The situation after Britain’s ousting of Argentina in 1833
The British pamphlet continues with the analysis of the situation following Britain’s dispossession of Argentina on January 3rd, 1833 with explanations for the absence of effective British authority for over a year and Vernet’s despatch of supplies to what was left of his settlement at Port Soledad through his representative, Matthew Brisbane, a British national. A key occurrence is the episode of August 26th, 1833, when eight “gauchos” led by Antonio Rivero assassinated Brisbane, Dickson (Vernet’s storekeeper, a British national who was ordered by Onslow to hoist the British flag each time a ship approached) and three other people. The pamphlet mentions that the Vessel “HMS Beagle”, commanded by Fitz Roy, with the renowned naturist Charles Darwin on board, arrived on the islands in March 1833. Nevertheless, it does not mention a comment made by Darwin that was not without significance: “We arrived early in the morning at Port Louis, the most Eastern point of the Falkland Islands: The first news we received was to our astonishment, that England had taken possession of the Falklands islands & that the Flag was now flying”1.
This chapter will examine the issue of the absence of a British trial for the murders committed by the gaucho Rivero, Argentina’s protests and lack of acquiescence to Britain’s seizure of the islands and, in particular, the novel and fanciful interpretation of the 1849 Anglo-Argentine Treaty whereby the British blockade of the States of the Rio de la Plata came to an end.
A. The absence of a trial for Gaucho Antonio Rivero
The purpose here is not to enter into the existing historiographical debate over the actions of the gaucho Rivero and his gang in August 1833. It is however worth focusing on the way the British pamphlet examines what happened afterwards. In January 1834, the British Navy Officer Henry Smith, who had been sent to the islands by his Government, arrested Rivero’s gang. Pascoe and Pepper stated:
“Smith sent them all for trial in Britain, but only British citizens could be tried in Britain for murders committed abroad, even in the King’s dominions. Doubts over whether the murderers could reasonably be regarded as British led to their being sent back to Montevideo and released”2
This is a pitiful attempt to ignore the simple fact that British justice system failed to bring to trial the authors of serious crimes against British citizens in territories that were supposedly British, using the argument that... the perpetrators were not British! This is absurd. In other words, according to Pascoe and Pepper, if the perpetrators of the murders had been British and not Argentine, they would have been brought before a judge and most likely sentenced to death. Instead, as they were Argentine, they were sent back to South America and freed! In actual fact, the British justice system simply did not consider British legislation to be applicable in the islands at the time the acts occurred3. It is well known that criminal law is essentially territorial in nature and can only exceptionally be personal. The absence of a trial and the surreptitious freeing of Rivero and his gang of gauchos is better seen as evidence of the weakness of the British legal position regarding sovereignty.
B. The establishment of the British Colony in 1843
The British pamphlet overlooks an important historical aspect of British colonialism in the Falklands/Malvinas: the formal establishment of the islands as a colony of Her Majesty only occurred on June 23rd, 1843, through a Letter Patent. The first Lieutenant Governor was appointed in 1841, and the colonial administration was only appointed in 18454. Under English law, the British Crown can obtain territorial sovereignty by settlement, cession, conquest or annexation. Great Britain claims to have established sovereignty over the Falklands/Malvinas by settlement5. Acquisition by settlement occurs through the "settlement by British subjects in a place where there was no population or no form of government considered civilised and recognised in international law"6. If the British method of obtaining sovereignty was by settlement, none of the conceivable possibilities fit that definition. If the settlement in question was that of McBride in 1766, the islands were already occupied by France, and therefore the only possibility of acquiring sovereignty over them according to British law was by cession, conquest or annexation. None of these occurred. As we have seen, the settlement had ceased to exist many decades earlier. If the “settlement” in question was the one having taken place after Argentina’s dispossession in 1833, the British pamphlet itself admits that there was an Argentine settlement and claims that its “genuine residents” (those brought by Vernet between 1826 and 1829) were not expelled. This also does not fit the conditions of a “settlement” as defined by British law. The only alternatives are acquisition by conquest, cession or annexation, but again, none of these took place. The British government never invoked conquest, cession by Spain or Argentina, nor annexation (which, what is more, would have been illegal if the territory belonged to another State).
The fact that the Colony was only established in the 1840s is significant for another reason: for the first time in history, Great Britain appointed a Governor for the islands, something it had never done before. Not in 1765, 1766 or 1771, nor at any time during the period in which Spain had appointed 32 Governors for the islands, or during the period of the Argentine administration, when three Commanders had been appointed. Not even after expelling the South American country from the territory. In other words, the State that claims to be sovereign over the islands since 1765 only appointed a Governor once it had expelled Argentina, and nearly eighty years after the supposed establishment of its sovereignty, in spite of the effective presence of France, Spain and Argentina during most of that period of time. The truth is that the Falklands/Malvinas had never been incorporated into the possessions of Her Britannic Majesty by a legislative, or any other, act before 1843. This is the same period in which the distribution of land exclusively to the subjects of Her Majesty begins. Against the will of its few inhabitants, in 1845 the capital of the islands was transferred from Port Luis (Soledad) to the Port named Stanley. At the same time, Vernet was definitively prohibited from returning to the islands to continue his venture. The arrival of British settlers began, and the few South American inhabitants were “returned” to the Rio de la Plata7. This discredits the efforts made by British propaganda to portray the actions of 1833 as having the sole aim of expelling the Argentine military presence, but leaving the inhabitants which had been brought there by Buenos Aires. It also clearly evidences Britain’s intention to eliminate all traces of Argentina’s presence. Other examples of this attitude are the unfair clauses incorporated into contracts for the taming of wild cattle drawn up by the British authorities, which obliged the contractants to recognise that the cattle and all that was produced on the islands was the property of the Queen of Great Britain. If that wasn’t enough, loyalty also had to be sworn to the Crown under the threat of expulsion from the islands. Finally, it is worth mentioning the precarious working conditions of the gauchos, both Argentine and Uruguayan. In theory they were hired permanently, but once they had finished their summertime duties, they were fired without compensation, leaving them to their fate without housing or food. Instead of putting an end to this maltreatment, the British authorities decided to retain a portion of their salaries to pay for their return ticket to the Rio de la Plata8.
C. Argentine protests, 1833-1849
The British pamphlet admits that Argentina protested between 1833 and 1849, and by virtue of its protests maintained its rights and claim over the Falkland/Malvinas Islands.
It certainly does not mention the nature of British replies (when these were provided), both regarding the fallacy of their arguments and the complete refusal to discuss the issue. The latter point is of key importance to understand the implications of the subsequent conduct of the parties. It is not justifiable to require a permanent protest to be maintained when faced with a State that refuses to enter into discussions and considers the issue “closed”. We will come back to this point when analysing the argument of Argentina’s acquiescence between 1850 and 1884 and between 1888 and 1941.
British replies to Argentina’s protests of 1834 and 1843 show the same bad faith as the British protest of November 19th, 1829. They ignore the continuous presence of Spain on the islands until 1811, as well as the total absence of British sovereign actions or intention since 1774, as well as the fact that British representatives were aware of Argentina’s exercise of sovereignty during the 1820s. They grossly distort the scope of the Anglo- Spanish agreement of 1771 by claiming that through it, Spain had recognised Britain’s sovereignty (a fact that is denied by the British pamphlet itself, when it states , mistakenly, that both parties reserved their claims to sovereignty). Finally, it displays imperial arrogance in considering the issue closed without further ado, as if Argentina were merely required to acknowledge Britain’s position9. To this is added the contempt shown towards the Argentine representative in London, who was presenting his protest when he was told that the meeting had to end because there were other people waiting10. Comments of a similar nature were made in the British press in relation to the Argentine Minister in London11.
a) Exchanges between Moreno and Palmerston in 1849
The British pamphlet also grossly misconstrues the content of the diplomatic exchanges, specifically the 1849 exchange of notes between the Argentine Minister in London, Manuel Moreno, and the British Secretary of Foreign Affairs, Lord Palmerston. This is not a coincidence, given the key importance of this exchange. The facts are as follows.
British newspapers report that on July 27th, 1849, during a session at the House of Commons, Mr Baillie asked Lord Palmerston a question regarding the status of the Falklands/Malvinas issue between the Government of Buenos Aires and the British Government. The reply attributed to Lord Palmerston is that “it would be most unadvisable to revive a correspondence which had ceased by the acquiescence of both parties”12 or “consent of one party and the maintenance of the other”13. This publication generated a note of protest on July 31st, 1849 from the Argentine representative, where he states that:
“(...) the silence of this Office should not be taken at any time as confirmation of the wrongful assertion attributed to H.E. in the event it effectively occurred, I allow myself to remind to H.E. that the Government of Buenos Aires and the Argentine Confederation, has never consented the dispossession of its sovereignty over the Malvinas islands made by the English Government in 1833 (...) and, if, at any time to these days, the correspondence has not been as active, is due to the exhaustion of the discussion and to the status of the relations since the intervention; but H.E. the Viscount Palmerston, in his highest consideration, cannot misinterpret the interval of correspondence with an acknowledgement or acceptance whether tacit or express that has by no means been given by the Argentine Government to the acts in this regard by HM’s Government.”14
On August 8, 1849, Lord Palmerston replied to the Argentine representative in the following terms:
“I have the honour to acknowledge to you the receipt of your letter of July 31 that expresses the reply which I was reported by some of the London Newspapers, to have made to a question put to me by Mr. Baille in the House of Commons on the 27th of July, did not correctly describe the State of the question between the British Government and the Government of Buenos Aires respecting the Falkland Islands; and I have the honour to inform to you whatever the Newspapers may have represented me as having said on the occasion above referred to, I have always understood the matter in question to stand exactly in the way described by you in your letter.”15
Pascoe and Pepper make an intricate (and fruitless) effort to maintain that what Palmerston actually said to Moreno is that the issue was closed due to Argentina ́s acquiescence and Britain’s maintenance. That is, the authors of the pamphlet supposedly believe that Palmerston told Moreno the words that the papers attributed to him as having said in Parliament. A literal and contextual interpretation shows the opposite: it indicates that Palmerston confirms to Moreno that the issue is the same as he declared in his note, that is, that there had been no Argentine consent or acquiescence. Therefore, the issue was not closed, but rather pending. In his reply to Moreno, there is no confirmation of Palmerston’s words before Parliament. There is also no rejection of Moreno’s assertion. On the contrary, Lord Palmerston starts his conclusion by making reference to “whatever the Newspapers may have represented me as having said”. This formulation would make no sense if the newspapers had truthfully reflected what he said regarding the status of the situation, which he wanted to confirm to Moreno.
Pascoe and Pepper’s absurd interpretation ignores the key part – the object itself – of Moreno’s note: there is no Argentine acquiescence. It is difficult to claim that Palmerston’s objective was to confirm Argentina’s acquiescence by affirming that the status of the situation is that described in Moreno’s note. It is telling that Palmerston’s declaration does not appear in British parliamentary records (Hansard Parliamentary Debates, Third Series, v. CVII, Col. 1030 to 1070).
In the attempt to undermine the significance of the 1849 exchange of notes between Moreno and Palmerston, the pamphlet also states, without adducing reasons, that Moreno’s protest was made “clearly unaware of what Rosas was negotiating”16. It refers to the Government in London sending a messenger to Buenos Aires to negotiate a solution for the Anglo-French blockade of Argentina and Uruguay due to a dispute related to the navigation of South American rivers. European powers claimed the right of free navigation, while South American States invoked their sovereignty and the need for foreign vessels to request an authorization for navigating their rivers. Pascoe and Pepper’s pure speculation makes no sense. First, because Moreno was of course aware that messengers were being sent to Buenos Aires, and had been for a year. Second, because he also knew what the object of the negotiation was, and that it was not related to the issue of the Falklands/Malvinas but to the blockade and the matter of river navigation. Third, because Moreno set out Argentina’s legal position with respect to the issue of the Falklands/Malvinas, which was the same position the country had always maintained. Fourth, because that legal position did not depend in any way on the negotiation that Rosas was engaged in. Fifth, because Rosas himself in his address to the Legislature on December 1849 mentioned the pending question of the Falklands/Malvinas after having separately mentioned the negotiations with the British envoy, Southern, regarding the blockade of the Rio de la Plata... and explicitly confirmed Moreno’s complaint to Palmerston with regard to the Falklands/Malvinas!
The explanation proffered in the British pamphlet is therefore a crude fabrication with no historical or linguistic basis, and its purpose is to open the door to another of the biggest historic misrepresentations made by Pascoe and Pepper: the belief that the Anglo-Argentine Treaty of November 24th, 1849 implied the renunciation of sovereignty by Argentina. As we will see, this belief not only has no basis in the treaty itself, but the exchange between Moreno and Palmerston that took place only a few months before the treaty is key to refuting the interpretation of the treaty as Argentine acquiescence before and after Moreno’s protest being formulated.
D. The Arana-Southern Convention of November 24th, 1849
The attempt to consider the treaty dated November 24th, 1849 between Argentina and Great Britain as the abandonment of Argentina’s claim over the Falkland/Malvinas Islands is unfounded for a number of historical and legal reasons. It is a “Convention between Great Britain and the Argentine Confederation, for the settlement of existing differences and the re-establishment of friendship”, signed on November 24th, 1849, also called the Arana- Southern Convention after the representatives of the signatory countries, by virtue of which the conflict relating to the English blockade to the Rio de la Plata came to an end, and the issue of the navigation of international rivers was settled17. The treaty is similar to the one signed with France having the same object: “Convention between France and the Argentine Confederation, for the settlement of existing differences and the re-establishment of friendship”, dated August 31st 1850, known as the Arana – Le Predour Convention18. Pascoe and Pepper manipulated the terms of the Treaty’s preamble and its Article 719. They ignore the first article, which is of fundamental importance, as well as the object and purpose of the treaty, which has nothing to do with the Falklands/Malvinas. They also ignore Article 6, which includes the condition of Uruguay’s acceptance of the treaty.
No primary source has been or can be put forward to support the novel British thesis. The British pamphlet itself confirms that the issue of the Falklands/Malvinas was not mentioned in the negotiations, nor in the text of the treaty20. There was in fact only one mention of the issue of the Falklands/Malvinas, and it was in the British House of Lords, something the writers of the pamphlet could not possibly ignore. This was in the intervention of the Earl of Harrowby on April 23rd, 1849, during the debate about “Affairs of the River Plate”. In a critical speech where he complained about the complete lack of information regarding the negotiations with Argentina and the instructions given to the British envoys, the British legislator posed the following questions:
Are we to agree to give a compensation of about three millions sterling for the very grave offences and the very serious damages which our Government, in concert with that of France, has inflicted on Buenos Ayres during the Anglo- French intervention? Are we prepared to give up the Falkland Isles? or to make the whole settlement of affairs in that country dependent upon the good will of General Oribe? For these, it appears, are the only terms upon which President Rosas will deign to receive an accredited Minister from Her Majesty? In what position are our interests now?21
A year earlier, on the sidelines of discussions concerning the negotiations with the Argentine Government, Member of the House of Commons William Molesworth had proposed to accept the Argentine claim in the following terms:
“I will now conclude (...) with the Falkland Islands. On that dreary, desolate, and windy spot, where neither corn nor trees can grow, long wisely abandoned by us, we have, since 1841, expended upwards of 35,000£ we have a civil establishment there at the cost of 5,000£ a year What I propose to the House is this: acknowledge the claim of Buenos Ayres to the Falkland Islands.”22
As we can see, at the time some legislators were even prepared to return the Falklands/Malvinas. Concretely, neither did Great Britain return the Falklands/Malvinas, nor did Argentina renounce its claim. If at some point during the negotiations it made a verbal attempt to include the issue of the Falklands/Malvinas, and there is no evidence of such a thing happening, it is likely that neither of the parties could impose its position on the other. There is no proof that Great Britain demanded the renunciation of Argentine sovereignty, and Rosas was not required to give up the claim to be able to conclude the treaty. On the contrary, it was he who was in the stronger position, despite not having enough power to impose the restitution of the islands to Great Britain within the framework of the conflict generated by the blockade of the Rio de la Plata and the navigation of the South American Rivers. Anything that may be said in this respect is pure speculation.
If Great Britain had wished to impose Argentina’s renunciation to its claims over the Falklands/Malvinas in the treaty – which in fact it was not in a condition to do – it would have stated it expressly. The issue of the Falklands/Malvinas remained as it was: Argentina maintained its claim and Great Britain refused to discuss the issue, as emerges from the exchange of notes between Moreno and Palmerston only three months earlier, and from Rosas’ address to the Legislature only a month after the treaty was concluded.
Another element undermining this new argument of the British pamphlet is the simple fact that, over the protracted history of the dispute, the British Government never once invoked the Arana-Southern Treaty. If Argentina had given up its claim through the treaty, the natural course for the British Government to take would have been to recall this point in response to the Argentine protests. There is also not the slightest reference to the Argentina’s supposed abandonment in the treaty anywhere in the vast internal documentation of the British Government in which the Falklands/Malvinas issue is discussed from 1850 onwards. The first time that the United Kingdom invoked this argument – following the position of Pascoe and Pepper - was in January 2013, that is, 164 years after the treaty was concluded, in a document distributed in the General Assembly of the United Nations23 as a reply to the communication of the Ministry of Foreign Affairs of Argentina dated January 3rd, 2013, which had also been distributed to the General Assembly. This occurred a little too late for the argument to have any credibility whatsoever.
A serious analysis of the scope of the treaty requires the application of the rules of interpretation in Article 31 of the Vienna Convention on the Law of Treaties. This article establishes that a treaty should be interpreted in good faith in light of the ordinary meaning to be given to its terms in their context and in light of its object and purpose24. Which, of course, the British leaflet does not do in the least.
The object and the purpose of the treaty in question clearly emerge from its Article 1 (which Pascoe and Pepper omit entirely), which states:
“Art. I. The Government of Her Britannic Majesty, animated by the desire of putting an end to the differences which have interrupted the political and commercial relations between the 2 countries, having on the 15th of July, 1847, raised the blockade which it had established of the ports of the 2 Republics of the Plata, thereby giving a proof of its conciliatory sentiments, now hereby binds itself, in the same amicable spirit, definitively to evacuate the Island of Martin Garcia; to return the Argentine vessels of war which are in its possession, as far as possible in the same state as they were in when taken; and to salute the flag of the Argentine Confederation with 21 guns.”25
The “differences which have interrupted the political and commercial relations between the 2 countries” were those that originated in the Franco-British intervention on the Rio de la Plata, to put an end to the blockade and resolve the issue of fluvial navigation. The issue of the Falklands/Malvinas had never interrupted political or commercial relations between the two countries. In 1833, Argentina did not break off diplomatic relations, contrary to its actions in respect of the United States over the Lexington incident26. This speaks to the very special nature of Anglo-Argentine relations, forged before the declaration of independence and characterized by the extensive commercial dependence of the South American country on the European power. This can be observed in the first Argentine protest of January 1833, which mentions the “friendship relations between Argentina and Great Britain”. Rosas expresses himself in similar terms in his address to the Legislature a month after the signing of the treaty. “There is no other plan or feeling than to provide the most decent way to re- establish solidly with reciprocal honour, the friendship relations between Great Britain and the Republic”27. This did not prevent him from referring once more, and immediately, to the permanent Argentine claim over the Falkland/Malvinas Islands, ratifying the claim Moreno had made to Palmerston a few months before the treaty was signed.
In its preamble, the treaty sets out that HM Government has no separate or interested aim in view, nor any other desire than to see “securely established the peace and independence of the States of the River Plate"28. Article 6 is of particular importance in that it imposes an indispensable condition for the resolution of “existing differences”. It relates to the previous approval of the treaty by the Uruguayan President Oribe. This clearly shows the scope of the agreement and what “existing differences” refers to: the issue over the Rio de la Plata, that is, the naval blockade and fluvial navigation. This is why the approval of the Uruguayan president is required. It would be absurd to think that a treaty relating to Anglo- Argentine relations over the Falkland/Malvinas Islands required the approval of Uruguay. That the Arana-Southern Treaty only refers to the dispute regarding the blockade of the Rio de la Plata and the navigation of the Argentine-Uruguayan rivers is also confirmed by the words of Viscount Palmerston to the British Parliament once the treaty was concluded. In his entire speech, he constantly refers to the dispute (in the singular) resolved by the treaty, which is obviously the one mentioned in Article 1, and covers the problem arising with a third State (Uruguay), and not to the existing disputes (plural) between Argentina and Great Britain29. No mention of the Falklands/Malvinas, whether implicit or explicit, was made.
E. The British pamphlet fails to mention Rosas’ address to the Legislature in December 1849
Rosas’ 1849 address to the Legislature is of key importance, having been made a month after the signature of the Arana-Southern Treaty. The address relates in detail the negotiations that resulted in the signature of the agreement. Nothing emerges from the preparatory works of the treaty, nor from the debates in the British Parliament, that may prove that Argentina accepted to settle the issue of the Falkland/Malvinas Islands through that instrument. On the contrary, after presenting the Anglo-Argentine treaty, Rosas’ 1849 address to the Legislature continues by expressly mentioning the issue of the Falklands/Malvinas in relation to the reports in British newspapers concerning the exchange of notes between Moreno and Palmerston, and ratifies the actions of the Argentine representative in London30. Therefore, it is absurd to claim that Rosas renounced the Falklands/Malvinas through the treaty, when he continued to officially claim the islands a month after having concluding the treaty! The fact of having discussed the subject separately clearly shows the difference between the two issues (the blockade of the Rio de la Plata and fluvial navigation on the one hand, and the issue of the Falklands/Malvinas on the other). Rosas’ words leave no room for doubt:
“The Government pays serious attention to the pending claims of the Republic before Great Britain for the unjustifiable retention of the Malvinas Islands (...) The government fully approved the well-founded complaint and protest of the Argentine minister against the inaccurate assertions of HM’s minister of foreign affairs and expressed that, through that protest it supported, as it should have and as it had to verify in any case, the proper rights of the Argentine Confederation in the Malvinas Islands, against the renewed disregard of HM’s Minister of foreign affairs, who made the unfounded supposition that the correspondence had ceased by reason of acquiescence on the part of the Confederation or of both parties, according to the different versions that appeared in the newspapers (...) the Government ordered its Minister that when discussing this, he always uphold the same principles and base himself on the same facts that resulted from the correspondence followed on this topic, and transmitted other orders for upholding the unquestionable rights of the Confederation in the Malvinas islands.”31
This address to the Legislature debunks any British pretension to make believe that through the Arana-Southern Treaty Argentina gave up to its sovereignty over the Falkland/Malvinas Islands. The same is true of the absurd statement in the British pamphlet that “Argentina had effectively ceded the islands to Britain by the Convention of Settlement in 1850”32. The writers of the pamphlet could not ignore the full content of the address to the Legislature in 1849, since they mention its existence. They resort to the gimmick of speaking about the “1850 Convention”, because the treaty concluded on November 24th, 1849 was ratified on May 15th, 1850, and attempt to overlook the clear Argentine position of maintaining its sovereignty and its claim irrespective of the conclusion of the agreement, as expressed in the address to the Legislature a month later. Naively, to say the least, Pascoe and Pepper write “At that time treaties only came into force after they had been ratified”33. It is well known by any student of international law as well as by any informed person that bilateral treaties subject to ratification enter into force after the exchange of instruments of ratification, both in the 19th and 21st Centuries. This fact does not alter the interpretation of the treaty, but it does speak volumes about the intellectual quality of the British pamphlet.
F. The lack of importance of the authors cited in the British pamphlet
The authors of the British pamphlet support their interpretation by referring to the book of a Mexican writer on the Arana-Southern Treaty published 60 years after its conclusion, the opinion of the Argentine member of the Lower house Absalón Rojas, given a century later, and two other books published in the 1970s that also briefly mention the issue34. These are merely the opinions of writers who, however, did not make any legal analysis of what is an eminently legal problem. It is worth recalling that both the historiography and Argentine society were generally (and still are) significantly divided in relation to the figure of General Rosas. The comment of Representative Absalón Rojas was given in the context of a highly anti-Rosas speech. It was refuted in detail by Representative John William Cook in the following terms:
“Dr. Rojas’ interpretation can be countered as follows:
1° Article 1, in referring to “differences” being resolved, reads that they are “those that have interrupted political and commercial relations between both countries”. The Malvinas/Falklands conflict had not provoked this effect.
2° In the preamble, Her Britannic Majesty declares to have “no separate or interested object in view, nor any other desire than to see securely established the peace and independence of the States of the River Plate”. No reference can be seen regarding the Falklands/Malvinas.
3° Evidence of what has been stated in the previous points – that the treaty refers solely to the resolution of issues created by armed interventions, blockades, war situations, etc. is Article 6, where it emerges that the Argentine Government considered the acceptance of its ally, President Oribe, an indispensable condition.
If the interpretation is made that without an express reservation of Argentine rights over the Malvinas Islands, the position previously held is repudiated and English rights are tacitly accepted, considering the “difference” existing in the conflict ended, the absurd result would be reached that both the renunciation of Argentine rights as well as the strengthening of the English rights – which would result from the treaty – would be subject to the acceptance of president Oribe, because said acceptance is for the Argentine Government (Article 6) an “indispensable condition in any arrangement of the existing differences.”
Can it be maintained that he has been granted this role of arbitrator, even tacitly?
4° Using the same argument of reduction to the absurd, whoever interprets that there has been an omission in not including a reservation of the rights over the Malvinas, should also consider an omission exists in respect of all navigable rivers of the Argentine Confederation, because in Article 4, Her Britannic Majesty only recognises the navigation of the rivers Parana and Uruguay as internal, without mentioning the rivers Negro, Colorado, Napostá, etc. And I will not mention further arguments.(...)”35.
No interpretation on the basis of Article 31 of the Vienna Convention on the Law of Treaties, or of interpretation in good faith of the text in its context, taking into consideration its object and purpose, can assert that Argentina renounced its claim through the Arana-Southern Treaty. The preparatory works also do not support this statement36. The issue of the Falklands/Malvinas simply did not enter into the negotiations, and therefore it is not included in their outcome.
G. The implications of a “Peace Treaty”
In their attempt to find an Argentine renunciation in the Arana-Southern Treaty, the authors of the pamphlet insist on its nature as a “peace treaty” and claim that it is because of this nature that the renunciation existed. Pascoe and Pepper use a quote by the North American jurist Henry Wheaton to justify their mistaken interpretation. The British writers refer to the consequences emerging from the signing of a peace treaty in relation to conquered territories. But here they seriously contradict themselves: if the islands were British, as they claim, then there was nothing for the United Kingdom to conquer. As we saw in the previous chapter, none of the prerequisites in the international law of the time are met for an acquisition of British sovereignty by conquest in 1833. The 1849 treaty also does not relate to conquest. The fact that commentaries have referred to it as a “peace treaty” does not change this fact. There was no declaration of war made by Great Britain against Argentina (and Uruguay) or vice versa. Military actions were unrelated to the Falklands/Malvinas. The treaty of November 23rd, 1849 makes no mention of an Argentine renunciation, as is done in peace treaties where the parties dispose of sovereignty over their territories. It was simply not a treaty of a territorial nature. Furthermore, the treaty was a triumph for Argentina and Uruguay: Great Britain recognised the Argentine-Uruguayan thesis of the internal character of their rivers, and its own obligation to request authorisation to sail them, a formal end to the blockade, the return of its ships, British retreat from Martin Garcia Island in the Rio de la Plata (which at the time was the object of claims both by Argentina and Uruguay, and occupied by the British during the blockade) and a salute to the flag as satisfaction. The same pamphlet says Rosas was able to impose his will “on two humiliated opponents, Britain and France”, then immediately goes on to say that he “was prepared to pay a price – the Falklands”37. It would be extremely curious for a victor capable of humiliating its defeated opponents to have to pay a price to one of them which, furthermore, no one had asked for. There is not a shred of evidence that this was the condition for French and British acceptance of the Argentine-Uruguayan thesis. Quite simply, the Anglo-French naval blockade did not bear fruit, but actually damaged British and French traders in the Rio de la Plata region.
In spite of it being unnecessary due to what we have just said, let us continue to address with the statement of the British pamphlet, developed further by some bloggers of the same nationality, according to whom the 1849 Convention is a “Peace Treaty”. We will cite the work of writers both preceding and contemporary with the facts, which can reflect the state of international law at the time, and which categorically contradict the interpretation made by the British leaflet. Vattel wrote: “The effect of the treaty of peace is to put an end to the war, and to abolish the subject of it. (...) the effect (...) cannot be extended to things which have no relation to the war that is terminated by the treaty.38” He then goes on to say that
“The treaty of peace naturally and of itself relates only to the war which it terminates. It is, therefore, in such relation only, that its vague clauses are to be understood. Thus, the simple stipulation of restoring things to their former condition does not relate to changes which have not been occasioned by the war itself”.39
Henry Wheaton says: "The effect of a treaty of peace is to put an end to the war and to abolish the subject of it. It is an agreement to waive all discussion concerning the respective rights and claims of the parties and to bury in oblivion the original causes of the war.”40 And he continues:
“If an abstract right be in question between the parties, on which the treaty of peace is silent, it follows, that all previous complaints and injury, arising under such claim are thrown into oblivion, by the amnesty necessarily implied, if not expressed; but the claim itself is not thereby settled either one way or the other. In the absence of express renunciation or recognition it remains open for future discussion.”41
Finally, he establishes that “The treaty of peace does not extinguish claims founded upon debts contracted or injuries inflicted previously to the war, and unconnected with its causes, unless there be an express stipulation to that effect.”42
As we can see, both jurists agree: the object of peace treaties is to put an end to war and its cause; these treaties do not extinguish claims existing prior to the war and unconnected with its cause, unless this is expressly stipulated and, finally, the effects of the treaty cannot extend to facts that have no connection with the war that motivated it. It does not further the British cause to consider the Arana-Southern Treaty as a peace treaty. An implicit renunciation by Argentina to its sovereignty over the Falklands/Malvinas cannot be inferred in this way, nor by interpreting the content and scope of the treaty.
H. Status of the Falklands/Malvinas issue between 1850 and 1884
The British pamphlet claims that the absence of formal Argentine protests between 1850 and 1884 is the result of the signature of the Arana-Southern Treaty in 1849. The truth is quite different. There are other reasons for the absence of protest; some relate to British conduct in relation to the dispute, others to the situation in Argentina during the years in question. As to the first, it is worth mentioning the humiliating refusal of the British Government to discuss the matter or even to reply to previous notes, and Argentina’s statement that in this situation its silence should not be construed as acquiescence, a point accepted by Palmerston in 1840. This alone would justify any Argentine silence. As to the second, it is worth mentioning the worsening civil war, which caused the deposition of Rosas in 1852, the separation of the province of Buenos Aires from the rest of Argentina between 1853 and 1860 to create an independent State, reunification and national organisation during the 1860s, the war against Paraguay between 1864 and 1870, the extension of territorial control towards the south of the continent, the arbitration with Paraguay in 1876 to establish a border, the pending border issues with Chile and the accompanying risk of armed conflict, which only ended with the conclusion of a boundary treaty in 1881. This internal and international situation of Argentina would also in itself explain any Argentine silence regarding the Falklands/Malvinas. We will examine in turn the different points raised by the pamphlet.
Pascoe and Pepper claim that from 1850 the annual address of the Executive Power to the Legislature did not again mention the question of the Falklands/Malvinas, which would prove the abandonment of the claim. They leave aside the clear content of the 1849 address and ignore the events occurring in the country thereafter. The civil war increased in intensity, and there is no evidence as to whether there was an annual address in 1850. In 1851, the Board of Representatives (the Legislature) excused Rosas from giving his address due to the situation of civil war43. That is, it is not that there was no reference to the Falklands/Malvinas in the address; there simply was no address. Rosas was overthrown in February 1852. Argentina divided, and from that year to 1860 the province of Buenos Aires became an independent State from the rest of the Confederation.
a) Constitutional texts
The British pamphlet invokes as further “proof” of the alleged Argentine abandonment the fact that the Constitution of 1853 “distributed seats in Congress on a territorial principle but without any mention of the Falklands.”44 Once again its authors show their ignorance: the seats were assigned to the existing provinces, and at the time the Malvinas clearly did not constitute a separate province. Other undoubtedly Argentine territories that did not constitute separate provinces are also not mentioned.
Pascoe and Pepper’s arguments regarding abandonment of the claim lose even more strength when we observe that in the year 1852, on request of Justo José de Urquiza45 – the man who beat Rosas – the official historian Pedro de Angelis developed a draft National Constitution, whose Article 5 (included in the section called “About the territory of the Republic”) established: "The same Assembly shall dictate the necessary measures to enforce the rights of the Republic over the Province of Tarija, the Malvinas Islands and part of the Strait of Magellan, illegally occupied by foreign forces". It is clear that in 1852, less than three years after the signing of the Arana-Southern Treaty, Argentina had not given up its sovereignty over the Falklands/Malvinas. Finally, the 1853 Constitution did not include a section relating to the territory of the Republic, which does not detract from the idea that clearly emerges from the 1852 project: in the 1850s, Argentina claimed the Falkland/Malvinas Islands.
The 1854 Constitution of the State of Buenos Aires defines in its Article 2 the extension of its territory as follows:
Irrespective of the concessions that could be made in the General Congress it is declared: that its territory extends from North to South from the Medio stream to the entrance of the mountains into the sea, along a West to South-west line, and to the West with the flanks of the mountain range and to the North East and East by the Rivers Parana and Plata and the Atlantic, including Martin Garcia Island and the islands adjacent to its river and sea coasts46.
The Falkland/Malvinas Islands, though not explicitly mentioned, are included in this definition. This can be gleaned from the text Domingo F. Sarmiento wrote the same year, in which he was offered the role of legislator for the State of Buenos Aires. In examining the issue of citizenship of the State of Buenos Aires, Sarmiento wrote:
"... so those born in the Malvinas, occupied by England, are born on the territory of Buenos Aires, as are those who were born under British rule, if they claim their birthright, while the State of Buenos Aires does not desist from its claims to sovereignty over the islands"47
Clearly, in the 1850s there was no renunciation to sovereignty over the Malvinas, neither by the Argentine Confederation nor by the State of Buenos Aires.
b) The incident with the American ship “Germantown” in 1854
The fact that at the time Argentina considered the islands to be Argentine, and that the issue was thus open, is also supported by the incidents that occurred in the Falkland/Malvinas Islands between the British occupying authority and American ships – another historical fact that the writers of the British pamphlet cannot ignore but prefer not to mention. Upon the detention on March 7, 1854, of American ships by the British authorities, the commander of the American ship Germantown, W.F. Lynch, wrote the following to the de facto British Governor, Rennie:
"As to the right of British sovereignty over those islands, my commanding officer could not, when I left him, instruct me; and, as I stated verbally to your Excellency, I am not authorized by him either to admit or deny it. Neither could the United States chargé d' affaires to the Argentine Republic advise me. But he assured me that the government to which he was accredited had not, and would not, relinquish its claim to these islands”48
It emerges from this that in the 1850s the American officers accredited to Buenos Aires correctly considered that Argentina had not renounced (and would not renounce) its rightful claim.
c) The 1856 Argentine-Chilean Treaty
In 1856 Argentina and Chile signed a treaty whereby they recognized the application of the uti possidetis iuris of 1810, that is, that each State had the right to the territory corresponding to the relevant Spanish administrative division, according to its territorial extension (Viceroyalty of the Rio de la Plata or Chilean Captaincy-General)49. There is no doubt that in 1810 the Falkland/Malvinas Islands were part of, and effectively administered by, the Viceroyalty of the Rio de la Plata. As we shall see, this treaty gave rise to the publication of maps that interpreted the situation resulting from the 1810 uti possidetis iuris, where the Falklands/Malvinas naturally appeared as part of Argentine territory50.
d) Diplomatic discussions regarding Welsh immigration to Patagonia
Further proof can be adduced regarding the fact that Argentina did not remain silent over the Falklands/Malvinas issue between 1850 and 1884. The British representative in Buenos Aires, Edward Thornton, in a note dated May 25th, 1865 informed Lord Russell, British Secretary of Foreign Affairs, about discussions on the establishment of a group of Welsh settlers in Patagonia. In the note, he declared that the Argentine Minister of Home Affairs, Guillermo Rawson, had suggested that even though Great Britain had possession of the islands, it did not have de iure title over them. He subsequently asked Thornton if the British Government would be ready to “cede” the islands to Argentina and, if that was the case, he was sure that Parliament would not object to the establishment of a Welsh colony in Patagonia. The British representative in Buenos Aires repeated what his predecessor, Parish, had told the Argentine Government in 1829 and what the British Government had replied to Moreno in 1833, and stated that there was nothing more to add51. Once again, the British Government insisted on its position of unwillingness to discuss the issue.
e) Protests before the United States for the Lexington Incident
In 1866 the Argentine Ambassador to the USA, Domingo F. Sarmiento, sent a note to his Minister of Foreign Affairs, Rufino de Elizalde, in which he made a detailed analysis of the issue and requested the authorization to request from the American Government, amongst other things, the payment "to the Republic of Argentina of millions of ... strong pesos for compensation of all damages, including the loss of the Malvinas Islands, without implying a renunciation to recover them on the part of the Argentine Republic"52. It emerges from the context that this related to the loss and recovery of the possession of the Falkland/Malvinas Islands. Clearly, there was no intention to abandon the efforts of recovering the islands. If there had been a renunciation to sovereignty in 1850, it would have been odd to mention, only a few years later, that there was no renunciation to their recovery.
f) Interpretation of the islands Clause of the 1881 Boundary treaty between Argentina and Chile
On July 23rd, 1881, the Treaty of Limits between Argentina and Chile was signed, which, as it name indicates, had the aim of delimiting the borders between the two countries. Article 3 of the Treaty expresses that “other islands on the Atlantic to the east of Tierra del Fuego and Eastern coasts of Patagonia” belong to Argentina. In the arbitration proceedings related to the Beagle Channel case, the interpretation of this article was to play a key role in determining sovereignty over the Picton, Lennox and Nueva islands. Chile claimed that the article of the 1881 treaty in question referred to the Falklands/Malvinas, which proves that Argentina’s direct neighbour in the Southern regions considered that it had not renounced its sovereignty over the Falkland/Malvinas Islands at that time (and that the islands were Argentina’s). The Argentine team before the arbitral tribunal presided by the British judge Sir Gerald Fitzmaurice declared that the islands were then in dispute between Argentina and Great Britain, and that therefore it would be difficult to consider that the object of Article 3 was to refer to the Falklands/Malvinas and not to Picton, Lennox and Nueva53. In the 1977 arbitral award, the tribunal and the Queen of England who underwrote it, took note of these positions. For Argentina and Chile, Argentina claimed sovereignty over the Falkland/Malvinas Islands in 1881.
As we can see, the issue of the Falklands/Malvinas was present and the focus of attention whenever the circumstances permitted it, even at times when Argentina found itself involved in civil war, in a war against a neighbouring country and in the consolidation of the control of its national territory. It cannot be said that Argentina did nothing in relation to the Falklands/Malvinas from 1850 to 1884 or that it abandoned its position, even less that it renounced its sovereignty or recognised Britain’s purported sovereignty. Nothing exists which allows a change of attitude to be inferred. We will turn now to examine the situation from a legal perspective.
I. Argentina’s supposed acquiescence compared to Britain’s attitude
According to the British authors, the Argentine Republic did not make any type of claim or carry out any act in relation to the Falkland/Malvinas Islands between 1850 and 1884. They consider this to be the result of the 1849 Convention, and come to the conclusion that it implies acquiescence by Argentina or could even amount to an acquisitive prescription in favour of the United Kingdom. Neither the facts nor the law allow either conclusion.
We already saw that the Southern-Arana Treaty of 1849 did not imply Argentina’s renunciation to sovereignty, and that over the complicated years of its history from 1850 to 1884, Argentina never gave up its sovereignty, nor behaved in such a way as to renounce its claims or recognise British sovereignty. On the contrary, we have pointed to some facts which confirm its traditional position.
The British pamphlet claims to make use of general statements of presidents and one vice- president in relation to the friendly relations of Argentina with the world in general or with the British government in particular, when we have seen that Argentina has made a permanent effort to maintain friendly relations with Great Britain, even when faced with serious incidents such as the occupation of the Falklands/Malvinas or the naval blockade of the Rio de la Plata. In spite of these facts, Argentina never withdrew its representative in London, nor did it ask the British Government to do likewise with its representative in Buenos Aires. The desire to maintain the best possible relations with what was at the time the greatest economic and naval power in the world, within the framework of Argentina’s economic dependence on Great Britain, cannot be used to undermine the Argentine position; especially when the British attitude was that of a refusal to enter into discussions over the islands.
It is important to understand what acquiescence is from the legal point of view. If any of the parties acquiesced in this dispute, that party was Great Britain, first in relation to Spain and then in relation to Argentina. The International Court of Justice defines the situation as follows:
“Under certain circumstances, sovereignty over territory might pass as a result of the failure of the State which has sovereignty to respond to conduct à titre de souverain of the other State or, as Judge Huber put it in the Island of Palmas case, to concrete manifestations of the display of territorial sovereignty by the other State (Island of Palmas Case (Netherlands/United States of America), Award of 4 April 1928, RIAA, Vol. II, (1949) p. 839). Such manifestations of the display of sovereignty may call for a response if they are not to be opposable to the State in question. The absence of reaction may well amount to acquiescence. The concept of acquiescence “is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent . . .” (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 305, para. 130). That is to say, silence may also speak, but only if the conduct of the other State calls for a response.”54
Argentina’s attitude cannot be assimilated to a lack of reaction which could be interpreted as consent to British sovereignty for a variety of reasons. In the first place, Argentina immediately protested against its dispossession, and maintained its position thereafter. Secondly, it was the British Government itself who considered the issue closed and did not wish to have any further communication in this respect. Thirdly, Argentina clearly expressed that in spite of the attitude of the British government, it maintained its position and that its silence could not be considered acquiescence. Fourthly, once the parties’ legal positions are known, it is not necessary to reiterate them for each and every one of the facts that are a consequence of the protest itself. It would be absurd to require that for a State not to accept the position of another, it should make daily protests against the multiple acts of State authority over a territory known to be in dispute. Fifth, and not less important, the behaviour of the British government itself places it in a position in which it cannot invoke acquiescence for Argentina’s behaviour. We will begin by explaining this last point.
The United Kingdom considers, and has made Argentina aware of its position, that its complete silence for 55 years over Spanish and Argentine acts of public power in the Falklands/Malvinas did not imply the loss of its purported sovereignty from the abandonment in 1774 until its first protest in 1829. It can hardly claim then that a period of 34 years can be considered acquiescence, particularly when preceded by a clear rejection of any possibility of acquiescence, and containing other expressions of the persistence of Argentina’s claim. This is a textbook case of the technical concept of estoppel.55 The United Kingdom led Argentina to believe that55 years of complete and total inactivity cannot be considered abandonment. Argentina trusted this British interpretation to its detriment, and the British Government is therefore precluded from invoking acquiescence. A minimum of good faith justifies the rule of estoppel.
Jurisprudence defines the conditions for the existence of acquiescence. These include a “clear and constant” conduct from which arises an “unequivocal acceptance” of the position of the other party56. The statement of the British pamphlet in no way allows such a clear, permanent and unequivocal conduct to be inferred from the purported Argentine acquiescence. On the contrary, Britain’s lack of reaction when faced with uninterrupted Spanish presence on the territory in question, Spanish destruction of the British constructions in Port Egmont and the withdrawal of its sovereign insignia, the fact of having found the insignia in Buenos Aires during the British invasions of 1806 and 1807, the awareness of Argentina’s taking of possession and acts of sovereignty between 1823 and 1828, are all evidence of acquiescence, because there was an obligation to react if Britain considered itself sovereign over the islands.
On the contrary, considering the lack of a satisfactory response from the British side, the statement that it considering the issue closed, and the thinly veiled threats for attempting to insist on the subject at a time where there were no international bodies to resort to, Argentina’s attitude was coherent with what could be expected from a State confronted with such a situation and policy of force. In this respect, Manuel Moreno’s note to the Count of Aberdeen on March 10th, 1842 – a result of the systematic lack of response from the British Government to Argentina’s claims –, and Moreno’s note to Lord Palmerston on July 31st, 1849, and the latter’s aforementioned reply, are of fundamental importance57. Argentina’s representative in London is absolutely clear:
(...) The undersigned, as a result of the duties invested in him, feels the need to express, so that the silence of the United Provinces is not considered an implicit acquiescence, that the United Provinces cannot, and will never accept the resolution of Her Majesty’s Government [to consider the case closed], and the Government of the United Provinces gives these protests all the value that they might have now, or at any other time.58
Argentina expressly reserved that its silence could not, and should not, be considered acquiescence or consent to the British position. This was confirmed, as we saw, by Lord Palmerston himself59. It was a consequence of Britain’s refusal to engage in discussions, an attitude which made any Argentine protests futile.
The International Court of Justice has been clear when referring to the conditions necessary for invoking a tacit conduct that may imply a transfer of sovereignty:
“Critical for the Court’s assessment of the conduct of the Parties is the central importance in international law and relations of State sovereignty over territory and of the stability and certainty of that sovereignty. Because of that, any passing of sovereignty over territory on the basis of the conduct of the Parties, as set out above, must be manifested clearly and without any doubt by that conduct and the relevant facts. That is especially so if what may be involved, in the case of one of the Parties, is in effect the abandonment of sovereignty over part of its territory”60
It is clear that neither Argentina’s attitude in concluding the Arana-Southern treaty, nor its subsequent conduct can allow us to state that Argentina declared in any manner its will to relinquish sovereignty over the Falkland/Malvinas Islands.
J. The non-argument of acquisitive prescription
The pamphlet vaguely refers to acquisitive prescription in examining the supposed absence of Argentine protests. The existence of acquisitive prescription in international law is controversial. The International Court of Justice described acquisitive prescription as a “doctrine”61, in clear contrast to other legal rules applicable in the international sphere. One example of such rules is uti possidetis iuris, which the Court described as a “principle” and was used by the principal legal organ of the United Nations to resolve several territorial disputes62. The reason why the United Kingdom hesitates in invoking prescription is simple: it would involve admitting that in 1833 it did not have the sovereignty over the Falklands/Malvinas. There are also various reasons why it couldn’t invoke acquisitive prescription as a subsidiary argument. Its possession has not been peaceful, and suffers the initial vice of possession obtained by use of force; nor is it undisputed, as Argentina has never acquiesced to the situation.
Even if it were true that Argentina remained silent for 34 years, this period would not be sufficiently long for prescription. This is so for a variety of reasons. As we have seen, the British Government itself considered that 54 years of silence did not deprive it of its purported claim of sovereignty. In an arbitration agreement between Britain and Venezuela in which the parties explicitly admitted the application of adverse possession as a source of sovereignty, a period of fifty years was considered necessary63. During the long Anglo- Argentine conflict, the South American country never refrained from expressing its sovereignty for a similarly long period of time. The simple passing of time in itself does not produce a change in a territorial situation. As Hugo Grotius, one of the founders of the science of international law, declared: “time has no productive virtue, nothing is done through time, but rather everything happens in time”64. The unsuccessful attempt of the British pamphlet to misleadingly claim that Argentine silence extended from 1888 to 1941 should come as no surprise65. As we shall see, it is a coarse historical forgery.
The perception existing in international law at the end of the 19th Century was that Argentina had maintained its sovereignty. As the French jurist Gaston Jèze wrote in 1896: "If in fact, thanks to its power, England triumphs, in law there is no doubt that the Argentine Republic maintains sovereignty over the Malvinas Islands and maintains it for as long as the English usurpation lasts."66
K. Consulates and the Spanish scientific expedition
The British pamphlet imaginatively claims that the existence of consuls and the fortuitous arrival of Spanish vessels on the islands are foreign recognition of Britain’s purported sovereignty. According to its writers, in 1875 the United States was “abandoning the US government’s earlier policy of not recognising any territorial sovereignty in the Falklands”, and another six countries would not “accept that there was a valid Argentine claim to the Falkland Islands”67 Amongst them they mention Chile, when we have already seen that according to the Chilean Government the 1881 Boundary Treaty with Argentina included the Falklands/Malvinas when referring to “the other islands of the Atlantic Ocean”.
The intermittent presence of consuls in Port Stanley is irrelevant for the issue of sovereignty. It is well known that consular relations do not necessarily imply an acceptance of territorial sovereignty. Consular agents are not diplomatic agents, and their duties were simply of a commercial nature. Their accreditation recognises a de facto situation, but not a recognition of sovereignty. This was the understanding of the British Government itself when, for example, it sent a Consul to Buenos Aires before it had recognised Argentina’s independence68. A current example is the presence of consulates of a number of countries in Jerusalem, without implying any recognition of the factual situation in the city.
The British pamphlet refers to an “official Spanish diplomatic and scientific expedition” that visited the Falkland/Malvinas Islands in 1863, and that for that reason Spain would have recognized Britain’s alleged sovereignty over the islands. No documentary reference is given. The truth, which once again the pamphlet conceals, is the following. The scientific expedition commanded by Luis Hernández de Pinzón departed on August 10th, 1862 from the port of Cadiz. On October 6th, it reached Rio de Janeiro, and during the first days of November it anchored at Montevideo. After a short stay in Buenos Aires, the crew headed for the Pacific. In a book published by the doctor of the expedition shortly after his return to Spain, he explains the reason of the unexpected trip to the Falklands/Malvinas. A storm in the area of the Strait of Magellan damaged the vessels of the expedition, preventing the continuation of the trip and forcing them to seek shelter. Fearing that they might run out of coal, “they decided to not hold it any longer, retreat to the Atlantic, favoured by the strong current, and arrive at the Malvinas Islands”69. This casual arrival on the islands is very different to the description given by Pascoe and Pepper. However, the de facto colonial Governor, HW Mackenzie, prevented the Spaniards from making any forays into the interior of the islands, (it is to be recalled that this was a scientific expedition)70. The vessels remained at anchor, and due to the scarcity of materials available on the islands to carry out the necessary repairs, wood and coal had to be sent from Montevideo. Finally, they departed towards the Pacific in April 1863, circumnavigating Cape Horn.
The “visit” by Pinzón’s expedition was simply forced by the weather conditions, with the sole objective of repairing their ships. Such a long stay occurred simply due to the lack of necessary materials. The alleged gun salute greeting, and the Governor’s boarding of the ship, are interpreted by the British pamphlet as Spanish recognition of Britain’s alleged sovereignty. But a fair dose of imagination is required to interpret this act of courtesy as proof of a Spanish recognition of sovereignty, all the more so given the specific context described. Needless to say, the Captain of a vessel is not authorized, nor does he have the capacity to recognize the sovereignty of a territory on behalf of his State.
Pascoe and Pepper’s pamphlet also ventures to imagine that, by virtue of cartography, Argentina recognised Britain’s alleged sovereignty, and that for that very reason Argentina is now prevented from claiming its sovereignty by virtue of the rule of estoppel71. To support this, they reproduce two maps, one from 1876 (Napp) and another from 1882 (Latzina) in which, according to them, the Falklands/Malvinas do not appear as Argentine territory. This is false, as we will see below. But it will first be helpful to outline the value of cartography in territorial disputes. The jurisprudence of the International Court of Justice is very clear on the matter:
"Whether in frontier delimitations or in international territorial conflicts, maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial titles, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights."72
The British pamphlet reproduces a map from the book edited in German by Richard Napp, Die Argentinische Republik, published in 1876. It is a “phyto-geographic map of the Argentine Republic”, that is, a map that describes the vegetation found in the Republic. In the place of where the islands should be, there appears an explanatory box of the different types of habitat. This, according to the British pamphlet, is the “evidence” that Argentina did not claim the Falklands/Malvinas in 1876. This clumsy ploy is worsened by two elements that could not have gone unnoticed by Pascoe and Pepper: in the same book there is another map, whose object is to describe the territory, titled “Map of the Argentine Republic”, in which the Falkland/Malvinas Islands are presented as being Argentine (see Figures 18 and 19 of this book).73
Figure 18 Map of the Argentine Republic by Richard Napp where the Falklands/Malvinas islands are seen as an integral part of the Argentine territory
Figure 19 Enlarged part of the area of the Falklands/Malvinas islands in the map of Richard Napp
But that is not all: the text of the book containing both maps also contains a description of the geographic regions of Argentina. Two pages are dedicated to the Falkland/Malvinas Islands. The text begins as follows: “The Malvina -or Falkland- Islands belong to Patagonia, although England is in possession of them since 1833, notwithstanding the rights of the legal owner”74. There follows a description of Argentina’s rights over the islands, of the illegal actions of the United States and Great Britain, Argentine protests and Britain’s wrongful position. It concludes with the following:
“Although it [Argentina’s protests] has produced no practical consequences, it has nevertheless served to protect our rights. The Malvina, -or Falkland- islands, are therefore, Argentine property which England has appropriated and still keeps under her dominion, contrary to all law and right”.75
The second map that Pascoe and Pepper make reference to is the so- called “Latzina Map”, published in an 1882 book entitled “The Argentine Republic as a destination for European Immigration”. According to the writers of the British pamphlet, the map in question does not show the islands as being Argentine, on the basis of the argument that the colour used to indicate them is similar to that of Chile or Uruguay and not to that used for the rest of Argentina. In the full map, the meaning that the author gave to the different colours is visible in the key, with the various colours distinguishing “uncultivated lands” from “pastoral lands”. The writers omit to mention that the continental territory of Argentina is also not uniform in colour. The Falkland/Malvinas Islands are the same colour as the Federal Capital (the present-day Autonomous City of Buenos Aires). The aim of the map was to illustrate for immigrants the possibilities for developing agricultural activities. Neither of the territories were susceptible to being cultivated, one because it was the most important urban centre of the country and lacking available land for agricultural and livestock activities, and the other by reason of its occupation by a foreign power (see Figure 20). Furthermore, if we analyze the neighbouring countries and compare them with Argentina, none of these include the names of geographical features (bays, inlets, straits, etc.), whereas they do for Argentina. The names of the geographical features of the Falkland/Malvinas Islands are specified in the same manner as those of Argentina’s continental territory (see Figure 21).
Figure 20 Part of Latzina's map of 1882 - it can be observed the significance of different colors and the fact that the Falklands/Malvinas islands have the names of their geographical features like the Argentine mainland, contrary to those of foreign States
Figure 21 Part of Latzina's map of 1882 - it can be observed the significance of different colors and the fact that the Falklands/Malvinas islands have the names of their geographical features like the Argentine mainland, contrary to those of foreign States (i.e. Chile, Uruguay)
The above is confirmed in a map by the same author from 1888. The 1888 map had a different purpose to the previous one. It showed the political division of the territories and was not meant to give any information as to the suitability of land for agricultural and livestock activities. In it, the Falkland/Malvinas Islands again clearly feature as part of Argentina’s territory (see Figure 22).
Figure 22 Government of the Tierra del Fuego and the Falklands / Malvinas islands - Sheet XXVII - Map of Arturo Seelstrang of 1886 - IGN
In the Atlas of the Argentine Republic published by the Argentine Geographical Institute in 1886 we can observe how, once again, the Falkland/Malvinas Islands feature as an integral part of Argentina, and more precisely of the Tierra del Fuego governorship created two years earlier (see Figure 23). This was the map that, as we shall see, motivated the British protest of 1884 even before its publication.
Figure 23 Government of the Tierra del Fuego and the Falklands / Malvinas islands - Sheet XXVII - Map of Arturo Seelstrang of 1886 - IGN
Similarly, the map of the governorship of Tierra del Fuego and the Malvinas Islands of 1888 was officially produced by the National government without any reaction from Britain
If we were to follow the reasoning of Pascoe and Pepper (i.e. using unofficial maps and their colour schemes as a guide to interpretation), we might mention the map made by the British cartographer Samuel John Neele of 1809, where the Falkland/Malvinas Islands are shown as part of Spanish dominions, and speculate that, according to this map, the British did not consider the Falklands/Malvinas to be part of their territory (a point which is correct in this case –not because of a map, but rather because of the abandonment that occurred 35 years before the map was produced).
Figure 25 John Neele's map of 1809
Of course, unlike the British writers, we understand the real significance of cartography, which, as indicated by the ICJ’s jurisprudence, is merely secondary evidence and does not create any title to sovereignty unless it is part of a treaty or another legal title.
M. Argentine proposals for arbitration and British refusals
The British pamphlet makes a brief reference to the note of the Argentine Minister of Foreign Affairs, Dr. Francisco Ortiz, to the British representative in Buenos Aires, Mr. Monson, without attributing any value to it whatsoever. On May 30, 1884, Dr. Ortiz informed Monson that, considering that the Government was finalising the delimitation of its territories (it is worth recalling that in 1860 Buenos Aires and the Confederation had recently reunited as a single State, in 1870 the War with Paraguay had ended, in 1879 the Governorship of Patagonia was created, in 1881 the Boundary Treaty with Chile had been signed and in 1884 the creation of the Governorship of Tierra del Fuego was being considered), it considered it would be appropriate to seek a solution to the dispute over the Falkland/Malvinas Islands. It should be noted that the decree dated June 10, 1829 included the Falklands/Malvinas and Tierra del Fuego as one single administrative division. Consistently with the good relations that always existed with Great Britain, the Argentine Minister indicated to the British Representative in Buenos Aires that he trusted that the issue could be easily resolved by pacific means of dispute settlement. In this case, he proposed arbitration. He further added that he considered this feasible, not least because the United Kingdom has given such a good example by accepting it for other issues. In this way, Ortiz and the Argentine Government believed in advance that they could surely appeal to the Government of Her Majesty “to give to this proposal your fairest consideration”76. The British reply arrived almost two months later in the negative. It is one of the many times in which Argentina offered a peaceful solution and Great Britain rejected it.
Between December 15th, 1884 and May 6th, 1885 an exchange of notes took place between the British representative in Buenos Aires and Minister Ortiz, initiated by the first, regarding an article that mentioned that the Argentine Geographic Institute was preparing a first map of the Argentine Republic that was to include the Falklands/Malvinas. The British Government wanted to know if the map would be official. The Argentine Minister’s reply was categorical:
The publication (the map) would not alter in any way the status of the question regarding the sovereignty of the Malvinas or Falkland Islands; the same reply could be given to H.E. on this point as was given in 1849 to the Argentine Minister in London (...) whatever may be the importance that the Argentine Minister attributed to the statements made, they did not alter in any way the status of the pending issue, which should be considered on our part to be in the same condition it was left in 1843.77
It is worth highlighting the coherence of the Argentine interpretation of the exchanges between Moreno and Palmerston in 1849 depicted below.
In another note, the Argentine Minister also correctly maintained that “a map neither gives nor takes away rights, and those of England or the Argentine Republic in this case are not to be settled by colouring the islands blue or red on the map”78 before once more offering a peaceful settlement of the dispute in expressing that,
(the) means to resolve the pending affair would be to treat directly the heart of the issue, I would be pleased to listen to Mr. Minister on the above, if your Government had any instruction to that effect (...) the greatest interest of the Republic is to maintain its relations with Great Britain on the best footing, without in any case allowing them to be altered by a friendly and reasoned discussion on a point of international law, such as would be the sovereignty over the aforementioned islands.79
In response to the British protest on December 31st 1884, Dr. Ortiz, in his counter-protest, once again makes reference to the status of the issue:
(...) this inclusion (of the Malvinas Islands in the map) should not modify in any way the status under which the Malvinas have always been considered, which issue, as H.E., has had the deference of expressing to me, is pending and subject to resolution by the Governments.80
It again insists on resolving the issue by the peaceful means of dispute settlement:
“trusting in the assurance the Argentine Government has of the integrity of Her Britannic Majesty, that the delayed discussion will be reopened by the reply that the undersigned awaits to his observations, and resolved by the friendly means of settlement that civilized nations of today adopt for the resolution of issues of this kind.81
A Memorandum was attached to this note listing Argentina’s rights to the islands. This note clearly shows that the Argentine Minister attributes to the British representative the statement that the issue was pending, and refers implicitly to the arbitration previously proposed.
The British reply arrived five days later in a threatening tone: Mr. Monson stated that “no good could possibly arise from an attempt to reopen the question”.82
It is interesting to note how Pascoe and Pepper then skip forward to 1888 and maintain that only at that point did Argentina again protest over the issue of the islands, setting aside the representation (and offers to solve the dispute by the relevant peaceful means) just analysed. Likewise, the British authors “forget” to mention that on March 11th, 1887 the Argentine Minister of Foreign Affairs, Dr Quirno Costa, ordered the Argentine Ambassador in London, Luis Domínguez, to remind the British Government about the memorandum on the issue presented by Dr Ortiz on January 2nd, 188583, which remained unanswered. Dominguez complied with the order on November 3rd, 1887 with a note to the Marquis of Salisbury84, which was answered on November 9th of the same year85 along the same lines as previous ones: Great Britain considered the matter closed.
Two months later, on January 20th, 1888, Argentina replied to the British refusal and Dr Quirno Costa stated that “considering the terms of H.E.’s note which I am replying to, I must first reproduce precedents that justify the legitimate rights that the Argentine Republic holds regarding this question, whose resolution cannot depend only on one of the parties”86. The Argentine Minister is clear: Great Britain cannot unilaterally decide when a dispute is settled. He then recalls the Great Britain’s rejection of the offer to submit the issue to a peaceful settlement: “Especially when, as in the current case, the Government of Her Britannic Majesty closes any discussion, not even opting for the means of conciliation that nations appeal to for settling disputes such as those which concern us and whose means were suggested in the Note dated January 2, 1885”87, concluding, along the same lines as previous notes, that “today, as before, the Argentine Government maintains its claim regarding the illegitimate occupation of the Malvinas Islands, that it is not and never will abandon its rights over those territories”88.
The British reply continued with a refusal to discuss the question. However, some months later, on June 12th, 1888, Dr. Quirno Costa offered, once again, to solve the controversy through the peaceful means offered by international law. In his note to Jenner, who was Charge d’ Affairs of HBM in Buenos Aires, the Argentine minister stated that
“in spite of the resolution (...) of refusing to discuss the rights that it may have to sovereignty over the islands, the Government of the Republic does not deem its own to be compromised by that declaration and even less by the silence that the English Government is keeping upon the indication to submit the issue to arbitration made by the Argentine Government”.89
On June 14, Jenner limited himself to acknowledging receipt of the Argentine Note. In March of that same year, British concern over the inclusion of the Falkland/Malvinas Islands in official Argentine publications resurfaced. A report by the Foreign Office accounted for the use of a map made by the Argentine Information Office in which the Falkland/Malvinas Islands appeared as part of its territory90. However, the British authorities decided this time not to intervene. In October of the same year, the British Representative informed his Government of the inclusion of the Falklands/Malvinas as part of the territory of Argentina in the Memoire of the Argentine Minister of Foreign Affairs91. Once again, the British Government decided to remain silent.
As we can see, the Argentine Government offered on at least in three occasions to resort to pacific means of dispute settlement (more specifically, arbitration), which the United Kingdom disregarded, irresponsibly leaving the dispute open.
N. Argentina’s consistent conduct between 1888 and 1941
In a desperate attempt to substantiate a presumed Argentine abandonment, the British pamphlet attempts to persuade that Argentina did not maintain its claim between 1888 and 1940 because “Argentina remained silent for almost 60 years from 1888 until well into the 1940´s without any formal protests to Britain over the Falklands”92. Leaving aside the clear inclusion of the Falklands/Malvinas in the Tierra del Fuego Governorship created in 188493, as shown in the maps above, the truth is that the Argentine Government took every opportunity to demonstrate its sovereignty over the islands, both internally and internationally. It is also incorrect to state that no formal protests were made during the period, as we shall now see.
In 1908, upon receiving the communication made by the Italian Ambassador to Buenos Aires about the inclusion of the Falkland/Malvinas Islands as a British colony in the Rome Convention of the Universal Postal Union, the Argentine Government made a “formal and solemn claim”94 which went unanswered by the British Government, in spite of its being informed thereof.95
In 1910, an official map sponsored by the Centenial Committee led by the Minister of Home Affairs, showed the Falklands/Malvinas as being Argentine. The British representative in Buenos Aires was instructed not to take note of its existence96.
In 1911, in the heyday of the conclusion of arbitration treaties between States, the British Government explored the possibility of signing one such instrument with Argentina. The note by the British Secretary of Foreign Affairs Sir E. Grey, to his colleague in the Colonial Office, dated September 27th, was blunt. In reply to the concerns of the latter, he informed him that the Foreign Office "[does not] propose the conclusion of a treaty [of arbitration] with the Argentine Government until the British title to the Falkland Islands has been recognised"97. This clearly shows that the British Government was perfectly aware that Argentina still maintained its claim over the Falkland/Malvinas Islands in 1911.
In 1919, after the end of the First World War, and taking account of British silence and refusal to initiate negotiations regarding the Falklands/Malvinas issue, the Argentine Government decided not to accept radiotelegraphic messages for the islands, except in cases of maritime disasters or requests for help. The Navy Minister, Dr. Julio Moreno, was clear about this: "For the very special situation of our government, which has never renounced its sovereignty over the aforementioned islands, they advise to adopt such a disposition"98.
On December 20th, 1926, Argentina lodged a formal protest before the Government of Belgium, having been informed by its representative in Buenos Aires of the notification from the Embassy of Great Britain regarding the inclusion of the Falkland/Malvinas Islands in the Brussels sanitary convention99.
The following year, on March 22nd, 1927, the Universal Postal Union delivered a circular letter to all its members upon receiving a request by the Argentine Postal Service for information on the territorial jurisdiction of each member (boundaries had changed considerably as a result of a variety of peace treaties signed by several powers). When the Argentine Government received information that the United Kingdom had included the Falkland/Malvinas Islands within its jurisdiction, it issued a formal protest to the International Office of the Postal Union that was communicated to the rest of the Postal Union countries on October 14th, 1927. The relevant part of the Argentine note is absolutely clear:
“Argentina’s territorial jurisdiction extends, in law and in fact, over the land surface, the territorial sea, the islands situated on the coast, to a part of Tierra del Fuego and the archipelagos of Estados, Año Nuevo, South Georgia, South Orkney and the undelimited polar lands. Of right, being unable to exercise in fact because of the occupation held by Britain, the Malvinas archipelago also belongs [to Argentina].”100
The Argentine declaration generated a British complaint dated December 17th, 1927, which was replied to by the Argentine Ministry of Foreign Affairs and Worship on January 20th, 1928, where it indicated that since 1833 the Falkland/Malvinas Islands had been under British occupation, and that since this date the Argentine Government had protested against this occupation101. As we can see, here too the British pamphlet falsely states that Argentina made no formal complaints between 1888 and the 1940s.
The British authors maintain that the Argentine Minister of Foreign Affairs, Angel Gallardo, “undermined Argentina’s claim”, supposedly expressing to Sir Austen Chamberlain during a visit to London that the British position was extremely solid102. The only evidence of this statement is a note from the British Minister to his Ambassador in Buenos Aires. However, the official position of Minister Angel Gallardo, and of Argentina, was clear: it protested in Brussels, it protested in Berne and it replied to the British note, upholding Argentina’s position. It speaks volumes that the British authors could only find this indirect reference to an Argentine comment in so many years of conflict, when the British archives themselves contain dozens of commentaries from British officials, from the rank of Prime Minister down, expressing strong doubts over the existence of British sovereignty: from the Duke of Wellington103, British Prime Minister, to Gerald Fitzmaurice, former British judge in the International Court of Justice104.
The British pamphlet omits to inform its readers about what Sir Austen Chamberlain told his Argentine colleague on the same occasion of the supposed reply by Dr. Gallardo. The following is the quote from the relevant Foreign Office document: “Sir Austen made it plain to Dr. Gallardo that he did not wish to embarrass the Argentine Government by forcing upon them an embarrassing retractation of their claim” but was requesting him to desist from such a useless and provocative action as the one in Berne105. The British pamphlet also omits to mention that upon receipt of the communication from London, the British Ambassador in Argentina spoke with the acting Minister of Foreign Affairs, who told him that “the Argentine felt that she had a good claim to the islands”106, and that the British Ambassador replied
“we were fully aware of that, and that the Argentine Government were constantly maintaining that claim to us in writing. This was, however, a wholly different matter from allowing their Postal Administration to go out of its way to assert that claim to an international body”107.
The British Ambassador went further. He stated: “That the Argentine Government claimed the islands, and had formally maintained their claim, was known to the whole world”.108
In 1928, when postal, telegraphic and radiotelegraphic exchanges with the islands were finally authorized, Argentine President Alvear adopted a decree whose Article 1 established that such authorization is made “under the formal reservation and previous declaration that said fact does not diminish in any way the right of Argentine sovereignty over the Malvinas islands, nor can it be invoked by any party against it”109. The British Government was aware of this decree, but as on other occasions where Argentina exercised or manifested its sovereignty, it preferred not to protest, as we shall now see.
That same year, a citizen born in the Falkland/Malvinas Islands, Juan Walker, enrolled in the Argentine Army in the registration office of San Julian, Province of Santa Cruz, by virtue of his rightly being considered by the Argentine authorities as having been born in Argentine territory110.
As we can see during this period, in the face of constant Argentine activity, the British maintained a strong and persistent policy of refusing to deal the issue of the Falklands/Malvinas, going so far as to reject the many proposals of arbitration. This is illustrated by the Annual Report No 21 of the British Ambassador in Buenos Aires, dated January 31 1929, which maintains:
“A careful study of previous correspondence leads me to the conclusion that various British Governments, beginning with that of Lord Palmerston, were not satisfied that our claim was such that it would bear argumentative reiteration. We took refuge in silence. Argentines safeguard their claim by reasserting it at intervals. I suggest that our wisest course would be to allow this state of affairs to continue. (...) Should we take undue notice of periodical pinpricks (...) as seems to be desired by the Government of the islands, we may force the Argentine Government to take definite and unpleasant action, such as insisting that the whole question be referred to arbitration. (...) My strong recommendation is that we should remain silent”111
It is clear that for the British Ambassador in Buenos Aires that the issue was open: Argentina maintained its claim and Great Britain hid behind a wall of silence and the de facto control of territory.
During the 1930´s, multiple opportunities arose for Argentina to assert its claim. The incidents related to British passports held by people born in the Falkland/Malvinas Islands, the issuing of British postal stamps relating to the “centenary of British administration” of the islands in 1833, the issuing of Argentine postal stamps showing the islands as part of Argentina, and a diplomatic exchange in London during the International Whaling Conference of 1937, in which Argentina once again asserted its rights over the Falklands/Malvinas, as well as identical reservations made to various postal conventions concluded in Cairo in 1938.112
Over the following years, faced with the silence and refusal of the United Kingdom to seek a peaceful settlement to the dispute, Argentina took its claim of sovereignty out of the bilateral sphere and on to the multilateral level. During the First Consultative Meeting of Foreign Ministers of the American Republics of the year 1939 in Panama, the Argentine delegation declared:
“That in the waters adjacent to the South American Continent, of a territorial extension corresponding to the coasts of Argentina, the zone defined as free from any hostile act, it does not recognize the existence of colonies or possessions of European countries, and it particularly reserves and maintains intact the legitimate titles and rights of Argentina to islands such as the Malvinas, as well as to any other Argentine territory located within or beyond said zone.”113
From the moment the United Nations was created, Argentina asserted its claim114. In 1946, Argentina made a formal reservation based on its territorial claim when the United Kingdom registered the Falkland/Malvinas Islands on a list of Non-self Governing Territories (Chapter XI of the UN Charter), as a territory under its administration115.
The Inter-American Treaty of Reciprocal Assistance was approved at the Inter-American Conference for the Maintenance of Continental Peace and Security that took place in Rio in 1947. By an Argentine initiative, the area for the application of the Treaty included the Falkland/Malvinas Islands, South Georgia, South Sandwich and the South American Antarctic zone. Argentina made an express reservation regarding its rights116.
In the IX Pan-American Conference in Bogotá in 1948, the United Kingdom awoke from its slumber and submitted a declaration regarding the Falklands/Malvinas and the Argentine Southern territories. It was contested by the Argentine delegation in the session of April 21st, 1948, in which it “updates the subject of the sovereignty that Argentina exerts over the Malvinas Islands, and that it constitutes a longstanding problem for our Republic, as well as an issue that can be easily resolved if the occupying power takes inspiration from international law”.117
Thanks to the intervention of the Argentine delegate, the American Commission of Dependant Territories, in its meeting in La Havana in 1949, designated the Falklands/Malvinas a “territory de facto occupied by a foreign power”118.
The British pamphlet then claims to disregard the studies and publications of non- Argentine writers such as Paul Groussac119 and Julius Goebel120 – a professor of the prestigious Columbia Law School whom Pascoe and Pepper prefer to consider “the son of a German immigrant in the United States” and “Anti-English”121. The main argument of the writers of the British pamphlet is that the books by Groussac and Goebel do not mention the Arana-Southern Convention. As explained before, there was no reason to mention it. But the most absurd element of this criticism is the fact that of the British Government, its officials that studied the Falklands/Malvinas issue, and the British writers that wrote about the Falklands/Malvinas, none mentioned the Arana-Southern Convention!
O. The irrelevant reference to the “Desert Campaign”
The British pamphlet loses itself in considerations that bear no relation to the Falklands/Malvinas issue, such as the situation of Patagonia in the last quarter of the 19th century. The aim is to discredit Argentina and to attempt to compare this situation with that of the Falklands/Malvinas. They raise the point that the British colony in the islands is the oldest Southern population in the world122. They forget that Argentina was already present in the Falklands/Malvinas when the British occupied and colonized the islands. The British writers omit to mention that Argentina exercised its sovereignty over the Falkland/Malvinas Islands well before than in continental Patagonia. In fact, the first birth registered under the sovereignty of a State in the Falkland/Malvinas Islands is Argentine: it is the daughter of Luis Vernet, who was born on February 5th, 1830 and was named Matilde Vernet y Sáez, though she was known as Malvina Vernet. It cannot pass unnoticed that the Argentine Government had created a territorial administrative unit in 1829 which included the Falklands/Malvinas, Tierra del Fuego and adjoining islands and that, had the expulsion by the British not occurred, it is highly likely that the centre of this territorial unit would today be in the Falklands/Malvinas and not in Tierra del Fuego.
The British pamphlet curiously converts itself into a tenacious “defender” of native populations and accuses the Argentine Government of “genocide”. Without looking into the role played by Great Britain in the subjugation of entire populations in all the continents of the world, the reality that the pamphlet refers to is different to the one presented.
Figure 26 Matilde "Malvina" Vernet y Sáez. First registered person born under the sovereignty of a State in the Falklands/Malvinas islands
The Desert Campaign started at the end of 1878 and ended in 1880, resulting in 1313 indigenous dead and approximately 11.000 prisoners123. The figure of 60.000 indigenous dead that Pascoe and Pepper attribute to Roca is incorrect. It is estimated that this is the total figure from 1820 until the end of Roca's campaign, with a similar number of men, women and children dead or enslaved by the indigenous populations.
The Argentine State did not conduct a campaign of extermination of the native populations. It had the support of various native communities, such as, among others, the Northern Tehuelches (Pampas, Hets), the Andean Northern Tehuelches (Puelches) and the Araucanian Northern Tehuelches (Querandies), the Boroanos that sought to fight against the attacks of the Araucanian tribes. The main chief of Eastern Patagonia, Casimiro “Biguá” Fourmantin, had been appointed Colonel of the Argentine Army. Biguá, together with five chiefs of other indigenous clans meeting in the Genoa Valley (Province of Chubut) formally recognised Argentine sovereignty on November 3rd 1869, when the Argentine flag was raised and the indigenous chiefs swore allegiance to it124.
Argentine history shows that the native populations were considered part of the Argentine people. The Independence Act 1816 was published in Spanish, Quechua and Aymara. Even the contact of native populations with the Falklands/Malvinas begins with Argentina. Pablo Areguati, appointed Commander of the Malvinas in 1823, was Guarani. In 1829, Luis Vernet, Political and Military commander of the islands, invited and received the Techuelche chief Maria la Grande (the Great), “Queen of the Strait”, in Port Soledad.
It may be worth recalling a point related to this subject that the writers of the pamphlet do not mention, but cannot ignore. The extinction of the Onas (Selknam) in Tierra del Fuego can be for the most part attributed to men such as Alexander McLennan (Scotland), Alexander A. Cameron (New Zealand), Samuel Hyslop (England), John McRae (Scotland) and Montt E. Wales (England), among others, who gained one pound for each dead “Ona”, and obtained even greater “profits” if they sent their heads to the “Anthropological Museum of London” that paid eight pounds for each125.
Figure 27 Tehuelches bearing the Argentine flag, celebrating on May 25, 1899, together with the Governor of the Province of Santa Cruz
Nowadays, the recognition and protection of indigenous populations is inscribed in the Argentine National Constitution, which recognises the ethnic and cultural pre-existence of said populations and in which the State is committed:
“To guarantee respect for the identity and the right to bilingual and intercultural education; to recognize the legal capacity of their communities, and the community possession and ownership of the lands they traditionally occupy; and to regulate the granting of other lands adequate and sufficient for human development; none of them shall be sold, transmitted or subject to liens or attachments. To guarantee their participation in issues related to their natural resources and in other interests affecting them. The provinces may jointly exercise these powers.”126
The aim of the British pamphlet is to attempt to place Britain’s use of force of 1833 and the subsequent arrival of British settlers on an equal footing with supposed Argentine actions in Patagonia and the development of Argentine society on the basis of foreign immigration over the end of the 19th century and the first half of the 20th century. Of course, these are two different situations. One thing is a country with a generous migration policy, as Argentina was and still is, and another is a colonial power that forcefully takes part of the territory of another State with which it has peaceful and friendly relations. It also cannot be compared to the establishment of the population in Patagonia. Even if we were to consider the description in the British pamphlet to be correct, the situation would still be different:
Argentina would not have a native State to which it could restore those territories. The United Kingdom does: Argentina.
P. The South Georgia and South Sandwich Islands
The British pamphlet also refers to the dispute over the South Georgia and South Sandwich Islands and analyzes it together with another existing dispute over a section of Antarctica. Once again, several omissions are present in Pascoe and Pepper’s pamphlet. They will be briefly outlined here.
The South Georgia Islands were not discovered by Captain Cook, but by Spanish sailors. A map of South America published in 1790 in London by the renowned cartographer Thomas Bowen describes South Georgia as having been discovered by the Spanish in 1756 and explored by Cook in 1775. This contradicts the British statement of the island’s likely discovery by De La Roche in 1675 and its “re-discovery” (sic) by Cook in 1775127. This is an official map. It states: “Published by Royal Authority” (see Figures 28 and 29)128.
Figure 29 Enlarged part of the Georgia island where it states that they were discovered by the Spaniards in 1756
A contemporary Spanish map used the nomenclature “Island of San Pedro or New Georgia” and attributes the discovery of some other – inexistent- islands to De La Roche.129 One of the first recorded official activities concerning South Georgia is the dispatch, by Politicaland Military Commandment of the Malvinas Commander of the Falklands/Malvinas, Luis Vernet, of a team to rescue castaways who found themselves in South Georgia. This happened between August and October 1829130.
Aside from a lengthy period of visits by whalers and seal hunters of various nationalities, the first formal activity related to South Georgia was the creation of the “Compañía Argentina de Pesca” (Argentine Fishing Company) by Norwegian businessmen in Buenos Aires in 1904. Their aim was to settle in South Georgia, and with that aim the business was set up under Argentine legislation. Once settled, they received the assistance of Argentine war ships that for decades supplied fuel to the islands without any British reaction. Argentina also installed a telegraph station, and members of Argentine military crews conducted various deployments on the island, without ever being disturbed by British authorities131.
As with the Falklands/Malvinas, once again the British Government acted only when Argentina carried out concrete activities in a southern territory, this time South Georgia. It was thus that, taking advantage of their control over the Falklands/Malvinas, they imposed on the Argentine Fishing Company the obligation to seek permission and pay taxes to the British authorities established in the Falklands/Malvinas. This time, the British authors follow the official position declared in the claim over Antarctica, in which the United Kingdom emphasises the lack of Argentine protest over the obligation imposed on the Argentine Fishing Company. Another estoppel can be opposed to the United Kingdom. The British government did not consider that its silence over the Argentine concessions of 1823 and 1828 in the Falklands/Malvinas prevented it from reclaiming its sovereignty. The Argentine Government had every reason to believe that, if the British Government were coherent in its conduct, a protest would be unnecessary. The fact is that Argentina continued to exercise acts of authority over South Georgia during the period in question, for example through the aforementioned presence of war ships, its declaration before the Universal Postal Union in 1927, considering that it exercised de jure and de facto sovereignty over South Georgia, and the dispatch of an official of the Ministry of Inland Revenue in 1947. It was only in 1950 that the United Kingdom seized the Argentine meteorological station132.
As far as the South Sandwich Islands are concerned, it is Argentina who can invoke the earlier and greater, effectivités, such as the establishment of beacons in 1950, the establishment of the Teniente Esquivel shelter in 1955 and the Corbeta Uruguay scientific station in 1976, which was only objected to by the British Government in 1978 and expelled by force in June 1982. Until the present day, no other State can invoke a greater physical presence in the South Sandwich Islands than Argentina.
Furthermore, the South Georgia and South Sandwich Islands are part of the Falklands/Malvinas issue, as acknowledged by the British Government – for instance, in accepting that the 1971 Communications Agreement relating to the Falklands/Malvinas extended to the archipelagos. The British Government itself, in an application before the International Court of Justice against Argentina over Antarctica – over which the Court did not have any basis for jurisdiction – considered that the Letter Patent of 1843 for the establishment of a Government in the Falkland Islands and its Dependencies extended to South Georgia and South Sandwich133. Therefore, any British claim regarding these two archipelagos is subordinated to its purported sovereignty over the Falklands/Malvinas. If it does not have sovereignty over the Falklands/Malvinas, it also does not have sovereignty over the other two archipelagos.
Q. The 1955 British application to the ICJ in the Antarctica cases
The British pamphlet is also silent over two key elements of the claim presented by the United Kingdom against Argentina before the International Court of Justice in 1955 in the Antarctica case. For the avoidance of doubt and of any potential Argentine action in that respect, the British application states very clearly that the United Kingdom accepts the jurisdiction of the Court only over the so-called “Falkland Islands Dependencies” and not the Falklands/Malvinas themselves. These two notes are part of the application:
“It results from the present Application that the United Kingdom Government accepts the jurisdiction of the Court in respect of the questions hereby submitted to it, and in particular that of the title to sovereignty over the islands and lands of the Falkland Islands Dependencies. The present Application does not constitute a submission to the jurisdiction of the Court in any other respect, or as regards the title to sovereignty over any territory outside the Dependencies.134
"It will be understood that although, for reason of convenience, the territories to which the present Application relates were constituted Dependencies of the Falkland Islands for administrative purposes, the British title to them is a separate and independent one, which in no way derives from or depends on the title to the Falkland Islands themselves.”135
It is hard to conceal the awareness of the weakness of British title that emerges from these two notes in Britain’s Application.
The British pamphlet also ignores the main reason invoked by Argentina for refusing the British offer to submit those territories to the decision of the Hague Court: the absence of any reference to the issue of the Falkland/Malvinas Islands. In the Note that the Argentine Ministry of Foreign Affairs sent to the British Embassy in Buenos Aires on May 4, 1955 in response to the British proposal, it is highlighted that:
(...) Her Majesty’s Government excises the bottom issue, as if all could be reduced to a single aspect, mentioning as the sole problem that needs solution the one referring to the Antarctic territories it demands and those that qualifies as dependencies of the Malvinas Islands (...) The Argentine Government cannot conceive nor accept as friendly nor juridical a proposal that has as its heart to sustain that usurpation (...). Consequently, while there is no resolution in the indicated direction on the pre-existing issue that has just been mentioned, it is not correct to propose, as Great Britain does, the subject of the issue to the International Court of Justice in Hague or an ad hoc arbitration tribunal.136
This chapter has thoroughly demonstrated not only how unjustified Pascoe and Pepper’s analysis of the situation after the British seizure in 1833 is, but also the lack of scientific rigour of their publication, to say the least. Argentina’s attitude since 1833 has been clear and coherent in maintaining its sovereign rights. Even during periods of lessened activity, between 1850 and 1884, its conduct demonstrates the absence of abandonment of its claim or of acceptance of a transfer of sovereignty. The British attitude of imposing its position of power and its “fait accompli” policy is also patent. Its persistent denial has been what has kept the issue pending since 1833. Its political and diplomatic officials, even the most high- ranking, have recognized that Argentina maintained its claim, even at times when the authors of the British pamphlet considered that it had abandoned it. It is also clear that the argument based on the Arana-Southern Treaty has no grounds, historical or legal. There was no Argentine acquiescence, and the argument of prescriptive acquisition cannot validly be invoked. Instead of proving the opposite, the cartography used by Pascoe and Pepper strengthens Argentina’s position. Their omissions, highlighted in this chapter, not only prove the constancy of Argentina’s claim over time, but also an identical British insistence on keeping the issue open indefinitely by reason of its territorial control. There is no doubt that it is the British Government who bears responsibility for this dispute continuing to be unresolved.