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.
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.