Falklands/Malvinas: The British Referendum Does Not Change Anything

The British Government organized a referendum to ask its citizens living in the Falkland Islands (Malvinas) whether they want to keep the current territorial status within British domestic law. According to international law, this referendum has no relevance.

It is not organized, sponsored or even monitored by the United Nations. The Islands are, according to the UN Charter, a non-self-governing territory subject to decolonization. It is for the UN to decide when such territories have been decolonized.

The UN has characterized the Falklands/Malvinas as a special case of colonialism, and the way to put an end to it is through the peaceful settlement of the sovereignty dispute between Argentina and the United Kingdom. After the 1982 war, the UN maintained this position. The overwhelming majority of nations either recognizes Argentine sovereignty over the islands or adopts a position of neutrality. The latter is the position adopted by the US, as John Kerry recently recalled in London.

In spite of British efforts, the UN has not considered the right of peoples to self-determination as being applicable to the current population of the islands. The reason is quite simple. After having expelled Argentina from the islands, the British government installed its own population and controlled the demographics of this isolated territory while refusing to settle the dispute.

The population does not have natural growth

It has approximately 2,000 people for more than a century. It is the colonial power that decides the composition of the islands’ population. Those born in the Falklands/Malvinas are a minority and 40% of the current population has resided in the territory for less than ten years.

Argentinians are discriminated against when seeking residence or attempting to acquire real estate. For 17 years, they were not allowed to visit the territory, even as tourists. Electors have to possess British nationality. Under these conditions, it is understandable that the UN has not applied the principle of self-determination and has not considered the current population as holder of that right.

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Like many other communities, they unequivocally enjoy fundamental rights, but cannot decide the fate of the land and maritime areas in dispute between Argentina and the United Kingdom. After the referendum, the situation will remain unchanged. It will not put an end to the dispute. The Islands will continue to be on the UN’s list of non-self-governing territories. It is time that the United Kingdom accepts to hold negotiations with Argentina.

The refusal of the British Government to negotiate with Argentina amounts in and of itself to a breach of the obligation under international law to settle international disputes through available peaceful means. This obligation requires positive action, not a mere abstention from using force.

By rejecting Argentine proposals to negotiate; by not accepting the good offices of the UN Secretary-General; by not proposing any alternative means of settling the dispute; the UK is adopting an unfriendly and an illegal stance. No matter the outcome, the British referendum comes across as attempting to maintain a controversial de facto situation on the basis of its might, rather than right, to do so.

Marcelo G. Kohen, an Argentine citizen, is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva. He is an Associated Member of the Institute of International Law and Director-General of the Latin American Society of International Law. Marcelo has acted as counsel and advocate for a number of states before the International Court of Justice and the International Tribunal for the Law of the Sea. His book Possession Contestée et  Souveraineté territoriale (Adverse Possession and Territorial Sovereignty) was awarded the Paul Guggenheim Prize 1997.

  • Zomba

    This is a really weird and bizarre article, desperately trying to justify the unjustifiable. I thought, this is a bit weird coming from a professor of international law in Geneva. And then I read this bit:

    “Marcelo G. Kohen, an Argentine citizen…”

    Ah, that explains it! Just another desperately brainwashed Argentinian. You lot will grow out of this Falklands obsession eventually. And when you do, it will mark your maturing as a democracy.

    • Miguel Lezcano

      Any intelligent comment brtuish CRIMINAL and PIRATE?

  • JW

    Why do you pretend there is only one side in this dispute? I hope that’s not how you teach your students about international law. Your article seems to be trying very hard to push the Argentine case, while completely ignoring the far stronger British one. The reason why the referendum doesn’t change anything in international legal terms is because Britain’s claim to the islands has always been cast iron.

    Why did you not mention any of these facts?

    That Britain claimed the islands in 1790, before modern Argentina existed.

    That Britain has successfully developed, governed and maintained the islands for almost 200 years, and so can claim the islands on the basis of peaceful and continuing settlement

    That Argentina’s claim rests on two bogus arguments. The first is the myth that they settled the islands but their population was expelled – a story that has long been
    proven to be untrue and is not supported by historians. The second is that the islands should belong to Argentina because it is closer than Britain, an idea which is clearly absurd, and which has no basis in international law

    That the UN charter grants all peoples the right to self-determination – there’s definitely no clause that exempts the Falkland Islanders from this

    That the Falklands are almost 400 miles away from Argentina, and so are clearly not part of the country’s territorial integrity

    That Argentina didn’t even exist in its current form in 1833, as southern Argentina hadn’t yet been brutally colonised and stolen from the native Americans. Argentina can’t claim “territorial integrity” under its 1833 borders, since these are not the modern borders, and don’t include much of southern Argentina

    That Argentina renounced its claim to the Falklands in the 19th Century. In the Arana Southern Treaty of 1850, Britain and Argentina agreed that they had no outstanding territorial disputes

    That Britain and Argentina held negotiations over the islands in the 1960s and 70s, but any attempts to reach a diplomatic solution were destroyed by Argentina’s unprovoked aggression in invading the islands in 1982, and further hampered by Argentina’s enshrining its claim to the Falklands in its constitution in the 1990s, and then ripping up agreements on oil exploration and other co-operation in the 2000s, while attempting to harass the islanders and destroy their livelihood

    That Argentina’s claim now includes other British territories in the Antarctic, including South Georgia and the South Sandwich Islands. These are territories that even Argentina doesn’t claim ever to have occupied or to have been Argentinian territory.

    – This article is so misleading and heavily biased, in fact, that I think the author should make it clear that they are offering a personal opinion rather than an informed legal one.

    • Miguel Les

      JAJJAJ Wrong the brutish.MAlvinas claimed and discovered by Spain,1493.First Governor ever in MAlvinas,Ruiz Puente,1776.uk RENOUNCE to MAlvinas at the treaty of Utrecht and Nootka…..BTW,Argentina invited to settle the dispute in an arbitration court,1884,and 6 times afeter.uk TURNED IT DOWN!To learn the REAL FACT of the MAlvinas case,please see:https://www.facebook.com/Facts-and-Fictions-about-Malvinas-979570618732915/?fref=ts

  • britbob

    The referendum has changed everything. Argentina is desperate and has been left isolated in the free-world.
    Two interesting points were raised by Ban Ki-Moon, the first was in 2010, when he addressed a forum on decolonization and said, quote, ‘The world’s 16 remaining territories that still do not govern themselves must have complete freedom in deciding their own future status.’ In other words, he acknowledged that the Falkland Islanders do have the right to self-determination.
    And, on 12th December 2012, while addressing a reported from the Argentine newspaper Tiempo Argentino, Ban Ki-Moon said, quote, ‘I don’t think Security Council members (UK) are violating ‘relevant’ UN resolutions.’ In other words, Ban confirmed that resolution 2065 made in 1965 was no longer relevant.

  • Deanstreet

    Professor.. Yes a professor has no proof that the referendum was organised by the british government..
    As a Falkland Islander, I can assure one and all, that the idea of the referendum originated here, the organisation of the procedure was carried out here..
    The Brirtish Government offered advice when requested..

    Consequently on that matter alone I think the learned professor should perform a little intelligent research..

    • Miguel Lezcano

      JAJJAAJ the brutish ARE NOTHING!MALVINAS ARGENTINAS!Excellent article Dr.Kohen.The brtuish will be pushed out of the South Atlantic,for good.Never to return!

  • Deanstreet

    Kohen..
    Suggest you get a student to do your research..
    You might get hold of some facts..

  • Roger Lorton

    Claptrap. Kohen’s arguments have long been debunked – and ignored, even by Argentina.