term is not explicitly used, and the French constitution of 1791 is

likewise relevant, although in that particular case the right was tied to the idea of state sovereignty and notion of non-interference in the affairs states (Roepstorff, 2013, p.10). In both of these instances the idea of self-determination is to an extent linked to the idea of nationalism and popular sovereignty. But it was not just Enlightenment philosophers and those who read them that had ideas about self-determination, and indeed there are two very distinct conceptions of the right to self-self-determination, with the Enlightenment/Western version being the first. This was followed in the 19th_{and 20}th_Centuries

(12)

particularly influential, for reasons that should be readily apparent to anyone who knows anything at all about Russian history, and his concept of self-determination “encompassed two aspects…the right to organise one’s own state freely and the right to be free from foreign rule” (Roepstorff, 2013, p.11). These ideas, when transcribed into reality, went hand-in-hand with the Communist ideals of revolution and freedom from the rich ruling classes- for those reasons Lenin’s version of self-determination is very much linked to the idea of decolonisation as a means of pursuing a global Communist agenda. However, when World War One ended, the Treaty of Versailles was being signed and the League of Nations established, the Soviet Union was a fledgling new nation, consumed by internal strife and violence, and as such it was the Western conception of self-determination, not Lenin’s, that was introduced into the international system. Applied specifically and solely to the inhabitants of empires within Europe, Wilson’s right to self-determination while sharing a name with the contemporary right, has little else in common with it. One very glaring difference is the very selective application of this manifestation of the right, evidenced by the actions taken against two empires that were dismantled following World War One- the Austro-Hungarian Empire was broken up into many different and

sovereign states such as Poland and Czechoslovakia, and these states were treated as equals on the world stage.

Meanwhile when the adjacent Ottoman Empire was broken up nearly the entire landmass of the empire was simply shared out amongst other European empires, particularly Britain and France. It is possible to argue that states like Iraq, Syria and Palestine were League of Nations Mandated

Territories, and not actual colonies, but it is equally possible to argue that the distinction existed on paper only and in reality made very little difference. Whether you say that this differentiation was to appease Britain and France who did not want self-determination of non-Europeans being used to weaken their own imperial positions, or whether it was just old fashioned racism in the form of a belief that non-white people could not govern themselves, the difference nevertheless did exist at the time and self-determination was only applied to Europe.

Even in this early, and very limited, form, the right to self-determination was subject to controversy even among Wilson’s supporters. When reflecting afterwards on the subject of self-determination being discussed at the 1919 Versailles Peace Conference, the then-Secretary of State for the United States of America, Robert Lansing, offered a very pessimistic assessment of the future of

self-determination, stating that he felt that the idea was “loaded with dynamite…it will raise hopes which can never be realised. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist” (Philpot, 1995, p.352).

As profound as these ideas were, and as fundamental as they are to the history of countries such as the Czech Republic and Poland where Wilson is viewed with a large degree of reverence, the effect of these developments on the Falkland Islands was practically zero. Self-determination is not one of the natural rights of man laid down by Enlightenment philosophers, and the Europe-centric nature of Woodrow Wilson’s 14 points prevented them having an effect on the Falklands either, but

nevertheless these developments can be seen as the building blocks upon which the modern right to self-determination was constructed.

There is no denying that the end of World War One, and Woodrow Wilson’s Fourteen Points, did change the complexion of the international system in some pretty profound ways, not least through the creation of the League of Nations and at least some attempts to settle disputes through legal means rather than warfare. An example from the inter-war period which is particularly interesting, both

because it acts as an exemplar of settling an international dispute through legal channels and because it has certain similarities with the Falkland Islands case, comes in the form of the 1928 Miangas Island dispute between the Netherlands and the United States.

(13)

administration the island was considered to be part of the Philippines island group, which the United States subsequently won from Spain under the provisions of the Treaty of Paris. In addition, the United States asserted, American military personnel had visited the island twice, firstly in 1895 and 1906 (Permanent Court of Arbitration, 1928, p.36). Meanwhile the other party to the dispute, the Netherlands, asserted that the Miangas Island was a part of the Dutch East Indies and had been under effective Dutch since 1700 (Permanent Court of Arbitration, 1928, p.37). When the dispute came to light the two parties referred it to the Permanent Court of Arbitration, who produced a very lengthy judgement document assessing the relative merits of each party’s claims.

For the purposes of this thesis several aspects of the judgement document are of interest. Firstly the Permanent Court of Arbitration found that relying on historic discovery alone was not sufficient grounds for a state claiming sovereignty over a piece of territory, and secondly it was asserted that sporadic visits by state authorities do not constitute a claim to sovereignty either (Permanent Court of Arbitration, 1928, pp.34-37). So in this case the sovereignty claims of the United States were found to be very weak- neither Spain’s claim of having initially discovered the island (and the United States having inherited the rights associated with that through the Treaty of Paris) nor the two visits by the United States military constituted a justifiable claim to sovereignty.

Meanwhile the Netherlands claim was found to be far more valid, concluding that a “continuous and peaceful” show of state sovereignty on a territory is the strongest justification for a state sovereignty claim (Permanent Court of Arbitration, 1928, pp.34-37). One of the final paragraphs of the judgement document states that “the importance of maintaining this state of things [the peaceful governance of the Miangas Island as a part of the Dutch East Indies] ought to be considered as prevailing over a claim possibly based either on discovery in very distant times [by Spain] and unsupported by occupation [of the island by American government forces], or on mere geographical position [of the island relative to the Philippines]”. So in the case in question, the fact that the Netherlands had

exercised sovereignty over the Miangas Island peacefully since 1700, as part of the Dutch East Indies, made the Netherlands the rightful sovereign power over the island.

The decision of Farooq Hassan to cite this particular case, and the subsequent decision in this thesis to cite both him and the case itself, is not a completely random choice, nor is the case cited an insignificant one. Hassan states that the case of Miangas Island is significant because the judgement provided a legal precedent that has been widely followed since the original judgement in 1928. The Miangas Island case has been “cited with approval in litigation before the Permanent Court of

International Justice and before the International Court of Justice” in cases such as “the Legal Status of Eastern Greenland” (Denmark vs. Norway, 1933) and the “Anglo-Norwegian Fisheries case” (United Kingdom of Great Britain and Northern Ireland vs. Norway, 1951). In all of these cases the “principle of an effective display of control” was the determining factor when settling international territorial disputes within a legal framework (Hassan, 1983, p.69).

The precedents set by this case also have a lot to tell us about the case of the Falkland Islands. Firstly the argument surrounding who originally discovered the islands (as outlined at length in the history chapter) is largely redundant- the precedent from the Miangas Island case suggests that in the same way that it did not matter if Spain had discovered the island first or not, and regardless of whether anyone thought that the rights from that had been conferred upon the United States of America when it signed the Treaty of Paris, it does not matter who originally discovered the Falkland Islands either. Historic discovery alone is not, as the court states, an adequate basis upon which to make a

sovereignty claim, and as such neither Argentina nor the United Kingdom can claim to possess sovereignty purely on that basis. Furthermore if the sporadic visits by the state authorities of the United States to Miangas Island confer any sovereignty rights over the island, then nor do the

occasional short-lived colonisation attempts in the 18th_{and 19}th_{centuries by France, Spain, the United}

Kingdom or Argentina/the United Provinces confer any sovereignty rights in the Falkland Islands on those states.

(14)

determining sovereignty- whether the Miangas Island was closer to the Dutch East Indies or the Philippines was largely irrelevant, and in the same way the relative positon of the Falkland Islands vis-à-vis Argentina and the United Kingdom does not matter when determining sovereignty. If, as the court’s judgement states, “continuous and peaceful” shows of state control are the determining factor when judging sovereignty claims, then the United Kingdom’s nearly unbroken show of state

sovereignty in the Falkland Islands since 1833 is surely the determinate factor. Argentina’s two brief stints of control in the Islands were anything but peaceful and continuous, with both lasting only a matter of months and the first ending with the murder of state officials by settlers and second taking the form of a terrifying military occupation by the forces of a brutal military dictatorship. So the precedents set by the Miangas Island case, while reflecting well on the position of the United Kingdom, are far less favourable towards the position taken by Argentina.

The international system during the period of world history when the Miangas Island case took place, and the ways in which it differed to the period immediately after World War One discussed previously, can be seen to mirror the evolution of preferences within the dominant states at the time. The

Versailles Treaty and what followed on from it can very much be read in terms of Great Power politics- might was right and those who had the ability to enforce their will on the world did so, and the world that was created very much reflected the deficiencies which existed domestically within the Great Powers.

The result was an international system that offered some rights, such as self-determination, but within limits, such as it only being applicable to people who were deemed to be civilised. By the time of the Miangas Islands case a little under fourteen years after the First World War the domestic system within the Great Powers had changed somewhat (for instance the case took place in the same year that women were given equal voting rights within men in the United Kingdom and the United States was pursuing a determined policy of isolationism), and what is more the aversion to war that would come to define mid-to-late 1930s had already begun to develop. So within that context the United States, rather than inviting confrontation with the Netherlands, agreed to arbitration to settle the dispute. However, even if this is taken as a step towards the kind of world that exists in the modern era, it was a very small step, because the fact the inhabitants of Miangas Island were largely ignored during the whole process also reflected the contempt in which colonised people were often held even as recently as 1928.

Perhaps unfortunately we will never know what an international court would say regarding the particular case of the Falkland Islands. The United Kingdom did refer the case to the International Court of Justice in 1955, but Argentina refused to recognise the jurisdiction of the court despite having been a party to it since first joining the United Nations a decade previously. However what this does show is that self-determination was not yet a consideration in territorial disputes during the inter-war period- such disputes could be settled peacefully through arbitration if both sides consented to it, but even then it was the states whose interests were to be considered, not the interests or wishes of the people actually living on the disputed territory.

Of course all semblance of an international order based on law and arbitration came to a grinding halt during the 1930s. The Japanese invasion of Manchuria, the Italian invasion of Ethiopia and of course the eventual German invasion of most of Europe, and the Soviet invasion of the remainder, marked a return to the kind of “might is right” logic which had dominated previously, and the League of Nations as a means of providing structured international order suffered a slow and painful death

simultaneously. This period, while interesting for a wide range of reasons, is not particularly

informative regarding either the right to self-determination or the Falkland Islands, and as such will not be covered here.

(15)

“resuscitate” the idea all (Kirgis, 1994, p.304). The Soviet Foreign Minister at the time viewed the populations of European Colonies, especially in places where Communist insurgencies were already springing up, such as Vietnam, Malaysia and elsewhere, as the main beneficiaries of the right to self-determination (Kirgis, 1994, p.304). This approach very much mirrors the ideas previously devised by Lenin- the people of the colonies were to be given the right to decide their own status, and of course from the Soviet perspective it was to be hoped that when making their choice they would choose Communism. While the reality was that the Western world, the United States in particular, did not allow Communism to spread across the globe, decolonisation or no decolonisation, it is easy to

conceive the way in which the Soviet Union might have hoped to use self-determination as a means of externalising their own internal preferences to create a Communist world order.

Whether that was the intention or not, the text which made it into the United Nations Charter was, “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace” (United Nations, 1945). And whether deliberately or not “the drafters did not bother to define self-determination or to identify who the ‘peoples’ were” (Kirgis, 1994, p.304), and allowing such a vast amount of room for interpretation has given rise to decades upon decades of disagreement about what is actually meant by the text. To put it another way, “in the controversy-ridden fields of

international law and international relations, the widespread recognition of the existence of national rights to self-determination provides a welcome point of agreement. Needless to say, the core

consensus is but the eye of a raging storm concerning the precise definition of the right, its content, its bearers, and the proper means for its implementation” (Margalit & Raz, 1990, p.439).

Article 73 of the United Nations Charter meanwhile, while it does not specifically mention the right to self-determination, is supplementary and parallel to it in the context of decolonisation, and as such will be outlined here. The full text does not need to be quoted, but in summary it requires those states that have responsibility for territories that do not have a “full measure of self-government” to help them to develop it, with “due respect for the culture of the peoples concerned, their political, economic, social and education advancement” (United Nations, 1945). This is particularly relevant in the case of the Falkland Islands, as will be discussed later in this chapter.

The right to self-determination as it exists within the contemporary international system is anything but clear-cut, unsurprisingly given the vague wording in the United Nations Charter. Kristina Roepstorff says the term is “open to diverse interpretations” (2013, p.1) while James Summers is blunter when he states that self-determination is “frustratingly ambiguous” (2013, p.229). Essentially each state adopts an interpretation of what the right is and who is entitled to it based on their own preferences. From the foundations of the modern right to self-determination in the United Nations Charter, at the insistence of the Soviet Union, this thesis will now attempt to cut through the ambiguity and get to a definition of what the right to self-determination is in its modern incarnation, and how it can be applied as a human security approach to solving territorial disputes, particularly within the context of the Falkland Islands. Continuing from the point where the right to self-determination was included in the United Nations Charter at the urging of the Soviet Union, it is evident that in those early days the concept was

essentially exclusive to the process of decolonisation. Hurst Hannum makes this observation when he states

that-“Self-determination...had nothing to do with ethnicity, language, or culture. Although there were some exceptions…the accepted mantra was that colonial territories would become independent. It did not matter how many "peoples" were found within them, although obviously each contained many different peoples, nations, and ethnic groups. Thus, in general, territories, not peoples, enjoyed the right to independence.

It was also clear during this period that, although there were other theoretical options…the

(16)

independence, such as free association or full integration, required the full and informed consent of the people involved”.

(Hannum, 1998, p.775)

It was from these beginnings, decolonisation, that the modern concept of self-determination

developed, and it is there that some might argue that it should have ended, but that certainly has not been the case and this is reflected in the many discussions and disagreements which have persisted ever since. Works like Hannum’s point to the one-track line of thinking that dominates many

discussions regarding self-determination, a way of thinking that associates self-determination soley with independence movements, and cases such as the Falkland Islands do naturally suffer as a result of this bias. When it comes to the Falklands, in the words of Hannum, the Islanders chose an “option other than independence” and this adds a whole new layer of debate.

But it is not just the United Nations’ Charter that touches on these issues, and the right to self-determination also appears in a number of other notable United Nations documents. General Assembly resolution (GAR) 1514 of 1960 states in its second

Article-“The declaration states that all peoples have the right to self-determination and that by virtue of that right they shall freely determine their political status and freely pursue their economic, social and cultural development”

(Roepstorff, 2013, p.15).

This article is indicative of what the right to self-determination is, either in a decolonisation context or otherwise, but the issue is complicated by the contradictory concept of territorial integrity which is also included in the same resolution. Article six of GAR 1514 states that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations” (Roepstorff, 2013, p.15). That blatant contradiction, where a choice is offered only to then clarify that the choice is essentially limited to one option and one option only, is symptomatic of many international agreements related to the right to self-determination. International agreements made between states will generally be concluded in a way that bests suits the interests of states, who naturally have an interest in protecting themselves from separatist movements within their own borders, and that is a likely explanation for these bizarre contradictions.

Lea Brilmayer, writing in 1991, identifies the difficulty posed by having two principles of international law which are “directly contrary to another”- on the one hand the right of peoples to determine their own political status, nominally by the creation of an independent state, and on the other hand the right of states to maintain their current borders (Brilmayer, 1991, p.178). What follows in Brilmayer’s work is an interesting discussion about the moral basis for the concepts of a right to self-determination and territorial integrity; on the one hand it is asserted that self-determination claims “turn on the democratic principles of consent and popular sovereignty” while territorial integrity can be painted as something “feudal, undemocratic, and oppressive” (Brilmayer, 1991, p.184). Brilmayer does see these definitions as problematic however, stating that it is not the case that “refusal to consent exempts an individual from state authority”, and he suggests that interpreting the right to self-determination in to broad a manner would open the door to a “kind of anarchy” (Brilmayer, 1991, p.184). However, this

(17)

This conflict, between the competing logics of self-determination and territorial integrity within the context of GAR 1514, is discussed at length in a 1982 article by Alejandro Schwed. In a section discussing the Gibraltar case, which he relates heavily to the Falkland Islands, Schwed states that Resolution 1514 indicates a recognition by the General Assembly of the “territorial limitations of self-determination” (1983, p.461). The implication of this is that, when contrasted with the principle of territorial integrity, self-determination is not an absolute right, and rather its application should be taken on a case-by-case basis.

However the aforementioned contradiction in GAR 1514 between the right to self-determination and principle of territorial integrity is, mercifully, less apparent in General Assembly Resolution 2625 of 1970, which is entitled “The Declaration of Friendly Relations and Cooperation among States” and indicates

that-“The establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”

There is a significant difference between this Resolution and the earlier Resolution 1514, firstly

because the right to self-determination is not then subsequently contradicted by a later statement, and more significantly still it indicates that the right can be realised in a range of ways and does not limit the scope of exercising the right; it is neither insisting that secession is illegitimate (as in Resolution 1514) nor insisting that it is the only option (in the way alluded to by Hannum).

The complexion of the right is further altered, perhaps significantly, by its inclusion in human rights legislation internationally. Human rights, but virtue of the fact that they are universally applicable, lifts self-determination out of the narrow bracket of decolonisation in which it previously resided and gives it a far broader potential.

Of course the increased prominence of human rights within the international system can be seen as an externalisation of the domestic preference for human rights within the Western states who dominate the international system, in the same way that decolonisation could be read as an externalisation of the Soviet preference for spreading Communism. The transformation of self-determination from a normative principle into a right is particularly important because this distinction makes the right to self-determination legally binding on signatory nations in a way that United Nations General Assembly resolutions often are not (Hannum, 1998, p.773). The International Covenant on Civil & Political Rights and the International Covenant on Economic, Social & Cultural Rights (to which the United Kingdom and Argentina are both signatories, it is worth noting for the purposes of studying the Falkland Islands) are two such legally binding documents regarding the right to self-determination, and they share a common first article, which

states-“1) All peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.

2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3) The States Parties to the present Covenant, including those having responsibility for the

administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right to self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations”

(18)

rights are universal. While General Assembly Resolution 1514 balanced self-determination against territorial integrity, and identified it as a limited right rather than a universal one, universality is very much at the heart of the whole concept of human rights. The International Covenant on Civil & Political Rights quotes, in its preamble, the 1948 Universal Declaration of Human Rights, and if human rights are an extension of natural rights and thus innate and universal in the way implied by the 1948

convention, then they cannot and should not be interpreted in the selective manner embodied by GAR 1514.

The relevance of the first and third articles of the common first article quoted above to the matter of the right to self-determination in the context of the Falkland Islands is readily apparent, however this wording does bring us to the previously alluded to issue of what exactly a “people” is in the context of self-determination. Again there is no exact definition in any of the legal documents of what is meant by this term (barring those treaties which specifically relate to indigenous people, but as there is no indigenous population of the Falkland Islands those texts are not particularly relevant to our case), and as such applying the term “people” is very subjective in many cases.

In the absence of a legally-binding and universally accepted definition of what a “people” is, this thesis will simply have to examine existing academic definitions and accept what will no doubt be a

contentious (but hopefully reasonably balanced) definition which can be used for our purposes. It seems unlikely that a universal definition will ever exist, for the simple reason that different states have their own pre-existing interests in specific cases, for instance in the case of the Falkland Islanders it is in the interests of the United Kingdom if they are defined as a “people” whereas for Argentina their best interest is served by the Islanders not being classified as such. Beginning once more with Roepstorff’s work, she has compiled a convenient list of prominent definitions of “a people” as part of her broader work on self-determination, which will be useful for the purposes of this thesis.

As previously mentioned, the earliest definitions of self-determination were closely tied to

decolonisation, and as the definition of self-determination has changes so too has criteria for eligibility- in other words the definition of what a “people” is has remained fluid and changed over time. Some definitions hinge on ethnicity, but whether in the case of the creation of Czechoslovakia or the

decolonisation of Sudan, ethnicity is a fairly blunt instrument given that few countries in the world are actually ethnically homogenous. Citing various sources, Roepstorff broadens the meaning of “peoples” to be more than mere genetics and states instead that the term should be applied to “groups with a shared name, ancestry, past, culture, language, homeland, and sense of solidarity” (Roepstorff, 2013, p.35). This definition, while broader than a definition of ethnicity based on genetics, is not without problems. A thorough examination of nearly any European country, or indeed an American one to an even greater extent, would show up huge sections of society that do not fit into that categorisation. For instance is someone born in the Netherlands to parents who emigrated from Sweden in 1970 not a part of the Dutch “people” by virtue of not having a common ancestry and past with the rest of the nation? The picture is even more blurred in countries such as Australia or those in the Americas (including the Falkland Islands), because there a common ancestry is almost entirely absent and the common past is relatively short and tinged with memories of emigrations from all over the world. In short this definition does not take into account the fluidity of identity and the cultural and ethnic plurality of much of the modern world.

Roepstorff then provides what she describes as “the most widely accepted definition”, in the form of a quote from Cristecu who states that a people

is-“A social entity possessing a clear identify and its own characteristics. It implies a relationship with a territory, even if the people in question has been wrongly expelled from it and artificially replaced by another population. A people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognised in article 27 of the ICCPR”

(19)

useful for the purposes of this thesis, essentially by virtue of its broadness. Countries such as those previously mentioned, while lacking common ancestry and past, almost certainly do have their own clear identity and characteristics, and the same can be said of second generation immigrants vis-à-vis the population of the country they live in. The first two sentences of this definition will can therefore be taken as one relevant definition of “a people” for the purposes of this thesis.

Meanwhile however Avishai Margalit and Joseph Raz provide an entirely different view on what a people is, based on six key points, which are summarised

below-A group that has a common character and culture that encompasses important and varied aspects of life, such as a common language, distinctive architectural styles, national customs and holidays, etc.

People growing up amongst members of the group will acquire the group culture themselves, and have their tastes and opinions significantly influenced by having been a part of the group. Members of the group are mutually recognised- an informal recognition of belonging inferred upon oneself by other members of the group.

Members of the group recognise that they are a part of that group, and consider membership thereof to be a significant part of their own character.

Membership of the group is a matter of belonging rather than of achievement- full membership is not conditional on any particular qualifications. You are part of the group because of non-voluntary criteria- essentially membership is based on who you are, and while someone from outside the group may become a member, this is only achieved by them changing their culture and tastes according to the customs of the group they’re joining.

The groups concerned are anonymous- not every member is known to every other member, recognition as a part of the group is based on general common characteristics rather than personal relationships or tangible symbols

(Margalit & Raz, 1990, pp.443-447)

The key difference between this definition and the previously quoted one from Cristecu is that where Cristecu specifically links the concept to a defined territory Margalit & Raz do not; in the context of the Falkland Islanders those living there doubtlessly do have an emotional attachment to the territory now, but given the relatively short period of human settlement on the Islands it would be inadvisable to hang too much on that particular point.

Taking all of this into account; the evolving means by which territorial disputes can be settled, the creation of self-determination as a right in the way that we know it today, and the definition of what a people actually is, there are essentially three sequential questions to be

answered-Were the Falkland Islands a British Colony? If yes, are the Falkland Islanders a people?

If yes, does being a people entitle them to the right to self-determination?

(20)

non-self-governing-territories. The article nowhere provides, or even implies, that the end of colonialism under one country would result in domination by yet another State”. In support of this assertion Hassan quotes the International Court of Justice judgement regarding Western Sahara, indicating that

independence from Spain did not automatically mean assimilation into Morocco if that is not the will of the inhabitants, despite Morocco claiming the territory prior to Spanish colonisation in 1884 (Hassan, 1982, p.70). In the same way the Falkland Islands becoming self-governing and completely

independent from the United Kingdom would not necessarily oblige them to become part of Argentina, and any suggestion that it would is at best a misinterpretation of the facts and at worst a wilful

misrepresentation of international law.

If the Falkland Islands were a colony in 1946, as both sides seem to accept, then that would have entitled them to the rights afforded to them by the previously mentioned Article 73 of the United Nations Charter, which states that “the interests of the inhabitants of these territories are paramount” (United Nations, 1945). Like so many legal terms in international law the exact definition of what constitutes “the interests of the inhabitants”, but Hassan in his piece contends that the interests and the wishes of the population are inseparable, and this thesis will concur with that assessment. To assert otherwise is to suggest that the inhabitants of colonised territories lack the intelligence to know what is in their own best interests and should be dictated to by other states, which is completely out of keeping with the spirit on Article 73 and the Charter more generally. Self-determination, featuring prominently as it does elsewhere in the UN Charter and in subsequent documents, is one very obvious way of “taking account of the political aspirations” of the colonised people, as Article 73 obliges UN members to do.

However, as the right to self-determination is applicable to “peoples” rather than territories per se question two (on the previous page) will now be examined, and that is the question of whether or not the Falkland Islanders are actually a people in their own right or whether, as Argentina contends, they are simply implanted British people. As with all matters pertaining to this topic, applying the definitions previously discussed to the specific case of the Falkland Islands is not particularly straight-forward. However, as was mentioned in the history chapter of this thesis, there are families present on the Falkland Islands who can trace their ancestry there back at least six generations, and there seems little doubt that the Islanders do indeed have their own clear identity and characteristics reflecting the unique environment and history that the islands have. Visually the Falkland Islands do have many of the characteristics of a country in their own right- their own government, flag, coat of arms, motto, anthem, memorials, national holidays, defence forces (here the reference is of course to the Falkland Islands Defence Force, a unit consisting of volunteer Islanders, and not the British Armed Forces Garrison) and other similar trappings of statehood. There seems little doubt that the invasion by Argentina was a defining moment in galvanising a sense of Falkland Islander identity, viewed perhaps in the same way as the World War Two Battle of Britain is for a British people- a shared hardship and struggle which came to be remembered afterwards as a defining moment of solidarity.

This issue is very much comparable to the aforementioned similar case regarding Gibraltar. Again in this instance the state disputing sovereignty, Spain, asserts that the residents of Gibraltar are not a “people” in the manner that entitles them to self-determination, while the governments of Gibraltar and the United Kingdom assert both that the Gibraltarians are a people and that they are entitled to the right to self-determination in light of that fact. Joe, Bossano, described as one of the most

“outspokenly pro-British Gibraltarians”, sums this up well when he states that “What I am is the result of 300 years of British influence. That makes me a British Gibraltarian. Spanish is the last thing I want to be”. The sentiment is mirrored, in slightly less blunt terms, by Peter Caruana who indicates that he considers the residents of Gibraltar to be “British by…political nature and Gibraltarian for geographical and anthropological reasons” (Gold, 2005, p.327). Both these sentiments suggest that, while Spain might not consider the Gibraltarians to be a people, the Gibraltarians themselves believe that they are, and this is very much the case when it comes to the Falkland Islanders.

“When people are free to choose, they choose freedom”