The first settlements on the islands. The 1771 Agreement and British abandonment. Spanish withdrawal after the beginning of Argentine process of independence
This chapter analyses the period of 1764-1811 and the first European settlements on the Falkland/Malvinas Islands in the 18th century; it also deals with the subsequent disputes among France, Spain and Great Britain. It will show that the first occupant of the Falklands/Malvinas was France, which immediately recognised Spain´s pre-existing sovereignty and handed over the islands to the legitimate sovereign. It will also show that Britain´s occupation of a port on one of the islands of the archipelago was in breach of existing treaties; and that this occupation was belated, precarious, secretive and subsequently abandoned. Besides the treaties analysed in the previous chapter, the 1770 incident, the Hispano-British declaration of 1771, British withdrawal from the site authorised by Spain, and the fact that Spain exercised exclusive possession and sovereignty over the islands for decades, until the beginning of the Argentine process of independence in 1810, prove that Argentina incontestably succeeded to Spain´s rights.
A. France, the first occupant
Pascoe and Pepper begin by correctly stating that Louis-Antoine de Bougainville was the first to establish a settlement in the Falklands/Malvinas.1 The settlement was located on Soledad or East Island and was named “Port Louis”, in tribute to the French monarch. The purpose of Bougainville´s voyage was to establish a settlement on the Malouines islands in order to “take control of trade in the South Seas” after France´s colony in Canada was lost to Great Britain. His project was quickly approved by the French authorities. On September 15th, 1763 he set sail with 150 men from Saint-Malo on board the frigate “L´Aigle”, together with the corvette “Le Sphinx”. Land was made at the beginning of February 1764, and on March 17th, construction work had already started. On April 5th, 1764, once the construction of the fort was finished, Bougainville carried out an official ceremony to take possession of the islands on behalf of King Louis XV, which was confirmed (and made public) by the French monarch on September 12th, 1764.2
B. The clandestine presence of Great Britain
The French had already occupied the Falklands/Malvinas when British commodore John Byron set sail for the West Indies on June 21st, 1764. The purpose of his voyage was kept secret. Upon reaching the coast of Brazil, the true objective of the expedition was revealed: to
call at His Majesty´s Islands call´d Falkland´s and Pepys `Islands situate in the Atlantick Ocean near The Streights of Magellan in order to make better surveys thereof, than had yet been made, and to determine a place or places, most proper for a new settlement or settlements thereon.3
Byron sighted land on January 12th, 1765 (that is to say, almost one year after Bougainville officially took possession) and landed on Saunders Island (Isla Trinidad), a small island to the west of Gran Malvina/West Falkland, where he took possession of a location called Port Egmont (“Puerto de la Cruzada” in Spanish) on behalf of King George III, “of that port and all neighboring islands.”4
It is worth noting that the directions given to Byron refer to the “Falkland and Peppys” islands. The latter were often believed to be situated in an area near the Falklands/Malvinas, but they do not exist. The British government believed they had been “discovered” by His Majesty´s seamen. It gave secret instructions to its sailors in full awareness of the opposition Spain had manifested years before, leading Byron to believe that the islands he was to survey already belonged to the British crown.
However, the orders Byron received made no reference whatsoever to taking possession of the Falkland/Malvinas Islands. His only task was to perform a survey. Pascoe and Pepper give this event a legal significance which it does not have, flagrantly contradicting themselves when comparing their analysis of Byron´s taking of possession with that of Jewett on behalf of Argentina in 1820,. As we shall see, they try to diminish the value of Argentina´s taking possession in 1820 because, they allege that precise instructions given by the government of Buenos Aires directing Jewett to take possession of the Falklands/Malvinas have not been found. Yet at the same time, they characterised Byron´s act as capable of conferring sovereignty on Britain, despite Byron clearly going beyond his instructions, as he had not received any order to take possession of the islands.5
Differently to Bougainville´s actions, which consisted in establishing a colony, Byron took possession, left the British flag raised and set sail a few days later (on January 27th) without leaving behind any settlement. A month later, he sent the ship “Florida” to Great Britain to bring news. When the “Florida” landed on June 21st, 1765, British authorities decided to build a settlement at Port Egmont. News had already been received of France´s establishment.
C. Spanish protests and France’s recognition of sovereignty.
On the Spanish side, news of the French settlement set alarm bells ringing. In September 1765, the Spanish minister of State, the Marquis of Grimaldi, gave instructions to Ambassador Fuentes to submit to Choiseul an official request for France´s withdrawal, on the basis of Spanish sovereignty, as well as legal and political considerations.6 After Choiseul´s first refusal, Fernando de Magallón, secretary at the Spanish embassy in France, reminded him that Spain had already asserted its rights against England in 1749 when it came to know about Anson´s expedition. Only twenty-four hours later, Choiseul met Fuentes and acceded to Spain´s request. When Bougainville returned, he was notified of the situation and asked to go to Madrid to iron out the details of the transfer.
D. The secret occupation of Port Egmont
On the British side, on September 26th, 1765, Commander J. McBride received orders to build a fort “in Port Egmont in the Falkland Island.”7 On January 8th, 1766, he entered the port. McBride´s men sighted the French settlement on December 2nd, 1766, and were already in Port Louis on December 4th, setting sail for England in January 1767. Although the sailors declared that the islands belonged to His Majesty, the British government did not lodge any official protest over France´s presence in the Falkland/Malvinas Islands. Contrary to the French occupation, and later to Argentina´s taking of possession in 1820, no public announcement was given of Britain´s settlement at Port Egmont. This point, and the absence of British protest, show that the British government maintained a clandestine occupation of a place in the Falklands/Malvinas, in the knowledge that its settlement was in violation of the treaties concluded with Spain, and that France had been the first to occupy the islands.
E. The transfer of French occupation to Spain
On April 9th, 1766, Bougainville set off for Madrid with information regarding the condition of the colony and the aim of transferring it to Spain. Already in May, a Report written by the French sailor himself was submitted to the Spanish ministers, requesting compensation for the expenses incurred in Port Louis; the document “Réflexions sur les moyens de commencer l´établissement des Isles Malouines” set out the objectives Spain had to consider in settling the Falkland/Malvinas Islands.8
On September 13th, 1766, the relevant transfer documents were handed over and compensation for the expenses incurred in the colony was agreed. The British pamphlet states that neither France nor Bougainville recognised any preexisting rights to Spain.9 Bougainville´s text proves quite the opposite. On October 4th, Bougainville handed over the receipt for the amount paid as compensation for expenses. The document read as follows:
Monsieur Louis de Bougainville colonel of his Most Christian Majesty's Army. I have received six hundred and eighteen thousand one hundred and eight livres thirteen sols and eleven deniers being the amount of an estimate that I have given in of the expenses incurred by the St. Malo Company in equipment for founding their intrusive establishments in the Malvinas Islands belonging to his Catholic Majesty. (...) In consideration of these payments as well as in obedience to his Most Christian Majesty's orders I am bound to deliver up in due formality to the court of Spain those establishments along with the families, houses, works, timber and shipping built there, and employed in the expedition, and finally everything therein belonging to the St. Malo Company as included in the accounts, which are so settled and to his Most Christian Majesty by this voluntary cession making void forever all claims that the company or any person interested therein may have or might produce upon the treasury of his Most Catholic Majesty nor can they henceforth demand more pecuniary or any other compensation whatsoever.10
Figure 3 Receipt note of Louis-Antoine de Bougainville for the transfer of the colony to Spain recognizing its right. A.G.N. Sala X 3-4-5
Bougainville´s formal recognition that the settlement had been established in Spanish territory, and that its cession had been voluntary, was both express and manifest.
In his famed Voyage autour du monde, Bougainville describes the situation in a manner that also leaves no room for doubt:
France having acknowledged the Catholic King´s right to the Malouines, he, by a principle of the law of nations, owed no reimbursement to these costs. However, as his majesty took all the ships, boats, goods, arms, ammunition, and provisions that belonged to our settlement, he being equally just and generous, desired that we should be reimbursed for what we had laid out; and the above sum was remitted to us by his treasurers; part at Paris, and the rest at Buenos Ayres.11
Furthermore, Choiseul´s comments to the British Ambassador in Paris12 demonstrate that not only did France recognise Spain´s pre-existing sovereignty, but that it also informed the British government of it. Again, the British government did not raise any claim of sovereignty in the circumstances, which proves it either did not consider itself sovereign, or if it did, it was abandoning its claim against third States.
On that same occasion, Spanish Navy Captain Mr Felipe Ruiz Puente received the order to take over the colony as Governor, and was notified that the islands´ authorities would be under the command of the Governor and General Captain of Buenos Aires Province,13 Mr Francisco de Paula Bucarelli, whose orders he had to obey. That is to say, from the administrative point of view, the government of the Falklands/Malvinas was part of the Captaincy General of Buenos Aires.
On April 1st, 1767, the Spanish governor and Louis-Antoine de Bougainville landed at the Falklands/Malvinas Islands. The official transfer of the colony to the Spanish Crown was performed, and the name Port Louis changed to Puerto de la Soledad.
Bougainville expressly refers to the transfer of all the Falkland/Malvinas Islands and not, as some British authors argued, only Port Louis. In this connection, suffice it to recall the words of the renowned French sailor:
In February 1764, France began to make a settlement on the Iles Malouines. Spain reclaimed these isles as belonging to the continent of South America; and her right to them having been acknowledged by the King, I received orders to deliver our settlement to the Spaniards, and to proceed to the East Indies by crossing the South Seas between the tropics.14
Figure 4 Royal Order by which is named Don Felipe Ruiz Puente as the Governor of the Falklands/Malvinas islands and that the islands will depend on the General Capitancy of the Province of Buenos Aires - A.G.N. Sala X 8-10-3
F. The legal point of view
By the year 1767, three powers had established themselves in the Falkland/Malvinas Islands, with varying degrees of lawfulness. France can claim the right of first occupant, despite recognising, when faced with Spanish protests, that the islands belonged to Spain. This was consistent with recognition by the powers of the time that the region was considered to be Spanish.
Byron´s declaration lacks any legal effect. It was a merely symbolic act performed at a moment in which another nation was already effectively occupying the archipelago, and furthermore in a region that Great Britain had recognised as being Spanish. The settlement established by McBride years later suffers the same defects: occupation does not establish sovereignty over a territory that is not terra nullius (land belonging to nobody), either because the occupying State recognises that the territory belongs to another nation (Spain), or because the territory was previously occupied (by France). In international law, occupation of the main island constitutes occupation of the archipelago as a whole, as long as no other nation is present in any other area of the archipelago, as Judge Levi Carneiro explained in the Minquiers and Ecrehos case before the International Court of Justice.15 This was the situation of the Falkland/Malvinas Islands when they were occupied by France.
The system of treaties binding Spain and Great Britain analysed in the prior section made it impossible for the latter to sail or trade in the American seas and territories belonging to the Spanish Crown. The Falkland/Malvinas Islands were among those possessions, as demonstrated by Spain´s reaction to the expedition proposed by Lord Anson in 1749. The settlement of Port Egmont was a flagrant violation of those agreements and, therefore, a violation of the basic principle of the international law known as pacta sunt servanda, by virtue of which treaties must be respected.
What is more, the founding of Port Egmont in the Falklands/Malvinas did not even comply with the minimum requirements for an effective occupation capable of giving rise to sovereignty, even if, at the time, the Falklands/Malvinas were a terra nullius – which was not the case. As we have seen, unlike that of France, British occupation was undertaken in the greatest secret in accordance with the orders given by Lord Egmont.16
The reasons for this are clear: the British government knew that the territory was in Spain´s zone of influence. An act that was voluntarily kept secret could not be opposed to other nations. Not even the British Parliament was aware of the existence of the settlement. Its existence was not therefore submitted to Parliament for approval, and as such, the Falklands/Malvinas was never legally a domain of the British Crown.17
As the French ambassador to London said to the British Prime Minister, Lord North, the “covert” settlement established by the British, being unrecognized by Spain was not cause enough for Spain´s loss of rights; North agreed with the correctness of the principle.18
The British settlement was clearly established in bad faith. Great Britain knew about France´s settlement, Spain´s protests and the subsequent cession, which was relayed by Choiseul on September 17th, 1766. The British government did not raise any objection.
It is possible to conclude with the description made by Bougainville himself, who after describing the islands, correctly summarizes the legal situation in the following manner: “Such was the state of the Malouines, when we put them into the hands of the Spaniards, whose prior right was thus enforced by that which we possessed by making the first settlement.”19
G. Spain evicts the English fort
In 1766 the Prince of Masseran, Spain´s ambassador to London, upon learning that the British fleet had been sent to the South Atlantic, immediately informed Madrid. When Charles III realised that the British were in a region of Spanish dominion, he directed Masseran to submit a request for information about the facts in question.
London´s reply initially went from ignoring the fact to refusing to take a stance on the substance of the matter. The talks stalled, and in December 1766 the Governor of Buenos Aires, Mr. Francisco de Paula Bucarelli, was ordered to explore the Falkland/Malvinas islands and the coasts of Patagonia and Tierra del Fuego up to Cape Horn in order to gather information about the location of the British settlement.20
Fearing that England might settle indefinitely in its dominions, Spain hardened its position. The Secretary of the Indies, Mr. Julián de Arriaga, ordered Bucarelli: “no English settlement whatsoever is allowed, and to expel by force any already formed if warnings according to law are not enough: and without the need for further orders or instructions.”21 On the basis of this order, on October 15th, 1768 a fleet under the command of the Navy Chief of Staff, Juan Ignacio de Madariaga, set sail from Cadiz.
Only in the second half of November 1769 was the British settlement finally discovered by a Spanish schooner. Governor Ruiz Puente immediately sent Infantry Lieutenant Mario Plata to order the eviction of the intruders, since their stay in the area “is entirely opposed to the faithful and religious observance of the Treaties of Peace.”22 The British captain Anthony Hunt answered on December 10th, stating that the islands belonged to His Britannic Majesty and that he ordered the Spanish to leave Port Soledad within six months.
In May 1770, having sent a fleet in February to survey the British settlement and having protested against the British “intruding in an alien domain”,23 the governor of Buenos Aires dispatched Chief of Staff Madariaga with four frigates and two small ships with the aim of evicting the intruders. Between June 7th and 9th, both parties fruitlessly exchanged requests and threats. On June 10th, Madariaga considered that the situation had become unsustainable, and ordered the takeover of the settlement. At the first volley of cannon fire, the British surrendered and 156 men laid down their weapons. Port Egmont was free from invaders.
H. Negotiations to avoid war
In September 1770, the British Crown discovered what had happened in the Falklands/Malvinas and protested to Spain. The Spanish and French prepared to begin new negotiations to avoid, or at least put off, the outbreak of an armed conflict. It is not within the scope of this work to go further into the long and difficult diplomatic negotiations. The stances of both parties can be easily summarised as follows: the British sought unconditional compensation and the resettlement of Port Egmont, while Spain offered to express disapproval of Bucarelli´s actions and the reestablishment of the settlement at Port Egmont, in exchange for His Britannic Majesty´s disapproval of the requests and threats made by Captain Hunt, as well as an express backing of Spanish sovereignty over the archipelago.
Several proposals were discussed and discarded until an impasse was reached. While the negotiations were being conducted, both powers had speeded up the readying of their armed forces.
When all signs pointed to the only way out being war, some changes took place which allowed a peaceful solution to be reached. One of those changes was the verbal promise made by the English minister, who said that if Spain granted the British what they had requested, they would leave Port Egmont. This point will be discussed in depth below. In order to convince Spain to reach a new agreement and to avoid a new war at all costs, the French King Louis XV presented to the Spanish King Charles III the thesis according to which simple possession could not be stripped by force, notwithstanding its legal defects:
The British have established a settlement in the Maluinas islands, and I am certain that no title has authorised them to do so, but they were in possession when they were evicted by His Majesty´s weapons. Conversely to all the laws according to which a dispossessed tenant must be re-established before discussing the substance of their requests. This is what the British are demanding to His Majesty by means of a statement.24
It should be noted, en passant, that Great Britain took a completely opposing attitude towards Argentina in 1833, when they used force to deprive Argentina of its possession on the basis of unfounded arguments of sovereignty.
An agreement was reached on January 22nd, 1771 with a statement by Prince Masseran and its acceptance by the British government. The relevant statement read as follows:
(...) the Prince of Masseran declares, that his Catholic Majesty engages to give immediate orders, that things shall be restored in the Great Malouine at the port called Egmont, precisely to the state in which they were before the 10th of June, 1770. For which purpose his Catholic Majesty will give orders to one of his Officers, to deliver up to the Officer authorized by his Britannic Majesty the port and fort called Egmont, with all the artillery, stores, and effects of his Britannic Majesty and his subjects which were at that place (...) The Prince of Masseran declares, at the same time, in the name of the King his master, that the engagement of his said Catholic Majesty, to restore to his British Majesty the possession of the port and fort called Egmont, cannot nor ought any wise to affect the question of the prior right of sovereignty of the Malouine islands, otherwise called Falkland Islands.25
The British pamphlet claims that Argentina uses a false translation of Masseran´s declaration, and that the reservation of sovereignty is applicable to both countries.26 Both assertions are wrong. The quote appearing above is the same that appears in Pascoe and Pepper´s pamphlet, and does not support the thesis of a “mutual” reservation of sovereignty in any way. British acceptance was limited to the declaration of the Spanish Crown and to consider it as “compensation for the offence caused to the British Crown”.27
Pascoe and Pepper highlight a proposal made during the negotiations to explicitly recognise Spanish sovereignty, which was not accepted by the British government. The proposal would have been considered an unacceptable humiliation by British public opinion, which had closely followed news of the eviction from the fort in Port Egmont.
However, the fact that no explicit recognition of Spanish sovereignty was given in the declaration did not mean that Spain had abandoned its position and implicitly accepted that of the other party. In the final text, only one party formulated a reservation of sovereignty: Spain. The other failed to do so. One of the parties returned exclusive possession of a fort, affirming that this restitution in no way affected the question of sovereignty. What sovereignty could this possibly be but Spain´s? It would be absurd for a State that claims sovereignty to reserve the alleged sovereignty of the other, as the British pamphlet naively claims.
Furthermore, Masseran´s declaration mentions no legal compensation or reestablishment of rights of sovereignty; it only refers to the return of possession, not the restitution of the archipelago as a whole, not of Isla Trinidad/Saunders Island (where the British settlement was established) or nearby Gran Malvina/West Falkland, but only “the port and the fort named Egmont”. It merely concerns the physical restitution of British possession of the port and fort. British acceptance is also expressed in the same manner, and does not clarify or modify the geographical position, but merely makes express reference to the “port and fort named Egmont.” 28
Neither does it refer to any reinstatement of sovereignty rights, but simply to the return of a factual status quo, and last but not least, does not mention the reservation of sovereignty rights made by Spain in the final paragraph of its declaration – which amounts to an implicit acceptance of the reservation. The French representative in London highlighted this issue when asserting that: “Upon receiving this reservation and not protesting, England tacitly recognises the rights of Spain, which (...) acquire a renewed vigor through the silence of England”.29
William Pitt also had the same understanding, when stating in the British Parliament, on January 25th, that the Masseran Declaration “appeared to be an ignominious compromise. It was no satisfaction; no reparation. The right was not secured, and even the restitution was incomplete; that Port Egmont alone is restored, not Falkland´s Island”.30
The British pamphlet makes the unsupported claim that Dr Samuel Johnson, a renowned English intellectual of the time, “confirmed” its interpretation, that is to say, that both countries reserved their position regarding sovereignty. This does not transpire from Dr Johnson´s publication on the Port Egmont conflict - quite the contrary. The renowned British author stated in his pamphlet:
This reserve [that of the Spanish sovereignty] has supplied matter for much clamour, and, perhaps the English ministry would have been better pleased had the declaration been without it. But when we have obtained all that was asked, why should we complain that we have not more?31
All the British had demanded was the restitution of Port Egmont and compensation for the offence they had suffered. The same author wrote that:
To have inquired whether our settlement at port Egmont was any violation of the Spanish rights, had been to enter upon a discussion, which the pertinacity of political disputants might have continued without end. We, therefore, called for restitution, not as a confession of right, but as a reparation of honour32
Dr. Johnson´s analysis does not in any way support the forced and unjustified interpretation made by the British pamphlet. In summary: Spain only returned possession of Port Egmont and reserved its rights of sovereignty over the Falklands/Malvinas and the archipelago as a whole. The British government was happy to accept this as satisfaction for the stain on its honour caused by the forceful eviction, without seeking to make any claim with respect to their alleged sovereignty.
I. Britain’s secret promise to evacuate Port Egmont
From the moment the 1771 agreement was concluded, much has been said and written about the existence of a secret promise by which, once British honour had been restored by the restitution of Port Egmont, the port would eventually be abandoned.
For reasons of internal politics and public opinion, the promise could not be made in writing. Pascoe and Pepper venture to claim that such a promise never existed. The only argument they put forward is that in 1829, when for the first time in almost half a century the British government showed some interest in the Falkland/Malvinas Islands, Sir Herbert Jenner, the King´s Lawyer, affirmed that he could not find any documents supporting that promise.33 This is evidently a weak argument, especially because it is well known that Jenner was looking for arguments in support of Britain´s purported sovereignty over the islands.
Even though no written document containing the promise has been found, there is ample evidence as to the existence of a verbal promise and its content. The exchange of letters between the Spanish and the French ambassadors in London, British diplomatic notes, and debates in Parliament and in British newspapers are strong indications that such a promise did in fact exist.
It is apparent from the notes of Masseran and Francés, respectively representing Spain and France in London, that on different occasions Lord North not only asked them to trust Britain, but also pointed out that if their requests were satisfied, the British would abandon the islands.34 In the same vein, Lord Rochford stated that “they did not have the intention of keeping the Falkland Islands”.35
Despite Masseran´s doubts about Great Britain´s good faith, he advised on December 9th that the ministers of His Britannic Majesty “should wait for return of Mail in order to see if the King supports this latest project and wishes to trust the good faith of this Ministry, when it insinuates that it will abandon Gran Malvina once we grant the satisfaction it requests.”36 This is solid proof of the existence of the promise. At the end of the month, Masseran again reported that,
North insisted on us trusting them and compensating them as requested, without any hesitation, [...] The Minister does not wish it to be said that it is he who proposed [the agreement], nor do the Secretaries of State wish to get involved in the matter, as they have the intention of stating in the House of Lords that they have never strayed from the unconditional request for satisfaction from the start: they maintain that in this way from now on, they will be more entitled to deal with questions of law or to abandon an Island that not only the Navy Officers, but also the People perceive as onerous; they state that they cannot agree to this in an agreement, because Parliament would assume they had sold themselves to Spain, and that they did not know how to uphold England´s rights, which would cost them not only their jobs, but also their heads.37
These letters, in addition to the request by the French King to make all sacrifices necessary to keep the peace, resulted in the orders Grimaldi gave to Masseran, on January 2nd, 1771, which read as follows:
As [the British] do not wish to hear of stipulating [the] evacuation of [the] island, in case satisfaction, being conditional, is threatened, but they assure us that they will afterwards abandon Falkland [island], and that we should trust their word; the King is determined to reconfigure his Project, to save honour, and to leave the negotiation about evacuation of the Island for later, accepting the offer, though it is only made by word. Your Excellency must try to obtain this in the best possible way.38
Similar British evidence abounds. A few days after the Masseran Declaration, the British representative in Madrid reported that “They also report that we have given a verbal assurance to evacuate Falkland Island in the space of two months.”39
Figure 5 Satyric image in relation to the Hispanic-British negotiations where Lord North is inclined before Masseran who is stepping on the British flag, giving it a paper in which is read "Falkland Island"40
Colonel Isaac Barré, member of the House of Commons, wrote to William Pitt, stating that:
I take up the pen in a hurry to acquaint your Lordship, that I am just returned from the House of Commons, where Lord North informed us, that Prince Masseran had this morning presented a declaration, signed by the King of Spain, which his Majesty had accepted of, and which would be laid before the House on Friday next. The terms, as I am informed, are not very honourable- the island to be put into our possession; and it is whispered, that there is a secret article to save the rights and pretensions in that country of the crown of Spain; which seems to promise our abandoning the spot silently, upon some future day.41
Thomas Pownall´s statement in the British Parliament, on March 5th, 1771, is equally clear:
whatever may be the present ostensible form of the convention, mark well the end: It will end on our part either in the actual cession of the island or in a gradual direliction of it. Without some such idea as this; namely that as soon as reparation is made to our honour for the violent and hostile manner in which we were driven off that island, and as soon as we were put in a situation to evacuate it of our own motion, its tacitly understood we are to cede it. Without some such idea as this; the whole of the negotiation is inexplicable and unintelligible. But taking this line, as going to a matter mutually understood, the whole is plain, definite and but of one construction.42
Lord Chatham´s speech is categorical: “it appeared to be an ignominious compromise. It was no satisfaction, no reparation. The right was not secured, and even the restitution was incomplete; Port Egmont alone was restored, not Falkland Island”.43
Lord Chatham further makes a compelling analysis:
While Lord Rochford was negotiating with Prince Masseran, Mr. Stuart Mackenzie was negotiating with Mons. Francois. At length, about an hour before the meeting of Parliament, on the twenty second of January 1771, a declaration was signed by the Spanish Ambassador, under French orders, and a French indemnification, for the restitution of Falkland's Islands to his Britannic Majesty; but the important condition, upon which this declaration was obtained, was not mentioned in the declaration. This condition was, that the British forces should evacuate Falkland's Islands as soon as convenient after they were put in possession of Port and Fort Egmont.44
Similar criticisms were expressed by the famed writer or journalist going by the pen name “Junius” in his letters to the Public Advertiser, such as the one dated January 30th where he stated that in the Masseran Declaration, Port Egmont
is described, not as a part of the King's territory or proper dominion, but merely as a possession, a word expressly chosen in contradistinction to and exclusion of the idea of right and to prepare us for a future surrender both of the right and of the possession. (...) It seemed to promise that whatever might be given up by secret stipulation some care would be taken to save appearances to the public.45
Junius came to the charge again with another letter dated February 13th in which, referring to the Masseran Declaration, he affirmed:
(...) when that stipulation carries along with it also a private insinuation or encouragement to the Catholic King to hope, and most probably, not to say certainly, an express assurance, that not only Port Egmont now restored to us, but the whole island, shall in due time, as soon as they dare, be surrendered to the crown of Spain.46
On its part, the Public Advertiser affirmed: “... the Convention with Spain contains several secret chapters in which we shamefully waive our claim to the Falklands”.47
This ample documentation is simply ignored by the British pamphlet. The evidence concerning the secret promise made by Great Britain to abandon Port Egmont – and with it any fanciful claim of sovereignty – is conclusive. It comes from those having directly participated in the negotiations, and the officials involved. Further facts support this evidence: England left Port Egmont in 1774, and despite leaving behind a plaque and a flag, no official act of possession, no act of authority, nor any protest was made again, despite Spain´s presence in the archipelago and particularly the destruction of the fort and the removal of the British symbols by the Spanish authorities in the Falklands/Malvinas. Although not formally concluded, the promise was binding: pacta sunt servanda. In any case, even if the promise had not existed, Great Britain left Port Egmont and, as we shall see, did not reserve its rights of sovereignty as against Spain.
J. London begins to gradually withdraw upon the restitution of fort Egmont
On September 16th, 1771, the Spanish official Francisco de Orduña, sent by the Spanish Governor of the Falkland/Malvinas Islands, Felipe Ruiz Puente, officially handed over Port Egmont to the British Captain John Stott.48 The British authors appear to neglect an unavoidable conclusion: if the islands were British, then Great Britain should have been the one to authorise Spanish presence on the islands. Instead, quite the opposite happened. In the entire course of events, not a single British note exists protesting against Spain´s presence on the islands.
The British government began taking action to reduce Port Egmont´s garrison to the bare minimum already in early 1772, a move supported by the Admiralty. By the middle of the same year, at the moment of the handover, Britain´s presence was reduced to 50 men and a small ship. This reduction of forces was communicated to the British Ambassador in Madrid so that he could pass the information on to the Spanish government.49 On February 10th, 1774, Lord Rochford informed the Spanish Ambassador in London that Britain was determined to withdraw its garrison from the Falklands/Malvinas due to the effects of “an economic system”, and that as he had said to Masseran in the past, if Spain insisted on the abandonment of the islands, Britain would not abandon them; but if left free do as they pleased, they would carry out the withdrawal when least expected.50
The following day, Rochford wrote to the British ambassador in Madrid that “with the purpose of reducing the naval force in the western Indies” the troops deployed in the Falklands/Malvinas would be repatriated, and that he was “inclined to think from what passed formerly on this Subject that they will be rather pleased at this Event”.51
It is interesting to highlight the British note sent to Spain. If Great Britain considered itself sovereign over the islands, there would be no reason to notify Spain. Yet the note existed. And, if a note existed, its aim must have been the preservation of sovereignty - especially when the power abandoning the territory knows that the other will remain on the territory. There was no such note reserving sovereignty. Nor was there any request for Spain to withdraw, and less still any “authorisation” for Spain to remain on the territory. The reasons invoked are less than credible. What economic influence could be wielded by 50 men , who were relieved once a year and could in any case be put to use elsewhere, within the British Empire´s military budget? If the purpose of the withdrawal was to reduce the naval forces in the Indies, why only repatriate the garrison at Port Egmont?
In short, in 1771, Great Britain, one of the greatest military powers of the time, was determined to go to war over Port Egmont, but the following year it considerably reduced the troops deployed in that port and only 2 years later ordered the abandonment of a 50- man garrison “for economic reasons”. It is not difficult to see that the reason for the abandonment of Port Egmont was something more important that a mere budgetary readjustment.
The unavoidable truth is that the only wish the British government had in 1771-1774 was to save face. And as we shall see, if they were not in a condition to maintain their position at Port Egmont, the simple fact of leaving behind British insignia was not sufficient to retain any title over the territory.
K. The British abandonment of Port Egmont in 1774 and the exclusive presence of Spain in the archipelago
Whatever the reason for the abandonment, it was carried out in mid-May 1774, leaving behind a leaden plaque stating that the islands belonged to the King of Great Britain. As we already saw in the case of discovery, a merely symbolic act (such as installing a cross or a plaque) was not enough to establish a right of sovereignty – much less could a symbolic act of this nature be sufficient to retain sovereignty over time. But that is not all.
Even before the British effectively left, the Spanish government in Madrid was already giving orders to the Governor of Malvinas to ensure that the British would not return to the islands. A note dated April 9th, 1774 written by Julián de Arriaga, Secretary of the State of the Indies, read as follows:
Being offered by the Court of London to abandon the settlement built in Gran Malvina, withdrawing the few troops deployed there, and some inhabitants, the King wishes to inform you of this fact, in order to consequently observe prudently and carefully whether the British do in fact abandon said settlement, without reestablishing a new one in the vicinity, and that once you have verified the fact in the terms agreed upon, from time to time, take the necessary precautions to ensure that the British do not return to the area, and inform me in the greatest detail about everything that happens there, both now and henceforth.52
This note is particularly important for a variety of reasons: 1) because it clearly shows that the Spanish government understood Britain´s withdrawal as a relinquishment 2) because it explicitly stated the intention to exercise sovereignty over the port which had up to that moment been in Great Britain´s hands, 3) because it clearly states the intention of preventing the British from returning, which implies the will to exercise sovereignty and exclusive possession over the archipelago as a whole and 4) because both British conduct and the Spanish note support the thesis of the British promise to abandon Port Egmont once it had been returned.
These orders were carried out first in November 1774 and then in February 1775. At the turn of 1775, Captain Juan de la Peña confirmed that nobody was living in or travelling to the British settlement. On January 24th, 1776, pilot Juan Pascual Callexas withdrew the plaque affixed by the British and sent it to Buenos Aires.53
On June 30th, 1777, José Gálvez, Minister of the Indies, sent a Royal Order to the Viceroy of the Río de la Plata for him to “proceed to burn the buildings of all types that may be completed or started, doing the same with the materials that are gathered”54 This order was fulfilled at the beginning of 1780 by an expedition under the command of Callexas, thus erasing any sign of Britain´s presence in the Falkland/Malvinas Islands (see Figure 6).
Figure 6 Drawing of Port Egmont destroyed by the Spaniards; the legend reads:"Drawing of the establishment of the Englishmen in Port Egmont of the Island of the Great Malvina, burned and demolished its buildings on March 22, 1780 by order of Excmo. Sr. Dn Juan Jose de Vertiz, General of the Royal Armies Viceroy Governor and Capitan General of the Provinces of the Rio de la Plata, by the First Pilot of the Number of the Royal Navy and Capitan of the King the Rosario Dn Juan Pasqual Callexa"
Many conclusions may be drawn from this important order and its execution, namely:
Spain maintained control over the whole archipelago, the order was issued in a time of peace with Great Britain (that is to say, it was not a mere act of war nor an act carried out by reason of a war) and last but not least, the order was issued to (and executed by) the official in control of the Governorate of the Malvinas (under whose authority the islands lay), that is, the Viceroy of the Río de la Plata.
Great Britain abandoned Port Egmont in 1774 and since then, for 55 years, there was no official British presence on the islands, nor any official acts relating to them, and less still any effective acts of sovereignty over the islands or in relation to them. On the contrary, there was no official reaction to the destruction of the settlement at Port Egmont carried out by Spain and nothing was said about the continuous and exclusive presence of Spain in the islands, with 32 governors that reported to Buenos Aires.
Britain said nothing at the time it signed the convention of Nootka Sound, which by virtue of its Article VI prevented Britain from settling the Falkland/Malvinas Islands. Not a word was said when in 1806-1807 British officials invaded Buenos Aires and found the leaden plaque left behind in the once-British settlement. Another relevant question is why Great Britain, when attempting to conquer the Viceroyalty of the Río de la Plata, did not take any action against Spain´s presence in the only territory that supposedly was British. If the question had not been settled in 1771, here was an excellent opportunity to settle it in their favour. On Spain´s part, the removal of the plaque left at Port Egmont was a clear sign of its will to repudiate any pretention of British sovereignty. Even leaving aside the lack of British reaction to the Spanish authorities´ control over Port Egmont, including its subsequent destruction, it is worth pointing out that the British found the plaque the Spanish had removed in Buenos Aires, between 1806 and 1807. There was no official reaction by Great Britain in regard to acts of enforcement performed by Spain against the sailors of the British Crown visiting the islands, as we will see later. Nor was there any reaction by Britain to the various acts of sovereignty carried out by the new-born Argentine government between 1810 and 1829.
The abandonment of 1774 was not a simple physical withdrawal from Port Egmont, but it meant the total relinquishment by Great Britain of any kind of claim over the Falkland/Malvinas Islands. A period of 55 years with no British presence or official acts as against a nearly four-decade-long Spanish presence, as well as the Argentine acts that took place from the beginning of the process of independence until 1829 clearly show not only the absence of British corpus possessionis, but also the absence of any intention of having sovereignty.55
L. The continuous and exclusive presence of Spain in the Falklands/Malvinas until 1811
During the period under discussion, Spain had a continuous presence in the Falkland/Malvinas Islands from April 1st, 1767, when Louis-Antoine de Bougainville transferred the French settlement founded in 1764 to the Spanish authorities, until February 13th, 1811, when Spanish troops were withdrawn from Port Soledad. Spain was present “à titre de souverain”, as is proven by the appointment of Mr. Felipe Ruiz Puente as Governor of the Malvinas, and the proclamation of the islands as a dependency of the General Captaincy of Buenos Aires made by King Charles II on October 4th, 1766.
Official Spanish presence was permanent, and its authorities succeed one another on a continuous basis for the entire period (32 Governors and Commandants were appointed by the Viceroy of Buenos Aires); by order of the King of Spain, they were to be relieved annually, between mid December and mid January.56 The Commandants relied upon a minister of the Royal Treasury and periodically formed governing boards (juntas de gobierno) which also included the Commander of the main ship anchored at Port Soledad.57 The islands were inhabited by a military detachment, prisoners, settlers and Catholic priests. The Church of Nuestra Señora de la Soledad operated on Soledad Island, and construction of the stone church was completed on November 4th, 1801. British sources refer to the Spanish settlement as a prison; this probably arises from the translation of the word “presidio” and its current meaning of “prison”. However, in Spanish America, “presidios” were not prisons. The term was used to refer to settlements situated at the outermost points of Spain´s dominions that worked as protection against the frequent attacks of privateers and pirates, as well as being a means of protecting Spanish sovereignty by preventing other nations from settling in the area. Regardless, even if the only Spanish presence had been a prison, it would still have been sufficient to constitute an effective act of government authority.
The Governors of the islands were mostly preoccupied with maintaining Spanish presence in the southernmost territories of the Empire, and to control the activities of other nations in the region. This was an official and public presence that no other maritime power ignored or could ignore, which was in charge of policing and law enforcement in and around the islands of the entire archipelago. Frequent journeys were made around the archipelago and along the Patagonian coasts. Spanish authorities on the islands also kept a detailed record of the cattle present on the islands, which was considered to belong to the Royal Treasury, and carried out maintenance of military facilities, as proven by the periodical reports on both matters sent by the Commandants to Buenos Aires.
There are hundreds of examples of the control exercised by the Spanish authorities, but suffice it to cite the following: a note dated August 17th, 1790, requesting the payment of expenses incurred for the transfer and rations of the “British individuals” found fishing illegally in the Falkland/Malvinas Islands on the corvette Sta. Elena.58
Another example is Communication No. 239 dated February 26th, 1806 in the Malvinas, by which Commandant of the Malvinas Antonio Leal de Ibarra “Communicate[s] the seizure of the English brig St. Agustin (alias) El Talquino, its cargo and subsequent events, giving some news of the privateers who are in the South Seas”. The vessel in question was a Spanish ship that had been captured by English privateers. The note addressed to Viceroy Sobremonte in Buenos Aires gives an idea of the patrols of the coasts and seas of the region carried out from Port Soledad:
“Having sent six armed men for reconnaissance of the Southern coast of this island to guard myself against the surprise of Enemies, which have been repeatedly sighted with hostile aims....” The note affirms that the enemies were found on the sections of coast named Puerto de los Leones and de los Pájaros, and that the brig captured by the Spanish was anchored at the nearby island of Santa Isabel”. Captain Andrés Jonson [according to the original spelling] and his five-man crew were taken prisoner – all of them British.59 A similar example can be found in Pedro Sanguineto´s report addressed to Viceroy Nicolás de Arredondo, dated March 4th, 1794 in the Malvinas, by which he reports to have warned French, American and British fishing vessels devoted to “whale fishing” operating in the areas surrounding the islands.60 Another example is the report dated January 15th, 1810, by which the Commandant of the Malvinas, Gerardo Bordas, informs Viceroy Cisneros of Buenos Aires:
Having ignored up to the 18th of the current [sic] the unfortunate events occurred in our Peninsula, of which the second pilot of the Royal Navy, Mr. Pablo Guillén who entered this port commanding the Zumaca Carlota to relieve me informed me ex officio [...] Being this Colony, the only spot of the Monarchy, that ignoring the occurrences due to its location; and consequently the only territory where due obedience to our King and natural lord was not sworn; I immediately thought to carry out this act, which took place on the 14th of the current (sic) between 8 and 9 a.m. in the church yard, as solemnly as possible and to the acclaim of the crowd.61
As we can see, no other State made any kind of claim, nor carried out any act of public power over any part of the archipelago, nor made any protest against the countless and continuous manifestations of Spanish public authority. As the Foreign and Commonwealth Office affirms in answering a question raised by the Committee of Foreign Affairs of the House of Commons: “Spanish occupation from 1774 to 1811 was undisturbed by any other power”.62 Various internal Foreign Office memoranda express similar views on the Falkland/Malvinas Islands. Two of these (dated 1911 and 1928) read as follows:
No objection appears to have been made at any time on the part of Great Britain to the possession of Soledad by the Spaniards, who continued in undisturbed exercise of all the rights of sovereignty, not only over the East Falkland Island, but over the whole group, until, according to R. Greenhow, about the year 1808. They, however, appear, according to other writers, to have exercised these rights until a later period, for G. A. Thompson, in his "Geographical and Historical Dictionary of America and the West Indies", published in 1812, states that: "The Spaniards now send criminals to these inhospitable shores (of the Falkland Islands) for their settlements in America; and Dr. G. Hassel, in his "Geographisch-Statistisches Handwörterbuch", published in 1817, says: "Die Spanier aber besitzen noch ein geringes Dorf auf der grössen Insel bei Port Soledad". Of the extent of the Spanish Settlement at Soledad during this period we have no distinct accounts. The remains of the town show that though small it was tolerably well-built and provided with a Government House, church, store-houses and forts, all of stone. It was under the superintendence of an officer entitled "Commandant of the Malvinas", who was dependent on the Viceroy of La Plata; and vessels of war were from time to time sent from Buenos Aires to cruise among the islands and to warn all vessels of other nations against trespassing on the coasts (...) Spain abandoned the Falkland Islands in the first quarter of the nineteenth century, and has not since that year directly claim to them. The party appearing to represent Spain in her title to those islands was the Government of Buenos Aires.63
The preliminary Memorandum dated September 17, 1946 drafted by the Research Department of the Foreign Office, is also revealing.64 The subtitle leaves no room for doubt: “Spanish Sovereignty 1774-1811”. It recognises that after Britain´s withdrawal from Port Egmont, the Spanish Governor of the Malvinas was instructed to ensure that the English did not return and that their facilities were destroyed, and that nine governors succeeded one another in Port Soledad, placing the date of Spanish withdrawal between 1811 and 1813.
Taken together, these documents show that the British had no doubt about Spain´s sovereignty over the archipelago. This is not an isolated assertion, but a series of concurring opinions given over more than thirty years, among which that of Foreign Secretary Anthony Eden, and three memoranda that are working documents of the Foreign Office, as well as an internal research document on the matter.
Unsurprisingly, the British pamphlet tends to minimize Spanish presence in the islands using arguments that have nothing to do with the question of sovereignty. Instead of analyzing the legal impact of the period of total and exclusive Spanish possession of the Falklands/Malvinas, all Pascoe and Pepper affirm is that:
Spain maintained a garrison and penal colony there. The presence of women was soon prohibited, and the islands remained a hated hardship post for their Spanish commandants and their men, to say nothing of the criminals banished there. British and American ships continued to use the Falklands, ignoring the Spaniards.65
Obviously, it is completely irrelevant whether the persons sent to the islands would have preferred to be there or in a less inhospitable location. As to the fact that English and American ships continued to use the islands “ignoring” Spain´s presence, we have already seen that the Spanish tried to enforce respect for their laws. In any case, not being government ships, their actions were irrelevant as far as the question of sovereignty is concerned.
In the face of such indisputable evidence of Spain´s exclusive possession, some British online commentators who, like the authors of the pamphlet, lack academic qualifications, attempt to prove that Spain only controlled the eastern island (Soledad). The base their assertion on some isolated references, such as Bernardo Bonavía´s note when taking over leadership: “On this date I was given the command and government of the Island of Soledad in the Malvinas...”66
Many other documents refer to the archipelago in general terms and therefore use the plural. We have already seen some of them, as well as Spain´s concrete actions in the whole of the archipelago, including in Port Egmont. Francisco Xavier de Viana introduces himself as the “Governor of these Malvinas Islands” in the government agreement concluded in Soledad de Malvinas, on April 18th, 1800.67 Antonio Leal de Ibarra signs the letter notifying the capture of the English brig “San Agustín” as “Commandant of the Malvinas”68 The aforementioned facts, as well as the destruction of the British fort at Port Egmont and regular visits to ensure the British had not returned, as well as the exercise of authority over foreign ships located on other islands of the archipelago, clearly show that Spanish sovereignty extended to the archipelago as a whole. The instructions issued directly by the King of Spain to verify, once a year, that the English had not reestablished themselves at Port Egmont/de la Cruzada were crystal clear.69 This conclusion is supported by the fact that the decision to withdraw the settlement at Port Soledad in 1811 established that “annually a ship must be sent for reconnaissance, verifying the same also for other [settlements] in the Islands so that no other Power may establish itself or take possession of them.”70 The importance of this last assertion lies in its being the last decision to have been taken before Spain´s withdrawal. It is clear proof of Spain´s animus domini over the whole archipelago.
Taking into account the territory´s insular nature, its geographical location and the absence of possession by any third State, there is no doubt that its continuous presence on Isla Soledad and its regular activities along the coasts and surrounding seas grant Spain sovereignty over the entirety of the archipelago. In fact, as seen above, archipelagos are geographical units par excellence.
M. The presence of British fishing boats and Spanish exercise of authority
Some British online commentators consider the activities of British fishermen during this period to be acts of sovereignty. The activities of private persons are not manifestations of sovereignty. International jurisprudence is absolutely clear in this regard: for example, the arbitrator in the case of Isla de Aves considered that the activities of the inhabitants of the San Eustaquio y de Saba Islands, who would visit the disputed island to fish for turtles and gather eggs, to be irrelevant.71
If the activities of fishermen and hunters should be considered sovereign acts, the United States and France must also be considered to have performed sovereign acts over the Falklands/Malvinas, which is absurd, especially when the Spanish government carried out enforcement actions over these activities in the entirety of the archipelago.
Great Britain itself did not consider the activities of fishing vessels under the authority of His Majesty to be official acts. In response to the protest of the Spanish ambassador in London regarding the presence of British vessels on the islands, the British minister guaranteed the abandonment of the islands and expressed his suspicions that the ships belonged to the American colonies. Madrid informed Buenos Aires about this fact in February 1776,72 pointing out that in case Englishmen were found in Port Egmont, they should be warned to leave. A Royal Order dated August 9th of the same year related, in the same vein of the order issued in 1774, that the Court of London had already verified Britain´s withdrawal, and accordingly, it was to be ensured that the English did not return to Port Egmont.73
Even more distrust existed after new hostilities broke out between Spain and Great Britain in 1796. The Governor of the Malvinas, in an order dated August 1798, is instructed how to act in case American or British ships are found at Port Egmont or the surrounding areas. The instructions establish that in case any ship of those nations is found at anchor in the port “preparation for combat will immediately be made” and “licenses and logs will be registered” and
if they are proven to be American, Your Excellency will prudently and civilly order them to retire from the port belonging to His Catholic Majesty within 24 hours [...] If any British fishing vessel were anchored [...] you shall request their surrender and if they do not abide by the His Majesty´s order, you will position yourself suitably [...] [and] you will open fire.74
Once again, the fact that Spain considered itself sovereign over the whole archipelago, including Port Egmont, is well documented. This note is also useful to show the difference between the treatment of official British ships and private vessels, and how the latter could not be considered to be performing acts of public authority.
N. The peace of Amiens and French attempts to return to the Falklands/Malvinas
The British pamphlet refers to the negotiations of the “Peace of Amiens” of 1801-1802 between France and its allies on the one hand and Great Britain on the other.75 It refers to a request to Napoleon made by Bougainville, the French representative at the Peace, to include a French claim over the Falklands/Malvinas in the negotiations. One British bloggers go even further, claiming that in Amiens, France had recognized purported British sovereignty over the Falkland/Malvinas Islands, by requesting British permission to establish a settlement, and that the refusal to accede to such a claim was an act of sovereignty by the British government. This is completely incorrect.
The facts occurred as follows: Louis-Antoine de Bougainville never did get over the failure of his attempted expedition and the cession of his settlement to Spain, even though this had occurred in accordance with the law and ratified by his monarch. He complained about the Spanish having used the Falklands/Malvinas as a “prison” instead of following his plan of colonization.
He even spoke of a plan to bring 30.000 inhabitants to the islands. Once Napoleon Bonaparte was in power, the French sailor returned with his old idea, and on March 19th, 1801, he sent a Mémoire du général Bougainville sur un projet d’établissement dans l’ile Malouine76 which extolled the virtues of a settlement in the Falkland/Malvinas Islands. Bougainville described them as unassailable and a gate to the “big ocean” and the East Indies. He considered the islands to be essential for fishing, taking into account that Terranova and Canada belonged to the British, and pointed out that they were located 500 miles from any other settlement of a European power. He also declared Spain´s invoked rights to be imaginary, and that France could enforce “its sacred title of first occupant.” He believed that the moment was ripe to request Spain give up its right in France´s favour, and that England would support such an action.77
It clearly transpires from his memoirs that Bougainville considered the islands to belong to Spain and not to Great Britain. He obviously regretted the fact that at his time, the French monarch had recognised Spanish sovereignty over the islands due to their location within an area that was recognised as being Spanish – a fact which, according to him, was “imaginary”. This assertion contradicts his own conduct: Bougainville himself transferred his settlement in the Falklands/Malvinas to the Spanish authorities. The attitude he took in 1801 may be understood as a wish to re-colonise the islands. The French sailor did not consider the Falkland/Malvinas Islands to be British, which explains why he expressly distinguishes Canada and Newfoundland as British possessions.
Likewise, his consideration that the Spanish settlement was located 500 miles away from the presence of any other European power clearly shows his awareness of the abandonment and destruction of Port Egmont and the inexistence of any British settlement on the islands. And finally, he is absolutely clear in indicating that Spain is the nation that has to give up its right, demonstrating his awareness that the Spanish Crown was the only power to exercise full sovereignty over the archipelago. He only considered that Britain should consent to the transfer of rights to France in the context of the peace agreement being discussed by European powers at the time, Great Britain being the maritime power par excellence, and in full knowledge of the fact that these were seas in which British (as well as American) fishermen hunted whales.
However, on March 21st, 1801, a few days before Bougainville´s memorandum, Spain and France signed the Treaty of Aranjuez, by virtue of which the Spanish Crown, among other things, ceded Louisiana to the French Republic. Bougainville was too late with his request.
From April that year, negotiations began between France and Great Britain over preliminary agreements in view of signing a treaty of peace in Amiens. The French Minister of Foreign Affairs, Charles Maurice de Talleyrand, saw the opportunity to put the issue of fishing on the table. He was not satisfied with how this activity was carried out in general, and particularly in Newfoundland, as a result of the 1783 Anglo-French treaty. He therefore ordered Louis Guillaume Otto, the French representative in London, to raise this issue during the negotiations.
On September 7th, 1801, a conference took place between the parties, where the issue was discussed. The British minister, Lord Hawkesbury, stated that the discussion on such articles would take too much time and that he saw no problem in addressing these “merely commercial” issues in a separate future treaty.78 He certainly considered the treaty of 1783 sufficient to settle the fishing issue since no fisherman from either nation had brought any complaints. This answer did not suit the French representative, which was why the debate was put off until a later date. Realising this, Talleyrand sent a note to Otto whose content, he informed him, reflected the “the exact sentiments of the French Government.”79 The note made no reference to the issue of fishing, and less still to the Falkland/Malvinas Islands.
The preliminary articles were signed in London, on October 1st, 1801, incorporating matters relating to fishing in Article XIII, maintaining the status quo ante bellum, that is, what had been agreed upon in the 1783 treaty, as suggested by the British representative in the negotiations. The question of sovereignty over the Falklands/Malvinas was completely external to the negotiation.
British bloggers maintain that in these negotiations, the French government made its first request for the Falklands/Malvinas. This assertion is not consistent with official French documents,80 Napoleon Bonaparte´s correspondence,81 nor French parliamentary records,82 which make no reference to the Falkland/Malvinas Islands.
Negotiations based on the preliminary agreement began in November 1801, aiming to reach a definitive treaty of peace among all the powers involved. The Spanish representatives arrived late, and the French decided not to wait to start negotiations with the British, including on subjects that directly affected Spanish interests. Taking into account Bougainville´s memorandum, Talleyrand decided to address the issue of fishing from another perspective. Knowing that a great number of English fishermen hunted whales in the South Seas, which were far more fruitful than the Northern Ocean, gave instructions to José Bonaparte, who was to be in charge of negotiating the definitive peace treaty, to modify Article 13 of the preliminary agreement, offering to relinquish Saint Pierre and Miquelon as well as France´s rights under by the Treaty of 1783, in exchange for sovereignty over the coast of Newfoundland and neighbouring islands.
He was likewise to insist on the freedom of whale fishing in the North Seas, Greenland, Iceland, in the seas of Germany and the Dodger Bank, and to achieve an agreement to establish a French settlement for whale fishing in the Falklands/Malvinas.83
These requests were included in the counter-project that J. Bonaparte submitted to the British representative, Lord Cornwallis, in December 1801. Cornwallis sent it to Hawkesbury, who on January 1st, 1802 answered that the issues of the Falklands/Malvinas and fishing had already been discussed in the preliminary negotiations, and therefore could not be raised again in the definitive treaty.84
In the preliminary negotiations, the issue of sovereignty over the Falklands/Malvinas was never proposed and, therefore, never discussed.
In the conference of January 19th, 1802, J. Bonaparte insisted once more upon the exchange of sovereignty over Saint Pierre and Miquelon for sovereignty over Newfoundland, a settlement for fishing purposes in the Falkland/Malvinas Islands (the only time the islands are mentioned in official French documentation) and the neutrality of fishing in wartime. Again, the question of sovereignty over the Falklands/Malvinas does not arise. Cornwallis´ reply was as Hawkesbury had ordered: the issues had already been discussed in the preliminary negotiations.85 That is to say, both of them considered these issues as a whole and having only one purpose: fishing.
The above suggests that at no time did France consider Britain to be sovereign over the Falkland/Malvinas Islands. It was simply attempting to take advantage of a negotiation in which Spain had to participate in order to obtain a French settlement in the Falkland/Malvinas Islands for whale hunting and fishing purposes.
At no time did Britain defend its alleged sovereignty over the Falkland/Malvinas Islands. If Great Britain did consider itself sovereign over the islands, the Peace of Amiens was a new opportunity to invoke its sovereignty (or at least, to use the argument in the negotiations to “trade” territory, in the same way it did with other areas of the globe.) As had happened a decade before during negotiations over the Treaty of San Lorenzo or Nootka Sound, Great Britain did absolutely nothing. For the rest, negotiations between France and Great Britain over fishing and whale hunting took place behind the back of the effective sovereign, Spain. The Spanish Crown did not sign the preliminary articles, and its representative, the Count of Azara, came to sign the definitive treaty one month after France´s last request, in February 1802. The negotiations were not published among official French documents, nor was the French parliament informed about them. Spain´s effective presence in the Falkland/Malvinas Islands, and its exercise of sovereignty in 1801-1802, show that the new interpretation made by the authors of the pamphlet and bloggers cannot be taken seriously.
In short, until 1811 Spanish possession was effective, exclusive, continuous, peaceful, public and in good faith.86 These characteristics leave no doubt about the fact that at the moment of Argentine independence, Spain had sovereignty over the Falkland/Malvinas Islands and it was the Viceroyalty of the Rio de la Plata that administered them. Between 1774 and 1811, there is no trace of any act of the British state, nor any form of British claim of sovereignty over the Falklands/Malvinas – or even over Port Egmont. We may wonder why, if a British territory existed in the South Atlantic, the British naval station in South America established from 1808 was not situated there, but in a foreign territory (Rio de Janeiro) and was not even tasked with visiting the Falkland/Malvinas Islands regularly.87 The British naval station was well aware of the Spanish presence in the Falklands/Malvinas: the chief of the station sent a note on February 24th, 1809 in which he referred to an uprising in Buenos Aires and said that it had been controlled and “that the unruly leaders of the Cabildo were detained and put onboard a vessel for the Maloinas [sic], or Falkland islands”.88 The answer to these questions is simple: during the period in question, the Falkland/Malvinas Islands were not considered to be a British territory, whether by the Spanish, the British themselves, or any other power.
As the International Court of Justice said in the Temple of Preah Vihear case, we are faced here with countless situations in which “the circumstances were such as called for some reaction, within a reasonable period, on the part of the authorities.”89 The British authorities had four decades to react to Spanish sovereignty over the Falklands/Malvinas. They did not, which undoubtedly implies the acceptance of Spain´s sovereignty. What the Hague Court states in the following paragraph regarding Siam´s absence of reaction to Prince Damrong´s visit to the Temple is applicable to Great Britain in relation to each and every exercise of Spanish public power in the Falkland/Malvinas Islands. It is a tacit acknowledgement
(...) through a failure to react in any way, on an occasion that called for a reaction in order to affirm or preserve title in the face of an obvious rival claim. What seems clear is that either Siam did not in fact believe she had any title (...) or else she decided not to assert it, which again means that she accepted the French claim, or accepted the frontier at Preah Vihear as it was drawn on the map.90
Every British claim of sovereignty over the Trinidad/Saunders Island, over Gran Malvina/West Falkland or over the archipelago as a whole cannot compete with the continuous and unchallenged acts of public power carried out by Spain for four decades. The British pamphlet simply chose to ignore this essential part of history and legal analysis.