Argentine succession to Spain’s rights (uti possidetis)
Pascoe and Pepper’s pamphlet does not say much about the basic rule for the succession of new States to the territory of old colonial powers.1 This rule, also known as the principle of uti possidetis iuris, is widely accepted in international practice and jurisprudence, and those British authors seem to accept the rule of succession to Spain’s rights. Still, this rule is questioned by British bloggers who nevertheless scrupulously follow Pascoe and Pepper’s pamphlet. This chapter will prove the pertinence of the rule, its opposability to Great Britain, and the latter’s acceptance of it, as well as Argentina’s succession to Spain’s rights over the Falklands/Malvinas.
A. A widely recognised rule: uti possidetis iuris or the succession of States to territory.
Uti possidetis iuris of 1810 is a rule relating to the succession of States to territory followed by the States of Spanish South America. The relevant date for South America does not match the dates of proclamation of independence in the various South American countries for the reason that, from 1810 onwards, these ceased to recognise the colonial authorities – although formal proclamations of independence would only come later. The new states inherited the territory belonging to the Spanish Crown, on the basis of the administrative divisions existing in 1810.
Uti possidetis is a general rule of customary law applicable to the territories of new States. This was set out by the International Court of Justice in the case of the Frontier Dispute between Burkina Faso and Mali in the following manner:
“it should be noted that the principle of uti possidetis seems to have been first invoked and applied in Spanish America. Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs.”2
The principle also reaffirmed that no terrae nullius existed in Latin America as a consequence of the process of independence. In other words, the scope of territorial sovereignty recognised to Spain and Portugal had to be equally recognised to the new Latin American States. The main political objective of the principle was to out a stop to any neocolonialist ambitions of other nations of the time. The Chamber of the International Court of Justice in the Land, Island and Maritime Frontier Dispute case (El Salvador/Honduras, Nicaragua intervening) also applied uti possidetis iuris, with the date of independence of the States of Central America being 1821. It clearly states:
"The Chamber has no doubt that the starting-point for the determination of sovereignty over the islands must be the uti possidetis juris of 1821. The islands of the Gulf of Fonseca were discovered in 1522 by Spain, and remained under the sovereignty of the Spanish Crown for three centuries. When the Central American States became independent in 1821, none of the islands were terra nullius; sovereignty over the islands could not therefore be acquired by occupation of territory"3
The same analysis perfectly fits the case of the Falklands/Malvinas, with the difference that Spanish title to the islands was not only based on discovery, but also the effective occupation of the archipelago until 1811 and recognition by other powers.
B. Opposability of uti possidetis iuris to Great Britain
The attitude of His Britannic Majesty’s government shows that uti possidetis was opposable to Britain, since the Falkland/Malvinas Islands were subject to Spanish sovereignty. European powers did not react to the assertion that no terrae nullius existed in Latin America.4 The analysis of international practice and jurisprudence in cases of territorial disputes between a Latin American State and an extra-continental power leads to the conclusion that uti possidetis was applicable to the extra-continental States.
In the Isla de Aves case, which opposed Venezuela and the Netherlands in the 19th century, the arbitral award issued by Isabel II, Queen of Spain, found in favour of the South American state. The main basis of the decision is that the island in dispute belonged to the Audiencia of Caracas during the colonial period and that
upon becoming an independent nation, Venezuela was constituted on the territory of the Captaincy-General of the same name [...] by which it could consider the Isla de Aves to be part of the Spanish province of Venezuela [...] the Venezuelan government was the first to establish its armed forces and to carry out acts of sovereignty, thus confirming the dominion it had acquired by general title it derived from Spain.5
Acts of sovereignty are therefore considered to confirm a pre-existing title of succession. An identical analysis can be made in regard to Argentina’s takeover of the Falklands/Malvinas in 1820.
The case of the island of Trindade is even more interesting when considering the Falklands/Malvinas, as it directly involves the United Kingdom. The Brazilian island was
uninhabited when, in 1895, one of Her Britannic Majesty’s ships took possession of it. The dispute was finally settled thanks to the mediation of the Portuguese government, who found in favour of Brazil. The United Kingdom accepted the mediator’s point of view. The Portuguese proposal unequivocally asserted:
"When, under the Treaty of Rio de Janeiro of the 29th August, 1825, Portugal proclaimed the independence of its ancient Colony, the Island of Trinidad was transferred to Brazil, together with the group to which it belongs, for formal possession by the new Empire. There could be no doubt in the mind of His Majesty's Government on that point, although no special mention of this transfer is made in the Treaty referred to, the island being, as it was annexed for administrative purposes to the Province of Espíritu Santo, a dependency of the Captaincy Major of Rio de Janeiro"6
Any doubts regarding the territorial extension of the new States of Latin America were dissipated by the Foreign Secretary, George Canning, during the mediation between Argentina and Brazil in the dispute over the Banda Oriental (now Uruguay). The instructions given by Lord Canning to the British Minister Lord Ponsonby on March 18th, 1826, read
"(...) Your Lordship will observe to the Brazilian Ministers, that unless by a general tacit agreement, the States of the New World be admitted to stand towards each other, in respect to geographical rights and limits, exactly as they stood when Colonies, questions of the utmost perplexity will infallibly arise out of their rival and conflicting pretensions; and the whole Continent of America, whether Spanish or Portuguese, will ultimately be laid open to the designs of any enterprising adventurers, who may think fit to carve out for themselves new dominions."7
This text unequivocally recognizes that Latin American States succeed to Spain and Portugal within the borders existing during the colonial period. Subsequent practice supports Britain’s point of view about Latin America’s legal situation.
Even if uti possidetis is set aside, being considered the applicable customary rule unless otherwise agreed by the parties involved, the same conclusion can be reached, in a different manner. On example is the analysis of the consequences flowing from the status of belligerent and the fact that the South American provinces eventually separated from the Spanish Empire. Due to the state of rebellion in the South American provinces, the international legal situation in Spanish America was comparable to that of a civil war. The rebels could not invoke a right of independence from Spain: they had to gain independence. Third States had to adopt a policy of neutrality –which they did. This means that they could not take advantage of the situation to take possession of the territories of the rebel provinces.8 The existence of a civil war or rebellion did not turn the territories of the States involved into vast terrae nullius, requiring occupation by one side or the other to avoid foreign occupation.
The British position was clearly described by George Canning on March 4th, 1823:
"In the year 1818, the Contest between Spain and her Colonies then raging with extraordinary violence, an Application was made by the Court of Spain to the British Government to interdict the Service of British Subjects in the Armies of the Insurgent Colonies - An Act of Parliament was passed for this purpose, but it was felt that in making such Concession to Spain, it would be right that the Mother Country and her Colonies should be placed by this Country upon that footing which the Neutral Position of Great Britain between the two Belligerent Parties prescribed; the prohibition therefore against serving in the Armies of South America, was extended to those of Spain"9
The fact that British de iure recognition of Argentina occurred after 1820 does not change this conclusion in any way. In 1818, Great Britain recognized the South American provinces as belligerents, as is apparent from George Canning’s note.
For our purposes, the acts in exercise of State authority carried out both by Royalist and South American authorities must be considered together. Both authorities were effectively fighting for power over the same territory. According to a well-established rule of international law, the acts of rebels or insurgents are attributable to a State from the moment they take over the effective government of the State or establish a new one.10
This means that whatever the legal approach followed, whether the uti possidetis iuris of 1810 or the rules relating to civil war and secession, the territory in question does not become res nullius. In regard to the Falklands/Malvinas, if the uti possidetis iuris of 1810 is discarded in favour of the theory requiring effective possession in case of secession, the conclusion would be that the islands were Spanish until 1820, when the government of the Provincias Unidas (United Provinces) took possession of them.
The Swiss Federal Council set out a point of key importance on this matter in the arbitral award in regard to the border dispute between Colombia and Venezuela, on March 24th, 1922:
... [it was an] absolute rule that in old Spanish America, from the legal point of view, there was no territory belonging to no one; those regions unexplored or unoccupied by the Spanish were considered to legally belong to each of the Republics that succeeded to the Spanish province to which those territories were attached by virtue of the old royal orders of the Spanish motherland.11
We will now turn to British sources on the topic. Professor M. Akehurst assertively states that “Argentina succeeded to Spain’s title. It is a rule of international law that a newly independent State which was formerly a colony succeeds to all the territory within the former colonial boundaries.”12 Gaston de Bernhardt in his Foreign Office Memorandum dated December 7th, 1910, stated that
“Of the extent of the Spanish Settlement at Soledad (...) It was under the superintendence of an officer entitled "Commandant of the Malvinas" who was dependent on the Viceroy of 1a Plata. (...)The party appearing to represent Spain in her title to those islands is the Government of Buenos Ayres. On the overthrow of the Spanish supremacy in the Vice-Royalty of La Plata, those territories, with the exception of Paraguay, were converted into a Republic under the name of the "United Provinces of Rio de la Plata" and Buenos Ayres, the capital of the Vice- Royalty, became the seat of Government of the Republic.”13
In the same vein, Ronald H. Campbell of the Foreign Office, summarised the weaknesses in Britain’s title in his minutes of July 18th, 1911, and referred to the same point, saying that “(...)they were soon afterwards (in 1820) claimed, and a year or two later occupied, by the United Provinces of Buenos Ayres, as the successors in title of Spain from whom the colony had just won its Independence”.14
Great Britain’s Counter-memorial in the recent Chagos Marine Protected Area (Mauritius v. United Kingdom) arbitration leaves no room for doubt in regard to its position on uti possidetis
"It is trite law that the territory of a newly independent State is established at the moment of independence. This is reflected in the uti possidetis juris principle, which applies in particular to cases of decolonization, but is not limited to such cases"15
In short, the principle according to which a new State succeeds to the territorial sovereignty of its old metropolis at the moment of independence, in the framework of boundaries existing at that time, is indisputable.
C. Who inherited the Falklands/Malvinas?
Unable to avoid the application of the principle of uti possidetis iuris or succession of States to the Falklands/Malvinas, Pascoe and Pepper make an argument that is not advanced by any State. According to the authors, the fact that the Viceroyalty of the Rio de la Plata included the territories of the present-day republics of Uruguay, Paraguay, Bolivia, and – according to them – portions of Chile and Peru creates a problem over “the identity of the heir”.16 This is an untenable argument. During colonial times, the Falkland/Malvinas Islands were under the direct authority of the Captaincy- General of Buenos Aires17 and subsequently, upon its creation by virtue of the Royal Charter dated August 1st, 1776, under the authority of the Viceroyalty of the Rio de la Plata,.18 The seat of the Viceroy was Buenos Aires. The other existing administrative divisions, (audiencias, governorates, intendencias) had a limited autonomy and depended on the authority of the Viceroy. According to the Royal Ordnance of Intendentes dated 1782, the Superintendence of Buenos Aires comprised the district of the Buenos Aires Bishopric, which included the coastal cities and their respective jurisdictions, the Governorate of Montevideo, the Governorate of Malvinas, the eastern area of Patagonia, Tierra del Fuego and other territories which formed part of the old Governorate of the Rio de la Plata, with the exception of the thirteen missions founded along the Parana river, which had been incorporated in the diocese of Asunción.19 Consequently, none of the administrative divisions that subsequently became independent States (Paraguay in 1811, Bolivia and Uruguay in 1825) had jurisdiction over the Falklands/Malvinas in 1810. Furthermore, their independence is an instance of separation from the United Provinces of the Río de la Plata.
The control exercised by the Royalist authorities from Montevideo after the revolution that took place in Buenos Aires in May 1810 is not relevant, as this colonial authority was repudiated from the moment of the revolution. Royalist authorities took up office in Montevideo as they had lost control over the Viceroyal seat of Buenos Aires. Furthermore, Uruguay never claimed to be the successor State to Spanish sovereignty over the Falklands/Malvinas. On the contrary, the official position of the Eastern Republic of Uruguay is recognition of Argentina’s sovereignty. One of the most renowned Uruguayan specialists of international law, the judge and ambassador Héctor Gros Espiell, completely rejects the argument according to which the Falkland/Malvinas Islands would belong to Uruguay because of the Spanish retreating to Montevideo from the islands in 1811, at the time the forces of Buenos Aires and Uruguay were besieging the city, which was under Royalist power. According to Gros Espiell:
The argument is misleading since Argentina inherited Spain’s rights over the territories belonging to the viceroyalty of the Río de la Plata, except for those that expressly and specifically became new States detached from the viceroyalty (Bolivia, Paraguay and Uruguay).20
It is worth recalling that the American government, with Andrew Jackson as president, addressed the Spanish government through its representative in Madrid, with the aim of knowing if the Falkland/Malvinas Islands had been part of the Viceroyalty of the Rio de la Plata. Don Martín Fernández de Navarrete, the renowned Spanish historian, was in charge of answering the president. His reply was delivered on October 15th, 1833, and is extremely important:
Navy captain Mr. Felipe Ruiz Puente proceeded to take possession of said islands, on behalf of His Catholic Majesty and in his capacity of governor, and on April 1st, 1767 the Spanish flag was raised at Soledad bay. Since then, the peaceful possession of the Malvinas was not disturbed again, as possessions of the Spanish Crown and its viceroyalty of Buenos Aires. [...] It can be concluded from this that the Malvinas islands, as possessions of the viceroyalty of Buenos Aires before the insurrection, lawfully belong to Spain like all the countries of that portion of America, until such a time as His Majesty determines their future fate.21
D. No Spanish cession was necessary
Uti possidetis iuris means that the territory belonging to the old colonial administration is transferred to the newly independent State. No express cession of sovereignty is required by the colonial power. The new State inherits the same territory by virtue of its existence as a State. The fact that Spain had not formally recognised Argentina, and only signed a Treaty of Recognition, Peace and Friendship on September 21st, 1863, is absolutely irrelevant for the sovereignty dispute. Moreover, by virtue of this treaty, Spain
recognised the Argentine Republic or Confederation as a free, sovereign and independent Nation, made up of all the provinces appearing in its Federal constitution in force, besides the territories that legally belong or will belong in future to that Nation.22
Article 4 further recognises the 25th of May, 1810 as the date of Argentine succession to Spain’s rights and obligations.23
The prior section has shown Spain’s unquestionable sovereignty and possession of the Falkland/Malvinas Islands at the time of the beginning of the Argentine process of independence: May 25th, 1810. International law recognises the succession of new States to the territorial sovereignty existing at the moment of independence. Based on the above, the State which succeeded to Spain’s sovereignty over the Falklands/Malvinas is the State known by the name of the United Provinces of the Río de la Plata, and later as the Argentine Republic.