Argentine administration, 1810-1833
This chapter covers the period spanning from the 1810 May Revolution in Buenos Aires to the British eviction of Argentina of 1833. The authors of the British pamphlet make a brief reference to this period that is plagued with misrepresentations. No reference is made to key events, and the authors strive to minimize the significance of the taking of possession of November 6th, 1820. Finally, in what is perhaps the most egregious historical falsification, the authors invent an alleged British authorisation for Luis Vernet to settle in the Falklands/Malvinas.
A. The first Argentine administrative act concerning the Falklands/Malvinas five days after the constitution of the First Patriotic Government in 1810
In 1810, the process of independence began in the Spanish colonies of South America. The starting point in the Río de la Plata was the Revolution that took place on May 25th, 1810. The Viceroyal authority was replaced by a “Creole” Governing Junta. Upon losing control over the capital of the Viceroyalty, the Spanish forces concentrated in Montevideo, where Gaspar Vigodet was Governor, and appointed Francisco Javier de Elío to act as the new Viceroy. Shortly after, Gaspar Vigodet was to succeed the latter in directing the royalist forces. The Governing Junta of Buenos Aires and the Viceroy in Montevideo each considered themselves to be the only legitimate authority for the entire territory of the Viceroyalty of the Río de la Plata. They were to continue fighting until Vigodet´s surrender in 1814.
It should be highlighted that one of the first acts of the Governing Junta of Buenos Aires concerned the administration of the Falklands/Malvinas. Upon arriving in Montevideo from the islands, the penultimate Commander of the Malvinas, Gerardo Bordas, had requested the payment of salaries and rewards corresponding to his position, which were equivalent to those of the Navy captain of a ship at sail.
It fell to the Governing Junta that replaced the Viceroyal authority to deal with the matter.1 The Buenos Aires Junta notified the “Navy Commander of this Station” of the order dated December 13th, 1806 by virtue of which "for the matter of expenses and payments, the settlement in the Malvinas be regarded henceforth as a ship at sail, and all employees in that location as dependents of the same ship" and, taking into account that
requests for certain payments by the Royal Treasury have been made and some of these have even been paid in this City, such as the rewards for the commander and ministers, armory wages, and some other payments: I have determined, that from now on, all salaries, rewards, wages and other expenses incurred for these premises or locations belonging to them, are paid by the Minister of the Navy of this Station, [...] I am submitting this information to you for your intelligence and I have forwarded it to the Minister of this Station, advising him that on this date I am notifying the General Treasury of the Army and the Royal Treasury to issue certified copies of the Royal Orders kept in the same General Treasury regarding allowances or some other issues of the Malvinas islands.2
The key importance of this public act of the first national government, only five days after its constitution lies in the evidence of governmental continuity in regard to the Falklands/Malvinas. The previous decisions of the Viceroyal authorities, concerning the remuneration of staff assigned to the Falklands/Malvinas, were taken over by the new authorities, who ordered the payment of the rewards owed to the former Commandant of the Malvinas, Gerardo Bordas. It is little wonder that Pascoe and Pepper do not even mention this public act, which is widely known and referred to in a number of publications – including some which they have cited.
B. Spanish withdrawal from the Falklands/Malvinas on February 13th, 1811
At the beginning of the fight for independence, the Spanish forces under Vigodet´s command controlled the Rio de la Plata and the adjacent maritime areas. With the aim of joining the entirety of navy forces to fight the patriots3, a Spanish war council meeting in Montevideo decided on Spain´s withdrawal from the Falklands/Malvinas on January 8th, 1811. The decision states
that this Port [of Isla de Soledad de Malvinas] is to be abandoned, by sending a ship to said port [...] with the aim that all belongings, both of Artillery and any other nature, found there are collected and brought to this City, as well as the Church ornaments, leaving all buildings well sealed and placing the King´s Coat of Arms to demonstrate ownership, and that in the meanwhile said abandoned Port remain, that annually a ship is sent for reconnaissance of the port, verifying that in it or in any other port of said Islands no other Power has established any kind of settlement.4
The brig “Gálvez” fulfilled this order on February 13th, 1811.5 On March 30th, 1812, the Courts of Cadiz approved the decision adopted in Montevideo, “thinking that when circumstances change, the Regency would take care to ensure that the islands would be occupied as before”.6 The only mention made by Pascoe and Pepper of this point is a subtitle indicating “Spain abandons the islands in 1811.” As the above-cited document shows, Spain did not relinquish its sovereignty.
The Spanish withdrawal of 1811 is notably different from the British withdrawal from Port Egmont in 1774. Great Britain only left behind a plaque, fully aware that at that very moment the Spanish maintained their presence on the islands through their settlement at Puerto Soledad. At the very least, they lacked the will to ensure exclusivity, one of the characteristics of territorial sovereignty. This is unsurprising, taking into account the fact that the British never had an exclusive presence on the islands. On the contrary, at the moment of Spain´s withdrawal, there was no foreign settlement in the islands, and Spain envisaged the necessary measures to ensure there would not be any in future. The British did not make any similar announcement nor take any precaution to secure the abandoned premises at Port Egmont. We have seen that in the face of Britain´s withdrawal, Spain exercised sovereignty throughout the entire archipelago, including the destruction of the fort at Port Egmont (or Puerto de la Cruzada). The same did not occur when the Spanish withdrew their garrison: the islands were left without the permanent presence of any nation. No power attempted to exercise any act of sovereignty. The only destruction suffered by Spanish property was merely that caused by the actions of time.
In any case, a possible abandonment by Spain in 1811 would not be opposable to the United Provinces, by virtue of the principle of uti possidetis of 1810. As we have already seen, from that year on (May 25th, 1810 as far as the Viceroyalty of the Rio de la Plata is concerned), South American nations did not recognise the authority of the acts performed by the peninsular government or its colonial representatives in America. 1810 is the critical date to establish which Spanish territory the new South American States succeeded to.
C. 1811-1820: Displays of Argentine sovereignty and the absence of any British claim
The 1811-1820 period proves that, even though the islands were uninhabited after Spain´s withdrawal, the new government exercised acts of sovereignty in relation to the Falklands/Malvinas. Despite having had opportunities to do so, the British government did nothing to assert its sovereignty (if it had any in the first place).
a) The conduct of British whale and seal hunters.
Less than a year after the May Revolution, a prominent leader of the independence process, Manuel Belgrano, mentioned the constant presence of British fishermen in the area of Patagonia and the Falkland/Malvinas Islands, and explained the seamen´s perception of the land in question. The issue of March 2nd, 1811 of the newspaper Correo de Comercio, of which he was editor, read:
The British, with the aim of fishing whales, which abound in these seas, constantly circulate along these coasts. One of the coastguards of the Spanish frigate S. Gil asked a British vessel why they were navigating in those seas, the coasts of Patagonia and the Malvinas islands, and he was answered that those seas belonged to everybody.7
The British sailors never invoked any alleged British sovereignty over the Falkland/Malvinas Islands.
Figure 8 Permission requested by Enrique (Henry) Jones to seal in the Falklands/Malvinas Islands - A.G.N. 7-4-5
On January 30th, 1813, Henry Jones, owner of an English brig, requested an authorisation from the authorities of Buenos Aires "so that the vessel may travel to the Malvinas Islands and the South coasts for seal "8
This act unquestionably shows the perception a British subject had regarding the sovereignty of the United Provinces of the Rio de la Plata in the Falklands/Malvinas. Besides, the request to the government in Buenos Aires is made at a time when the Spanish authorities were still present in Montevideo. This fact could not have been ignored by captain Peter Heywood, commander of the “Nereus” and head of the British ships navigating the Rio de la Plata. Their presence was specifically meant to protect British commercial activities in the region.
To show the lack of seriousness of the British pamphlet´s statements regarding this period the following paragraph deserves to be quoted:
After 1811, the Falklands had no resident population, though they were still visited by many British and American ships, whose crews sometimes spent long periods ashore on the islands, built stone houses and huts, and even grew vegetables. The language spoken in and around the Falklands from 1811 onwards was English, as it had been since the 1770s with the exception of Puerto Soledad.9
None of this, whether correct or not, (even if it were true) can be taken as a basis for a British claim of sovereignty. The fact that British and American vessels visited the islands proves nothing. Besides, ships from France and other nations also arrived at the islands, including Argentine ships such as “Espiritu Santo” and “San Juan Nepomuceno”, which made regular trips to the South Atlantic between 1817 and 1820, as did the ship “25 de Mayo”. The “Espiritu Santo” is known to have been in the Falkland/Malvinas Islands in 1819.10 Making a point about the language spoken in a deserted territory is comical – and the suggestion that this could be of some relevance in regard to the question of sovereignty even more so. Such an assertion could be compared to an argument stating that until now, English is the only language spoken on the Moon!
b) General San Martín and the Falklands/Malvinas
Three years later, General José de San Martín, at the time Governor of the Province of Cuyo, sent a letter from Mendoza dated August 14th, 1816 to the Lieutenant Governor of San Juan informing him of a note of the Minister of War proposing that criminals "that are imprisoned in the jurisdiction of your command sentenced to the prisons of Patagones, Malvinas, or others, are sent to this capital”.11 It is clear beyond doubt that in the eyes of the officials who wrote the note (and those that dispatched it) that the Falkland/Malvinas Islands were part of Argentine territory.
c) The shipwreck of the “Isabella”
If the authors wished to refer to human presence on the islands, they could have mentioned the case of the shipwreck of the “Isabella”, which offers interesting elements that again prove the total absence of any British claim, the fact that foreign sailors knew that sovereignty over the islands belonged to Spain or the new-born Argentina and the fact that their presence could be considered illegal.
The facts are as follows. On February 9th, 1813, the British merchant vessel “Isabella”, having set sail from Australia and heading to London, wrecked at Eagle Island. The American captain Charles H. Barnard, commanding the brig “Nanina”, had been in the archipelago since September 7th, 1812, hunting amphibians. After assisting the British survivors, the latter captured the “Nanina” and fled with it, leaving Captain Barnard and his crew behind on the island. It is interesting to reproduce Captain Barnard´s narration of the encounter with the survivors upon sighting smoke:
I suspected that they arose from the fires of Spaniards, possibly from Buenos Ayres, on one of the Anacans, as I had often heard that the Spanish government was in the habit of sending out every year a Guarda Costa, to examine their harbours and passes for foreign vessels, and if any were found, to order them off immediately: and so apprehensive were they that the subjects of a foreign power might form even a temporary settlement, for the purpose of procuring seal skins and sea-elephant's oil, that they often set fire to the bushes, and thus destroyed the harbours of the seal, to prevent them as much as possible from resorting to these islands. I have almost resolved to go to the Anacans for seal, but as I could not banish the apprehension of falling into the hands of the Spaniards, I determined to remain at our present station until I should ascertain by whom these fires had been kindled. (...) As the columns of smoke continued to ascend in the same direction, I began to conjecture a variety of causes. Might they not proceed from hordes of the enemy, who might possibly use it as a decoy to secure us in their power? Did they arise from daring adventurers like us, whom were either preparing their food, or trying out the oil that they had collected? But such a supposition was improbable, as it is very rare that vessels touch at the Anacans. (...) The fires then were possibly lighted by some unfortunate shipwrecked mariners as signals of distress.12
Upon sighting the survivors, Barnard says: "I saw with pleasure one or two who wore the uniform of British marines. As this immediately banished all apprehensions of their being Spaniards, I began to devise the most effectual means of aiding those unfortunates".13 This is a remarkable assertion, taking into account that on January 3rd, he had found an American ship which informed him of the declaration of war by the United States against Great Britain, the reason why Barnard decided to take his brig to a port less visited by the British seal-hunters.14 This shows his fear of encountering Spanish vessels, knowing that his activity on the islands was illegal.
Captain Barnard´s account is particularly important coming from a direct witness and contemporary who knew the region and the activities of whale and amphibian hunting. This quote proves that those who were dedicated to fishing and hunting in the region were considered to be poachers and were well aware of Spanish efforts to repress their activities. It is also proof that they considered the archipelago to be a Spanish possession. Barnard preferred an encounter with enemy soldiers to coming across the Spanish in the Falklands/Malvinas.
Meanwhile, the survivors of the shipwreck had decided to send the “Isabella´s” largest boat, which they had managed to save, to seek help. On February 22nd, 1813, it set sail with seven people on board, among whom were Lieutenant Richard Lundin from the 73rd regiment of His Britannic Majesty and a marine. They had the intention of heading to the Spanish settlement, which they believed to be at Port Egmont. On March 6th, according to their description, unbeknownst to them, they arrived at Puerto Soledad. The settlement was deserted. In the church, they found the Spanish coat of arms and the plaque affixed in February 1811. Upon ascertaining that the islands were uninhabited, they decided to set sail towards the continent, with the aim of reaching Montevideo, in the belief that the Portuguese (!) would be more cooperative than the “Spanish” in Buenos Aires. Upon their arrival on the eastern coast of the Rio de la Plata, they encountered the patriotic army that was encircling the royalist forces concentrated in Montevideo. General Rondeau, of the patriotic forces, offered to open them a passage to Montevideo if they so wished, but they were informed that a British frigate was anchored at Buenos Aires andit would be ready to help them.15
Bernardo Bonavía, the Commander of Puerto Ensenada (on the western coast of the Rio de la Plata)(who had also been Commander of the Falklands/Malvinas), reported to the Buenos Aires government on March 29th, 1813 that a sloop coming from the English frigate “Isabella” had arrived at that port; that the frigate had got lost in the Falkland/Malvinas Islands and that she had come to ask for help from the commander at the Buenos Aires berth, and that she had a “passport” (a kind of laissez passer) issued by General Rondeau. The sloop was offered the necessary aid but said it did not need any help. It headed immediately towards the berth, located near Buenos Aires, where the British war frigate was anchored.16 Captain Heywood, commander of the Frigate “Nereus”, ordered to send the ship “Nancy” to help the shipwreck survivors. Their instructions read:
having discovered them [the wreck survivors] you will without delay rescue the whole of them with their personal effects and wearing apparel on board His Majesty's Armed Brig Nancy and bearing them as Supernumeraries for victuals return without a moment's loss of time to this anchorage.17
Neither the survivors nor the British marines behaved as if the Falkland/Malvinas Islands were part of the British Empire. On the contrary, the survivors´ reaction was to look for the Spanish settlement. The British commander staying at Rio de la Plata had an extraordinary opportunity to assert British sovereignty in sending a war ship to the Falklands/Malvinas to repatriate his subjects, especially when the survivors had found Puerto Soledad uninhabited, and an inscription left there by the Spanish in 1811. Instead, he limited himself to helping the shipwreck survivors, without performing any acts of sovereignty, and ordered his subordinate to return immediately.
The fact is that during the period 1811-1820, when there was no permanent State presence on the islands, there are examples of acts of sovereignty carried out by Argentine authorities, but not by Britain, despite there being no lack of opportunities. The understanding of the mariners who navigated in the area is further proof that the islands were considered to belong to Spain or to its successor in Buenos Aires.
D. The official taking of possession of the islands by Argentina in 1820
The Falklands/Malvinas by Argentina in 1820 and the absence of any British reaction. The facts are as follows. On January 15th, 1820, David Jewett, in his capacity of Commander of the State war frigate “La Heroína”, was appointed Colonel of the Army at the service of the National Navy by the Supreme Director of the United Provinces.18 He set sail from the Rio de la Plata at the end of March of that year, and after overcoming many hardships, he reached the vicinity of Puerto Soledad on October 27th, 1820. He took official possession of the Falkland/Malvinas Islands in November 1820 and reported this by circular to all the ships present in the neighbouring areas, including some British vessels.
The British Captain, James Weddell, who at that time was at Puerto Salvador on Isla Soledad, received the following notification, as he narrates in his chronicles:
National Frigate Heroína at Puerto Soledad, November 2nd, 1820. Sir, I have the honour to inform you of the circumstance of my arrival at this port; I have been commissioned by the supreme government of the United Provinces of South America to take possession of these islands in the name of the country to which they naturally appertain. In the performance of this duty, it is my desire to act towards all friendly flags with the most distinguished justice and politeness. A principal object is to prevent wanton destruction of the sources of supply to those whose necessities compel or invite them to visit the islands, and to aid and assist such as require it to obtain a supply with the least trouble and expense. As your views do not enter into contravention or competition with these orders, and as I think mutual advantage may result from a personal interview, I invite you to pay me a visit on board my ship, where I shall be happy to accommodate you during your pleasure. I would also beg you, so far as comes within your sphere, to communicate this information to other British subjects in this vicinity. I have the honour to be, Sir, Your most obedient humble Servant, Jewett, Colonel of the marine of the United Provinces of South America, and commander of the frigate Heroína.19
The ceremony of taking possession was carried out on November 6th, 1820 in the presence of Weddell and the captains of other American and British ships present.20
James Weddell was Master of the Royal Navy and had retired from service in 1816, that is to say, four years before the facts being narrated took place. In that capacity, and with his knowledge and experience of the region, he could not ignore – if it did exist – the British claim of sovereignty over the Falklands/Malvinas. A reaction on his part was to be expected. When describing the taking of possession by Jewett in his travel journal, published in 1827, he did not even mention alleged British sovereignty over the islands. On the contrary, he confines himself to complaining about the Spanish having prohibited the French from staying at Port Louis (Soledad).21
Three days after the taking of possession, Colonel Jewett circulated the following note to the captains of the ships present in the region:
National Frigate, Heroína, Port Soledad, 9th November, 1820. Sir, I have the honour to inform you of my arrival at this Port, to take possession of these Islands, in the name of the Supreme Government of The United Provinces of South America. This ceremony was publicly performed on the 6th day of this present November, and the National Standard hoisted at the Fort, under a Salute from this Frigate, in the presence of several Citizens of The United States, and Subjects of Great Britain. It is my desire to act towards all friendly flags with the most distinguished Justice and Hospitality, and it will give me the pleasure to aid and assist such as many require them, to obtain refreshment with as little trouble and expenses as possible. I have to beg of you to communicate this intelligence to any other vessel of your nation whom it may concern. I am, Sir, D. JEWETT. Colonel of the Marine of the United Provinces of South America, and Commander of the frigate Heroína.22
The note was widely covered by the press of that time. In the United States, the Salem Gazette published it on June 12th, 1821; in Spain, El Redactor, of Cádiz, published it in August 1821 (it was reproduced in the Argos of Buenos Aires on November 10th of the same year).23 The Times of London published the note in its entirety on August 3rd, 1821, reproducing the information in the Salem Gazette, under the title “The Capture of the Falkland Islands”, considering it an “act of sovereignty”.24
The British pamphlet spills a great deal of ink in describing the pitiful state of the “Heroína´s” crew, and unwittingly, recognises that after taking possession, Jewett remained in the Falklands/Malvinas for six months.25 This is a significant period of time for someone who claimed authority over the islands and who encountered no opposition or resistance from British subjects or anyone else present on the islands. Not only, but not the slightest comment was made about the Falklands/Malvinas not belonging to the United Provinces, or about the islands being British.
Figure 10 News about Jewett's act of possession under the title "The Capture of the Falkland Islands" published on August 3, 1821 at "The Times" of London
Pascoe and Pepper´s conclusion is as follows: "It is a moot point whether an announcement made by a pirate who keeps it secret can count as a valid territorial claim".26 We have already seen that Jewett did not act as “a pirate”; in fact, he performed the official act of taking possession in his capacity as an Argentine State official, whose appointment by the Government in Buenos Aires is reproduced here (see figure 9). The fact of having been a privateer does not diminish the official nature of his actions. The British pamphlet completely contradicts the claims over Antarctica put forward by the United Kingdom against Argentina and Chile before the International Court of Justice concerning taking possession of a territory. In making those claims, the British state that on December 7th, 1821, the captain of the British whale-hunting ship “Dove”, George Powell, allegedly took possession of Coronation Island, one of the South Orkneys, on behalf of King George IV.27 If the United Kingdom considers that a seal-hunting ship had the capacity to take possession of a territory, it is difficult to justify the denial of the same capacity to Jewett´s actions in the Falklands/Malvinas: Jewett was vested with official authority and in command of an official ship. The correspondence also proves that the crew of the “Heroína” considered him not only to be the ship´s commander, but also the “Commander of this Island”.28 If we are talking about pirates and privateers, as Pascoe and Pepper do in referring to Jewett, it may be worth recalling that John Strong, the supposed British “discoverer” of the Falklands/Malvinas, was one. If one follows the British pamphlet, there were “good” and “bad” privateers. If they were British, at the service of His Majesty, they had the capacity to establish sovereignty over territory; if they were mere citizens or at the service of other nations, they could not.
It is also obvious that the 1820 taking of possession was no “secret”. If the author of such an act goes to the effort of reporting it to all the ships present in the area before and after it is carried out, and publishes it in newspapers throughout two continents, and still this act is considered “secret”, then how should we qualify the British taking of possession of Port Egmont, which was neither notified to anyone nor published anywhere?
The desperate arguments of the British authors are that Jewett did not receive orders to take possession of the islands, that the government in Buenos Aires was not aware of his actions because he failed to notify the taking of possession, and that the government never made an official announcement.29 None of these arguments, whether true or false, support the British thesis. Whether the document containing the instructions given to Jewett has been found or not is absolutely irrelevant. If Pascoe and Pepper´s criteria for taking possession, which they apply to Jewett, were applied to all takings of possession of territory carried out by British seamen, few would pass the test. We have already mentioned two examples, one in relation to Port Egmont itself, in which case a British sailor acted beyond his instructions, and the other relating to a simple seal-hunting ship, a mere subject of His Majesty, in the Shetland Islands. The list goes on. The effectiveness of the taking of possession of a territory by a public official, as was the case of Jewett in the Falkland/Malvinas Islands, is beyond reproach.
The only time the British pamphlet cites the important and comprehensive Informe del Comandante Político y Militar de las Islas Malvinas, D. Luis Vernet, dated August 10th, 1832, is to say that the information it contains regarding Jewett´s activities in the islands is false, and that Jewett did not give orders to any ship present in the islands.30 Vernet´s report reproduces the list of ships and captains that attended the ceremony of taking of possession in 1820.31 The British pamphlet gives no grounds or explanation; it only states that Jewett and his men were “vegetating” in the Falklands/Malvinas, on the basis of a letter describing the situation in the islands. The reason for this absence of explanation is easy to understand. If the British authors wished to prove that the list is false, they would encounter some difficulty, because there it is: the full list of ships and captains. because the truth is more than evident. Suffice it to read Jewett´s notes before and after the taking of possession on November 6th, 1820 to affirm the opposite of the arguments in Pascoe and Pepper´s pamphlet. It states that his purpose was to avoid the indiscriminate destruction of the supply sources existing in the islands; he notifies the facts to those present, and asks them to notify other ships of their same nationality.
It emerges from all this that the taking of possession of the Falklands/Malvinas by the United Provinces in 1820 was an official and public act, of which the main powers of the time took note, and did not complain. Indeed, the presence of Weddell and of other British captains, and particularly the article in the Times of London, leave no room for doubt as to the British government´s knowledge about the taking of possession.
Pascoe and Pepper attempt to justify the lack of any British reaction on the basis of fact that Great Britain had not yet recognized the independence of the United Provinces (Argentina) and that therefore "there were no channels for any reaction".32 This is no excuse. Before June 1822, the ships of the rebel American provinces were prohibited from entering the ports of the British Empire.33 If the ports of the Falklands/Malvinas had been among them, a reaction from the British authorities should have been expected – yet reaction came there none. If a foreign State, even an unrecognized State, or an individual exercises an act of authority in a territory that another state considers to be its own, a reaction is to be expected. Nothing prevented the British government from sending a ship to the islands to exercise its alleged sovereignty – but nothing of the sort happened. As the arbitral award states in Dubai/Sharjah: "The first thing that a State must do when the authorities of another State enter its territory is to protest and send its police force to put an end to these actions".34 Sending a “police force” evidently depends on the power of the nations involved. In the case of Britain, neither were there protests, nor was any force sent.
If the government in London did not wish to have any official contact with the government in Buenos Aires, which it did not recognise, a reaffirmation of its sovereignty in the islands would have been appropriate, or at the very least it should have made a general unilateral declaration, faced with a strangers´ pretension to exercise competence over a territory they considered their own. This is only one of the many examples of British inaction inconsistent with a claim of sovereignty. The reason is quite simple: at the time, Great Britain did not lay claim to the Falkland/Malvinas Islands.
The pamphlet echoes previous British commentaries that point out that the political situation in Argentina in 1820 was chaotic and that there was barely a stable government.35 However, the existence of internal crises and even civil war do not affect the international legal existence of a State, and even less do they transform its territory into a res nullius at the disposal of the first occupant.36 On the contrary, the internal crisis can explain the absence of public acts which would ordinarily be expected from a State.37 The truth is that Colonel David Jewett was an official of the United Provinces who performed a public act. It is irrelevant that the government that appointed him was no longer in office.
The principle of State continuity, widely recognised in international law, establishes that legal acts must be attributed to the State, notwithstanding any subsequent change in government.
On the contrary to what the British pamphlet asserts, it was not necessary for the government in Buenos Aires to issue a confirmation or notification regarding the taking of possession. The United Provinces were considered to be the successor to Spain´s rights over the Falklands/Malvinas. In Jewett´s note addressed to Weddell, he affirms “to take possession of these islands in the name of the country to which they naturally appertain”. This means that the act of taking possession meant the exercise of the existing title of sovereignty by means of effective possession, in such a way as to bring together all the elements necessary for both the animus domini and corpus possessionis, to make the territorial succession effective.
Pascoe and Pepper´s argument that Argentina only came to know what had happened in the islands on November 10th, 1821, thanks to the piece published in the newspaper Argos,38 even if it were true, would also be irrelevant. The authors of the pamphlet evoke the fact that Jewett, in his note sent to the government in Buenos Aires, told of the desperate conditions of his crew, but failed to mention the taking of possession. This means absolutely nothing. The objective of his note was to request relief in the face of the gravity of their situation. On February 27th and 28th, 1821 (that is to say, eight months before publication in the Argos), the government in Buenos Aires ordered Jewett to be relieved due to “the unfortunate events and disasters that the National War frigate "Heroina" has suffered in the expedition”39 and appointed Colonel Guillermo Mason as Colonel Jewett´s successor, who was at “Puerto de la Soledad de Malvinas”, that is to say, the old Spanish settlement.40
Figure 11 An order for Colonel Mason to relieve Colonel Jewett in the Port of Soledad in the Malvinas/Falklands by the Government of the United Provinces - A.G.N. Sala IX 5-1-2A
The acts carried out by Buenos Aires before and after 1820 show an uninterrupted continuity in conduct, which completely contradicts the claims in the British pamphlet: Argentina considered itself to be the sovereign of the Falklands/Malvinas before and after Jewett took possession of the islands. The situation would have been quite different if, for example, Jewett had arrived on the islands and did not consider himself to be on Argentine territory, or if the government in Buenos Aires had disowned Jewett´s acts. None of this occurred. Argentina had succeeded to the sovereignty of Spain´s colonial territories, and shortly after the taking of possession, performed other acts of sovereignty. If the British authors want to diminish the taking of possession based on the fact that the Argentine government failed to notify other powers of the act, what can be said about how the British took possession of Port Egmont, or even the taking of possession and eviction of Argentina on January 3rd, 1833? Not only was Buenos Aires not notified, but even the British Chargé d'Affaires in Buenos Aires, when consulted a few days after the attack on Argentine sovereignty on January 3rd, 1833, answered that he ignored the fact and had not received any instruction in that regard.41 In sum, the notification by an Argentine authority present in the territory in question to foreign ships in the area is more than sufficient to endow that act with the character of a public and an effective exercise of sovereignty.
E. Argentine acts of sovereignty prior to the creation of the Political and Military Commandment of the Malvinas in 1829
The British pamphlet attempts to belittle the acts of sovereignty performed by Argentina in the 1820s prior to the creation of the Political and Military Commandment of the Malvinas and Adjacent Islands on June 10th, 1829. Pascoe and Pepper say nothing about Britain´s silence during that period, and invent an alleged British authorisation for Luis Vernet to settle in the Falklands/Malvinas, an extravagance which Great Britain has never once brought up in the entire history of the 150-year Anglo-Argentine dispute.
The pamphlet groundlessly, inconsistently and ignorantly to the law asserts that
At that time the Falklands were res nullius, “no one´s property”, though there were three limitations to that: Spain still claimed the islands, Britain had a claim dating from the establishment at Port Egmont 50 years earlier, and whether that was valid or not, Britain definitely had certain limited rights (of landing, building huts, etc.) according to the Nootka Sound Convention with Spain. Britain´s rights under the Nootka Sound Convention were meager, but they had been upheld through constant use for over 30 years and were a clear limitation on any other country´s possible claim to full sovereignty.42
This truly is legal nonsense, to use an expression of the author´s of the pamphlet themselves. If the islands were terrae nullius, the only effective acts in the 1820´s were performed by Argentina, and this would be sufficient to confer sovereignty. Nevertheless, the islands were not res nullius, since at the moment of Argentine independence they belong to Spain and were a dependency of the Viceroyalty of the Río de la Plata. The principle of uti possidetis precisely has as one of its objectives that of preventing the Spanish territories from being considered res nullius as a result of the independence of the American nations. As emerges from the International Court of Justice´s 1992 judgment in the case of the Gulf of Fonseca in Central America, under no circumstances can Britain´s 1833 occupation of a previously occupied territory grant a title of sovereignty of any nature.43
As previously explained, Spain had no specific claim over the Falklands/Malvinas; it merely asserted its sovereignty over the entire territory of the Viceroyalty of the Rio de la Plata as well as over the rest of the rebel colonial dependencies in America. The British pamphlet candidly uncovers the weakness of the British claim by recognising Spanish sovereignty over the Falklands/Malvinas by virtue of the Nootka Sound Convention and the “meager” rights – as the pamphlet calls them – recognized to Great Britain by this agreement. These “meager rights” (landing in case of an emergency, building huts, etc.) already analysed in the first chapter of this book, are unrelated to the question of sovereignty. Finally, the pamphlet contradicts itself by claiming that the “exercise” of such rights (which, in fact, were never exercised by Great Britain as a State) was sufficient to maintain a claim of sovereignty from half a century before: those “meager” rights are incompatible with a claim of sovereignty. A sovereign does not require authorization from another power to land its ships and subjects and build a shack on its own territory!
In the sections that follow, we will analyse the numerous acts of sovereignty carried out exclusively by Argentina throughout the 1820´s and early 1830´s, up to its expulsion by Great Britain.
a) Cattle, land and fishing concessions in the Falklands/Malvinas
The British pamphlet recognises that in 1823, the government in Buenos Aires granted Jorge Pacheco a concession to farm cattle in the Falkland/Malvinas Islands.44 This is a classic example of an act that not only shows the intention to act as sovereign , but also the effective exercise of sovereignty.
Martín Rodríguez, governor of Buenos Aires, suggested to Jorge Pacheco, an ex-soldier who had served at the time of independence, that he should farm the wild cattle present in the Falklands/Malvinas as compensation for the amount owed to him by the State. They therefore signed a contract by which they would request such a concession from the government, with Pacheco being put in charge of refurbishing the existing buildings in Soledad.45 Pascoe and Pepper speculate that Pacheco and Vernet learned about the presence of cattle on the islands through Pacheco´s sister-in-law, the wife of Bernardo Bonavía, one of the last Spanish commanders on the islands. This is clearly of no interest for the dispute; it merely serves to prove that the pamphlet´s authors were well aware of who was exercising sovereignty over the islands at the beginning of the 19th century.
On August 23rd, 1823, Pacheco submitted a request to the government to farm cattle and horses and to exploit sea lion skin and oil on Soledad/East Falkland, “rebuilding for this purpose the premises of the old settlement and committing themselves to returning these in an operational state to the government if in future the rehabilitation of the establishment were considered desirable.”46 Governor Martín Rodriguez and the Minister of the Economy, Bernardino Rivadavia, signed a decree on August 28th, 1823 by virtue of which
permission is granted to travel to Isla Soledad, one of the Malvinas islands, to make use of it in the terms proposed and on the understanding that such a concession will never deprive the State from exercising its rights over the territory in the way it may consider more advantageous for the general interest of the Province.47
At the beginning of 1824, Cipriana Obes de Bonavía, widow of the colonial Commander of the Falklands/Malvinas and Pacheco´s sister-in-law, requested and obtained an authorisation to fish and hunt wild livestock on the Falkland/Malvinas Islands, but she failed to make use of the concession.48 It is likely that this request was linked to that of Pacheco and granted as supplementary to it. These concessions leave no room for doubt as to the exercise of sovereignty over the Falklands/Malvinas by the government of Buenos Aires in 1823 and 1824.
b) The British Consul certifies an act regarding the exercise of Argentine sovereignty over the Falklands/Malvinas
There is more evidence in support of the exercise of state authority by Argentina, and British awareness of those acts. In 1825, before the imminent outbreak of war with Brazil, Jorge Pacheco pretended to cede the rights granted by the government of Buenos Aires to two British subjects, Mr Green and Mr Hodgson, both merchants living in Buenos Aires. The aim that simulation was to safeguard his property, which could be considered enemy property and confiscated by Brazilian forces because of the war. The deed of cession and the counter-document stating the true are respectively dated October 10th and December 10th, 1825. The deeds were certified by the British consul in Buenos Aires, Richard Ponfsett, on January 3rd, 1826,49 without eliciting the slightest reaction from Britain. If the islands were British, Great Britain´s representative in Buenos Aires would have objected to such concessions being made by a foreign government. Not only was there no reaction, but the British consul certified the authenticity of the Argentine documents. Again, Britain kept silent, when in fact it should have reacted if it really considered itself to be the sovereign of the Falklands/Malvinas Islands. As for the pamphlet, its silence is eloquent on a matter that it can in no way ignore.
c) Pablo Areguatí’s appointment as Commander of the Falklands/Malvinas
The British pamphlet plays with words to avoid recognising that Pablo Areguatí was appointed Commander with the purpose of exercising authority in the Falklands/Malvinas after Pacheco´s settlement. It carefully says that he was not the “governor” and neither was Vernet, who occupied the position of “Political and Military Commander.”50 Of course, the importance of the terminology is secondary. Whether a “Commander” or a “Governor”, Argentina appointed a person into a position of public authority on the islands. Again, this is an undisputable act of State authority.
It was Pacheco who requested the government in Buenos Aires to appoint Areguatí as Commander. In a note addressed to the government of Buenos Aires, dated December 1823, he explains:
ready to set sail, the expedition to Puerto de la Soledad de Malvinas whose purpose, thanks to Your Excellency´s kindness, is the exploitation of said Island, is under the command of retired Captain of the Militias Mr. Pablo Areguatí [...] and as to the workers and foreign ships it would be in the interest of the State and the requester that he have some authority. I request Your Excellency to grant this captain the title of Commander ad honorem of that port. In this way, Your Excellency takes possession of said island and even obliges ships to pay anchorage rights, which will be scrupulously rendered to the Treasury: because Areguatí intends to use those workers to start a Company of civilians with corporals and sergeants, in order to vest this operation with as much representation as possible as a possession of the Nation, taking weapons and ammunition as part of the negotiation; and if Your Excellency could send some iron cannons to defend the port from pirate invasions in the abandoned batteries, they would be repaired and put in condition to serve the government, at the moment it may wish to re-establish its presence. I have planned to domesticate livestock and keep it on a farm where up to two thousand merino sheep can be fed, with the purpose of providing the country with this wool; [...] to carry out this task, I request that by virtue of your high authority and faculties you grant me the territory necessary to perform these hard duties; ordering the commander to give me the possession of such terrains, as a citizen of this Province, who will defend that territory as a sacred property of the State.51
This request was signed and approved on December 18th of the same year.52 In the aforementioned decree of concession, the government reserved the right to make provision for “all the other points requested by the representative.”53 The instructions given to Emilio Vernet (brother of Luis Vernet, who travelled to the islands) and to Areguatí established that once they had arrived at port, they were to bring together all those present and appoint Areguatí as Commander of the Island, “making all people know about the decree in order to make them recognise him as the commander, to maintain order and prevent excesses.”54 Luis Vernet´s report, dated August 10th, 1832, also mentions that Areguatí was appointed Commander.55 This appointment, and the fact that the ship “Rafaela” on which they arrived was armed, prove that the Government of Buenos Aires took the necessary measures to exercise its authority over the Falklands/Malvinas. Areguatí arrived at Port Soledad on February 2nd, 1824, and left the Falklands/Malvinas before the end of the year, having failed in establishing what would have been the first human settlement in the islands in many years.56 In another display of argumentative weakness, the British pamphlet emphasizes this failure and goes so far as to reproduce Areguatí´s letter, in which he points out the difficult living conditions on the islands.57 This does not make his appointment and effective presence on the islands any less effective. Despite the failure of the attempt to establish a permanent settlement, the importance of Areguatí´s appointment lies in the will of the government of Buenos Aires to establish an authority to reside on the islands and in the physical presence of Areguatí on the islands as commander for most of 1824. It is worth highlighting that before Argentine independence was recognised and diplomatic relations established, Great Britain had appointed a Consul in Buenos Aires, who had arrived in March 1824.58 The Consul could not possibly have ignored Pacheco´s attempt to establish a settlement that same year.
Pascoe and Pepper´s pamphlet obscures this important and accessible information, falsely stating that the book written by Caillet-Bois does not mention Areguatí´s appointment and citing, as if it were sufficient evidence, the opinion of an Argentine writer published in the newspaper Clarín in 1974 to support its position.59 Of course, they introduce this writer as "the leading authority on the Falklands in Argentina” – further proof of the sort of “research” carried out by the authors.
d) Argentina and the protection of marine life in the South Atlantic
On October 22nd, 1821 the government in Buenos Aires passed a law in relation to fishing and hunting of amphibians on the Patagonian coast, aiming to regulate these activities and avoid the depletion of living resources due to the excesses of foreign ships.60 The facts show that the legislation also extended to the Falkland/Malvinas Islands. During colonial times, the law was applicable in the entire southern region, as previously seen in Commander Bonavía´s note dated March 27th, 1805.61 In his valuable Report dated August 10th, 1832, in explaining the extension of the “coast” during the colonial period, Political and Military Commander Luis Vernet states that,
On examining the public Archives of this Capital, it is found that the whole Coast was divided into 3 Districts: the first, from Cape San Antonio to Santa Elena; the 2nd, from there to the Strait; and from the Strait onwards, including Isla de los Estados, and Adjacencies, belonging to the District of Malvinas, which constituted the third.62
Vernet himself was to explicitly apply the Law of October 22nd, 1821 and its amendments to the Falklands/Malvinas.63 A key element that supports this interpretation is the decree issued by the Governor of Buenos Aires, Balcarce, on January 5th, 1828, by virtue of which some land on Soledad Island/East Falkland and Staten Island was ceded to Luis Vernet, settlers were excepted from paying taxes and authorized to fish “in all the Malvinas islands”: all this is decided “pursuant to the Law passed on October 22nd, 1821”.64 As is well-established, it was the application of this law to American ships by Vernet that gave rise to the violent reaction of the American captain Silas Duncan, who in 1831 destroyed most of the Argentine settlement and sent its population scattering. The application of fishing and hunting laws is another clear example of the effective exercise of State authority by Argentina.65
e) The establishment of Argentine-British diplomatic relations and the Treaty of 1825
In 1825, Great Britain effectively recognised Argentine independence, which meant the establishment of diplomatic relations between the two States on the basis of international law. This implied respect for sovereign equality,66 which includes or implies respect for territorial integrity. If Argentina had violated British territorial sovereignty through its previous acts in the Falklands/Malvinas, here was an opportunity for the British government to enforce its rights. Yet no reference to the issue was made. When two nations have a territorial dispute and establish diplomatic relations, it is elementary that one or both reserve their rights or declare that the establishment of diplomatic relations does not in any way affect their respective positions. At the time, the government in Buenos Aires was intensifying its exercise of sovereign rights over the islands. As we have already seen, the British government could not possibly have ignored Jewett´s taking of possession in 1820, nor the concessions or subsequent expeditions – and yet it did not react.
On February 2nd, 1825, the United Kingdom of Great Britain and Ireland and the United Provinces of the Río de la Plata concluded a Treaty of Friendship, Commerce and Navigation.67 The treaty makes numerous references to the territories and ports of the parties. Neither party made a reservation or observation of any kind in relation to the Falklands/Malvinas. The difference is that, as we have seen, Argentina was already exercising authority over the islands. and considered them its own. The same was not true of Britain..
Some British bloggers refer to a note written by Ignacio Núñez, an officer of the Ministry of Foreign Affairs, as a response to a request put forward by Woodbine Parish, Britain´s first representative in Buenos Aires. The bloggers maintain that this letter was the basis for signature of the Anglo-Argentine treaty, and that not including the Falkland/Malvinas Islands in that letter excluded recognition by the United Kingdom of Argentine sovereignty over the islands when signing the agreement. However, the British minister did not ask any questions regarding the Falkland/Malvinas Islands, nor was there any need for the Argentine officer to make any reference to the subject. The facts are as follows.
Parish´s note dated May 12th, 1824 is a reiteration of a previous, unanswered, letter sent to Bernardino Rivadavia, when he still was the Minister of Foreign Affairs. Parish is very clear in his request. He asks for “a slight sketch of the origin, progress, present state, and form of government of this country; together with a summary of its revenues and military strength”.68 No mention is made of the territorial extension of the United Provinces of the Río de la Plata, nor any reference to the fact that the information is requested in view of the conclusion of the treaty of commerce and friendship that was to be signed a year later. No reference to the letter is made in the course of the treaty negotiations. In fact, Mr. Nuñez had neither the capacity nor the necessary authority to negotiate the agreement. In any case, nothing in the correspondence is useful to support the British claim or to excuse the British government´s lack of reaction to Argentina´s acts of sovereignty.
Nuñez simply answers what is requested. He begins with a brief summary of the historical causes of the revolution and subsequent Argentine independence; he then mentions some principles on which the government is based and finally, gives a brief account of the different branches of the administration (government, war, foreign affairs, economy). No annex makes any reference to the territorial composition of the United Provinces (or of Buenos Aires, the province on which the Falklands/Malvinas depended). The British representative in Buenos Aires, who had been in the Argentine capital since March 1824, makes no inquiry in that regard.
Parish in his request asks that “all those points on which it may seem desirable that my Government (for whose inspection I solicit it) should be informed”.69 It is not possible to infer from this any request regarding the extension of Argentine territory, all the more so at a time when the borders between the United Provinces and their neighbours had not yet been drawn. There was no reason for Argentina to give Great Britain any details regarding the Falklands/Malvinas. Great Britain had abandoned its settlement in Port Egmont fifty years earlier, and nobody could recall any British claim. Never again during the long period of Spain´s exclusive administration had Great Britain raised any claim of sovereignty, implicitly or explicitly (on the contrary, as we have already seen, they had agreed in a treaty not to establish a settlement in 1790) and nothing had been said about the acts of government carried out by Argentina. Therefore, just as there was no need to give any information over other parts of national territory, there was no need to give any information regarding the Falklands/Malvinas.
The truth is that the Treaty of 1825 refers to “the territories” of the contracting parties and the British government raised no objections to Argentine acts of sovereignty in the Falklands/Malvinas. If the British government did not wish to contact the government of Buenos Aires in 1820 because it did not recognise such a government, as Pascoe and Pepper assert, it now had an opportunity to do so. If it had the slightest interest in the Falklands/Malvinas, it could at the very least have requested information regarding Argentina´s taking of possession as published in the Times in 1821, or regarding the concessions granted in 1823. It did nothing, for the simple reason that there is absolutely no proof that the British government was making any kind of claim over the Falklands/Malvinas at the moment it recognised Argentina and signed the Treaty of friendship, commerce and navigation.
f) The new Argentine concessions to Luis Vernet in the Falkland/Malvinas Islands.
In 1825, Luis Vernet organised a second expedition that set sail in January 1826. Despite numerous hardships, it turned out to be successful. He settled in Soledad Island/East Falkland on June 15th, 1826, to make use of the concessions granted to Pacheco, with whom he had made a deal.70 Since then, his settlement was permanent. Even before the creation of the Political and Military Commandment of Malvinas in 1829, the population behaved consonantly with Argentina's sovereignty over the territory in which they were located. One example is that of the observance of the national holidays of May 25th and July 9th.71
On January 5th, 1828, Vernet made a new request to the government, one of particular importance for the development of the settlement. In it, he stated:
That wishing this country development and greatness, I have thought to establish a Colony in the island called “Soledad” located among the group of islands called Malvinas; but needing for this the protection of the government and the considerations necessary not only for the owner of the enterprise but also for the new settlers to accomplish such a task, I considered it appropriate that with the purpose of achieving such an important objective, Your Excellency may cede possession and property rights to me, or protect me according to those rights in regard to the land on the island called “Statentland” on the coast of Tierra del Fuego. My commitment will be to establish a Colony within three years from the granting of the concession, to be under the authority of the Buenos Aires government in the same way as the settlers, who will be treated as citizens of the Republic and will enjoy the same rights. Likewise, it will be an express condition that in case it is necessary to expand the Colony to other islands due to growth in population, I will be obliged to be in contact with the government, to determine, with its agreement, what may be more convenient. Equally, upon the establishment of the colony, the settlers will be free and exempt from any kind of rights or contributions, maritime or land rights, for the first thirty years of the Colony´s establishment. That during the same period, the Colony will enjoy the exclusive right to fish along the coasts of Tierra del Fuego, the Malvinas Islands and other coasts and islands of the Republic, which excludes foreigners but not the native people of this country. It is necessary to consider that the Government, by allowing the establishment of a Colony in the Malvinas islands, under the conditions set forth, does no more than recover a territory which was like abandoned, but which having been acquired by the Spanish, this Government has not lost the right to possess. There is no other decision for another nation not to set its sights [on a territory] than the establishment or foundation of a Colony.72
The government, by virtue of the Decree signed by governor Balcarce on January 5th, 1828, ceded to Vernet all the vacant lands on Isla Soledad, except for those ceded to Jorge Pacheco and a ten-square league stretch in San Carlos Bay reserved by the State, plus Staten Island. A map of Soledad/East Falkland made by Vernet, which is reproduced here (see figure 12), shows the land divisions as well as the settlements existing during the Argentine administration. The condition imposed on Vernet was that within a three-year period a colony should be established “and after this period, the government will provide for what is more convenient in regard to the internal and external order of its administration.”
The scope of this decree goes far beyond a simple land concession. The government of Buenos Aires: 1) establishes a special tax system, 2) grants fishing franchises, 3) reserves the property of a strategic zone in San Carlos, on the coast of the strait of the same name, 4) manifests the will to populate the islands permanently and to organize the exploitation of the natural resources of land and sea, 5) does not limit these acts to Isla Soledad, but applies them to the entire Falkland/Malvinas archipelago, and to other Argentine territories in the South; 6) clearly establishes governmental control over the development of the colony and 7) establishes a relationship of subordination of the Colony´s director (Vernet) to the government of Buenos Aires.
No protest was raised by the British government, despite this being an act of public exercise of sovereignty that, as we shall see, was known by the active British representative in Buenos Aires. Of course, the British pamphlet says nothing in this regard. On the contrary, it engages in a most absurd attempt to deny the importance of Vernet´s activities for the exercise of sovereignty by Argentina. It invokes an alleged British “authorization” for Vernet to establish a settlement in the Falklands/Malvinas and asserts that Vernet would have preferred British rather than Argentine sovereignty. Before proving the mendacity of these claims, it may be useful to briefly explain both the public and private dimensions of Vernet´s actions.
Once the decree was passed in January 1828, Vernet put into action his plan of human development of the islands, which consisted in promoting European and American immigration – a model which would later be followed by the rest of the country. With this in mind, he divided Isla Soledad into eleven sections (see Vernet´s map mentioned above) and contacted German, British, Scottish, Dutch and American companies, to whom he submitted a copy of the relevant official documents, a report issued by the government of Buenos Aires supporting the establishment of a settlement, information on living conditions, the economic and geographical situation of the Falklands/Malvinas and a model contract for the concession of lands to the potential settlers, as well as the conditions for settlement. For example, article 1 states: “All settlers whatever nation they come from shall respect the country´s authority and therefore its laws.”73 This alone proves the flagrant falsehood of the pamphlet regarding any possible doubts Vernet had about sovereignty over the islands.
g) The creation of the Political and Military Command of the Malvinas Islands and Adjacencies
As a result of the success of his enterprise and the size of the human presence in the islands, Vernet address the government of Buenos Aires in his capacity as “founder of a new colony in the Malvinas Islands” to make a variety of requests.74
The logical consequence of the development of Vernet´s settlement was the creation of the Political and Military Command of the Malvinas/Falkland Islands and the Atlantic Adjacencies of Cape Horn by a Decree dated June 10th, 1829 and signed by Governor Martín Rodríguez and Minister Salvador María del Carril.75
The provisions of the Decree establish that the place of residence for the Political and Military Commander shall be Isla Soledad, that a battery shall be established under the flag of the Republic and that the Political and Military Commander “shall make the population comply with the laws of the Republic, and shall enforce the regulations concerning amphibian fishing along the coasts.” Another decree signed by Salvador María del Carril in June 1829 (the day is missing, probably also on the 10th), orders the Minister of War to provide four cannons, rifles and other weapons to Vernet to be used for “the creation of a battery in Isla Soledad”, and to issue said decree.76 On the same day, the government adopted another decree by virtue of which Luis Vernet is appointed Political and Military Commander of the Malvinas/Falkland Islands.77
The provisions of the Decree of June 10th set out the basis of Argentine rights and the reasons for the creation of the Command. The first provisions are as follows:
Figure 12 Decree of June 10, 1829 creating the Political and Military Commandment of the Malvinas Islands & adjacent to the Cape Horn in the Atlantic Sea - A.G.N. Fondo Luís Vernet Sala VII 2-3-3
1) Spain had the material possession of the Falkland/Malvinas Islands at the moment the provinces of the Rio de la Plata separated from the metropolis on May 25th, 1810.
2) Spanish possession was based on a) the right of first occupant, b) the consent of the main European sea powers and c) the proximity of the islands to the continent formed by the Vice-Royalty of Buenos Aires, on whose government they depended.
3) The Government of the Republic " succeeded to all rights over the provinces of the old metropolis "
4) The government continued "exercising acts of dominion over said Coasts and Islands" The reasons that explain the creation of the Command are as follows:
1) "Circumstances have not permitted until now to bestow upon that part of the territory of the Republic the attention and care that its importance deserves"
2) "It is necessary to delay no longer the adoption of such measures as will secure the rights of the Republic"
3) "Enjoy the advantages that the produce of said Islands and Coasts may offer"
4) Ensure to "grant due protection to its inhabitants"
From the legal point of view, the correctness of the procedures followed to support Argentina´s titles is remarkable. It is established that this is a State succession and May 25th is determined to be the critical date for the succession, that is, to determine whether Spain had sovereignty over the islands and was therefore able the possibility of succession to Spanish sovereignty.
The acts of possession performed by the Republic to show it already had effective possession of the territory at the moment the Command was created are mentioned. These are in particular the taking of possession of November 6th, 1820 and the concessions granted during that decade. The right of first occupant, and not Papal Bulls or discovery, are used to support Spain´s titles. That is the correct interpretation, according to which the initial occupation by France is considered to be Spanish, since France recognized Spain´s sovereignty and transferred the settlement at Port Louis. This is how it was understood at the time. The consent of the main European maritime powers is not considered a separate title of sovereignty, but only recognition of its existence. The proximity of the islands to the continent is also not an autonomous title (contiguity), but only a determination of the extension of the Viceroyalty of the Río de la Plata.78
Figure 13 Decree of June 10, 1829 in English which was in the reverse of the Circular delivered by Luis Vernet to the captains of foreign vessels arriving at the Falkland/Malvinas Islands
Pascoe and Pepper maintain that the Argentine government that issued the decrees was not legitimate and that Rosas declared all the acts performed by the government of Lavalle null and void.79 For a variety of reasons, the United Kingdom cannot invoke the “nullity” of the decrees passed to create the Political and Military Command and to appoint Vernet. Firstly, there was no such nullity, and even if it had been declared by the subsequent government, it would not be opposable in the international sphere, by virtue of the principle of continuity of the State.80 Secondly, because the government that followed that which issued the decrees on June 10th, 1829, including Rosas', continued to act in accordance with the content of those decrees. Suffice it to note the official correspondence exchanged between the Political and Military Commander and the government of Buenos Aires between 1829 and 1831, as well as the attitude adopted by the latter when Vernet captured three American ships, and later over the actions of the Lexington.81 Thirdly, if the decrees were hypothetically null and void, the only State that could invoke such nullity would be Argentina. This conclusion can be reached by applying the provisions of the law of treaties relating to the violation of internal law by analogy to unilateral acts of State.82 What is more, the British protest of November 19th, 1829 had as its sole objective the decree dated June 10th of the same year. At the moment the protest was raised, the change in government of the Province of Buenos Aires had already occurred. Such an action would not make sense if it were directed to a government which did not recognise the validity of the act being protested. All this shows the futility of the efforts of the British pamphlet, as other British sources had previously attempted, to detract from the importance of the Decree of June 10th and the creation of the Political and Military Command of the Malvinas/Falkland Islands.83
The acts in exercise of public authority and other demonstrations of Argentine sovereignty during Luis Vernet´s command are countless. The following are only some examples:
1. Note written in English addressed to the ships hunting and fishing in the region (mostly American and British), to communicate that they had to respect relevant Argentine laws and the property of private persons settled in the Falklands/Malvinas (distributed from August 1st, 1829; on the back was the translation of the Political and Military Command creation in Malvinas/Falklands)84 (see Figure 15).
2. Entry into service ceremony on August 30, 1829 and celebration of national holidays.85
3. Criminal proceedings.86
4. Civil marriages celebrated by the Political and Military Commander of Malvinas, Mr. Luis Vernet, on October 25th, 1829 and May 29th, 1830.87
5. Navigation Licence for the National Schooner “Águila”, built in the Falklands/Malvinas and owned by Luis Vernet himself, dated November 6th, 1831.88
6. Currency issuance.89 (see Figure 16)
7. Fishing and hunting controls in application of relevant Argentine laws.90
8. Use of inhabitants for military service and custody of prisoners.91
9. Land concessions, including to British subjects.92
10. Application of the decree dated January 5th, 1828 in favour of the colony´s inhabitants.
11. Promotion of European and American immigration.
Figure 14 Circular that Vernet, as Governor of the Falklands/Malvinas, delivered to foreign vessels, notifying the Decree of June 10, 1829
If international jurisprudence relating to the establishment of territorial sovereignty is applied, these acts are largely sufficient to be considered effectivités, that is to say, they are concrete manifestations of the effective exercise of sovereignty over the territory in question.93 The settlement founded by Vernet reached a stable population of approximately one hundred and fifty people.94 Over the seven years of its existence, up until the expulsion of the Argentine authorities in 1833, Vernet considered that around three hundred people inhabited the islands at some point.95 Many British subjects were under the authority and the laws of the Argentine Republic. One of these was Matthew Brisbane, who had taken part in Weddell´s expedition in the second decade of the 19th century and who was appointed superintendent for sea lion hunting by Vernet.96 As well as Port Luis and Soledad, many farms were scattered around Isla Soledad, and there existed two small towns, called Rosas and Dorrego, located respectively in the gulf and port of Polacra and in the area neighbouring Rincón de San Agustín.97 Vernet introduced sheep and improved the existing cattle and horse stock. Over the entire period, Vernet maintained an amicable relationship with the native populations of Patagonia and Tierra del Fuego. The chief of one of the aboriginal groups, known as “the Queen of the Strait”, was his guest in Port Luis or Soledad for 6 months in 1831.98 The settlement at Port Luis was very useful for seamen of all nations that crossed from the Atlantic to the Pacific and vice versa, and an essential relief for the survivors of shipwrecks in those desolate areas. It is worth noting in this connection the rescue of shipwreck survivors in South Georgia.99 The best way of describing life in the islands during the period of Argentine colonisation is by reading the diary of María Sáez de Vernet, wife of the Political and Military Commander, kept between July 15th, 1829 and December 22nd of the same year, forty-five days before her daughter Matilda (Malvina)100 was born. The islands had never witnessed a similar human development at the time the European colonial powers were present. It was the efforts of the new Argentine nation that produced this development and proved the usefulness of the islands. It was the British Empire, with its political, military and economic supremacy, which took advantage of these efforts through the use of force.
Figure 15 Currency issued by Luis Vernet in his condition of Governor of the Falklands/Malvinas islands
F. The argument of an alleged British authorization for Vernet’s settlement and Vernet’s supposed British “preference”
The British pamphlet clearly cannot ignore the importance of Vernet´s work for the development of the Falklands/Malvinas. It goes so far as to recognise that he was “who founded the permanent settlement which still exists today”.101 In an attempt to minimise both the importance of Vernet´s work as evidence of Argentina´s exercise of sovereignty from its presence on the islands in 1826 onwards, and the absence of any British claim, Pascoe and Pepper resort to a series of contradictory arguments that can only be qualified as absolutely false. As we shall see, perhaps the most serious misrepresentation made by the pamphlet is the assertion that a purported British authorisation was given to Vernet to establish a settlement on the islands.
The pamphlet´s analysis of Vernet´s actions sets out by affirming that his request to the government of Buenos Aires for a concession was “astounding” because it referred to the Falkland/Malvinas Islands, Staten Island and the Patagonian coast, and “nearly all those territories were far beyond the real limits of Argentine authority at the time”.102 The authors are also supposedly amazed that the government of Buenos Aires agreed to grant such a concession. It has been widely proven that during the Spanish colonial period, these territories were considered to be Spanish and it is unsurprising that Vernet, as well as the Argentine government, considered the South American nation to have inherited them. Any Argentine inaction over these territories could have been criticised – but not the fact that Argentina took measures to effectively exercise sovereignty.
What really is astounding is the following assertion in the British pamphlet: “it was Vernet who gave Buenos Aires rights in the Falklands, not the other way round.”103 Of course, the assertion at least has the merit of recognising Buenos Aires´ rights over the Falklands/Malvinas, but it is nonetheless highly extravagant. First: before the concession was granted to Vernet, Argentine acts of sovereignty had already taken place. Second: Vernet addressed himself to the State which had sovereignty over the territories he wanted to exploit. Third: that State granted Vernet the necessary authorization. It is absurd to assert that a private person could give the State rights that he, as an individual, could only legally exercise in a given territory on the basis of the State´s authorization.
Herein lies the fundamental misrepresentation. The British pamphlet asserts that “Vernet submits his concession to the British” in 1828 and the British Consul in Buenos Aires, Mr. Griffiths, “countersigned it on January 30th, 1828”104 Unsurprisingly, there is no footnote indicating the source of this assertion. On the basis of this claim, British bloggers affirm that Vernet´s settlement had “British authorization”, something suggested, but not categorically affirmed, by Pascoe and Pepper´s pamphlet.105 The authors then speculate on whether or not Parish met with Vernet at the time, and fast forward to a meeting the latter requested with Vernet more than a year later. The pamphlet attempts to make its readers believe that while the venture was private in nature, the British government was free not to react, and that such a reaction was only required when the venture became public. This is plainly wrong. If the British government considered the islands to be a possession of His Majesty, it could not have remained passive faced with the Argentine government´s granting of public concessions to a private party.
Far from favouring the British claim, the truth supports the recognition of Argentine sovereignty by Great Britain. All Vernet did was to have the Decree of January 5th, 1828 certified at the British Consulate in Buenos Aires. This certification was given on January 30th, 1828 and was signed by the British Consul Charles Griffiths.106 It was a typical consular legalisation by which a Consulate in a foreign country certifies that an official document is signed and sealed by the competent authorities of the State in which the Consulate is located or has jurisdiction. This function of “legalisation” of official foreign documents is still exercised in Consulates the world over.107 Why did Vernet have his official Argentine documentation certified or legalised at the British Consulate? Because his plan, which he effectively carried out, was to send the documents to Europe, with the aim of attracting European settlers to the Falklands/Malvinas. We have already cited the model contract above. This was a way to prove that he was going to the islands to establish a settlement with State authorisation. The certification relates to documents referring to acts of authority and provisions of the Government of Buenos Aires regarding the Falklands/Malvinas.
This is a far cry from “giving up his concession to the British”. By invoking this act, instead of favouring the British claim, the pamphlet, offers clear proof of Great Britain´s inaction. If the islands belonged to His Britannic Majesty, the documents should have caught the attention of the British Consulate, particularly the authentication of the decree of January 5th, 1828. At the very least, as happened with the consular certification of the fictitious cession of the concessions to Pacheco in 1826, these certifications prove that Great Britain knew about the concession of terrains, fishing rights and franchises made by the Argentine government in 1823 and 1828 regarding the Falklands/Malvinas. The United Kingdom cannot validly invoke ignorance of these dispositions. In such circumstances, a reaction was required from the British government. But reaction came there none. According to the reasoning of the British claim in the Antarctica case regarding the concessions granted (although “imposed” would be a better word, as we shall see) by British authorities to the Compañía Argentina de Pesca, and the lack of protest by Argentina when faced with that fact, the only possible conclusion is that at that time the United Kingdom recognized Argentine sovereignty over the Falkland/Malvinas Islands.108
The truth, which the British pamphlet attempts to distort, is apparent from the description made by Parish in 1833, in his publication in the magazine of the Royal Geographic Society of London in which he describes Isla Soledad:
The claims of Great Britain to the Falkland Islands having been lately renewed, the following account of the Eastern Isle may not be uninteresting. It was drawn up for me during my late residence in South America by Mr. Vernet, who formed a settlement and resided there for several years under an authority from the government of Buenos Ayres.109
Another fallacy in the pamphlet is the alleged preference of Vernet for British sovereignty. Even if this were true, it could not affect the dispute over sovereignty between the two States. We will examine the assertion in any case. The first argument is based on Minister Parish´s note to his Secretary of Foreign Affairs regarding an alleged conversation with Vernet during which he commented that he (Vernet) “would be very happy if His Majesty´s Government would take his settlement under their protection” as well as a conversation Vernet supposedly had with William Langdon, a British navy lieutenant, when, again, Vernet supposedly said he would not be opposed to a possible British occupation.110 That is to say, the British arguments are not based on a note by Vernet or any other documented statement of his, but only on something that someone claimed Vernet said. No document exists proving that Vernet invited the British to settle in the Falklands/Malvinas, as the British authors claim. The truth is that Vernet, by virtue of the authority vested in him by Buenos Aires, gave a land concession to William Langdon, a British subject, who accepted the concession and subsequently unsuccessfully tried to have it upheld by British authorities once Argentina was evicted in 1833.
Vernet also proposed to Parish to invest in the islands.111 According to the FIG website, this was an attempt to reaffirm British sovereignty over the islands. This was a purely commercial transaction, not in the exercise of the public functions both men held.112 The Colony needed the highest possible number of investors. Vernet put it clearly: “I need a partner; among the traders [in Buenos Aires] I can´t find any”.113 Considering this difficulty, before setting sail for the islands with his title of Commander, Vernet proposed Parish take part as a private individual in the business he had set up in exchange for half of the amount invested up to that moment. His proposal consisted of a contract by virtue of which a public Company would be constituted with a share capital of around one hundred thousand British pounds, 50% of which would be held by them. Obviously, the investment would have had to be made in the framework of Argentine sovereignty within which Vernet was acting.114 He was acting in his capacity as a trader and a public servant,115 something quite usual at the time. To give the example of someone involved in the issue, we can mention the American Chargé d'Affaires Baylies, who upon leaving Buenos Aires referred to his double position, public and private.116 An example from the past is that of Spanish conquest, when the practice was often used through the position of the “Adelantado”. Parish did not accept the offer.
Another key element going against any supposed fancy of Vernet that might favour the British thesis is his effective behaviour during the period 1829-1833 and the deep and passionate defence of Argentine sovereignty made in his Report dated August 10th, 1832, in which he criticises in detail the assertions made by Parish in his claim of November 19th, 1829.117 These are effective and public acts carried out by Vernet, which the British pamphlet shrouds in silence, whereas his purported contrary positions are merely “hearsay”.
Vernet´s attempt to get reimbursed from the British government for the investments made in the Falklands/Malvinas, after the Argentine eviction of 1833, also does not help the British thesis.118 The truth is that after the eviction, the British authorities prevented Vernet from returning and rejected any attempt to have the land concessions made in his favour by the Argentine government recognised, despite their having been enjoyed for seven years.119 This attitude on Great Britain´s part openly contradicts the practice followed in regard to the respect for vested rights of individuals in disputed territories, as recognized in international jurisprudence.120 This is just one more aspect, this time concerning the inhabitants of the territory, in which Britain´s use of force of January 3, 1833 was not respectful of international law. For the rest, whatever the already elderly Luis Vernet may have written in an attempt to convince the British authorities to pay him compensation many years after his retirement from any official position in the Argentine government, is of no relevance for the dispute over sovereignty, whether or not it contradicts his previous position.
G. The British protest of November 19th, 1829
The business representative of His Britannic Majesty, Woodbine Parish, following the instructions of his government, protested on November 19th, 1829 against the adoption of the decree dated June 10th of the same year, “which contains some measures for the government of the Falkland Islands.” According to the protest, the measure was incompatible with the sovereignty rights of His Britannic Majesty.
The British protest of 1829 may be said to be belated, limited and made in bad faith. Belated, because the British government knew of the previous acts of public power over the islands carried out by Buenos Aires between 1820 and 1829. Limited, because it is circumscribed to the decree of June 10th, 1829, without protesting against any previous acts. In fact, the reference to the acts having been made or being made against His Britannic Majesty´s rights is related to those carried out in the framework of the decree which was the object of the protest, and not in relation to acts occurring before the decree, to which Great Britain was not oblivious. And finally the protest was made in bad faith, because among the grounds for British sovereignty, Spain´s continuous presence in the islands until 1811 and Argentina´s subsequent acts are not mentioned, even though the British government could not have ignored both facts. This is proven by a note of Woodbine Parish himself preceding the Argentine Decree of June 10th. In his dispatch to London No. 17 of March 15th, 1829, Parish reminded his government that the Spanish had constantly maintained a garrison, a prison and a war ship in the Falklands/Malvinas until 1813 (sic) and that since that time the government of Buenos Aires had never stopped considering the territory as being its own, granting land, fishing and hunting concessions.121 In his report No. 24 dated April 25th, 1829, he even sent copies of the Buenos Aires´ Government concessions to Vernet – the same ones the British Consul Griffiths had certified in January 1828.122 The same bad faith would be repeated later when Lord Palmerston used the same arguments in response to the protest by Manuel Moreno, with the aggravating factor that in the meantime, Woodbine Parish had obtained – and sent to London – copies of the documents proving the destruction of the English fort at Port Egmont by the Spaniards, the withdrawal of the plaque and other acts carried out by Spain after 1774 to reaffirm its sovereignty.123
In relation to this British protest after a fifty-year silence, we could paraphrase what was said by the Chamber of the International Court of Justice in the case of El Salvador/Honduras in relation to Honduras´ protest against El Salvador´s exercise of sovereignty over Isla Meanguera: “this protest [from the United Kingdom], coming after a long history of acts of sovereignty [by Spain and Argentina], was made too late to affect the presumption of acquiescence on the part [of the United Kingdom]”.124
Minister Maza acknowledged receipt of the note of protest on November 25th, 1829, and announced that the government had the intention of giving it careful consideration and that he would be happy to communicate the decision adopted, once he received instructions in this regard.125 No reply to the protest was ever given. The reasons invoked after the British invasion of January 3rd, 1833 were that “this response required some time, [but] it is not proven that His Majesty´s diplomatic Agents had demanded or insisted on such a response.”126 It is remarkable that in spite of the fact that no response was issued, the representative in Buenos Aires did not insist, as he had previously done in the case of a simple request for reports, as we saw in previous paragraphs, above all given the successive changes of government having occurred over that period in Buenos Aires. As for the rest, the note did not offer any legal avenues to solve the dispute. The British author V.F. Boyson maintains in regard to the absence of an answer that “the matter dragged on and dropped, it seemed, into oblivion”.127
H. The capture of American ships and the “Lexington´s" attack on Puerto Soledad
One of Luis Vernet´s constant concerns was the indiscriminate hunting of amphibians being carried out mainly by American ships in the region, as well as fish poaching. In his note to the Government Minister of Buenos Aires dated December 24th, 1829, he asserted
Figure 16 Note from Vernet to the Minister of Government of Buenos Aires from December 24, 1829
that for the colony´s progress all that is required is for the Law on fishing to be effective, for nationals to be reimbursed for the immense sums that foreign fishermen have been making for years, who, not content with fishing in the proper season, they mainly do so in the spawning season, which, if this practice is not prevented, will destroy the species within a few years.128
The British pamphlet claims that Vernet only captured American ships because “he had been warned by Britain not to do so, and in any case he wished to get the British protection and the British sovereignty over the Falklands.”129 We have already seen that this is pure, groundless speculation. In regard to the first point, the pamphlet gives no evidence. It only mentions that Parish seemingly said such a thing to Matthew Brisbane, a British subject at Vernet´s service.130
What is sure, and publicly known, is the following. In a public announcement regarding the “Lexington” incident, Luis Vernet reports that the English ships respected the prohibition on fishing in the jurisdiction of the Falklands/Malvinas and that they had been warned to do so by authorities in London.131 Vernet´s assertion refutes the interpretations made by American officials, who claimed that American ships were the only vessels prohibited from fishing and that British ships were not hassled.132 The British representative in Buenos Aires did not react to Vernet´s public assertion that the owners of the British vessels received orders from London to respect the settlers and the prohibition on hunting in the islands. Other British accounts also relate that American ships were mainly responsible for the depredation of marine life in the Falklands/Malvinas.133
The facts that resulted in the partial destruction of the Argentine settlement in the Falklands/Malvinas by the American vessel “Lexington” are as follows. In a note of July 29th, 1831 in Puerto Soledad addressed to Political and Military Commander Luis Vernet, Matthew Brisbane, after recalling that he had been appointed by Vernet more than two years before to “supervise sea lion hunting” relates the abuses committed by foreign sea lion hunting ships which did not respect the notice prohibiting fishing in the Falklands/Malvinas jurisdiction. He proposes that he should be authorised to capture the offending ships, which are to be taken to the Commander
in order to analyse the travelogues and sworn declarations of the crews to get their offences judged accordingly and after such offence is proved, I hope Your Excellency will oblige them to compensate the Colony for the damages they have caused with their wrongly acquired ships and cargos.134
On August 1st, 1831 the American ship “Harriet” was captured. The aforementioned note contains the confession of one deserter from the ship, who informed Brisbane and other settlers of the locations at which they had hunted seals.135 On August 18th of the same year the same fate threatened the schooner “Breakwater”, but it was able to escape on the 21st. On August 20th the schooner “Superior” was captured, another American ship. In all these cases infringements of the laws in force were found. Vernet agreed with the captains that the “Harriet” would go to Buenos Aires with the documents of both ships, to be judged by the prize court, and that the “Superior” would set sail to hunt seals on the western coasts of Patagonia. Vernet travelled to Buenos Aires on board the “Harriet”. The American Consul Georges Slacum interceded in favour of the American hunters and denied any authority for Vernet and the government of Buenos Aires to proceed as they did. This was the origin of a dispute between the governments of Washington and Buenos Aires, whose crowning point was the destruction and pillage of public and private property and the arbitrary arrest of settlers at Puerto Luis, carried out by the American war corvette “Lexington” on December 31st, 1831, in retaliation for the capture of the ships detailed above136 For the Argentine government, this was a particularly serious wrongful act, which led to recalling diplomatic officials.
The aim of the United States was to guarantee the free hunting of amphibians and whales, an activity that American ships engaged in intensely at the end of the 18th and beginning of the 19th centuries. The United States rejected the Argentine claim, using the British protest of 1829. They did not make a claim of sovereignty themselves, but claimed the existence of fishing rights for their citizens. The American position was to take advantage of a latent dispute between the Argentine and British governments to justify the actions of the “Lexington” and to guarantee the activities of its seal and whale hunting ships in the South Atlantic. This position cannot be given such an importance that it would shatter Argentina´s claim. The legal scope of the attitude of the United States is to ignore Argentine sovereignty, without implying recognition of the sovereignty of the other State claiming it. The American interests at stake do not prove that this amounted to a lack of recognition of Argentine sovereignty at the international level. The American government did not hesitate to implicitly remind the British government of the existence of the Anglo-Argentine dispute when its ships that were carrying out their activities in the waters near the Falkland/Malvinas Islands were captured by the British in 1854, as we shall see. As is well known, the United States is neutral concerning the question of sovereignty. This is what Secretary of State Daniel Webster told the Argentine Minister in Washington, Carlos María del Alvear, when the latter insisted on Argentina´s protest over the acts of the “Lexington”.137
The destruction and partial depopulation caused by the “Lexington” at Puerto Soledad did not turn the islands into a terra nullius. In his reply to the question asked by the Foreign Affairs Committee of the House of Commons "Does the disbandment by force of the Argentine settlement by Captain Duncan of USS Lexington in December establish terra nullius status?" the Foreign and Commonwealth Office answered that "In and of itself, this action would not have been sufficient to establish terra nullius status”138 Claiming the opposite would reward the wrongful act and punish its victims. What counts to arrive at a conclusion regarding the question of sovereignty in such circumstances is the attitude of the State towards these acts. The Argentine government reacted quickly both at the diplomatic and the factual level. From the diplomatic point of view it protested vigorously and demanded compensation for the wrongdoings against it. On the practical level, the Argentine government arranged for an interim civilian and military Commander to be appointed, who happened to be a member of the Army, and sent a war ship.
I. The appointment of an interim Political and Military Commander in 1832
On September 10th, 1832, the Government in Buenos Aires issued a decree, signed off by Juan Manuel de Rosas and Juan Ramón Balcarce, by virtue of which the Sergeant Major of artillery José Francisco Mestivier was appointed the interim Politicaland Military Commander of the Malvinas /Falkland Islands and adjacent areas in the Atlantic Sea. The justification was the presence of Commander Vernet in Buenos Aires and his momentary inability to return to the islands.139 It was also decided that the war Schooner “Sarandí”, commanded by Lieutenant Colonel José María de Pinedo, was to transport the interim Commander and his garrison and assist him in performing his duties. His instructions included the investment of Mestivier as commander in the Soledad/East Falkland Island, to scour the coast from Soledad to Isla Nueva to warn foreign ships about their duty to respect fishing laws, and to assist the interim commander in the event the island was attacked. It was formally stated that “The commander of the Sarandí will not be able to leave the Malvinas/Falkland islands while he is not officially ordered to do so”.140
Sergeant Major Mestivier took over the position of Political and Military Commander in a ceremony performed by Pinedo at Puerto de la Soledad on October 10th, 1832 in front of the troops, the ship, the sailors and the inhabitants of the island.141 Pinedo left soon after in compliance with his orders, to supervise hunting and fishing along the other coasts and waters of the Falklands/Malvinas, the Strait of Magellan and Tierra del Fuego. On December 7th, 1832 he came across the American schooner “Sun”, under the command of captain Trott, in Isla Nueva (at the southwestern extremity of the archipelago, near Gran Malvina/West Falkland), which was illegally hunting sea lions. He ordered the captain to cease his activities and return to his country, under threat of arrest and transfer to Buenos Aires for judgment.142 In the meantime, a mutiny broke out in Puerto Soledad and Mestivier was murdered on November 30th, 1832.
Incredibly, the British bloggers and even a member of the so-called Legislative Assembly of the islands, Mr Mike Summers, refer to the appointment of Mestivier as interim Commander and the establishment of his garrison as the “first Argentine invasion of the islands.”143 The reason, according to Mr Summers, is that “An Argentine military garrison was sent to the Falkland Islands in 1832 in an attempt to impose Argentine sovereignty over what was already, and had been for 67 years, British territory.”144 This manipulation of history, which ignores Spain´s presence and Britain´s absence, and the fact that Argentina was already present in the islands long before November 1832, is hardly worthy of comment. The same goes for the qualification of the appointment of an interim authority by reason of the existing authority´s presence in Buenos Aires as the “First Argentine invasion”.
J. The British protest of 1832
On September 28th, 1832 a second British protest was made in a note sent by the Minister Plenipotentiary of His Britannic Majesty S. Foxal to Minister Maza. Its object was the decree of September 10th, 1832 appointing Mestivier as interim Commander of the Malvinas/Falklands.145 Two points are of interest in this note: 1) the recognition of Britain´s abstention from making any observations in regard to the American-Argentine dispute, “out of a sincere and friendly desire not in any way to embarrass the Government of the Republic, in the discussions in which it seemed likely to be engaged with the United States of America”, and 2) the protest is made to avoid that silence being interpreted as a waiver of His Britannic Majesty´s rights.146 The silence maintained by Great Britain during the dispute between the American and the Argentine governments over the “Lexington” incident, which we will discuss later, speaks volumes. The purported justification that Britain did not wish to inconvenience Argentina lacks credibility, especially when the American-Argentine discussions, considered likely, did in fact occur.
K. The forcible expulsion of January 3rd, 1833
On August 30th, 1832 the Under Secretary of Foreign Affairs, Sir George Shee, communicated to the Admiralty Britain´s decision to exercise “sovereignty rights” over the Falklands/Malvinas by sending a ship to Port Egmont and organizing an annual inspection trip.147 On November 28th, 1832, T. Baker, Chief Commander of the British Naval Station in South America, ordered John James Onslow, Captain of the “HMS Clio”, to set sail for Port Egmont. The order stated that, if necessary, he could use force to overcome any foreign resistance to Britain´s exercise of sovereignty.148 Having taken possession of Port Egmont on December 23rd, 1832, Onslow set sail for Puerto Soledad and proceeded to expel the Argentine forces present there on January 3rd, 1833. It is worth highlighting that this action was performed autonomously, since going to Isla Soledad was not among his instructions, which were limited to Port Egmont.
Pinedo, who had arrived on December 31st from his inspection voyage around the Strait of Magellan, Tierra del Fuego and the rest of the Falklands/Malvinas, had only just finished restoring order in the colony, after the mutiny that had ended with the death of Mestivier. Onslow´s message to Commander Pinedo on January 2nd, 1833 reads: “It is my intention to hoist, tomorrow morning, the National Flag of Great Britain on shore; when I request you will be pleased to haul down your flag, and to withdraw your Forces, taking with you all the stores, &c., belonging to your Government”.149 Argentine and British sources concur in affirming that Pinedo did not accept to lower the Argentine flag, although he was prepared to withdraw his forces,150 given the evident military superiority of the British.
Pascoe and Pepper affirm that the islands were not taken by force in 1833, but that Onslow had “persuaded” Pinedo and his garrison to leave peacefully.151 This analysis goes against preceding arguments.152 There is no doubt that these actions may be qualified as a forcible action, despite the fact that not a single shot was fired. The use of a war ship and military staff, the coercion exercised by requiring the lowering of the flag and withdrawal of Argentine forces within 24 hours with a warning that in case they failed to do so, he would do it himself, mean that possession was obtained by a military presence in the territory and by threatening the use of force.
This was the interpretation made by the government of Buenos Aires three weeks after the events, in qualifying Onslow´s actions as “an aggressive and violent dispossession” and “the most outrageous abuse of force.”153 Claiming that in such circumstances, the act performed was not violent would be like affirming that the Argentine actions of April 2nd, 1982 were not violent either because any military actions on that day were merely a response to the few British troops stationed in the islands opening fire. The same could be said regarding Spain´s actions on June 10th, 1770 in evicting the British garrison settled in Puerto Egmont/de la Cruzada. It is clear that all three cases involve the use of force.
The 1833 eviction must be analyzed from the point of view of the international law of that time. From the legal point of view, the United Kingdom should have respected the territorial integrity of a State with which it maintained peaceful relations. The obligation to respect territorial integrity of States in peacetime is inherent to the existence of relations based on international law, regardless of the period of time in question.154 As the British government categorically maintained barely nine years after the use of force in 1833, in the dispute with the United States over the “Caroline” case:
"(...) we are perfectly agreed as to the general principles of international law applicable to this unfortunate case. Respect for the inviolable character of the territory of independent nations is the most essential foundation of civilization. It is useless to strengthen a principle so generally acknowledged by any appeal to authorities on international law, and you may be assured, Sir, that Her Majesty's Government set the highest possible value on this principle, and are sensible of their duty to support it by their conduct and example for the maintenance of peace and order in the world".155
L. The expulsion of civilians by the British authorities
Pascoe and Pepper are at great pains to demonstrate that Onslow did not expel the civilians living in the Argentine settlement, but that only the garrison was evicted, which cannot be considered the “genuine population”. They also claim that only eleven civilians left the island, most of which were not “genuine residents”. According to the British authors, only those present since the time Vernet had established a human presence in the islands, not those who had arrived in 1832, were “genuine residents”. The authors conclude that only four “genuine residents” left the islands as a result of Onslow´s actions.
The aim of the British pamphlet is quite clear: attempting to prove that the Argentine population was not evicted, thereby circumventing the argument which denies the application of the principle of the right of peoples to self-determination to the present British inhabitants of the islands. It would be hard to justify the application of this principle to a situation in which the colonial power replaced a population with its own and then claimed that the latter should decide the fate of the territory.
There is an evident manipulation of data, particularly through the arbitrary differentiation between “genuine” residents and others who are not part of that category. Why should the residents settled there by virtue of the Argentina´s actions be distinguished on this basis? The presence of the newcomers, many of them with their families, was a logical continuation of Argentina´s existing presence, and their arrival aimed at re-establishing a normality violently shattered by the actions of the American frigate “Lexington”.
There is also a gross manipulation of numbers. The truth is that as a consequence of the British invasion, 53 people who were living on the islands returned to Buenos Aires from Puerto Soledad. The British schooner “Rapid” escorted the “Sarandí” for the British and carried in shackles the nine insurgents who had killed Argentine commander Francisco Mestivier. These were: 2nd Sergeant José María Díaz; 1st Corporal Francisco Ramírez and privates Manuel Sáenz Valiente, Antonio Moncada, Bernardino Cáceres, Manuel Delgado, Mariano Gadea, Manuel Suares and José Antonio Díaz. The schooner “Sarandí” took 17 military men with 10 members of their families (wives and children) to Buenos Aires and 17 inhabitants of the islands that worked there. The military men and their families were the following: Captain J. Antonio Gomila; Sargeant Santiago Almandos; 1st Corporal Miguel Hernández and his wife María Romero; Corporal Daniel Molina; and privates José Barrera, José Gómez, Manuel Francisco Fernández, Toribio Montesuna, Juan J. Rivas and his wife María I. Beldaño, Dionisio Godoy, Hipólito Villareal and his wife Lucía Correa and two children, Gregorio Durán and his wife Carmen Manzanares with two children, Benito Vidal and his wife María Saisa, José Soto and José Rodríguez, Juan Castro and his wife Manuela Navarro and Antonio García. Finally, the group of civilians was composed of the following workers: Joaquin Acuña and his wife Juana, Mateo González and his wife Marica, and the foreigners José Viel, Juan Quedy, Francisco Ferreyra and Máximo Warnes and a female group with their children: María Rodríguez with three children; Anastasia Romero; Encarnación Álvarez; Carmen Benítez; Tránsita González and daughter.156
The numbers speak for themselves: 53 people set sail, and according to the British pamphlet itself, only 22 remained on the islands. That is to say, the British eviction resulted in almost 70% of the population leaving the islands. The British pamphlet claims that “only the garrison was expelled” and that the civilians who left made that decision freely.157 It does not require a great deal of intelligence to understand that the “choice” was motivated by the British occupation and the subsequent expulsion of Argentina. If we take into account the multinational nature of the Argentine population settled in the islands, it becomes clear that essentially individuals from the Río de la Plata left.158 If the British eviction had not occurred, the population would have remained on the islands, and the reestablishment of order would have permitted the return of the population sent scattering by the “Lexington” in 1831. The Argentine settlement would have continued to develop, a task Luis Vernet was devoted to in Buenos Aires. It is of little use to claim that Captain Onslow tried to persuade the inhabitants to stay: to place a population taken to the islands by the actions of Argentina under the authority of a British subject acting to maintain British control over the islands is a typically colonial action.
Figure 17 First sheet of the list of people expelled by the British forces, prepared by Commander Pinedo - A.G.N. Sala III 16-6-5
The key point here is that: 1) there was a permanent human settlement in the islands, which had no military objectives but only the aim of the economic development of the territory promoted by the Argentine government; 2) in 1831 the Lexington´s brutal actions disbanded the population; 3) in 1832, Argentina was making the necessary efforts to re- establish the situation and 4) in 1833 the British dispossession put an end to the first true human development of the Falklands/Malvinas.
Great Britain expelled Argentina from the islands in 1833. They evicted the authorities and part of the population – men, women and children. The key point is that by this act of force Argentina was prevented from re-establishing the settlement that had been founded in the 1820s with so much effort. The leaflet does not mention that, as a consequence of the 1833 use of force, the residents of the Argentine settlement in the Falklands/Malvinas who had been removed in 1831 were never able to return. The residents living in the Falklands/Malvinas in 1833 were only part of the population. The attempt of the British pamphlet to justify the use of force by saying that the inhabitants it considered “genuine” were not expelled does not stand up to the slightest analysis. Furthermore, if the inhabitants taken to the islands by Vernet were “genuine” and they recognized Argentina´s authority over the islands, why should they be made to live under British authority?
M. The British usurpation of 1833 was in breach of international law
The available documentation shows that the United Kingdom took possession of the islands for strategic reasons and used its long-abandoned claim as an excuse, in the framework of its policy of colonial, commercial and maritime domination, against a newborn State, which was overcoming an internal crisis, but which had succeeded in establishing a human settlement on the islands and in proving its feasibility.
At the moment of the usurpation, not only were the parties not at war, but they had concluded a treaty of peace and friendship. As we will explain below, mutual respect for territorial integrity had to be observed. Besides, a simple act of force did not in itself imply belligerency between the parties. It was necessary for the States involved to consider themselves at war. There was no state of belligerence between Argentina and Great Britain when commander Onslow expelled Argentine agents from the Falklands/Malvinas in 1833. Nor did this fact imply the outbreak of a war between the two countries. The concept of conquest does not therefore apply to the case of the Falklands/Malvinas. As Sharon Korman explains in her book on conquest as a means of acquiring territorial sovereignty:
It is reasonable to suppose that if the mere use or threat of force in the absence of war had been recognized in the nineteenth century as a lawful means of acquiring territory or of establishing a title by conquest, Britain would have appealed to that title as a means of putting an end, once and for all, to the disputed status of the territory (...). But Britain – contrary to what would have been the advice of some present-day international lawyers – did not put forward the claim of conquest precisely because it had not been at war with Argentina, and war, in the traditional international system, was the only lawful means of acquiring rights to territory by force.159
Pascoe and Pepper refer to “the visit by HMS Clio to Port Louis, January 1833”160 This is consistent with the efforts of the British government to avoid recognizing the forcible displacement of Argentina. However, the British officials who analysed this question in internal ministerial reports have referred to the act of January 3rd, 1833 in categorical terms. In 1936, a publication on South America by the Royal Institute of International Affairs expressing that "Great Britain annexed the Falkland Islands from Argentina in 1833"161 resulted in an exchange of opinions between the departments involved, advising the semi- official institution to change the publication. On October 16th, 1936, the Foreign Office´s Troutbeck said:
The difficulty of the position is that our seizure of the Falkland Islands in 1833 was so arbitrary a procedure as judged by the ideology of the present day. It is therefore not easy to explain our possession without showing ourselves up as international bandits.162
In this regard a note dated November 3rd, 1928 from Sir Malcolm Robertson to Sir Ronald Lindsay was mentioned; the note reads:
As regards the Falkland Islands, I have always considered, ever since reading de Bernhardt's Foreign Office memorandum of December, 1910, that our claim to the islands was very weak indeed. In point of fact it is based upon force and very little else. This view appears to have been held by successive British governments since Lord Palmerston's days, for they have been at pains to avoid the question's being raised. I realised that the islands are of vital strategic value to us, and that we cannot give them up, however just or unjust our position may be.163
The preliminary Memorandum issued by the Foreign Office´s Investigation Department on September 17th, 1946 concludes: "the British occupation of 1833 was, at the time, an act of unjustifiable aggression which has now acquired the backing of the rights of prescription".164
The 1946 Memorandum is correct only on one point. The Falklands/Malvinas is a typical example of the policy of the force against the law. The next chapter will prove that the United Kingdom cannot invoke prescription.