The Question of the Malvinas Islands, understood as being the sovereignty dispute between Argentina and the United Kingdom over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime spaces, originated on 3 January 1833, when the United Kingdom disrupted Argentina’s territorial integrity by illegally occupying the islands and evicting the Argentine authorities, preventing their return and the settlement of Argentines from the mainland. Since then, Argentina has consistently denounced the United Kingdom’s usurpation and, as it is provided for in the Argentine Constitution, has ratified its sovereignty over the islands and affirmed that its recovery in accordance with international law constitutes a permanent and unrelinquished goal.
The United Nations has characterized the Question of the Malvinas Islands as a special and particular colonial case involving a sovereignty dispute between the Argentine Republic and the United Kingdom of Great Britain and Northern Ireland which should be settled by means of negotiations between the two parties. The Organization of American States, for its part, has also made statements to that effect.
Moreover, Argentina enjoys the full support of the countries of Latin America and the Caribbean, as well as of the 54 African countries, in claiming its legitimate rights to sovereignty over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas, as well as the solidarity of countries from other regions, which support the resumption of the negotiations between the two parties with a view to reaching a peaceful and definitive settlement in the dispute.
The Argentine Government intends to recover the islands peacefully, in accordance with the principles of International Law, and bearing in mind the interests of the inhabitants. Nevertheless, despite the permanent desire for dialogue of the Argentine Government, the United Kingdom has ignored all calls made by the international community to resume sovereignty negotiations, and exacerbates the situation by conducting a series of unilateral activities, which include the exploration and exploitation of renewable and non-renewable natural resources, as well as holding military exercises there.
The Malvinas Islands became part of an area under Spanish jurisdiction with the entry into force of the first international instruments to delimit the “New World” soon after the discovery of the Americas in 1492. The Papal Bulls and the Treaty of Tordesillas of 1494 were the first instruments that conferred titles on Spain in accordance with the international law of the time.
Since the early 16th century and for most of it, only navigators at the service of Spain travelled the maritime routes along the South American coast, advancing southwards in their search for an inter-oceanic passage. In this process, the Malvinas Islands were discovered by members of Magellan’s expedition in the year 1520. From then on they were recorded on European maps under a variety of names and remained as part of the spaces under effective control of the Spanish authorities.
During the 17th century, the Malvinas Islands were sighted by navigators from other nations who had ventured into Spanish domains at the risk of provoking reactions and protests from Spain whenever it received news of such expeditions. But the whole southern region of the Americas, with its coasts, seas and islands, was indisputably preserved under Spanish sovereignty through the different treaties signed in that period, such as the “American “ Treaty of 1670 between Spain and England.
The Peace of Utrecht, signed in 1713, assured the integrity of Spain’s possessions in South America and confirmed its exclusive right to sail in the waters of the South Atlantic. As a signatory of the Utrecht agreements, and of later 18th century treaties ratifying it, England accepted these clauses. However, towards the middle of that century, the Malvinas Islands provoked the interest of Great Britain and France, which were seeking to establish a strategically located settlement opposite the Magellan Strait.
In 1749, Spain received news of a British project to settle in the Malvinas Islands, and strongly protested to the Government of the United Kingdom, which as a consequence, gave up on it.
When in 1764 France established Port Louis on Soledad Island, Spain objected and won the recognition of its right to the islands from France. The French Government ordered the evacuation and handover of the settlement to the Spanish authorities. The handover was made in 1767 and, from then on, there was always a Spanish governor residing in the Malvinas Islands who reported to the authorities of Buenos Aires.
The year after the French settlement, a clandestine British expedition arrived in the archipelago and later, in 1766, English sailors established a fort at a place they named Port Egmont, on an island to the west of Gran Malvina. Despite the secrecy of the Government of the United Kingdom, Spain became aware of this and repeatedly protested by invoking its rights. As it did not receive any acceptable response, it set out to find the illegal settlement, and, in 1770, expelled its settlers by force. As a result of that act, both countries were on the verge of war, which was averted by a bilateral agreement signed in 1771. This agreement consisted of a Declaration by which Spain returned Port Egmont to the British in order to save the honour of the King of England, making express reservation of its sovereignty over the whole of the Malvinas Islands, and an Acceptance of the Declaration in which Great Britain remained silent as to the reservation of Spanish rights. As part of the agreement, it was verbally agreed that the English would withdraw from Port Egmont, which they did in 1774. From then on, the Spanish authorities in Puerto Soledad continued to exercise their jurisdiction and control over the whole archipelago.
In 1790, with the signing of the Treaty of San Lorenzo del Escorial, Great Britain undertook not to establish any settlements on either the eastern or the western coasts of South America or on the adjacent islands already occupied by Spain, which was the case with the Malvinas Islands.
Spain appointed a succession of thirty-two governors in the Malvinas Islands up until 1811, when the garrison at Puerto Soledad was required from Montevideo to defend the monarchy at the beginning of the War of Independence. The first autonomous governments of the United Provinces of the River Plate referred to the Malvinas Islands in various administrative acts, considering them an integral part of their territory, inherited from Spain by succession of States under the uti possidetis juris principle of 1810.
In 1820, despite the internal struggles faced by the Argentine state, Naval officer David Jewett assumed his position in the Malvinas Islands on behalf of the United Provinces of the River Plate at a public ceremony in Puerto Soledad, which was attended by sealers and whalers of different nationalities, including Americans and British, who had happened to disembark on the islands in the course of their work. The news was published in the media in the United States and the United Kingdom but there was no official comment from either of the two countries, nor did Great Britain stake any claim to the Malvinas Islands in the process of recognition of the Argentine State, which ended with the signing of the Treaty of Friendship, Trade and Navigation in 1825.
During the 1820s, successive Argentine Governments took various actions in support of their sovereignty over the Malvinas Islands, including the appointment of governors, legislation on fishing resources and the granting of territorial concessions. As a result, Puerto Soledad grew and its inhabitants worked in stockbreeding, sealing and providing services to the boats which came into port.
On 10 June 1829, the Argentine Government enacted a decree creating the Political and Military Command of the Malvinas Islands. After having remained silent for over 50 years, in the course of which there had been successive uncontested Spanish and Argentine administrations in the Malvinas Islands, in November 1829 the United Kingdom objected to that decree against the backdrop of renewed strategic interest in the South Atlantic.
At the end of 1831, a United States warship razed Puerto Soledad as reprisal for the capture by the Argentine authorities of sealing vessels found to be infringing fishing laws. The Argentine Government immediately began attempts to obtain reparations from the United States and at the same time sent a navy schooner to restore order in the islands, upset by the arrival of the American vessel.
Once order had been restored in Puerto Soledad, on 3 January 1833 a British Royal Navy corvette, with the support of another warship in the vicinity, threatened to use greater force and demanded the surrender and handover of the settlement. After the expulsion of the Argentine authorities, the commander of the British ship left one of the settlers of Puerto Soledad in charge of the flag and sailed back to his base. In 1834, the British Government assigned a Navy officer to remain in the islands, and only in 1841 did it decide to “colonize” the Malvinas Islands by appointing a “governor”.
The act of force of 1833, carried out in peacetime without prior communication or declaration by a government friendly to the Argentine Republic, was immediately rejected and protested. On 16 January 1833, the Argentine Government demanded explanations from the British Chargé d’Affaires, who was unaware of the actions carried out by the vessels of his country. On 22 January, the Minister of Foreign Affairs presented a protest to the British government official, which was renewed and extended on several occasions by the Argentine representative in London. The Argentine presentations were rejected by the British Government.
The issue remained unsettled and this was recognised by the British Foreign Secretary in 1849. Argentina, meanwhile, continued to raise the issue at different levels of government and it became a subject of debate in the Argentine Congress. In 1884, in view of the lack of response to the repeated protests, Argentina proposed to take the issue to international arbitration, which was also rejected by the United Kingdom without any reasons being provided.
During the first half of the twentieth century, the successive Argentine governments made it standard practice to submit protests to the United Kingdom and to make submissions and reservations before the competent multilateral bodies whenever they had notice of unilateral British acts by which Argentina’s sovereignty was ignored. This was also the period during which the dispute extended to other South Atlantic and Antarctic island territories in respect of which Argentina, the United Kingdom and in some cases third countries began to carry out different activities. In 1908 Britain annexed such territories (the South Georgias, South Orkneys, South Shetland and South Sandwich Islands, as well as the Antarctic territory called Graham Land by the British) as “dependencies of the colony” of the Malvinas Islands. Argentina repeatedly extended its protests to such territories. Upon the entry into force of the Antarctic Treaty, in 1960, the sovereignty dispute over the South Orkneys, South Shetlands and the related part of the Antarctic territory remained subject to Article 4 of the Treaty. The other territories, i.e. the South Georgias and South Sandwich Islands, are still within the geographical space that, in addition to the Malvinas Islands, is the subject of the sovereignty dispute with the United Kingdom known as the “Malvinas Islands Question”.
a. Period 1945-1965
The so-called “Malvinas Islands Question”, meaning the sovereignty dispute between Argentina and the United Kingdom over the Malvinas, South Georgias, South Sandwich Islands and the surrounding maritime spaces, was not only present in the United Nations Organization since its work began, but also emerged even during the process that led to its creation, when, at the end of World War II, the San Francisco Conference on International Organization was held.
There, in May 1945, upon debating the functions that the General Assembly of the Organization about to be created would have, Committee 4 of Commission II discussed the issue of the non-autonomous territories and the trust system to which they would be subject. In order to prevent its application from extending to the territories in respect of which Argentina claimed rights and which were under a sovereignty dispute, the Argentine Delegation made a reservation of rights, reflected in the rapporteur’s Report, indicating that the Republic would under no circumstances agree to this system being “applied to territories belonging to Argentina, whether they be subject to a claim or dispute or in the possession of other States”.
The following year, during the first session period of the Assembly General, the administrating Powers presented a list of non-autonomous territories that would be included within Chapter XI of the Charter, which in Article 73 e) establishes the obligation of such Powers to convey to the Secretary General information on them. The United Kingdom entered the Malvinas Islands on the list, on the basis of which the General Assembly prepared Resolution 66(I), adopted on 14 December 1946. As the Malvinas were referred to in this Resolution, the Argentine Delegation once again made a new reservation of its sovereignty rights, and continued to maintain this position whenever the Fourth Commission of the General Assembly examined the information conveyed by the United Kingdom on such territory.
Upon the matter being dealt with in the second session of the General Assembly, the Argentine Delegation reiterated its reservation, stating that the information conveyed by the Government of the Untied Kingdom with regard to the Malvinas Islands pursuant to Article 73 did not diminish or impair the title of the Argentine Republic to such islands and that Argentina did not recognize any acts carried out by other Powers in the South Georgias and South Sandwich Islands, the other Antarctic islands or the continental polar land within the Argentine Antarctic Sector.
In 1955, the Argentine Republic reasserted it’s rights and denied those alleged by the United Kingdom, when the latter stated its readiness to accept the jurisdiction of the International Court of Justice in respect of what it called the “Malvinas Islands dependencies”. In replying to the statements made by the British delegate to the Fourth Commission with regard to acceptance of the jurisdiction of the International Court of Justice by the United Kingdom, the Argentine Delegation answered that no such dependency relationship existed and stressed that even if it did exist, it could not be invoked by the United Kingdom because the Malvinas Islands were Argentine.
On 14 December 1960, the United Nations General Assembly adopted Resolution 1514 (XV) “Declaration on the granting of independence to colonial countries and peoples”, which established “the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations”, enshrining two fundamental principles which were to guide the decolonisation process: self-determination and territorial integrity. This Resolution provides, in its sixth paragraph, that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”. This limitation imposed upon the right to self-determination means that the latter yields to respect for the territorial integrity of States.
During this stage of the consideration of the Malvinas Islands Question in the UN, which began in 1945 and continued until the mid-1960s, the constant feature were the assertions and reservations of Argentine rights. The inclusion of the matter in the decolonisation process ushered in a new phase. In March 1964, the Secretariat prepared a working document that was submitted to the Special Committee on Decolonisation, containing information on the territories to which Resolution 1514 (XV) was applicable. The Argentine Mission to the United Nations reacted to the inclusion of the Malvinas Islands in the said document, drawing attention to the omission of historical data and legal aspects, which “dims the rights of the Argentine Republic”, and by asking to take part in the debates of Subcommittee III, dealing with small territories, when it examines the situation of the islands.
Despite British opposition, Argentina was able to participate in the debate of Subcommittee III of the Special Committee. In September 1964, the Argentine Delegate, José María Ruda, presented a Statement setting out the historical and legal foundations of the Argentine sovereignty claim.
The “Ruda Statement” became a milestone in the development of the sovereignty dispute over the Malvinas, South Georgias and South Sandwich Islands, as it was the first structured presentation of the matter to the United Nations, which took note of its existence and recommended that the governments of Argentina and the United Kingdom initiate bilateral negotiations with a view to finding a peaceful solution.
Following the successive recommendations of Subcommittee III and of the Special Committee, on 16 December 1965 the General Assembly adopted Resolution 2065 (XX), in which:
“Noting the existence of a dispute between the Governments of Argentina and the United Kingdom of Great and Northern Ireland concerning sovereignty over the said Islands,
Invites the Governments of Argentina and Great Britain and Northern Ireland to proceed without delay with the negotiations recommended by the Special Committee (…) with a view to finding a peaceful solution to the problem, bearing in mind the provisions and objectives of the Charter of the United Nations and of General Assembly resolution 1514 (XV) and the interests of the population of the Malvinas Islands”.
This invitation of the United Nations for Argentina and the United Kingdom to carry out negotiations on sovereignty, taking into account the interests of the population of the Malvinas Islands, was subsequently renewed by other Resolutions of the General Assembly and of the Special Committee, as will be seen later. Thus, by recognizing the existence of a sovereignty dispute in respect of the Malvinas Islands and specifying its bilateral nature between Argentina and the United Kingdom and by establishing that it is to be settled by peaceful negotiation between the parties, expressly referring to the interests –and not the wishes- of the islanders, the international community excludes the application of the principle of self-determination.
This is because the specificity of the Question of the Malvinas Islands lies in the fact that the United Kingdom occupied the islands by force in 1833, expelled the people that had settled there and did not allow their return, thus violating the territorial integrity of Argentina. Therefore, the possibility of applying the principle of self-determination is ruled out, as its exercise by the inhabitants of the islands would cause the “disruption of the national unity and the territorial integrity” of Argentina.
b. Period 1966-1982
In the context of the United Nations decolonization process and following the adoption by the General Assembly of Resolution 2065 (XX) of 16 December 1965 stating that the dispute between the Argentine Republic and the United Kingdom over the sovereignty of the Islands must be resolved through negotiations in accordance with the provisions and purposes of the Charter of the United Nations, General Assembly Resolution 1514(XV), and the interests of the inhabitants of the Islands- a bilateral negotiation process was initiated during which several ways of resolving the dispute were discussed, without the parties reaching an agreement.
After the Argentine action initiated in 1964 within the United Nations framework, the Argentine government formally invited the government of the United Kingdom to start the negotiations recommended by the international community in order to settle the sovereignty dispute. The British government changed its position and for the first time agreed to conduct bilateral negotiations. These got their first boost through the respective Foreign Ministers, who met in Buenos Aires in early 1966. Hence, the visit of Michael Stewart in January 1966, the first visit to Argentina by a British Foreign Secretary, enabled initial contacts at ministerial level on the Malvinas Islands question, which was included on the agenda of the meetings with Foreign Minister Zavala Ortiz in order to enter into negotiations.
As a result of this exchange, both Ministers agreed that discussions recommended by this resolution should be pursued without delay through diplomatic channels, or such other means as may be decided with the purpose of finding a peaceful solution to the problem and to prevent this question affecting the excellent relations existing between Argentina and the United Kingdom. The Ministers decided to transmit this decision to the Secretary-General of the United Nations.
The first round of negotiations was held in July 1966 in London and was described as highly positive by the Argentine Foreign Ministry, as the British Delegation had left no room for doubt as to the United Kingdom’s readiness to negotiate without imposing preconditions. That was the first time since 1833 that Great Britain had sat at the negotiating table and had shown a favourable predisposition to solving the dispute. From this early stage of the negotiation process, Argentina claimed restitution of sovereignty of the disputed territories, undertaking to respect the interests and way of life of the islanders in keeping with the mandate of Resolution 2065 (XX).
A second round took place, also in London, between November and December of the same year, on which occasion the British side proposed advancing towards improving communications between the islands and the Argentine continental territory, with a view to a future agreement on sovereignty. For the first time, the Untied Kingdom stated its willingness to agree to a “transfer of sovereignty”.
During the course of 1967 a phase of permanent informal talks began, which made it possible to keep the pace of negotiation without being limited to formal rounds. This stage saw the emergence of the first draft agreements seeking a solution to the dispute, dealing with the issues of sovereignty and communications. In September of that year, the Foreign Ministers of both countries met in New York while they were both attending the plenary of the United Nations General Assembly, a practice which would be repeated on several occasions during subsequent years. On the basis of these talks, diplomats from both countries advanced towards the drafting of a document that would reflect the degree of agreement reached. Following a proposal by the British party, this document took the form of a Memorandum of Understanding, the text of which was agreed upon by both negotiating teams in August 1968, in order to then be submitted to the respective governments for final approval.
Among its main points, the Memorandum of Understanding stated that “the common objective is to settle definitively and in an amicable manner the dispute over sovereignty, taking duly into account the interests of the population of the Islands” and that “the two Governments intend to make early progress with practical measures to promote freedom of communication and movement between the mainland and the Islands”.
The Argentine government approved the text agreed upon at the negotiating table and advised the United Kingdom that it was ready to sign it, awaiting the decision of the British government to sign. The Secretaries of State responsible for the matter in the British Cabinet also approved the negotiated text. Then, when there were definite expectations of the Memorandum of Understanding being signed, leaks concerning the negotiation in the British press and their repercussions on domestic politics led the Cabinet to delay its final decision. This gave rise to opposition to the agreement in the British Parliament and media, which ultimately made the United Kingdom abandon the project in late 1968.
This virtually led to an interruption of the negotiations on sovereignty as from 1969. A new approach was then sought, focused on reaching an understanding on practical measures relating to communications while at the same time making a mutual reservation concerning the positions on sovereignty. These “special talks” took place throughout 1970 and their concrete outcome was the Joint Statement concerning communications between the Malvinas Islands and the Argentine mainland of July 1 1971, agreed in Buenos Aires through an exchange of reversal notes, under a formula that preserved the positions of each party with regard to sovereignty:
a) Since divergence remains between the two Governments regarding the circumstances that should exist for a definitive solution to the dispute concerning sovereignty over the Malvinas Islands, nothing contained in the Joint Statement referred to above and approved by our two Governments on today's date shall be interpreted as: (i) a renunciation by either Government of any right of territorial sovereignty over the Malvinas Islands; or (ii) a recognition of or support for the other Government's position with regard to territorial sovereignty over the Malvinas Islands.
b) No acts or activities taking place as a consequence of the Joint Statement referred to above having been put into operation and while it is in operation shall constitute a basis for asserting, supporting, or denying the position of either Government with regard to territorial sovereignty over the Malvinas Islands. (Notes exchanged between Luis María de Pablo Pardo, Argentine Foreign Minister, and Theophilus Peters, British Charge d’Affaires, 5 August 1971).
The 1971 agreement included a number of practical measures, which both governments began to implement as from that time in order to facilitate the movement of persons and goods between the Argentine mainland and the Malvinas Islands in both directions, in order to promote the establishment of cultural, social and economic links. The agreements reached were communicated to the United Nations Secretary General, indicating that the measures adopted by both governments took into account the interests of the population of the Malvinas Islands, pursuant to Resolution 2065(XX), and that they were aimed at contributing to the efforts which both would continue to make in order to reach an amicable final settlement of the sovereignty dispute. These agreements represented a stage in the process towards the final settlement of the dispute.
In order to implement the measures agreed in 1971, regular consultations were held within the framework of a Special Consultative Commission set up in Buenos Aires, while a team of the Argentine Air Force built a provisional airfield in the vicinity of the capital of the Malvinas Islands and the company Líneas Aéreas del Estado provided air services between the Islands and the Argentine mainland. In conjunction with the inauguration of the air field built by Argentina, in November 1972, a new round of special talks on communications was held in the Malvinas Islands, which dealt with matters such as the awarding of scholarships to the islanders for them to study in the mainland, sending Spanish teachers to the islands, the establishment of postal, telegraphic and telephone, tourism, sponsored visits and cultural exchanges, increasing trade exchanges and the banking system, among other matters.
The Argentine Republic made a great effort to facilitate communications with the Malvinas Islands, which was recognized by the United Kingdom and which the islanders took advantage of in order to lessen their isolation. But in spite of dealing with the establishment of communications, the Argentine government did not leave aside its main objective in the negotiations, i.e. recovering the exercise of sovereignty. This is what it had stated and reiterated during the course of the special talks and, in view of the progress achieved by late 1972, it insisted that the next round should include the issue of sovereignty. When faced with this request, the British government adopted an evasive attitude, which continued during the meetings held in 1973.
In light of this negative British attitude, the Argentine Republic undertook intensive diplomatic action at multilateral level, which led to the adoption of United Nations General Assembly Resolution 3160 (XXVIII) in December 1973, with a very large majority of votes for and none against, and which acknowledged “the continuous efforts made by the Government of Argentina” and declared the “need to accelerate the negotiations […] called for in General Assembly resolution 2065 (XX) in order to arrive at a peaceful solution of the conflict of sovereignty between them concerning the Malvinas Islands (Malvinas).
Based on the firm Argentine attitude and the view of a large majority of the international community, in the years that followed both governments attempted some alternatives to get the negotiation back on track. This was the case with the British proposal of June 1974 seeking to establish an Anglo-Argentine condominium in the Malvinas Islands as a step prior to a final solution to the sovereignty dispute. This idea was met with interest on the part of the Argentine government, which then presented a proposal for joint administration, taking the main elements of the British formula and completing it with others that had not been considered in it. Although it was initially considered that both proposals were sufficiently close to each other so as to enable the negotiations to continue, they did not prosper.
Nevertheless, the Argentine government continued to maintain its commitments arising from the special talks and the agreements on communications. Within this framework, in September 1974 the two reversal note agreements that were being discussed were finalized, one on the supply and sale of Yacimientos Petrolìferos Fiscales (YPF, at the time the state owned petroleum company) products on the Malvinas Islands and another one on measures to facilitate trade and the transport of goods between the Malvinas Islands and the Argentine mainland, both of them without prejudice to the respective positions on sovereignty.
At the same time, the Argentine Republic continued trying to persuade the United Kingdom to agree to negotiate in order to find a definitive solution to the sovereignty dispute. An idea that arose during 1975 was the possibility of a condominium or shared administration. Although this idea circulated in British official circles and was considered with interest by the Argentine government, it did not prosper at the negotiating table.
In 1976 a situation of bilateral tension was reached, stemming from a number of unilateral British actions in the disputed area. At the end of that year, the United Nations General Assembly, by a wide majority and with the single opposition by the United Kingdom, adopted Resolution 31/49 (XXXI), which again recognized the “continuous efforts” made by the Government of Argentina to “facilitate the process of decolonisation and to promote the well-being of the population of the islands”, requesting both governments “to expedite the negotiations concerning the dispute over sovereignty, as requested in general Assembly resolutions 2065 (XX) and 3160 (XXVIII)” and urging both parties to “refrain from taking decisions that would imply introducing unilateral modifications in the situation while the islands are going through a process recommended in the above-mentioned resolutions”.
In order to resume dialogue, informal and exploratory meetings were held, during the course of which the United Kingdom proposed two parallel lines of negotiation, one on economic cooperation and another on the “hypothetical future constitutional relationship between the Malvinas Islands and Argentina”, within which the issue of sovereignty could be raised. Based on these premises, in April 1977 the reference framework for the future formal rounds was fixed through a joint statement expressing that they would refer to “future political relations including sovereignty with regard to the Malvinas Islands, South Georgias and South Sandwich Islands and the economic cooperation with regard to the said territories, in particular; and the South West Atlantic, in general.”
Argentina attended the rounds that followed with concrete initiatives, such as updating the joint administration arrangement, a reference list to discuss the safeguards and guarantees which the Argentine government was willing to offer to the islanders and a proposal to agree on a regime that would allow Argentines to purchase property on the islands. All of them stumbled upon hindrances on the British side, which only expressed interest in negotiating a cooperation agreement that would enable exploitation of natural resources in the disputed area. Two working groups were set up, one on sovereignty and another one on cooperation, but towards late 1978 the only discussion that seemed to have a chance to advance was the one on scientific cooperation. However, the draft agreement on this area could not be approved either.
In 1980, the British party proposed a change of approach consisting of secret exploratory talks based on a “transfer” of sovereignty over the Malvinas Islands to Argentina simultaneously with a lease from Argentina to the United Kingdom for an extended period of time. These talks took place during the course of that year and the Argentine government showed interest in carrying on in particular the discussion with regard to the term of the lease. However, the negotiations did not succeed. Through informal contacts, only the bilateral dialogue was kept alive in order to agree on the reference framework for a new round which never materialized.
In early 1982, the Argentine government proposed a new approach, based on the establishment of a permanent negotiation commission that would meet every month for a year in order to solve the sovereignty dispute. In February of that year, a meeting took place in New York to consider that proposal. Although the joint statement reaffirmed the willingness of both parties to find a negotiated solution to the sovereignty dispute, the United Kingdom gave no answer to the Argentine proposal. In view of the contradictory signals from the British government, in early March the Argentine government decided to issue a statement disclosing the nature of the negotiations and urging the United Kingdom to accept the latest Argentine proposal. Those were the circumstances surrounding the events that led to the armed conflict; sovereignty negotiations not to resume, a situation which has continued until now due to the British refusal.
c. Period 1982-1989
The 1982 conflict did not alter the nature of the sovereignty dispute between Argentina and the United Kingdom over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime spaces, which continued pending negotiation and resolution. During the General Assembly session initiated in September 1982, Resolution 37/9 was adopted, which, recalling Resolutions 2065 (XX) and 3160 (XXVIII), asked Argentina and the United Kingdom to resume negotiations in order to find, as soon as possible, a peaceful solution to the sovereignty dispute, reaffirming the need for both governments to take into account the interests of the inhabitants of the Malvinas Islands. This Resolution received 90 votes in favour, 52 abstentions and 12 votes against, among them that of the United Kingdom.
Following that Resolution and upon the reestablishment of democracy in 1983, the Argentine Republic resumed its peaceful sovereignty claim and repeatedly stated its willingness to resume negotiations pursuant to the UN mandate, which was renewed in similar terms. That year, the General Assembly adopted Resolution 38/12, in which it reiterated the terms of Resolution 37/9 and regretted the lack of progress in complying with it, highlighting the interest of the international community in Argentina and the United Kingdom resuming negotiations.
In 1984, the General Assembly adopted Resolution 39/6, in which it recalled the previous ones related to the Malvinas Question and noted “that, in spite of the time which has elapsed since the adoption of resolution 2065 (XX), the prolonged dispute has not yet been resolved”. In 1985, through Resolution 40/21, the Assembly again urged the parties to settle the pending dispute through negotiations, rejecting the two amendment proposals through which the United Kingdom sought to introduce, in the preambular section and in the operative section the principle of self-determination, the inapplicability of which in the Malvinas Question was thus ratified. This Resolution was adopted by a wide majority of 107 votes in favour, 41 abstentions and only 4 against, Great Britain among the later. In the following years the Assembly adopted similar Resolutions: 41/40 in 1986, 42/19 in 1987 and 43/25 in 1988. Subsequently, the Special Committee on Decolonisation, with the corresponding approval by the General Assembly, has annually adopted Resolutions on the Malvinas Islands Question, in which the parties are again urged to resume negotiations in order to find a peaceful solution to the sovereignty dispute.
Despite this consistent view supported by the international community through the Resolutions of the General Assembly and the Special Committee after the conflict, the United Kingdom continues to refuse to resume sovereignty negotiations with the Argentine Republic, which were interrupted in February 1982. Whereas before the conflict the matter was on the negotiating table, immediately after the war the British attitude was to claim that the sovereignty dispute had ceased. Later on, the British stance changed and at present, ignoring the bilateral nature of the sovereignty dispute and invoking self-determination –inapplicable to this case and repeatedly rejected by the Untied Nations for this question- refuses to negotiate a solution to the dispute, subjecting it to the decision of its nationals in the islands.
The interests of the inhabitants and not their wishes must be taken into account, as indicated by the United Nations in the different documents relating to the Malvinas Islands . This is so because the UN has taken the view that a population transplanted by the colonial Power, as is currently the case in the Malvinas Islands, is not a people with the right to free determination, as it is not different from the people of the metropolis. The British nature of this population has been recognized by the United Kingdom and since 1983 its members have the status of British citizens, in accordance with the British Nationality Act passed that year. If, in the case of the Malvinas Islands, self-determination were to be admitted in respect of the current inhabitants, of British character and nationality, this would be tantamount to allowing a group of persons from the colonial Power itself to decide on the destiny of a territory that is being claimed by another State which had that territory taken away from it by force nearly two hundred years ago.
d. Since 1989
Consular relations resumed following the Joint Statement of 19 October 1989 and diplomatic relations resumed following the Joint Statement of 15 February 1990.
The policy of reconstruction of bilateral relations between the Argentine Republic and the United Kingdom which began in 1989 was preceded by an understanding on the conditions under which both countries would consider the sovereignty dispute over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas.
For such purpose, through the Joint Declarations of Madrid of 1989 and 1990, a sovereignty safeguard formula was agreed upon with respect to the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas, which allowed the Parties to adopt provisional understandings in subsequent joint declarations and note exchanges regarding practical issues relating to the South Atlantic, while reserving their respective positions on the sovereignty rights over those territories. This clause has been applied at all the bilateral meetings held since 1989 on practical aspects of the Question of the Malvinas Islands, as well as to declarations and acts by the parties and third parties that have taken place pursuant to the agreements reached at the meetings. The use of the abovementioned formula implies that both parties recognize the existence of a sovereignty dispute regarding the Question of the Malvinas Islands. Furthermore, the interim understandings adopted on practical aspects of the dispute seek to contribute to create enabling conditions for the resumption of sovereignty negotiations.
However, the question of sovereignty, the issue that is central to the dispute, has not yet been addressed due to the United Kingdom’s reluctance to include the topic in the negotiations, despite the multiple appeals of the international community to a definitive solution.
Since the 1994 reform, the National Constitution includes the First Transitory Provision, which provides that: “Argentina reaffirms its legitimate and permanent sovereignty over the Malvinas, South Georgias and South Sandwich Islands and the relevant maritime and insular areas, as they are an integral part of the Argentine territory. The regaining of those territories and the full exercise of sovereignty, with respect for the lifestyle of their inhabitants and in accordance with the principles of International Law, are a permanent and unrelinquished objective of the Argentine people.”
The Argentine Government has implemented a State policy as regards the Question of the Malvinas Islands, which promotes the resumption of sovereignty negotiations and compliance with the applicable provisional understandings under the sovereignty formula with the United Kingdom regarding practical aspects of the South Atlantic. Furthermore, it has expressed its willingness to reach new understandings which might be of interest to Argentina and might contribute to creating suitable conditions for the resumption of sovereignty negotiations.
In this respect, Argentina constantly reiterates to the international organizations, other regional and bi-regional fora and to the international community in general its call upon the United Kingdom to agree to the international request to resume the sovereignty negotiations in pursuance of the relevant resolutions and declarations issued by the United Nations and the OAS, and expresses its permanent willingness in that regard. At the same time, the Argentine Government reaffirms its respect for the lifestyle of the islanders as guaranteed by the Argentine Constitution, as well as its commitment to take their interests into consideration, in keeping with the resolutions passed by the United Nations.
Notwithstanding the foregoing, the Argentine Republic rejects and protests against the British unilateral acts in the area subject to the dispute, which are contrary to the provisions of Resolution 31/49 of the United Nations General Assembly, urging the Parties to refrain from unilaterally modifying the situation while the islands are undergoing a decolonization process and which are inconsistent with the provisional understandings under the sovereignty safeguard formula.
The United Kingdom continues to ignore the international mandate calling on both parties to resume negotiations in order to resolve the sovereignty dispute and persists in carrying out unilateral activities in the disputed area, which include the exploration and exploitation of renewable and non-renewable natural resources and the conduct of military exercises, including the launch of missiles from the Malvinas Islands.
Declassification of the Rattenbach Report
On 25 January 2012, the Argentine President announced the declassification and publication of the “Rattenbach Report” on political, military and strategic responsibilities in the South Atlantic conflict.
At the request of the military government, the report was produced between 1982 and 1983 by a Commission made up of representatives of the three armed forces, among whom was General Benjamín Rattenbach. However, as soon as the Commission had completed its work, de facto President Bignone declared it a military secret for 50 years.
The report clearly shows that the armed conflict was not the result of a decision made by the Argentine people, but of one made by a Military Junta desperate to keep its power. It reveals great military irresponsibility in the planning of the conflict and in the serious human rights violations committed against the country’s troops. Likewise, it reflects the strategic perspective that prevailed in those years, especially on hypotheses of conflict with friendly countries. These were born out of a militarist conception that has been rendered absolutely obsolete by the current political and legal order in force under the Rule of Law and that is deeply rooted in democratic values and is emphatically geared to regional integration.
The decision to make the report public is further proof of the commitment of the Argentine State to an integral policy on memory, truth and justice for human rights violations, as well as the desire of the Argentine Republic to find a just, peaceful and definitive solution to the sovereignty dispute with the United Kingdom, the nature of which has remained unaltered by the conflict.
See Rattenbach Report (In Spanish)