Self-determination right in the context of aFlklands conflict

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Self-determination right in the context of aFlklands conflict

Dotsenko R.A. - student of the International Law Faculty of Yaroslav Mudryi National Law University

Abstract

Право на самовизначення в контексті Фолклендського конфлікту

Стаття присвячена дослідженню питання правомірності застосування права на самовизначення в контексті Фолклендського конфлікту між Аргентиною та Великою Британією. У роботі описано сутність конфлікту й стисло викладено його історію від самого відкриття Фолклендських островів до сучасності. Також на основі низки джерел міжнародного права (таких, як Статут Організації Об'єднаних Націй, Декларація про принципи міжнародного права 1970 р., Підсумковий звіт Зустрічі експертів з подальшого вивчення поняття прав людини на Паризькій конференції 1989 р. під егідою ЮНЕСКО тощо) проаналізовано питання суб'єкту права на самовизначення, за результатами якого визначено, що фолклендці можуть бути визнані таким суб'єктом, оскільки вони є окремим народом за низкою характеристик. Зокрема, завдяки наявності спільних історичних традицій, культурній гомогенності, мовній єдності, територіальним зв'язкам, достатній кількості представників, наявності національної самосвідомості й інститутів вираження власної ідентичності тощо.

Окрім того, в статті досліджено питання співвідношення принципів самовизначення народів і територіальної цілісності в контексті вищезазначеного конфлікту. Зокрема, розглянуто доктринальну концепцію «запобіжної клаузули», яка дозволяє державам за певних обставин віддати пріоритет власній територіальній цілісності замість права на самовизначення певного народу, й зроблено висновок, що аргентинська сторона не виконує належним чином жодну з вимог для збереження контролю над Фолклендськими островами за гіпотетичної умови здійснення нею формального суверенітету над ними. Опрацьовано також і позицію Організації Об'єднаних Націй із цього питання, а саме Генеральної Асамблеї, яка хоч і відмовилася внести пункт про право на самовизначення фолклендського народу до відповідних резолюцій, але формально не заборонила його застосування. Зроблено висновок, що фолклендці можуть бути визнані як окремий народ і мають право на самовизначення, за допомогою якого, якщо інші юридично й політично суттєві обставини не будуть перешкоджати, вони можуть вільно обирати свій статус.

Ключові слова: право на самовизначення народів, принцип територіальної цілісності держав, Фолклендський конфлікт, територі¬альний спір, Велика Британія, Аргентина, Фолклендські острови.

Problem definition. During the entire human history there always have been conflicts for territory. To prevent these conflicts from escalation into the bloody wars, mankind created and developed international law as a complex of norms which were meant to regulate the relations between states, organizations and other subjects with international legal personality. However, even the modern international law toolkit is insufficient to solve every territorial dispute definitely and unreservedly. There are plenty examples to this fact: Kashmir, Karabakh, Kosovo, Palestine conflicts etc.

But maybe one of the hardest cases in the history of territorial disputes is the Falkland Islands (Malvinas) conflict between the Great Britain and Argentina. This issue has many sides and circumstances that make figuring out the final solution rather difficult and impossible to analyze in a single article, so we decided to concentrate on one of its' crucial points: the Falkland Islanders' self-determination right, which British side claims to be applicable and Argentine side claims to be not. Recognition of Falklanders' self-determination right can be the key to solution of this almost bicentennial international legal problem; however, it is important to analyze, whether it is appropriate to insist on the fact that Falklanders have the aforementioned right or no.

The latest researches and publications analysis. The issues of self-determination right and the Falklands conflict have been an object of scientific research for a certain number of legal scientists, historians and sociologists: A. Mus, D. Dunnett, C. Rodriguez, M. Zenina, A. Aleksanyan, I. Tiunchik, A. Basa- lyga, E. Ganyushkina, A. Boguslavskaya, A. Abdullayev, S. Serkerov, S. Gostev etc. However, the problem of application of the self-determination right to Falkland Islands, with rare exceptions, still lacks proper research.

Hence, the goal of this article is to analyze, whether the Falkland Islanders have the self-determination right, and, if so, whether it is applicable to the Falkland Islands territorial dispute between the United Kingdom and Argentina.

Statement of the main part. Since their discovery by Europeans, Falkland Islands have always been an object of arguments and conflicts. The first of them arose namely around the question who had been the first to discover these islands due to the fact that the right to occupy and possess the land was generally grounded upon the allegation of discovery. The list of explorers who might have done this includes Amerigo Vespucci for Portugal (1502), Fernando Magallanes for Spain (1520), John Davis and John Hawkins for England (1592 and 1594 respectively). Although this problem remains unsolved, the first undisputed landing was made by an English sailor John Strong in 1690. It was also him who named this land “Falkland islands” [1].

The first to settle the islands and proclaim the sovereignty over them had been French colonists led by Louis de Bougainville in 1764, who had established a colony on the Eastern Island and given the whole archipelago the name “оles Malouines”, later translated by the Spanish as “las islas Malvinas”. However, nine months later British commodore John Byron, being unaware of the French expedition due to the fact that France had not announced it publicly, landed on Saunders Island, built a settlement and declared British possession of the Falklands. Although there had not been any significant conflicts between the French and British colonists, the Spanish were totally furious about this situation because they considered the occupation of Malvinas a violation of the Utrecht Treaty (1713), the sides of which had been France and the United Kingdom. France had agreed to transfer the possession of islands to Spain in 1767; however, the British had refused, which nearly led to a war. Despite this refusal, in 1774 British colonists abandoned the Falklands voluntarily, but left a sign, by which the UK claimed to continue maintaining sovereignty over this land. Spain did the same in 1811 due to the River Plate colony war for independence [1].

After that the United Provinces of River Plate (future Argentina) has been trying to colonize the Falklands, but their efforts have taken a little effect. In 1833 British army returned to the islands and expelled the Argentine garrison from them, although let civilians remain. The formal protest of Argentina became the beginning of a long conflict between it and the UK. As C. Rodriguez precisely wrote, “If there was a belief in Buenos Aires that the United Provinces had inherited the islands from Spain, what became clear was that in fact the Provinces actually inherited a territorial dispute with Britain, still present to this day” [1].

Later, in 1849, Argentina and the Great Britain signed the “Convention for re-establishing the perfect relations of friendship between Her Britannic Majesty and the Argentine Confederation” (“Southern Arana Treaty”), which lifted the British and French blockade, previously established by them due to the Argentine intervention in Uruguay. However, Falkland Islands were not even mentioned in the document, and their status remained uncertain [1].

Almost for one hundred years Argentina had remained practically inactive regarding the Falklands dispute, but in 1945 its' authorities saw a great instrument of putting pressure on the UK in newly-founded United Nations: Argentina officially requested for help of the international community. Nevertheless, UN haven't been striving to solve the conflict straightforwardly and instead of this only have been adopting resolutions of almost the same content, which in general urged the sides to negotiate. This fact probably had not met the requirements of Argentina and in 1982 this country, being under the rule of the general Leopoldo Fortunato Galtieri, launched a war against the Great Britain to bring Malvinas back. United Nations considered this fact outrageous and adopted resolutions 502 and 505, which demanded the sides to cease hostilities. However, neither Argentina nor Britain had paid attention to these resolutions: the war ended only when Argentina decided to surrender voluntarily. Diplomatic relations between two countries had been discontinued until 1989, when Argentine president Carlos Menema took course for the improvement of dialogue with the United Kingdom, however, slightly complicated because of the discovery and production of oil on Falklands by latter [1].

But the most significant controversies aroused due to the referendum, which the United Kingdom had carried in 2013 among those who live on the Falklands. Its' question was formulated in such words: “Do you wish the Falkland Islands to retain their current political status as an Overseas Territory of the United Kingdom? YES or NO” [1]. Absolutely overwhelming majority (99,8%) chose the answer “YES”. Although then Argentine president Cristina Fernandez de Kirchner claimed that Falklanders were “a bunch of squatters voting on whether or not to keep occupying a building illegally”, Britain used it to demonstrate that islanders didn't have any desire to transfer their land to Argentina [2, p. 157-158]. However, there was one big question related to the position of the UK: did Falklanders have the self-determination right, which could make this referendum legitimate? Argentina acknowledged the existence of such a right in general, but refused to recognize the possibility of its application to Malvinas, claiming that Falklanders could not constitute a separate people. This is the most interesting point for us that needs a special analysis, because the solution of this main problem might be the key to resolving the whole territorial dispute.

Firstly, we ought to define the features of the “self¬determination right” concept. Although it is enshrined in Articles 1(2) and 55(1) of the United Nations Charter [3], this document doesn't contain any description ofthe aforementioned right. We can see a significantly more detailed approach to this problem in the Declaration on the Granting of Independence to the Colonial Countries and Peoples from 14 December 1960, which is also applicable to Non-Self-Governing Territories (NSGT) according to its preamble [4]. Articles 2, 4 and 5 seem to be the most relevant in relation to Falkland conflict, as they grant the peoples of NSGT the right to “freely determine their political status and freely pursue their economic, social and cultural development”, forbid “all armed action or repressive measures of all kinds directed against dependent peoples < . .> in order to enable them to exercise peacefully and freely their right to complete independence” and proclaim that “immediate steps shall be taken in <...> Non-Self- Governing Territories <.> to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or color, in order to enable them to enjoy complete independence and freedom” [4]. An important remark was made by the Declaration on Principles of International Law (1970), which described several forms of realization of the self-determination right: “The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self¬determination by that people” [5].

Although there are some other documents of a worldwide scale concerning the issue of self-determination (e.g. International Covenant on Economic, Social and Cultural Rights, which duplicates the statements of Declaration on the Colonial Countries; or Vienna Declaration and Programme of Action, which proclaims the absence of conflict between the principles of self-determination and territorial integrity without any detailed explanations), as S. Gostev has written, the ambivalence of international law norms leads to obscurity in this issue and first of all remains unsolved the question of subjects of the self-determination right [6, p. 8]. However, without understanding the subject it is impossible to apply this right effectively, so we must try and find out the requirements which possible subject (including Falkland Islanders) must meet to demand the recognition of its self-determination right.

As we can derive from the aforementioned and other documents of global importance, subjects must constitute a separate people. Nevertheless, we cannot derive from them any complete list of conditions that make certain cultural group a people. However, the best effort was made by UNESCO in 1989 during the International Meeting of Experts on further study of the concept of the rights of peoples. Its main document (“Final Report and Recommendations”) contains probably the most thorough description of the notion “people” at the moment - or at least far better than any other UN document has ever done. In particular, according to this document, a people in order to be recognized as such, must possess the following characteristics:

1. [Be] a group of individual human beings who enjoy some or all of the following common features:

(a) a common historical tradition;

(b) racial or ethnic identity;

(c) cultural homogeneity;

(d) linguistic unity;

(e) religious or ideological affinity;

(f) territorial connection;

(g) common economic life.

2. The group must be of a certain number which need not be large (e.g. the people of micro States) but which must be more than a mere association of individuals within a State.

3. The group as a whole must have the will to be identified as a people or the consciousness of being a people - allowing that groups or some members of such groups, though sharing the foregoing characteristics, may not have that will or consciousness.

4. The group must have institutions or other means of expressing its common characteristics and will for identity[7].

Although this report doesn't possess any legal power, it may serve as a powerful interpretational instrument in resolving the cases related to the self-determination right, because it contains the most detailed description of the notion “people” as a subject of this right. On this basis we consider it necessary to analyze the population of Falkland Islands and find out whether it constitutes a full-fledged people according to the criteria of the aforementioned report or no.

The first paragraph includes seven subparagraphs and begins with the one concerning common historical traditions. Whereas the Falklands have been ruled by British administration since 1833 (with the short break in 1982 due to the Argentine occupation) [2, p. 158], it has been almost impossible for islanders to create no forms of common historical traditions during this rather long period of time. Modern Falklanders are a diverse people, who still possess the traditions of their ancestors of various origins: for example, although British culture dominates among the islanders, South American shepherds named “gauchos” have made a significant contribution to the development of the Falklanders identity - in particular, by introducing some Spanish words to the prevailing English language [8]. It has formed a unique Falklander English dialect that nowadays includes a certain amount of modified or corrupted Spanish words like “colorao”, “bosal”, “sarco”, “rabincana” etc., which may often be quite difficult to understand for non-islanders [8]. This fact clearly shows that Falklanders share common historical traditions, unique for their people.

Racial or ethnic identity. It is quite difficult to define the racial or ethnic composition from the official Falklands Census' information due to the fact that the majority of islands' population described themselves as “Falkland islanders”, but it would be rather precise to say that the most of them are of British descent and insignificantly - of Hispanic. 87 percent of the islands' population consists from Falklanders, British and St. Helenians, who are ethnically close to the first two. Also 85 percent of the islands' population speak English as their native language. These facts show the obvious dominance of Anglo-Saxon ethnic group on the Falklands, however, with the elements of Latin [9, p. 29-31].

Cultural homogeneity. The most of the information needed to prove the Falklanders' cultural homogeneity is provided in the first two subparagraphs: historically shepherd or agricultural way of living, dominance of Anglo-Saxon ethnic group and English language (with elements of Hispanic one) and, in addition to this, the fact that 66 percent of the population define them as Christians is probably enough to consider Falklanders quite homogeneous. Another fact that proves their homogeneity is that Falklanders have nicknames as a people: for example, “Bennies” (mostly endonym) or “Kelpers” (mostly exonym) [10].

Linguistic unity. As stated above, the 85 percent of the Falklands population speak English as their native language. Others speak Spanish, Shona, Filipino, Tagalog, French, Italian, German etc. at home, and 86 percent of them claim to know English “very well” or “well” [9, p. 31].

Religious or ideological affinity. There is no official religion or a fortiori ideology on Falkland Islands, however, as we mentioned before, 66 percent of population identify them with Christianity and, in addition to this, 32 percent don't identify them with any religion. As only 2 percent of those living there consider themselves adepts of non-Christian religions, we may conclude that among the Falklands' believers Christians absolutely dominate [11, p. 22].

Territorial connection. Falkland Islanders live only on the territory of Falkland Islands, so their territorial connection is rather obvious and undisputed.

Common economic life. The labor force participation rate (calculated by dividing the number of people in the labor force who are in work by the total working age population) on Falklands is exceptionally high - 89 percent (according to the 2016 Census). The range of employment sectors is quite wide to consider that Falklands have a full-fledged economic system; it includes public services (provided by Falkland Islands and the UK government), agriculture, trade, construction, tourism, hospitality, transportation, fishing, information and communication, financial services, mining, oil and gas explorations et cetera [9, p. 37-39].

Second paragraph obliges a people to be more than a mere association of individuals whatever their quantity is. We believe that conclusions we made through the analysis above comprehensively justify the fact that Falklanders are more than just a mechanical unity as they share common cultural features, language, religion, territory and economic system. And on the basis of the fact that Falklanders' number doesn't have to be large (the islands' population according to 2016 Census was 3200 people, 1734 of whom directly claimed to be Falkland Islanders by nationality) [9, p. 14, 29], they can be considered as those who meet the requirements of the second paragraph.

Third paragraph means that a certain group must have a desire to identify themselves with a separate people, which may also include an insignificant amount of those who don't do this, but meet other requirements to be objectively considered as a part of this people. As we can derive from the official Census 2016 information, 55 percent of islands' population claim themselves to be the Falkland Islanders by national identity. The majority of Falklands residents consider themselves a unique people - and this is probably the best evidence they are indeed; should we add to them some other inhabitants of the archipelago, who meet the requirements without willing to define themselves as Falklanders, and we will receive an overwhelming dominance of Falkland Islander nationality representatives among the population of the islands [9, p. 29].

And the fourth paragraph requires from a people to have certain means of expression of their identity. The main institution which expresses the interests of Falklanders is the Falkland Islands Government. Although Falklands are British Overseas Territory, they possess a partial self¬governance through the Executive Council and the Legal Assembly which is elected democratically every four years. Position of the head of government is shared by the Chief Executive from the islanders' side and the Governor from the Crown's side [12, p. 21, 22, 31]. There is also Falkland Islands Defence Force - a company-sized military unit situated on the archipelago; it is manned entirely by the local volunteers and funded by the local government [13]. In addition to the aforementioned institutions, there exists a local judiciary system, represented by the Magistrates' Court, the Summary Court, the Court of Appeal and the Supreme Court as the highest in hierarchy [12, p. 39-42]. As we can see Falklanders enjoy the existence of quite developed system of institutions which expresses or serves their interests; thus, we might make a conclusion that they meet the requirements of the fourth criterion.

Therefore, we can summarize that Falkland Islanders are a small, but self-conscious, culturally, economically and territorially united people with the means of expression of its national identity and self-sufficiency - a full-fledged people which meets the criteria of the Final Report and Recommendations of UNESCO International Meeting of Experts on further study of the concept of the rights of peoples 1989.

However, the fact of being a people and, thus, a legitimate subject of the self-determination right still doesn't allow Falklanders to use this right arbitrarily because the self-determination as one of the most important principles of international law contradicts another no less important principle of territorial integrity. The latter is enshrined in Article 2(4) of the United Nations Charter [3], also in Helsinki Final Act [14] and Paris Charter of OSCE [15]. Nevertheless, the most detailed information on the issue of interrelation of the two aforementioned principles we can receive from the Declaration on the Principles of International Law 1970 [5]: according to A. Aleksanyan, from the norms this document contains we can derive so-called “saving clause” - a list of conditions which allow states to save their territorial integrity notwithstanding the self-determination right [16, p. 65]. To be precise, there are three conditions:

1. A state must abide by the self-determination principle in its actions.

2. A state must have a government representing the people that lives on a disputed territory.

3. A state must not discriminate a certain people [16, p. 65].

The Declaration on the Principles of International Law is

a fundamental document of international legal system, and we believe that aforementioned interpretation of this document does not deprive its norms of jus cogens status. Hence, we feel the necessity of carrying out the analysis of this `saving clause' applied to Falkland Islanders to figure out whether it is legitimate for them to activate their self-determination right against Argentina or no.

A state must abide by the self-determination principle in its actions. As we may derive from the official Argentine position, this country doesn't acknowledge the Falklanders self-determination right [17]. Certainly, this only fact is not enough to consider Argentina a violator of this criterion; this can be justified by the decision of the Supreme Court of Canada, which in 1998 fairly stated on the issue of Quebec secession that “countries with governments which represent all the people within their territory on the basis of equality without any discrimination and with respect to the self-determination principle are authorized to defend their territorial integrity according to the international law” [16, p. 65]. However, in Argentine case we can see that Argentina not only refuses to acknowledge the Falklanders self-determination right, but even claims Falkland Islanders' status as a separate people to be absent based on the fact that they are nothing more than a group of British colonists [17]. Partially, this is so; on the other hand, 200 years of living on the islands is enough for such a group to form its own culture and identity - and, as we showed above, they had successfully done it. Even more irrelevant this argument looks if we recall that Argentine nation has been formed by Spanish colonists as well. Such an argument from Argentine side looks like a pure manipulation with facts and, certainly, shouldn't be taken into account. Consequently, the refusal to recognize Falklanders (which have all features of a people) as even a theoretical subject of self-determination right constitutes a violation of analyzed criterion by Argentina.

A state must have a government representing the people that lives on a disputed territory. Certainly, due to the fact that Argentina has almost never had an opportunity to control the Falklands, it has been quite a difficult task for it to form a government which would have been representing the interests of Falklanders. Consequently, Argentina has never had a senator of the Falklander identity or Falklander voters during the elections. However, these factors have been objective and practically impossible for Argentina to cope with, so we probably shouldn't blame this country for such incapability to serve the Falklanders' will to express their political ideas within Argentine legislation. On the other hand, using a simple logic, it is not difficult to understand that if Argentina doesn't consider the Falklanders' a people, then it obviously would not promote their representation rights as a people either. Although this is only a hypothesis, we believe it to be rather likely to occur if Argentina ever gains the possession of the archipelago.

A state must not discriminate a certain people. The aforementioned circumstances constitute discrimination themselves. According to the Article 26 of the International Covenant on Civil and Political Rights (ratified by Argentina), “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” [18]. However, Argentina restricts the political rights of Falklanders and discriminates them on the ground of national origin by refusing to acknowledge their status as a full-fledged separate people with its own self-determination right. This can be justified by the fact that returning the control over the Falklands is enshrined in the Argentine Constitution since 1994 and claimed to be the national goal regardless of the Falklanders' will [1]. Such disrespect for islanders' rights as a people constitutes nothing else than a discrimination.

Although it is quite difficult to judge about Argentina's violations of these criteria as it has never gained an effective control over the Falkland Islands, facts remain facts: Argentina does not abide by self-determination principle in its actions, does not represent Falklanders in its government in practice and discriminates the latter by refusing to recognize the social and political rights they possess as a people. Hence, these facts allow the Falklanders to activate their self-determination right.

However, there is one more obstacle. In its argumentation Argentina uses the fact that the United Nations doesn't recognize Falklanders self-determination right as well [17]. After the Falklands War the UN General Assembly has adopted a certain number of resolutions (40/21, 41/40, 42/19, 43/25) [17] of similar content, in which it has requested “the governments of Argentina and the United Kingdom <..> to initiate negotiations' and `the Secretary-General to continue his renewed mission of good offices” [19]. The amendments proposed by the UK and related to the Falklanders' self-determination have been consistently rejected [17]. Although this fact is actually true, at the same time the UN has never adopted any resolution which would have forbidden the Falklanders to use their self¬determination right; consequently, they still may defend it according to the UN Charter.

Conclusion. After thorough analysis we can finally state that Falkland Islanders may be recognized as a full-fledged and separate people and, hence, they may enjoy the advantages of self-determination right, using it freely and willfully. This fact actually brings Argentina in a “legal trap”: if Argentina accepts to acknowledge the Falklanders' self-determination right, they will certainly refuse to go under the Argentine control; if Argentina continues its present line of behavior, then it will not meet the requirements of the “saving clause”, which will still lead to the activation of Falklanders' self¬determination right and the refusal to spread the Argentine sovereignty over the islands. Nevertheless, we should admit that the territorial dispute over the aforementioned islands has many sides and legal points, which ought to be analyzed in order to figure out the right and, even more importantly, legitimate solution of the problem. As we think, the progress in understanding one of the main points of this issue, such as applicability of self-determination right, may help bring the world a little closer to the end of this long conflict. Hence, we can conclude that Falkland Islanders have the self¬determination right and, if other circumstances allow, they may decide their fate and status freely

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