The Malvinas as a Post-Bellum Case Study: From Decolonization to the Memory of the Departed

The Malvinas archipelago (hereafter Malvinas), or Falkland Islands as it is designated by the United Kingdom (UK), represents an interesting situation for revisiting questions and test theories about the evolution of international law. This was the case even before the armed conflict between Argentina and the UK in 1982. The armed conflict brought to a wider audience the unresolved aspects of decolonization at the end of the century, while also representing a milestone in the implementation of international humanitarian law. Today, the issues arising from Malvinas mirror the challenges that Post-Bellum and decolonization situations still pose today. The recent advisory opinion of the International Court of Justice (ICJ) regarding Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 – and the subsequent Resolution 295/73 of the United Nations General Assembly (UNGA) affirming that the continued administration of the Archipelago constitutes a wrongful act – presents a new opportunity to revisit Malvinas. The current situation presents open questions of international law and the right to self-determination that remain contested.

1. From the Indian Ocean to the South Seas: The Challenge of Decolonization

In 1965, the UK established a new colony (British Indian Ocean Territory-BIOT) that included the Chagos Archipelago, which was detached from Mauritius. Between 1967 and 1973, the population of the Islands was forcibly removed and the UK concluded an agreement with the United States to establish a military base on the island Diego Garcia. The UNGA requested that the ICJ answer whether “the process of decolonization of Mauritius [was] lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius” and “what are the consequences under International Law… arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago.”

The advisory opinion raised concerns that the ICJ did not have consent to exercise its contentious jurisdiction to settle a controversy between the UK and Mauritius. This point was raised by some of the Judges in their individual votes, particularly by Judge Donoghue in her dissenting opinion. The ICJ, however, confined itself to analyze the applicability of the right to self-determination and the role of the UNGA in the context of decolonization. In this sense, the majority of the ICJ (13-1) considered that “the decolonization of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination” (para. 177-182) and reaffirmed that

by inviting the United Kingdom to comply with its international obligations in conducting the process of decolonization of Mauritius, the General Assembly acted within the framework of the Charter and within the scope of the functions assigned to it to oversee the application of the right to self-determination….in order to supervise the implementation of obligations incumbent upon administering Powers under the Charter (para. 167).

The legal reasoning of the advisory opinion could shed light on the case of the Malvinas and on decolonization processes in general. It extensively addressed the right to self-determination as part of international customary law since the 1960s, recognizing the declaratory character of the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted in UNGA Resolution 1514 (XV) in December 1960. Judges Cançado Trindade, Sebutinde, and Robinson went so far as to suggest, in their separate opinions, that this right was part of customary law already in the 1950s. Five years after Resolution 1514, the UNGA approved Resolution 2066 (XX) regarding the “Question of Mauritius,” reaffirming the “inalienable right of the people of the Territory of Mauritius to freedom and independence in accordance with General Assembly Resolution 1514 (XV).”

In the case of Malvinas, a similar resolution was adopted on the same day (December 16, 1965) as Resolution 2066 on Mauritius, but with an important distinction. Resolution 2065 (XX) on Malvinas omitted any reference to the right to self-determination. As Professor Marcelo Kohen pointed out in an editorial released after the Chagos advisory opinion, the implication is that the UNGA was aware that the right of self-determination was not applicable to the British population on the islands.

As a reaction to the Chagos advisory opinion, Alan Duncan, British Minister of State, released a statement on the 30th of April rejecting the approach of the Court. MP Duncan affirmed that the UK had made a “long-standing commitment since 1965 to cede sovereignty of the territory to Mauritius when it is no longer required for defense purposes. We stand by that commitment.” He further argued that

The joint United Kingdom – United States defence facility on Diego Garcia helps to keep people in Britain and around the world safe. For nearly 40 years the facility has helped the United Kingdom, United States, other allies and our regional partners, including Mauritius, combat some of the most challenging threats to international peace and security, including those from terrorism, organized crime and piracy.

This was a policy answer to an essentially legal question. The increasing reliance on political arguments to sustain colonial situations must be contested through solid legal arguments. Indeed, the opposition leader Jeremy Corbyn wrote a letter the following day to the Prime Minister, in which he warned that “the government appears ready to disregard international law and ignore a ruling of the international court and the right of the Chagossians to return to their homes.” The arguments of MP Duncan resemble the assertion of former PM David Cameron, who accused Argentina of “colonialism” over the Malvinas.

The consequences of the Chagos advisory opinion highlight the relevance of decolonization in the current evolution of international law, taking into account previous proceedings of the ICJ such as the Western Sahara advisory opinion, where the notion of what constitutes “people” in the context of self-determination was considered by the Court:

59) The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based … on the consideration that a certain population did not constitute a “people” entitled to self-determination.

In the case of Malvinas, further discussion would be useful to understand how the principle of territorial integrity interplays with the principle of uti possidetis iuris(“as you possess, so you may possess under law”) – the customary international law principle that preserves the boundaries of former colonies as they emerge as States. Malvinas was an integral part of the Viceroyalty of the Río de la Plata, which was succeeded by the Argentine Government. After Argentina´s independence was declared (1816), a governor was placed in the Islands until 1833, when the UK forcibly displaced the authorities and inhabitants. Certainly, the case of Malvinas can shed light on other relevant situations today such as Crimea, Abkhazia and South Ossetia.

Beyond the issue of decolonization and self-determination, the question of Malvinas also presents interesting challenges in the field of international humanitarian law (IHL) related to the international armed conflict (IAC) of 1982 between the UK and Argentina.

2. The Role of Diplomacy in Post-Bellum Scenarios

In April 1982, the UK-Argentina armed conflict represented a milestone in the implementation of the Geneva Conventions of 1949. The operational circumstances permitted the implementation of a maritime exclusion zone that secluded the theater of operations around the islands. Furthermore, a neutral zone (also known as a “red cross box”) was located on the high seas for the exchange of hors de combat.

The implementation of humanitarian rules still echoes far after the end of armed hostilities. In June 1982, following the end of hostilities, a military cemetery (Darwin) was established by British forces to hold the remains of 237 Argentine combatants that were killed in the hostilities, 121 of which were unidentified. These soldiers were buried in graves bearing the inscription “Soldado argentino sólo conocido por Dios” (Argentine soldier known only unto God). Through the Madrid Accords in 1990, the governments of the two countries agreed on arranging a visit of family members of the soldiers buried in Darwin based on humanitarian reasons. The first of these visits was arranged in March 1991, organized by the International Committee of the Red Cross (ICRC).

More than 20 years later, in 2012, the Government of Argentina approached the ICRC requesting it to act as a neutral intermediary with the Government of the UK for the purpose of identifying the Argentine soldiers buried in Darwin Cemetery. In December 2016, diplomatic talks held at the ICRC headquarters between both countries concluded in a Humanitarian Project Plan. By this agreement the ICRC was entrusted to collect DNA samples from the graves, with prior consent of relatives willing to participate in the identification process. Between June and August 2017 a group of ICRC forensic experts from Argentina, Australia, Chile, Spain, Mexico and the UK did an examination of the remains, respecting the dignity of the deceased and their families. The Laboratory of the Argentine Team of Forensic Anthropology (a scientific NGO with ample experience in cases of forensic investigation applied to human rights violations and missing persons worldwide) compared the DNA samples with the ones provided by the relatives. Two more laboratories, one in the UK and other one in Spain, did random comparisons.  In December 2017, the ICRC presented a final identification report to both countries, which has been progressively presented to the relatives of the deceased by the Argentine Government since December 2017. To date, 112 soldiers have been identified by this initiative.

The fate of missing persons and the right of families to know the fate of their relatives are at the core of the humanitarian ideals that inspired the Geneva Conventions. The law of armed conflict requires parties to a conflict, both as a conventional and (arguably) as a customary rule, to elucidate the fate of the missing “as soon as the circumstances permit” (Art. 33, Additional Protocol I). This is an obligation that is also rooted in international human rights law, or IHRL (European Court of Human Rights,Cyprus v Turkey, paras. 156, 157; Inter-American Court of Human Rights, Bámaca-Velasquez v. Guatemala, para. 212), that aims to protect the human dignity of the deceased and their relatives and communities. In this sense, the Humanitarian Plan represented a new milestone of IHL implementation, taking from previous cases such as Croatia’s Commission for Tracing Persons Missing in War Activities (1991, reestablished in 1993). Moreover, The Plan represents a unique diplomatic agreement, entrusting the ICRC with a precise task, a defined time frame and a fully-funded budget.

3. What Lies Beyond Malvinas?

For the reasons displayed, Malvinas sets a case study over the implementation and evolution of international law. Regarding decolonization, further discussion is needed to assess how the interpretations made by the ICJ in its Chagos advisory opinion could influence the position of Argentina and the UK over the sovereignty of the islands. Particularly, with respect to the principle of self-determination and its interplay with territorial integrity.

For the time being, the Joint Humanitarian Plan presents an example of what former parties to a conflict can achieve through peaceful means, particularly for other post-bellum cases around the world. In the case of Malvinas, cooperation between the former parties was fundamental to secure a successful identification of bodies of missing Argentine soldiers. It remains to be seen if this case is an exception or an example of the potential of cooperation and good-faith in post-bellum environments.

 

Note: This post is written in a personal capacity and does not represent the official position of any institution.

 

IMAGE: People watch the Malvinas Islands Monument on the eve of the 30th anniversary of the 1982 South Atlantic war between Argentina and Britain over the Falkland Islands (Malvinas), in Ushuaia, Tierra del Fuego, some 3100 km south of Buenos Aires, on April 1, 2012. (Photo by JUAN MABROMATA/AFP/GettyImages)

 

About the Author(s)

Juan Francisco Padin

Juan Francisco Padin is Legal advisor at the Office of Foreign Affairs of the Ministry of Justice and Human Rights (Argentine Republic) and is a member of the Argentine Observatory on IHL.