The population of the islands and the right of peoples to self- determination
The British pamphlet ends with three sections, addressing "self-determination", "the people", and "the Falklands dispute in the international field". The present chapter deals with these three topics, and with the alleged “self-government” of the islands. As in previous sections of the pamphlet, its authors make an effort at revisionism to enhance the credibility of the applicability of the right of peoples to self-determination to the population established by the United Kingdom in the Falkland/Malvinas Islands, despite the fact that the competent bodies of the United Nations have never applied this principle to the British residents of the territory in dispute between Argentina and the United Kingdom.
A. “The people”
In line with the latest British strategy, the pamphlet goes to great lengths to demonstrate that the population established by the United Kingdom in the islands is not British, but “multinational”. This is in flagrant contradiction with the description of the situation previously made by Great Britain. In 1982, the British representative to the United Nations, Sir Anthony Parsons, affirmed that “the British people of the Islands had lived peacefully in British territory for a century and a half”.1 The official analysis accompanying the figures from the census carried out by colonial authorities in 2001 asserted that: “the inherent British nature of the Islands remains practically unaltered”.2 But there is no longer a concern to point out the British character of the population. The aim is to attempt to detach the population from Britain’s use of force and its consequences, in order to justify erroneously applying the right of peoples to self-determination to the case of the Falklands/Malvinas.
The pamphlet mentions that the population of the islands “slowly increased; several people who arrived in the early 1840s still have descendants in the islands now in the 7th or 8th generation. They have become the natural population of the Falklands”.3 What the authors forget is that this “natural population” was essentially the result of the arrival of new British citizens from the metropolis after the colony was officially constituted in 1843, the concession of lands to British subjects only, and the appointment of officials from Great Britain. Any temporary South American workers were never considered part of the permanent population. The presence of gauchos from the Río de la Plata, mostly employed by the British subject Withington, who had originally received a concession from Vernet and Lafone, another British subject, decreased as cattle was mostly replaced by sheep as the main form of livestock farmed on the islands. The British governor Moody advised the settlement on the islands of populations coming from Northern Scotland and Ireland.4 British legislation also clearly distinguished between His Majesty’s subjects and “foreign” inhabitants.
The pamphlet also fails to mention the fact that the British government prohibited Vernet, the person who had made the greatest effort to bring civilization to the Falklands/Malvinas, from returning to the islands. In a note from the Colonial Office to the Foreign Office from 1836, the prohibition is sharply reaffirmed:
In the month of March last, H. M. Govt. having received information, which led them to believe that Mr. Vernet was at that time preparing himself to proceed to the Falkland Islands, instructions were given to the Rear Admiral Commanding on the S. American Station to dispatch a Naval Officer to those Islands for the express purpose of warning Mr. Vernet to desist from trespassing on the property of the British Crown, which, in consequence of the information contained in Your Desp. will now be repeated to the Rear Adm. I have therefore to direct you to state to Mr. Vernet that any attempt on his part to carry into execution the intention announced to you of returning to the Falkland Islands will be useless, as H. M. Govt. have determined not to permit him to do so.5
Great Britain’s current omission to mention this prohibition, which prevented Vernet from continuing with his enterprise in the islands, is quite enlightening. What the British pamphlet tries to deflect attention from is that the 1833 use of force put an end to the greatest development of civilization in the entire history of the islands, to be replaced by British colonisation. This original defect in itself defeats all British arguments concerning the alleged application of the right of peoples to self-determination to the population that the United Kingdom established as a consequence of its seizure of the islands.
Ever since its 1833 occupation, Britain’s strategy has been clear: using the population as a political instrument. First, by evicting Argentine settlers and leaving behind a minimum population, mostly foreigners, to ensure that the existing livestock and the minimum navigation services provided by the islands did not go to waste. The artifice currently used, arguing that the twenty-odd people who remained on the islands after the Argentine eviction were the original nucleus of the present-day population, is completely unfounded. In 1851, 18 years after the dispossession, the population was of 287 people, most of whom had arrived in at the close of the previous decade, upon the establishment of the British colony in 1843.
The numbers are informative as to the composition of the islands’ population. According to the 2012 census,6 the population currently numbers 2.840 (including 369 civilians serving at the United Kingdom’s military base at Mount Pleasant).7 According to the 1911 census, the number of inhabitants totalled 2.272, meaning that in a one hundred-year span the population only increased by 8%. If we take the example the Province of Tierra del Fuego, which has similar geographic and climactic conditions, its population increased from 2.504 inhabitants in 1914 to 127.205 in 2010.8 According to the 2012 census, the number of persons born and residing on the islands was 1.339, while 798 were born in the United Kingdom (excluding the military and civil staff of the Mount Pleasant base). In a 66-year period (1946-2012), the number of people born in the Falkland/Malvinas Islands decreased by 33% (from 2001 inhabitants to 1339), while those born in the United Kingdom over the same period increased by 386% (from 164 inhabitants to 798).9 A similar growth pattern can be observed in the group of people born in British overseas territories and Commonwealth countries, with 3.660% (10 inhabitants in 1953 to 366 in 2012)10. In sum, taking as a basis the 2.840 inhabitants of the islands, the number of people born on the islands represents only 47.1% of the population, that is to say, less than half the current inhabitants of the islands were born there, whereas most of them (52.9%) come from other countries.11
Every year, between 10 and 25% of the population leaves the islands, and a similar proportion replaces these the following year. For the last 20 years, according to census data for the period 1991-2012, the percentage of inhabitants who resided in the Falklands/Malvinas for less than 10 years was 37%, with peaks of 41%.12 In the last decade (2001, 2006 and 2012 censuses)13 1.172 people who lived on the islands in 2001 were no longer living there in 2012, whereas only 168 people had died. Therefore, 1.004 people emigrated from the islands in those 10 years, that is to say 35% of the population of the islands emigrated in a decade. A similar change in population every ten years can hardly constitute a separated “people” in the international legal sense of the term.
The United Kingdom implements migration policies to ensure that emigrants are constantly replaced. 14 The 2012 census indicates that 1.741 people had been living in the islands for over 10 years, and 1.099 came to live there in the last decade. If we subtract from this figure the 306 births of the period, we come to the conclusion that 793 people immigrated to the islands in the last 10 years, that is, 28% of the entire population.15 Therefore, in a 10- year span, 1004 people abandoned the islands and 793 arrived, which means a changeover of almost a third of the entire population of the islands. A significant part of the population work as public servants, for which personnel is brought from the metropolis. The second main “village” of the islands, excluding military personnel, is the civil staff of the military base: 369 people (14.87% of the population). The Mount Pleasant base has a military staff of approximately 1500 individuals – the highest rate of soldiers per inhabitant in the world.
The less profitable jobs are carried out by immigrants from Chile and Saint Helena. However, only British citizens have the right to vote. What is more, Argentine citizens are discriminated against. Immediately after the 1982 war, Argentine residents on the islands who worked in the oil and transport services were expelled. For 17 years no Argentine passport holder had the right to visit the islands, not even as a tourist. An unwritten law forbids Argentines from owning property, to the point that Argentine heirs were obliged to sell the property they had inherited.16
With the aim of concealing the fact that the overwhelming majority of the population is British and that only a minority was born on the islands, the 2012 census included for the first time a question about people’s “national identity”. This was the first information to be made public, instead of the figures regarding nationality and place of birth, as in previous censuses. 59% considered themselves “Falkland Islanders”, and 29% “British”. Evidently, many of those who answered “Falkland Islanders” are in fact British citizens who emigrated from the United Kingdom. In reality, many have frequently been the supposed “spokespersons” of the islanders, whether members of the government or legislature, or pundits in the islands’ media.
The population of the Falkland/Malvinas Islands is mainly temporary, constantly renewed, and has a completely artificial demographic growth. Despite the efforts made to create a “national” identity on the islands, a population with these characteristics does not make up an ethnically and culturally distinct group to the administering power, a separate people subject of the right to self-determination.
Of course, it cannot be denied that islands have their own traditions, although many of these are shared with the continent. The traditions of the countryside (called “the camp”, similar to the Spanish word “campo”, instead of “countryside”), especially those that are horse-related, and the use of the word “chey” (in Spanish “che”), as well as the taste for mate, which existed until recently, recall a past that bore a strong continental influence. There are also notable differences between the real islanders and those who arrived from the metropolis. As we shall see, these specificities, as the same that might occur in the various regions or localities of the same country, do not make the territory and its inhabitants subjects entitled to the right of self-determination. We will first analyse the alleged “self-government” of the islands.
B. The alleged “self-government”
Pascoe and Pepper attempt to prove that the islanders govern themselves in a modern democracy and that their links to the metropolis are almost non-existent. They maintain that the popular vote is of great influence for decision-making and that the Governor, who is elected from London without the participation of the islanders, barely intervenes in decisions.17
The so-called “Constitution of the Falkland Islands”, approved in November 2008 by Her Britannic Majesty, is the cornerstone of the colonial regime the United Kingdom maintains in the Falklands/Malvinas. Article 11 reserves the absolute power for the Queen to pass laws for “the peace, order and good government” of the islands, as well as to amend legislation currently in force.18
The legislative assembly is composed of eight members elected for a four-year term; two members elected by the Governor (“Chief Executive and Director of Finance”) who can take part in procedures and have no voting rights, and the “Commander of the British Forces and the Attorney General”, who are both from the United Kingdom, like the Chief Executive and Director of Finance. In order to have the right to vote and be elected to the assembly, the requirements are to be over 18 years of age and have “Falkland Islands status”.19 This status, granted by the governor, requires British nationality and is the instrument used by the British government to control who can vote and be elected on the islands.20 For the past 20 years, almost 40% of positions in the assembly have been filled by people born in the United Kingdom.21
The judiciary is presided over by the “Chief Justice”, who is the President of the Supreme Court, resides in the United Kingdom and visits the islands at least once a year. There also exists a “Court of Appeals” and a “Senior Magistrate”. The Chief Justice, the President of the Court of Appeals, the Appeals Judges as well as the Senior Magistrate are appointed and removed from office by the Governor of the islands. All come from the United Kingdom.
The Governor of the islands, elected in London by the Foreign Office, is a British career diplomat who occupies the position for an unlimited duration. He has broad political power in the executive, legislative and judiciary, namely: a) the power to dissolve the legislative assembly,22 b) draft bills passed by the assembly are not in force until he approves them at his discretion,23 c) he may also, at his sole discretion, pass any draft bill or motion presented or put forward in a session of the assembly that the assembly itself has not approved,24 d) he can act at his sole discretion, even against the opinion of the islands’ executive council (the advisory organ of the executive power, partly composed of members of the legislative assembly),25 e) he is in charge of appointing and removing the higher- level judges of the islands,26 f) he can grant and dispose of land concessions on behalf of Her Britannic Majesty,27 g) he has broad emergency powers based on an almost eighty-year old legal instrument, the “Emergency Powers Order in Council 1939”, created to apply in the colonies, protectorates and domains that the United Kingdom held in the 1930s. This ordinance grants him a number of powers, including those to detain, deport and refuse entry to individuals, to seize properties and land on behalf of the Queen and to reform, suspend, or apply any law, including by amendment,28 h) he is in charge of selecting the most important civil servants, such as the Chief Executive, Chief of police, the Attorney General and the official Commander of the islands’ defence forces,29 i) the only limits to his legislative function are set by the Queen and not the islanders.30
In sum, the alleged self-government of the islands is nothing more than the old British colonial system under a different guise. British power is so pervasive and influential on the islands that even the constitution itself openly enshrines British supremacy over the islands and their inhabitants in the political, administrative and institutional arena.31
A clear example of Great Britain’s real power over what are currently known as the “British overseas territories” is that of the Turks and Caicos Islands in the Caribbean. In August 2009, the government in London decided to dissolve the democratically elected government of the islands “due to the high probability of systemic corruption.” It disregarded the forceful protests of the Caribbean Community (CARICOM) and indefinitely postponed the democratic election of a new government. The governor appointed by London fulfilled both the executive and legislative functions. The truth is that the British government still exercises close control over its colonial territories, and manipulates the right of peoples to self-determination to invoke it when this suits it best, to avoid putting an end to the ongoing territorial disputes it is involved in through its occupation of the territories of other States.32
C. The manipulation of the right of peoples to self-determination by history’s principal colonial power
Pascoe and Pepper briefly mention the principle of the right of peoples to self- determination.33 It is remarkable how few words they devote to what is supposedly Britain’s main argument by which the current present de facto situation, and the opposition to engaging in negotiations with Argentina, are justified. It is interesting to observe that they suffer the same shortcoming as the British thesis: they fail to point out the reasons why the islanders should be considered a separate people entitled to the right of self- determination.
The principle of the right of peoples to self-determination is a fundamental principle of contemporary international law. Thanks to this principle, numerous oppressed peoples were able to create their own independent States during the process of decolonisation that took place in the second half of the 20th century. For a number of years, the United Kingdom and other colonial powers denied the legal – and therefore binding – nature of the principle of self-determination. They only recognised the importance of this right in the 1960s, when the independence process of their ex-colonies was essentially over. In the case of the United Kingdom, this recognition had the aim of justifying its position with respect to the cases of the Falklands/Malvinas and Gibraltar.
This is the view of the principle of self-determination that the British government itself gave in the arbitral proceedings brought by Mauritius against the United Kingdom in the case of the Chagos Marine Protected Area: “In November 1965, there was no rule of international law concerning self-determination (and a fortiori no such rule of jus cogens) binding on the United Kingdom such as would have precluded the establishment of the BIOT [British Indian Ocean Territory]”.34
They explain their position as follows:
The United Kingdom had consistently, throughout the 1950s and 1960s, objected to references to a “right” of self-determination in United Nations instruments, including in the drafts of the International Covenants of 1966. It did not, in 1965, accept that the principle of self-determination had hardened into a legal right, still less that the “prohibition of the denial of the right to self-determination” was a rule of jus cogens.35
Resolution 2625 (XXV) of the General Assembly of the United Nations was adopted in 1970 and contains the Declaration on Principles of International Law. Among these principles, it includes that of the right of peoples to self-determination. At the time, the British position was as follows:
although the principle of self-determination is a formative principle of great potency, it is not capable of sufficiently exact definition in relation to particular circumstances to amount to a legal right, and it is not recognized as such either by the Charter of the United Nations or by customary international law.36
In the case of the Falklands/Malvinas, the principle of the right of peoples to self- determination is manipulated and wrongly invoked by the British government with two main objectives: to maintain Britain’s presence in the South Atlantic and to avoid settling the dispute over sovereignty with Argentina that has existed since 1833.
In international law, not every human community established in a given geographical territory holds the right of self-determination. This is why the law distinguishes between “peoples” and “minorities”, no matter whether national, religious, linguistic, ethnic, etc. While the first group is entitled to the right of self-determination, the second is not, although minorities are entitled to a set of rights aiming at guaranteeing and preserving their identities within the territorial context of the State they live in.37 Indigenous peoples are also distinguished as a separate category to whom the Declaration of the United Nations recognises a right to self-determination,38 but only in its internal aspect. The self- proclamation of a “people” and a subsequent claim of entitlement to the right to self- determination are also insufficient. In this regard, the International Court of Justice, in the Western Sahara case, stated that:
The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of people, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a 'people’ entitled to self- determination, or on the conviction that a consultation was totally unnecessary, in view of special circumstances.39
None of the more than 40 resolutions passed by the General Assembly and the Decolonization Committee of the United Nations40 has recognized the existence of a separate people on the territory of the Falklands/Malvinas, and these resolutions have therefore taken other paths regarding the manner in which to proceed to the decolonization of the islands. The position of the United Nations as to how to put an end to the colonial situation is negotiation between Argentina and the United Kingdom to solve the dispute over sovereignty, taking into account the interests of the population of the islands.41 Not only, but it is worth remembering that when the United Kingdom attempted to incorporate an express mention of the right to self-determination in what a posteriori became Resolution 40/21 of November 27th, 1985, the General Assembly rejected it outright. The reason is simple: unlike ordinary cases of colonialism, that is, the oppression of an entire people by a European power, the Falklands/Malvinas case concerns the eviction of a newly born independent State from an insular, scarcely populated portion of its territory lacking any original population, by the most powerful colonial nation of the time.
Unlike what occurred in other regions of the world, such as the Caribbean, in which the colonial power massively imported a population of slaves that gave rise to the formation of a new people, in the case of the Falklands/Malvinas the scarce population brought to the islands by the British government were British settlers. At the same time, the possibility of entering into negotiations with Argentina was flatly denied, in spite of the latter’s protests – a clear example of a policy of strength.
The fact that the present-day inhabitants of the Falklands/Malvinas do not constitute a separate people holder of the right of self-determination does not mean they do not enjoy other rights. They are of course entitled to human rights, both individually and collectively. Argentina has committed itself in its Constitution to respect the inhabitants’ way of life.42 Quite simply, sixteen hundred and fifty British citizens do not have the right to decide a dispute between Argentina and the United Kingdom which involves more than three million square kilometres of land and sea, a surface bigger than continental Argentina and twice as big as the United Kingdom.
Many territorial disputes exist throughout the world, many of them involving inhabited territories. Some have been brought before the International Court of Justice. The Court has decided the sovereignty of these territories on the basis of the titles invoked by the parties, and not their inhabitants’ nationality or wishes. In the El Salvador/Honduras case, between 10.000 and 30.000 Salvadorean citizens found themselves on the Honduran side of the boundary laid down by the judgment.43 In the case of Cameroon v. Nigeria, more than 100.000 Nigerians inhabit a territory which the Court recognized as belonging to Cameroon.44 The Court did the same in its judgment in the Burkina Faso/Niger case.45 In all these situations, the Court reminded the parties of their obligation to respect the rights of the inhabitants of the territory in dispute, but never subjected its decision to the will of the inhabitants. Other examples may be given. At the end of World War I, France asserted that it was not required to hold a referendum in Alsace-Lorraine, since from 1871 – the year the territory was transferred to Germany – thousands of French residents had preferred to leave the territory rather than live under German sovereignty, while thousands of Germans had settled in the territory. When the Swedish population of the Aaland Islands, which were under Finnish sovereignty, claimed self-determination to be integrated with Sweden, the answer was that they were entitled to broad autonomy, but under Finnish sovereignty.
The British pamphlet mentioned in passing the principle of territorial integrity. It recognizes that the Declaration on decolonization contained in Resolution 1514 (XV) “also contains a limitation”: paragraph 6, which condemns any attempt aiming at disrupting national unity and territorial integrity. The pamphlet states that Argentina’s argument “is weak”, and reiterates its historical manipulation of the absence of Argentine sovereignty or its “concession” [sic] by means of the Arana-Southern Treaty.46 Britain’s official position has recognized the importance of paragraph 6 of Resolution 1514 (XV). In its Counter- Memorial in the aforementioned Chagos case, the United Kingdom affirms that this paragraph "was aimed at securing the political objective of precluding demands for decolonization leading to the dismemberment of the territory of a sovereign State".47 If neither the General Assembly of the United Nations, nor its Decolonization Committee have applied the principle of self-determination to the current inhabitants of the Falkland/Malvinas Islands, is precisely because they have correctly interpreted the applicability of Resolution 1514 (XV) to that particular case. On the one hand, they take into consideration the respect for Argentina’s territorial integrity; on the other, they do not determine there is a human community entitled to the right of self-determination in the case of the Falklands/Malvinas.
If the United Kingdom wishes that its citizens in the Falklands/Malvinas should decide the fate of the territory they inhabit, that territory should be British. On the contrary, there is a dispute over sovereignty with Argentina. According to Rosalyn Higgins, former British judge and former President of the International Court of Justice: “Until it is determined where territorial sovereignty lies, it is impossible to see if the inhabitants have the right of self-determination”.48 In other words, according to the distinguished British jurist, the Anglo-Argentine territorial dispute must first be solved, in order to know whether the British inhabitants can decide what they want for their territory. This clearly means that the alleged “self-determination” of the British inhabitants cannot be imposed to Argentina, nor can it constitute an excuse to leave the dispute over sovereignty unresolved.
The British argument of self-determination in the case of the Falklands/Malvinas is also seriously undermined by the United Kingdom’s indisputably inconsistent policy. There was no “self-determination” when they expelled two thousand native inhabitants from the Chagos archipelago. In 1966, the British government leased Diego García Island in the Chagos archipelago to the United States, for it to build a military base on the island.49 In 1967, the British government bought most of the plantations on the island, closing them down soon after and depriving the population of basic means of survival such as food and medicine, forcing them to leave the island. Then, the inhabitants were informed that they would be evicted, with no prior notice or consultation. Armed men organised the islanders and these were sent in groups to Mauritius and the Seychelles. In 1971, the United Kingdom ended this process by issuing an Immigration Ordinance forever prohibiting the Chagos islanders from returning to their homes.50 The British diplomat Colin Roberts, “Governor” of the Falklands/Malvinas since 2014, said to American diplomats that the real aim of creating the Chagos Marine Protected Area was to prevent the Chagossians from returning home.51
There was also no “self-determination referendum” when Margaret Thatcher’s government returned Hong Kong to China, its legitimate owner. Even less did it grant full British citizenship to the five million Chinese residents in the territory, as happened with the two thousand inhabitants of the Falklands/Malvinas whose origins were European. In other words, self-determination is a specious argument being used to maintain one of the last vestiges of the British Empire, with no legal basis whatsoever. The population is a simple adjustment variable to maintain their colonial remnants around the world. When the population becomes an obstacle, it is expelled, as occurred in Diego García and Banaba Islands; when it can be used as a tool to legitimise occupation, a supposed right to self- determination is invoked, as in the case of the Falklands/Malvinas.52
Britain’s manipulation of the principle of self-determination is clear for a number of reasons: 1) because the General Assembly of the United Nations, and not the colonial power, is the body in charge of determining the procedures to be followed in order to put an end to a colonial situation, and the highest organ of the United Nations has never applied such a principle to the current inhabitants of the islands; 2) because this is a special case of colonialism in which the victim of the colonial action was a recently established State; 3) because after the dispossession of Argentina, the British government established their own settlers; 4) because since then, it has controlled the migration policies of this isolated and scarcely populated territory; 5) because the current residents do not constitute a separate “people” who is a victim of colonial actions; 6) because the United Kingdom, after evicting Argentina and introducing its own settlers, rejected all proposals to negotiate and arbitration put forward by Argentina, while consolidating its presence in the islands.
Accepting that the British subjects living in the islands may themselves decide the Anglo- Argentine dispute would mean a flagrant and arbitrary example of imposing a fait accompli. If there is a people who is a victim of colonialism to whom the principle of self- determination can be applied here, that people is the Argentine people.