The sole purpose of this work is to refute the distortions and cover-ups of the British pamphlet and to lay bare the clear manipulation of history and law carried out by Messrs Pascoe and Pepper.
The British pamphlet is useful to show the fallacy of the arguments used by the British Government in taking the islands from Argentina. The argument of discovery is false. The argument of occupation equally so: neither was the fort in Port Egmont the first human settlement in the islands, nor did Great Britain have exclusive possession of the latter. According to the British pamphlet, the British-Hispanic agreement implied a mutual reservation of sovereignty. If that was the case, it is hard to see how the British Government can invoke this agreement as Spanish recognition of British sovereignty, as it attempted to have the Argentine Government believe in the only replies it gave to Argentina’s protests in the 1830´s.
The simple truth is that the British Government only “remembered” about the Falklands/Malvinas when Argentina’s significant effort in the islands that had lasted a decade was beginning to bear fruit. Its aim was strategic and its excuse was to revive a claim that had been dead for 55 years. It took advantage of its power as the main colonial and naval authority of the time to confront a young State mired in fratricidal struggles that could not confront it militarily but that nevertheless protested immediately. Once again, imperial arrogance was the only reply to Argentina’s attempts at diplomacy.
No prior warning was given to Argentina by the British Government before its use of force, in spite of it having protested less than two months before dispossessing Argentina of the Falklands/Malvinas. There was no British proposal to resolve the issue through negotiations or any other means, in spite of the existence of diplomatic relations and a Treaty of friendship, commerce and navigation in force. The British protest of November 1829 was not followed by any action, in spite of the serious incident of the Lexington in 1831 and the dispute between Argentina and the United States regarding an issue that directly involved the exercise of the sovereignty over the Falkland/Malvinas Islands. For two years, the Falklands/Malvinas issue was the subject of discussions between Argentina and the United States without Great Britain stating its claim. The British Government simply took advantage of the situation and imposed is power through a unilateral act of force. This attitude, especially considering the bad faith of its arguments, explains why third States have been supportive of Argentina from the moment the islands were seized. Bad faith and the attempt to impose a fait accompli undermine the basic elements of law that regulate the relationships between States:
The issue can be summarized as follows:
1) England did not discover the Falklands/Malvinas, as the British pamphlet admits.
2) The islands were discovered by Spanish sailors from Magellan’s expedition. The first European presence in the islands in 1540 was Spanish, 52 years before Britain’s purported “discovery”.
3) The Anglo-Spanish treaties of the XVII and XVIII Centuries prevented any British navigation and occupation of Spanish territories – which applied to the Falklands/Malvinas.
4) When Spain asserted its sovereignty over the Falklands/Malvinas in 1749, England refrained from visiting the islands.
5) France can invoke the right of first occupant.
6) The right of first occupant belongs to Spain after the transfer of possession from the French to the Spanish Crown.
7) Spain was in effective and uninterrupted control of the islands from 1766 to 1811 and on an exclusive basis from 1774 to 1811.
8) The Anglo-Spanish agreement of 1771 only concerned the return of the possession of Port Egmont: Spain reserved its sovereignty, unlike England.
9) There is sufficient evidence to show that the English withdrawal of 1774 was the result of a promise made to Spain. Great Britain did not notify any reservation regarding the issue of sovereignty to Spain in withdrawing, nor did it authorise Spain to remain in the territory, as it should have done if it considered itself sovereign.
10) The only remnant of a claim of sovereignty left by Great Britain in Port Egmont was removed by Spain, when it destroyed the British settlement without any reaction whatsoever on the part of London.
11) At the time of Argentine independence, Spain was in possession of and had sovereignty over the Falkland/Malvinas Islands and Great Britain had committed to respect that possession and sovereignty through the Treaty of 1790.
12) In virtue of a well-known rule of international law, whether it is called uti possidetis iuris or State succession, Argentina inherited the Falkland/Malvinas Islands from Spain.
13) From the moment of its independence, the Government of Buenos Aires considered the Falklands/Malvinas its own.
14) The taking of possession of 1820 was a public act executed by an Argentine public official of which the British Government was fully aware, and to which it did not react in any way.
15) During the 1820s Argentina exercised various acts of sovereignty over the Falklands/Malvinas with no British protests whatsoever.
16) Not only was there no “British authorisation” given to Vernet in 1828, but on the contrary, the British consul in Buenos Aires certified the authenticity of the concessions made by the Argentine Government without the slightest British reaction.
17) The British protest of November 1829 was late, based on false arguments, made in bad faith and motivated by strategic reasons. Great Britain had forgotten any whim of sovereignty over the islands for the previous 55 years.
18) Without any prior notice, Great Britain expelled Argentina from the islands. As a result, two thirds of the population left the islands, and efforts to restore the settlement to normality were prevented. Vernet was never again able to return to the islands.
19) Argentina immediately protested and it maintained its protests. Great Britain refused to settle the dispute, in a typical show of a policy of force.
20) The British Government created the Colony in 1843 and had control over migration to the territory.
21) In 1849 Palmerston recognised that Argentina still maintained its claim.
22) The Arana-Southern Treaty of 1849 bore no relation to the issue of the Falklands/Malvinas. The text of the treaty, its context, object and purpose show that it was created to end the blockade against Argentina and Uruguay and to recognise the internal nature of the rivers of both South American countries. The pretence of the British pamphlet that the treaty implied an Argentine renunciation was not put forward by the United Kingdom until 2013.
23) A month after the conclusion of the 1849 Treaty, the Government of Buenos Aires once again reiterated in crystal-clear terms its claim of sovereignty in its annual address to the Legislature.
24) Various acts carried out between 1850 and 1884, in spite of the internal and international political changes occurring at the time, show that Argentina maintained its position and did not give up sovereignty.
25) Argentina proposed arbitration to resolve the issue and the British Government insisted in its refusal to resolve the dispute, thereby keeping it open.
26) The cartography presented in the British pamphlet is a coarse manipulation: the maps and books referred to, as well as official cartography, all show the Falklands/Malvinas as Argentine territory.
27) On the contrary to what is stated in the British pamphlet, from 1888 to 1940 there were a number of Argentine expressions of its claim to sovereignty, including by direct diplomatic contact and before international instances.
28) At that same time, the British Government admitted that Argentina maintained its claim.
29) Spain, and not Great Britain, discovered South Georgia. Argentina carried out sovereign acts. Great Britain only reacted belatedly and took advantage of its position of strength in the Falklands/Malvinas. Argentina is the country that has most effectivités in the South Sandwich Islands. The United Kingdom recognised that the fate of South Georgia and South Sandwich Islands is linked to that of the Falklands/Malvinas.
30) British attempts to apply the right of peoples to self-determination to the current citizens of the Falklands/Malvinas is unfounded, it is not recognized by the relevant organs of United Nations and is in complete contradiction with British policy.
The United Kingdom is therefore in a legally untenable position. Any attempt at justification entails a contradiction. If it states that the islands were terra nullius in 1811 or in 1833, it contradicts the thesis advanced in 1829 that the islands were British. If it states that the whole of the archipelago was British, it is difficult to imagine a clear answer to the question of knowing how and when the British Government obtained sovereignty over Soledad/East Falkland Island, considering that it never possessed it and that the island was always in the hands of another State. If the islands were British in 1811, 1820 or 1833, this plainly contradicts Britain’s constant thesis on territorial matters, in which the main criterion for the acquisition of sovereignty is effective possession. Such a statement provides a powerful argument for Argentina to declare that it maintained its title to sovereignty despite losing possession in 1833. If it states that Spain abandoned the islands in 1811, this would be the same as saying that Great Britain did likewise in 1774. If it states that Spain had, at most, sovereignty over Soledad/East Falkland Island, it puts itself in an impossible position to claim anything more than Saunders/Trinidad Island or Gran Malvina/West Falkland. If the United Kingdom attempts to deny any effect to Argentine possession of the islands after the protest of November 19th, 1829, it is implicitly accepting this as the critical date. If it attempts to invoke conquest for its 1833 actions, it implicitly admits bad faith and the absence of any previous title, and bases its title on a use of force – which also contradicts its thesis that there was no use of force.
The truth is that the taking of the Falklands/Malvinas and the continuing British occupation can only be based on a policy of power. As was written by the influential Argentine jurist and diplomat Carlos Calvo in 1862:
The British Government has created a Public Law that applies especially to weak States, called the Right of Force (...) It is not sufficient for the American Governments to offer to submit their differences to a third party, to have in their behalf the opinion of British judicial experts, or even of its own supreme tribunals; it is not enough, simply, to be right; no, it is necessary for the weak to suffer the consequences of its weakness, and that all those considerations become silent upon the very eloquent argument of Armstrong’s cannon (...). Thus the history of British diplomacy in Latin America registers a sum of abuses and violence that myriads of volumes would not be enough to contain. Sometimes with no previous war declaration nor the slightest precedent to authorize it, it bombards a town, such as Paranagua, in Brazil; in other times, it takes possession of a vast territory, like the Falkland/Malvinas, without paying the slightest attention to the claims of the dispossessed nation (...) and, in summary, thousand of similar acts, that even though we cannot repel by force, they remain impressed in the spirit of every American.1
We can conclude that the British pamphlet is an extremely poor manipulation of the Anglo- Argentine dispute that no British professor of international law would have dared sign. It unintentionally confirms what British Government officials have intimately recognized at all moments of the conflict. For example, the Chief of the Americas Department of the Foreign Office, John Troutbeck, (in a similar position to that hold by the current “Governor” of the Falklands/Malvinas, Colin Roberts) wrote in October 1936:
"The difficulty of the position is that our seizure of the Falkland Islands in 1833 was so arbitrary a procedure as judged by the ideology of the present day. It is therefore not easy to explain our possession without showing ourselves up as international bandits"2
We might go further and say that the occupation of the Falklands/Malvinas in 1833 was also difficult to explain without looking like international bandits at the time it occurred. Two centuries should not have to pass since the event for the United Kingdom to return to a path of justice and good faith in its relations with Argentina, Latin America and the rest of the international community.