Sovereignty and Decolonization of The Malvinas (Falkland) Islands

Boston College International and Comparative Law Review
Volume 6 | Issue 2 Article 3
5-1-1983
Sovereignty and Decolonization of the Malvinas

(Falkland) Islands
Adrián F. J Hope
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Adrián F. J Hope, Sovereignty and Decolonization of the Malvinas (Falkland) Islands, 6 B.C. Int'l &
Comp. L. Rev. 391 (1983), http://lawdigitalcommons.bc.edu/iclr/vol6/iss2/3
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Sovereignty and Decolonization of the Malvinas
(Falkland) Islands
by Adrian F. J. Hope*
I. INTRODUCTION
The group of islands which Argentina designates with the name of "Islas
Malvinas," and Great Britain, with the name of "Falkland Islands," forms an
archipelago centered around two main islands called, under the Argentine
denomination, "Gran Malvina" and "Soledad," and under the British one, "West
Falkland" and "East Falkland," respectively. This archipelago, which comprises
the two large plus some 200 smaller islands, has a total surface of around 6,500
square miles, and is geographically located on the Argentine continental shelf in
the South Atlantic Ocean at a distance of around 300 nautical miles east of the
Patagonian coast at Rio Gallegos and approximately 1,025 nautical miles directly
south of Buenos Aires.! After the British occupation of the Islands in 1833 the
archipelago was made a British Crown Colony and was populated by more than
2,500 or so inhabitants of predominantly British nationality. This population,
however, has been dwindling during the latter part of the twentieth century and
is currently estimated at around 1,800. 2 The physical appearance of the Islands
has been described by Viscount Bryce, who seems to have visited the Islands in
the early part of this century, as "a land without form or expression," "desolate"
and "solitary."
Although the dispute concerning sovereignty over the archipelago has existed
between England and Argentina since January 2, 1833 when Great Britain took
over Puerto de la Soledad (originally called "Port Louis" but since then, "Port
• LL.M., Harvard Law School (1973). Adjunct Professor, International Law, Catholic University of
Buenos Aires; Partner, "Cardenas, Hope & Otero Monsegur," Buenos Aires, Argentina. The author
wishes to thank his colleague J. M. Alvarez Prado for his assistance and valuable comments.
I. The intersection of the horizontal line drawn to the east of Rio Gallegos at 51° 53' south latitude
and of the vertical line drawn to the south of Buenos Aires at 58" 21' west longitude would occur at
around the center of "Soledad" or "East Falkland." The distance between this point and London is
approximately 6,900 nautical miles. All figures given in this article are purely indicative and are only
intended to give the reader an approximate notion and in no way claim mathematical exactness.
2. From the year 1931 (when they were around 2,400) until April, 1982 (when they were estimated at
around 1,800) the decline has occurred at a rate of at least 25%. The Island's exclusive economic zone is
important for fishing purposes and could contain commercially viable deposits of oil and gas. 1
SHACKLETON ECONOMIC SURVEY OF THE FALKLAND ISLANDS 174 (1976). See D. Logan, Resources of the
Falkland Islands, in THE FALKLAND ISLAND DISPUTE 9 (1982).
391
392 BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAw REVIEW [Vol. VI, No.2
Stanley") by the force of arms from Argentina, the armed conflict in 1982 was
brought about when Argentina, following 149 years of fruitless diplomatic
efforts, invaded the archipelago - together with certain other islands in dispute
in the South Atlantic 3 - on April 2, 1982 in a military operation which -
according to the explanations given by the Argentine government immediately
after the facts - had been executed in a manner calculated not to give rise to
British casualties. From this latter date onwards the international community
watched the unfolding of this conflict, first with surprise but then with growing
concern as the mediation efforts of the· United States, the President of Peru and
the Secretary General of the United Nations were unable to avert the collision
course on which both governments were embarked. The result of the military
contest, as had been anticipated, was that Great Britain prevailed in regaining
physical control over the Islands. This occurred on June 14, 1982 and since
then the Conservative Government of Great Britain has claimed for its country
the role of defender of law and order in the international community and of the
alleged rights of self-determination of the local inhabitants who, it is generally
recognized, clearly wish to remain a British colony.
The emphasis with which the British government has argued against the use
of force on the part of Argentina and for the recognition by the international
community of a right of the local British inhabitants to determine the future
status of the archipelago has had the effect of obscuring the fact that this
controversy began, first and foremost, as a dispute in regard to sovereign rights
over territory. Furthermore, this dimension of the problem - the territorial
dispute - had expressly and consistently been recognized by a succession of
resolutions of the General Assembly of the United Nations specifically dealing
with the Malvinas (Falkland) question since 1965. 4 In any rational analysis of this
controversy, a resolution of the issue of sovereignty must necessarily precede any
discussion regarding the rights of the Islanders because it calls into question the
legitimacy of the British presence itself on the Islands. In this connection, the
Islanders, as British subjects, are, strictly speaking, the chief visible representa-
tives of that presence and occupation.
The issue of sovereignty and the colonial nature of the controversy should also
be a central consideration in determining whether or not the use of force by
Argentina on April 2, 1982 was a violation of the Charter of the United Nations.
Although many independent observers have adopted a critical attitude with
3. They were the South Georgia Island ("Isla Georgia del Sur") and the South Sandwich Islands
("Islas Sandwich del Sur"). See § I. A supra. A British version of the military aspects of the war can be
found in Freedman, The War of the Falkland Islands 1982,61 FOREIGN AFF. 196 (1982). See also THE
SUNDAY TIMES OF LoNDON, INSIGHT TEAM, WAR IN THE FALKLANDS (1982) [hereinafter cited as WAR IN
THE FALKLANDS].
4. G.A. Res. 2065, 20 U.N. GAOR Supp. (No. \4) at 57, U.N. Doc. N6014 (1965); G.A. Res. 3160, 28
U.S. GAOR Supp. (No. 30) at 108, U.N. Doc. N9030 (1973); G.A. Res. 31149, 31 U.N. GAOR Supp.
(No. 39) at 122, U.N. Doc. N31139 (1976); and G.A. Res. 3719, U.N. Doc. NRESl3719 (1982). See note 6
infra.
1983] SOVEREIGNTY AND DECOLONIZATION OF THE MALVINAS 393
respect to the political wisdom, desirability or appropriateness of the decision of

the Argentine government to assert its claim in this manner, a legal analysis of
this question calls for an examination of Article 2.4 of the U.N. Charter which
prohibits threat or use of force which is directed "against the territorial integrity
or political independence of any state."5 In this respect, a careful study of the
territorial dispute is necessary because, hopefully, it will shed some light on the
underlying question of whose territory was attacked. There is no doubt that in an
age of nuclear weapons strong tendencies will develop to construe the spirit of
the Charter as negating the legitimacy of the use of force against territories in
dispute. However, this analysis would seem incomplete unless the underlying
causes which had given rise to the use of force were not equally examined in light
of those very same policies. In this connection, one should consider to what
extent the spirit - if not the very letter - of the Charter is not violated when a
nation holding an overseas colonial territory taken by force and thereafter
consistently claimed by its earlier occupant systematically refuses to submit the
controversy to methods of pacific settlement of disputes and for seventeen years
withholds bona fide efforts to comply with successive General Assembly resolu-
tions prescribing a specific course of decolonization which, in this particular
instance, was to be carried out after 1965 by means of a negotiation of the
territorial difference with Argentina. 6
5. Article 2, paragraph 4 of the Charter of the United Nations of june 26, 1945,59 Stat. 1031 (1945),
T.S. No. 993, as amended, 16 U.S.T. &: O.l.A. 1134, T.l.A.S. No. 5857 (hereinafter cited as the
Charter). On this point a well-known British writer states the following:
Consider again the case where a State claims legal title to territory actually in the possession of
another State, and proceeds to use force in order to recover its possession. If in fact its claim is
justified, that is to say, if it does indeed have the legal title to the sovereignty, then it would
seem that this is not an employment of force contrary to the provisions of Article 2 (4) of the
Charter. It cannot be force used against the territorial integrity or political independence of
another State because the actor State is merely occupying its own territory. The matter is one
within its domestic jurisdiction.
R. Y. JENNINGS, THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAw 72 (1963) [hereinafter cited as
JENNINGS]. The Argentine government has argued that the April 2, 1982 invasion was a response to a
British ultimatum threatening the use of force against Argentina unless it evacuated a group of 43
Argentine workmen who had been contracted by one Mr. Davidoff to dismantle a whaling station at
Leith on the South Georgia Islands pursuant to a contract which had been awarded to Mr. Davidoff in
1979. See the address of the Foreign Minister of Argentina to the General Assembly of the U.N. on Oct.
I, 1982, reprinted in La Naci6n (Buenos Aires), Oct. 2, 1982, at 1-3, col. 1. The British government was
aware of this contract and had requested Mr. Davidoff, who had visited the site of the whaling station
twice before, to furnish a list of the personnel that would be involved in the job. Davidoff had done this;
however, upon arrival at Leith the workers hoisted the Argentine flag. The British government reaeted
with an ultimatum and sent HMS Endurance to evict the workers from the island. The Argentine Navy
responded by sending the ship Bahia Paraiso, a vessel used for supplying its bases in the Antarctic, to
prevent eviction. On March 30, news from London indicated that a nuclear submarine had left
Gibraltar for the Antarctic together with a conventional submarine. London's Independent Television
Network program, "News at 10," said that: "[A]s well as the subs, a Royal Navy tanker was also on its
way." On April 2, Argentina reacted by occupying the Malvinas, South Georgia and Sandwich Islands.
6. General Assembly Resolution 2065, supra note 4, after taking formal notice of a dispute "concern-
ing sovereignty" over the Islands had recommended that Great Britain and Argentina "proceed without
delay with the negotiations recommended by the Special Committee (on Decolonization) ... with a view
A. The Scope of the Controversy: Other Territories in Dispute

The dispute over the Malvinas described above forms part of a more general
controversy between Great Britain and Argentina involving several other islands
and territories in the South Atlantic Ocean. These other islands, some of which
were also involved in the South Atlantic War, are the following: (1) South Georgia,
an island located some 730 nautical miles to the east-southeast of the Malvinas
to finding a peaceful solution to the problem." ]d. at 58, para. 1. By 1973 Argentina had opened up
communication between the Islands and the continent and on December 14, 1973, in its 2202nd plenary
meeting the General Assembly issued Resolution 3160, supra note 4, which formally expressed "its
gratitude for the continuous efforts tnade by the Government of Argentina, in accordance with the
relevant decisions of the General Assembly, to facilitate the process of decolonization and to promote
the well-being of the population of the Islands." Id. However, the absence of any progress on the
sovereignty issue was also recorded in the same Resolution, which further expressed, on the one hand,
that it was: "Gravely concerned at the fact that eight years have elapsed since the adoption of Resolution
2065 (XX) without any substantial progress having been tnade in the negotiations;" and, on the other:
"Declare[dJ the need to accelerate the negotiations between the Governments of Argentina and the
United Kingdom of Great Britain and Northern Ireland ... in order to arrive at a peaceful solution of
the conflict of sovereignty between them concerning the Falkland Islands (Malvinas)." Id. at 108, para 2.
Again in 1976 the General Assembly, in its 85th plenary meeting of December 1 of that year,
expressed its gratitude "for the continuous efforts made by the Government of Argentina, in accor-
dance with the relevant decisions of the General Assembly to facilitate the process of decolonization and
to promote the well-being of the population of the islands" and requested the two parties "to expedite
negotiations concerning the dispute over sovereignty. as requested in General Assembly Resolution
2065 (XX) and 3160 (XXVIII)." G.A. Res. 31149, supra note 4, at 122, para. 2 & 3. On April 3, 1982, the
day after the Argentine occupation of the Islands, the 2350th meeting of the Security Council of the
United Nations convened at the request of Great Britain, issued by a vote of ten in favor to one against
(Panama) with four abstentions (China, Poland, Spain and U.S.S.R.) the following resolution:
The Security Council
RecaUing the statement made by the President of the Security Council at 2345th meeting of the
Security Council on 1 April 1982 (SlI4944) caUing on the Governments of Argentina and the
United Kingdom of Great Britain and Northern Ireland to refrain from the use or threat of
force in the region of the Falkland Islands (Islas Malvinas),
Deeply disturbed at reports of an invasion of 2 April 1982 by armed forces of Argentina,
DellJrmining that there exists a breach of the peace in the region of the Falkland Islands (Islas
Malvinas),
1. Demands an immediate cessation of hostilities;
2. Demands an immediate withdrawal of all Argentine forces from the Falkland Islands (Islas
Malvinas);
3. Calls on the Governments of Argentina and the United Kingdom to seek a diplomatic
solution to their differences and to respect fully the purposes and principles of the Charter
of the United Nations.
S.C. Res. 502, U.N. Doc. SlRESl502 (1982), reprinted in 21 I.L.M. 679-80 (1982).
It should be noted that in Resolution 502 the Security Council did not determine that the invasion of
April 2, 1982 was an "act of aggression," which it could have done under Article 39 of the Charter. It
simply determined that there was "a breach of peace" without stating explicitly which party was
responsible for such breach. On the nature of Security Council determinations under Article 39 of the
Charter, see generally M. VIRALLY, L'ORGANISATION MODIALE 451-56 (1972). On May 26, 1982 the same
body adopted by unanimous vote a further resolution requesting the Secretary General to undertake a
renewed mission of good offices bearing in mind Resolution 502 (1982) and "to enter into contact with
the parties with a view to negotiate mutually acceptable terms for a ceasefire." (S.C. Res. 505, U.N. Doc.
S/RESl505 (1982), reprinted in 21 I.L.M. 680-81 (1982). On June I, 1982 a draft resolutioin calling both
parties to a ceas~fire in the South Atlantic was vetoed by Great Britain and the United States. See J. A.
Conte Grand, Malvinas: Cuestiones de Principio y Frustacion del derecho, La Ley,July 28, 1982.
(about 1000 nautical miles east of the Patagonian coast); (2) South Sandwich
Islands, a group of islands to the southeast of South Georgia; (3) South Orkney
Islands (in Spanish, "Islas Orcadas del Sur"), a group lying some 640 nautical miles
southeast of the Malvinas; (4) South Shetland Islands, a group lying about 525
miles due south of the Malvinas and about 800 nautical miles north of the
Antarctic continent; and (5) Graham Land, a mountainous peninsula around 600
nautical miles long which juts out from the Antarctic continent. From the
viewpoint of British municipal legislation, the Letters Patent of July 21, 1908,
later amended by the Letters Patent of March 28, 1917, established these five
territories as "Dependencies of the Falkland Islands." However, most of the
"Dependencies" (excluding South Georgia and South Sandwich Islands) have
been placed under a distinct colonial unit named "British Antarctic Territory;"7
Furthermore, the Anglo-Argentine controversy over these islands could be at
the center of an even broader, but for the time being dormant, dispute concern-
ing sovereignty over the Antarctic. 8
In 1947, and following increasing tension between both countries, Great
Britain proposed that the dispute concerning the then so-called "Falkland Is-
lands Dependencies" be submitted to judicial settlement by the International
Court of Justice, but the Argentine Government turned down the proposal. The
proposal was reiterated after 1947 with the same result until eventually, on May
4, 1955, Great Britain submitted a unilateral application instituting proceedings
before the Court against Argentina and Chile. However, since neither of the
defendant states were subject to compulsory jurisdiction the application was
finally rejected. 9
7. The 1908 Letter Patent are in 101 BRITISH AND FOREIGN STATE PAPERS (1907·1908), at 76
(R. Brant & W. Maycock eds. 1912). The 1917 Letter Patent are in 111 BRITISH AND FOREIGN STATE
PAPERS (1917·1918), at 16 (E. Parkes ed. 1921). See generally Waldock,Disputed Sovereignty in the Falkland
Islands Dependencies, 25 BRIT. V.B. INT'L L. 311, 327 (1948) [hereinafter cited as Waldock]. Since Order
in Council of March 2, 1962, territories situated to the south of 60" south latitude between 20· and 80"
west longitude from a separate colony called "British Antarctic Territory" (Statutory Instrument 1962,
No. 400). D. Sabate Lichtschein, El Problema Juridico de la Anttirtida, in PROBLEMAS ARGENTINOS DE
SOBERANiA TERRITORIAL 26·27 n.18 (1979). This includes what Britain designates as Graham Land,
Coats Land, Alexander Island, the South Shetland Islands and the South Orkney Islands. See the text
of the order, in Spanish, in 2].L. MUNOZ AZPIRI, HISTORIA COMPLETA DE LAS MALVINAS 443 (1966)
[hereinafter cited as MUNOS AZPIRI]. This essential book sets forth the official correspondence on the
Malvinas dispute generally.
8. P. C. Jessup has noted that: "One of the principal British Antarctic claims is that to the Falkland
Islands Dependencies, based on the sector theory and resting upon the projection on longitudinal lines
outward from those islands." Jessup, Sovereignty in Antarctica, 41 AM.]. INT'L L. 117, 118-19 (1947).
Territorial claims to the Antarctic were placed in abeyance by the Antarctic Treaty of Dec. I, 1959
between Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the
U.S.S.R., the United Kingdom and the United States. T.I.A.S. No. 4780, 402 U.N.T.S. 71; Official
Documents, Conference on Antarctica (Wash. D.C., Oct. 15·Dec. 1, 1959),54 Am.]. Int'l L. 476 (1960).
9. Registry of I.C.]., Antarctica Cases (United Kingdom v. Argentina & United Kingdom v. Republic of
Chile), in 1955·1956 I.C.]. V.B. 77·78 (1956). It is interesting to note that the British unilateral
application seems to have been made "for the purpose of avoiding any risk of the extinguishment of its
claims by prescription ... (and thereby) challenging alleged encroachments by Argentina and Chile on
the Falkland Islands Dependencies." ].L. BRIERLY, THE LAw OF NATIONS 117 (6th ed. 1965).
British writers have criticized the Argentine unwillingness to submit to judicial

settlement claiming that this attitude testified to the weakness of the Argentine
legal position!O However, it must be emphasized that these proposals involved,
not the Falklands themselves, but only their so-called "Dependencies." Moreover,
at the time these proposals were made, British state activities in the area and
their expansion towards the Antarctic - in competition with Argentina - were
being directed from and based on Britain's occupation of the Malvinas. There-
fore, submission to the International Court of Justice would have implied that
the Court might take into account the British presence in Malvinas in assessing
the relative intensity, effectiveness and legal significance of the state activities of
each litigant in the so-called "Falkland Islands Dependencies" without this analy-
sis being influenced or affected in any way by the underlying territorial dispute
involving the Malvinas themselves. This attitude was consistent with what had
happened in the past when Britain had rejected all proposals for amicable
settlement of the Malvinas dispute made by Argentina in the nineteenth century,
including arbitration.H Here again, in the post-World War II proposals, the
legitimacy of the British presence on the Islands, a decisive factor in approaching
the more general controversy involving legal title to what Britain herself has
described as their "Dependencies," was deliberately removed from the scope of
judicial inquiry. 12
10. [Aj United Kingdom proposal that the particular problem of sovereignty in the Falkland
Islands Dependencies should be referred to the International Court has been rejected both by
Argentina and Chile, neither of whom are subject to compulsory jurisdiction. At first sight, no
dispute could be more suited to judicial settlement than a difference as to legal rights in
uninhabited territory. But these two states decline judicial investigation and propose settle-
ment by an international conference. They presumably have the expectation that at a confer-
ence any defects in their titles would be lost in legal controversy and ultimately made good by
Pan-American politics.
Waldock, supra note 7, at 312. The same opinion has more recently been expressed by J. Fawcett, Legal
Aspects, in THE FALKLAND ISLANDS DISPUTE, 5, 6 (1982) [hereinafter cited as Fawcettj.
11. On Argentine proposals to Great Britain for arbitration of the Malvinas dispute, see P. GROUS-
SAC, LAs IsLAS MALVINAS 11-22 (A. Cartina trans. 1982 ed.) [hereinafter cited as GROUSSACj. The
original French text appears in 6 ANALES DE LA BIBUOTECA NACIONAL DE BUENOS AIRES 401-579
(1910). See also G. Cohen Jonathan, Les Isles Fa/Jdand (Malouines), 17 A.F.D.1. 235 (1972) [hereinafter
cited as Cohen Jonathanj. See also notes 130-37 infra.
12. See British note of Dec. 21, 1954 and the Argentine response dated May 4, 1955, in MUNOZ
AZPIRI, supra note 7, at 438-42. It should be further noted that Argentina had entered into arrange-
ments with Chile providing for the mutual recognition of each others rights to the Antarctic between
25° and 90" west longitude in which both parties had pledged to act in concert in quest of recognition of
their rights. Therefore, judicial settlement would have required Chilean Agreement also. These ar-
rangements consisted of a joint statement by Argentina and Chile dated July 12, 1947 which was later
cast in an agreement signed in Santiago de Chile on March 4, 1948. I. RUiZ MORENO, HISTORIA DE LAS
RELACIONES EXTERIORES ARGENTINAS (1810-1955), at 251-53 (1961). The British proposal for judicial
settlement in the "Dependencies" was also discussed in the Fourth Committee of the General Assembly.
General Assembly, Tenth Session, Fourth Committee, Summary Record of the 472nd meeting, 10 U.N.
GAOR C. 4 at 11, U.N. Doc. NC. 41SR. 472, para. 35 (1955). The Argentine response denied that a
relationship of dependency could be stated to exist between the Malvinas and their so-called "Depen-
dencies" and, if such a relationship did in fact exist, since the Malvinas was Argentine territory, such
1983) SOVEREIGNTY AND DECOLONIZATION OF THE MALVINAS 397
B. The Scope of this Article
This article only intends to deal with the question of the Malvinas themselves
since the author estimates these islands to be, at present, the central point of
contention between both states. However, this narrowing of the subject matter
does not mean that this author is taking a position on the question of whether or
not a distinction can or should be made between the controversy over the
Malvinas, on the one hand, and that involving their so-called dependencies, on
the other.
The author believes - and attempts to show - that the Argentine claims to
the Malvinas are firmly based not only on generally accepted rules of interna-
tionallaw governing the acquisition of sovereign rights over territory, but also on
the fact that the international community at large, acting through successive
General Assembly Resolutions, on the one hand, has characterized the existing
status of the islands as a colonial situation within the meaning of Resolution 1514
of December 14, 1960 which, therefore, must be brought to a speedy and
unconditional termination and, on the other hand, has identified Argentina, by
reason of its territorial dispute over the Islands, as the relevant counterpart with
whom Great Britain must negotiate for the purposes of bringing about decoloni-
zation. Therefore, precisely because of the role assigned by the United Nations
to the territorial dispute in the context of decolonization, this article first exam-
ines the historical background of the case and the question of sovereignty in
terms of general international law and then describes how this question has
evolved in terms of the "newer" - and by what some people believe to be the
"higher" - law of decolonization.
II. HISTORICAL BACKGROUND OF THE DISPUTE
If Great Britain had not sought to invoke legal justifications for its act of force,
the inquiry of this article could have been circumscribed to questions such as
whether the Islands were a res nullius in 1833, the applicability of the notions of
conquest, acquisitive prescription and other related issues. However, it is a
well-known fact that governments have always tended to invoke legal, or at least
ethical, grounds to support their actions and in the case of the Falklands, Great
Britain claimed that it had a prior title to the archipelago which had not been
relinquished by it. In the context of the Anglo-Argentine dispute this contention
was first advanced in the only British letter of protest on the question of the
Malvinas issued prior to the British occupation. This letter was written by the
British Charge d'Affaires in Buenos Aires on November 19, 1829, and consisted
of a complaint directed against an Argentine decree, dated June 10 ofthe same
other territories should also be Argentine. General Assembly, Tenth Session, Fourth Committee.
Summary Record of the 479th meeting. 10 U.N. GAOR C. 4 at 67. U.N. Doc. NC. 41SR 479. paras.
20-23 (1955).
398 BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW [Vol. VI, No.2
year, which had recognized Argentine jurisdiction over the IslandsP There Mr.
Woodbine Parish stated that such measures were incompatible with the
sovereign rights of Great Britain, which the letter alleged were originally derived
from prior discovery and subsequent occupation. 14 The same rationale was later
reaffirmed by Viscount Palmerston in 1834 in his letter of response to the
Argentine protests which had followed the events of 1833. 15 It is in view of these
allegations that appreciation of the legal position of the parties, as in 1833, calls
for an analysis of the history of the archipelago since the time of their discovery
focusing, in particular, on the dispute which had arisen between England and
Spain over the Islands during the latter part of the eighteenth century.
A. Discovery
The question of who discovered the Malvinas or Falkland Islands has been one
of the most intensely debated issues in this whole controversy. The protagonists
13. Said degree provided that the Malvinas Islands and those adjacent to Cape Horn shall from then
on be governed by a "Comandante Politico y Militar." The Decree was published in La Gaceta Mercantil
(No. 1635), june 13, 1829, at 2, cols. 3 and 4. The English text of the decree appears in 20 BRITISH AND
FOREIGN STATE PAPERS (1832-1833), at 314 (1836).
14. The British Charge d'Affaires to the Buenos Aires Minister, Nov. 19, 1829, 20 BRITISH AND
FOREIGN STATE PAPERS (1832-1833), at 346 (1836).
The Undersigned, His Britannic Majesty's Charge d'Affaires, has the honor to inform His
Excellency General Guido, the Minister in charge of the Department of Foreign Affairs, that
he has communicated to his Court the Official Document, signed by General Rodriguez, and
Don Sylvador Maria del Carril, in the name of the Government of Buenos Ayres, and
published on the 10th of june last, containing certain provisions for the Government of the
Falkland Islands.
The Undersigned has received the Orders of his Court to represent to His Excellency
General Guido, that, in issuing this Decree, an authority has been assumed, incompatible with
His Britannic Majesty's Rights of Sovereignty over the Falkland Islands.
These Rights, founded upon the original discovery and subsequent occupation of the said
Islands, acquired an additional sanction from the restoration, by His Catholic Majesty, of the
British Settlement, in the year 1771, which, in the preceding year, had been attacked and
occupied by a Spanish Force, and which act of violence had led to much angry discussion
between the Governments of the 2 Countries.
The withdrawal of His Majesty's Forces from these Islands, in the year 1774, cannot be
considered as invalidating His Majesty's just rights. That measure took place in pursuance of a
system of retrenchment, adopted at that time by His Britannic Majesty's Government; but the
marks and signals of possession and property were left upon the Islands: when the Governor
took his departure, the British Flag remained flying, and all those formalities were observed
which indicated the rights of ownership, as well as an intention to resume the occupation of the
Territory, at a more convenient season.
The Undersigned, therefore, in execution of the Instructions of his Court, formally protests,
in the name of His Britannic Majesty, against the pretensions set up, on the part of the
Argentine Republic, in the Decree of 10th june, above referred to, and against all acts which
have been, or may hereafter be, done, to the prejudice of the just rights of sovereignty which
have heretofore been exercised by the Crown of Great Britain.
The Undersigned, &c.
H.E. Don Tomas Guido. WOODBINE PARISH.

!d. at 346-47. For a refutation of the statement that restoration of the British settlement implied
recognition of British sovereignty, see § III infra.
15. Viscount Palmerston to Don Manuel Moren, jan. 8, 1834,22 BRITISH AND FOREIGN STATE PAPERS
(1833-1834), at 1384 (1847). See also the paragraph of the letter written by the Earl of Aberdeen to
Manuel Moreno on Feb. 15, 1841 transcribed at note 122 infra.
1983] SoVEREIGNTY AND DECOLONIZATION OF THE MALVINAS 399
of this discussion, however, have failed to distinguish between a discovery which

is relevant for the purposes of geography and cartography and a discovery which
is capable of establishing state sovereignty over new territories. In the latter case
discovery demanded more than just visual apprehension and required some
kind of act of appropriation, whether symbolic or otherwise - usually the
hoisting of a flag or the planting of a cross - manifesting an intention, analo-
gous to the animus rem sibi habendi of Roman law, to incorporate that territory to
the sovereignty of the state in whose interest this act was performed. 16 This is so
because discovery, according to the classical exposition of international law, is
associated with the notion of occupation as an original, as opposed to a deriva-
tive, mode of acquiring new territories and, in this connection, there was the
essential condition that the person carrying out such acts be properly commis-
sioned by his government for such purposes.1 7 Discovery alone, even a discovery
indicating an intent to appropriate, without a subsequent effective display of
state functions over the new land, was generally understood to confer only
16. "To discover a thing is not only to capture it with the eyes but to take real possession thereof."
H. GROTIUS, DE MARE LIBERUM 11 (1916). Modern research clearly discloses that:
[T]hroughout this lengthy period, (1400-1800) no state appeared to regard mere discovery, in
the sense of "physical" discovery or simple "visual apprehension," as being in any way sufficient
per se to establish a right of sovereignty over, or a valid title to, terra nullius. Furthermore, mere
disembarkation upon any portion of such regions or even extended penetration and explora-
tion therein was not regarded as sufficient itself to establish such a right ortitle. Nor did merely
giving names to regions, capes, headlands, islands, valleys, peninsulas, rivers, streams, gulfs,
harbors or bays have any such results. It should be added, however, that the term "discovery"
was often rather loosely applied, and, in some instances ... may have been intended to include
the performance of a formal ceremony of taking possession.
A. S. KELLER, 0.]. LISSITZYN & F.J. MANN, CREATION OF RIGHTS OF SoVEREIGNTY THROUGH SYMBOUC
ACTS, 1400-1800, at 148-49 (1938). In the Clipperton Island Award (Fr. v. Mex.) Mexico invoked, inter alia,
succession to a title by discovery obtained by Spain. The Arbitrator addressed this point by saying:
However, even admitting that the discovery had been made by Spanish subjects, it would be
necessary to establish the contention of Mexico, to prove that Spain not only had the right, as a
State, to incorporate the island in her possessions, but also had effectively exercised that right.
But that has not been demonstrated at alt
Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island, 26 AM. J. INT'L
L. 390, 393 (1932); Clipperton Island Award (Fr. v. Mex.), 6 I.L.R. 105, 106 (Victor Emmanuel III,
King of Italy, Sole Arbiter, 1931). See Dickinson, The Clipperton Island Case, 27 AM.]. INT'L L. 130
(1933); Von Der Heydte, Discovery, Symbolic Annexation and Virtual Effectiveness in International Law, 29
AM. J. INT'L L. 448 (1935).
17. Occupation is an act of appropriation by a State through which it intentionally acquires
sovereignty over such territory as is at the time not under the sovereignty of another State ....
And it must be emphasized that occupation can only take place by and for a State; it must be a
State act, that is, it must be performed in the service of a State, or it must be acknowledged by a
State after its performance.
I L. OPPENHEIM, INTERNATIONAL LAw § 220, at 275 (8th ed. 1905). The same definition appears in I
L. OPPENHEIM, INTERNATIONAL LAw (PEACE) § 220, at 555 (H. Lauterpacht ed. 1955) [hereinafter cited
as OPPENHEIM, PEACE).
Occupation is an original, as distinguished from a derivative, mode of acquisition of territory. It
involves the intentional appropriation by a state of territory not under the sovereignty of any
other state.... Occupation is usually - though not necessarily - associated with the discovery
of the territory in question by the occupying state.
I G. H. HACKWORTH, DIGEST OF INTERNATIONAL LAw § 59, at 401 (1940).
400 BOSTON COLLEGE INTERNATIONAL & CoMPARATIVE LAw REVIEW [Vol. VI, No.2
inchoate title which, in practice, represented only an option or temporary bar to

occupation by another state .18 Furthermore, the traditional view has been that an
inchoate title of discovery is required to be completed within a reasonable period
of time by effective occupation or settlement because if this second step did not
occur the inchoate title could perish. 19 For this reason, the British allegation in
regard to the Falklands made in 1833 should be interpreted as resting, not on
discovery alone, but on the cumulative effect of discovery plus settlement. By
contrast, the Spanish claim did not rest on discovery. It was based, as this article
indicates later, not on rules of international customary law, but on a complex
system of treaties which defined a sphere of influence reserved to Spain.
The first discovery of the archipelago of the Malvinas has been attributed to:
Amerigo Vespucci in 1501, who was in the service of the King of Portugal;
Esteban Gomez, who was a member of the Magellan expedition of 1519-1520 in
the service of the King of Spain; Captain Pedro de Vera, who was in charge of
one of the ships of the Garcia de Loayza expedition in 1525 also in the service of
Spain; Alonso de Camargo in 1540 in the service of the Bishop of Plasencia;
John Davis in 1592, a member and alleged deserter of Thomas Cavendish's
18. W. E. HALL, A TREATISE ON INTERNATIONAL LAw § 32, at 127 (8th ed. 1924) [hereinafter cited as
HALL]. E. de Vatte! in the eighteenth century had expressed this notion in the following words:
When, therefore, a Nation finds a country uninhabited and without an owner, it may lawfully
take possession of it, and after it has given sufficient signs of its intention in this respect, it may
not be deprived of it by another Nation. In this way navigators setting out upon voyages of
discovery and bearing with them a commission from their sovereign, when coming across
islands or other uninhabited lands, have taken possession of them in the name of their Nation;
and this title has usually been respected, provided actual possession has followed shortly after.
E. DE VATTEL, THE LAw OF NATIONS, Bk. I, Ch. XVIII, reprinted in 3 THE CLASSICS OF INTERNATIONAL
LAw 84-86 (C. G. Fenwick trans. & J. B. Scott ed. 1916) [hereinafter cited as VATTEL]. See generally 1
R. PHILLIMORE, COMMENTARIES UPON INTERNATIONAL LAw §§ 237-64, at 195-212 (1854) [hereimlfter
cited as PHILLIMORE].
19. Vattel goes on to say:
But it is questioned whether a nation can thus appropriate, by the mere act of taking
possession, lands which it does not really occupy .... Hence the Law of Nations will only
recognize the ownership and sovereignty over a Nation over unoccupied lands when the Nation is
in actual occupation of them, when it forms a settlement upon them, or makes some actual use
of them.
VATTEL, supra note 18, at 85. The Arbitrator in the Palmas Island case stated that "an inchoate title of
discovery must be completed within a reasonable period by the effective occupation of the region
claimed to be discovered" and that because Spain had not taken any steps towards effective occupation
the inchoate title could not prevail against the Netherlands which had displayed effective occupation
prior to the critical date of the dispute (i.e., 1898 when Spain ceded the island to the United States).
Palmas Island Case (Neth. v. U.S.), 2 R. Int'I Arb. Awards 829, 831 (1931). The Arbitrator in the
Clipperton Island case stated also that Mexico's historic right (if any) was not supported by any manifesta-
tion of sovereignty over the island, and that therefore, in November, 1958 when France proclaimed her
sovereignty over Clipperton, that island was a tenitorium nullius and therefore "susceptible of occupa-
tion." Arbitral A ward on the Subject of the Difference Relative to the Sovereignty over Clipperton Island, 26 AM. J.
INT'L L. 390, 393 (1932); Clipperton Island Award (Fr. v. Mex.), 61.L.R. 106-07 (Victor Emmanuel III,
King of Italy, Sole Arbiter, 1931).
second expedition to the South Atlantic; and Richard Hawkins 20 in 1594 in the
service of Queen Elizabeth I of England. 21 There is a general consensus, how-
ever, that the landfall struck by the Dutch navigator, Sebald de Weert at 50° 41'
south latitude on January 24, 1600 on his return to Holland after a frustrated
attempt to traverse the Magellan Strait was one of the islands of the group.22
Now, it should be emphasized that none of the intrepid navigators mentioned
above even landed there nor performed any acts which could be taken .as
manifesting the intention of acquiring the Islands for their respective sovereigns.
With reference to the Spanish explorers this attitude might be explained by the
fact that Spain regarded these territories as falling within her exclusive domain 23
and therefore may have felt that a formal act of discovery and possession was
unnecessary. In regard to other explorers, their lack of enthusiasm probably lay,
as Goebel says, in the fact that: "None of the navigators related tales of the
beauty and wealth of the islands such as would lure on adventurous and roman-
20. It seems that Hawkins had a commission from the Queen but it was for the purposes of
discoveries in the East by way of the Strait of Magellan. He described his discovery as "goodly champion
country. and peopled; we saw many fires." (It is a well-known fact that the entire archipelago of Malvinas
was uninhabited by indigenous people and. furthermore. did not have trees for firewood). Hawkins
gave this land. which was probably Tierra del Fuego. the name of Hawkins Maiden-Land. This he
appears to have done in honor of Queen Elizabeth I. "my sovereigne lady and mistress. and a Maiden
Queene. and at my cost and adventure. in a perpetuall memory of her chastitie. and rememberance of
my endevours" (note the words: "at my cost and adventure)." Observations of Sir Richard Hawkins.
Knight. in his Voyage into the South Sea (Hakluyt Society. Works. no. I. 1848). quoted in J. GoEBEL. JR .•
THE STRUGGLE FOR THE FALKLAND ISLANDS 34-37 (1927) [hereinafter cited as GoEBEL). The text quoted
shows also that Hawkins did not make a landing. Another perspective on the activities of British
navigators such as Hawkins can be found in A.J.T. TAVARES K.• I'IRATAS DE AMERICA (1963).
21. See generally GoEBEL. supra note 20. at ch. I; C. BARCIA TRELLES. EL PROBLEMA DE LAS ISLAS
MALVINAS (1943) [hereinafter cited as BARCIA TRELLES]; M. HIDALGO NIETO. LA CUESTION DE LAS
MALVINAS. CONTRIBUCION AL ESTUDIO DE LAS RELACIONES HISPANO-INGLESAS EN EL SIGLO XVIII. at ch.
VI (1947) [hereinafter cited as HIDALGO NIETO]; V. F. BoYSON. THE FALKLAND ISLANDS (1924) [here-
inafter cited as BOYSON); GROUSSAC. supra note II. at 11-22. 69-101; R.R. CAILLET-BOIS. LAs ISLAS
MALVINAS. at ch. I (1948) [hereinafter cited as CAILLET-BOIS); L.H. DESTEFANI. LAs MALVINAS EN LA
EpOCA HISPANA. 1600-1811. at ch. II (1981) [hereinafter cited as DESTEFANI]. The work of Hidalgo
Nieto is based on research conducted in the Official Archives of Seville and contains a valuable list of
documents which are numbered in Roman letters. These documents are cited as HIDALGO NIETO.
DOCUMENT (with the Roman numeral indicating the number given such document and the page
indicating where it appears in the edition cited above).
22. See note 21 supra. They all seem to agree. However. Goebel attributes the "first" discovery to
Camargo. GoEBEL. supra note 20. at 17-33. See also DESTEFANI. supra note 21. at 56. According to (he
statements made on September 9. 1964 by Jose Maria Ruda. the Argentine delegate before Subcommis-
sion III of the Special Committee of the United Nations for the Application of Resolution 1514 (XV).
the first discoverer was the pilot Esteban Gomez of the Magellan expedition in the year 1520. General
Assembly. Special Committee on the Situation With Regard to the Implementation of the Declaration
on the Granting of Independence to Colonial Countries and Peoples. Sub-Committee III. Summary
Record of the 25th meeting. U.N. Doc. NAC. 109/SC. 4'SR.25 (1964) [hereinafter cited as Ruda
Report). See also EI Derrotero Argentino. Servicio de Hidrografia Naval. pI. III. Supp. No. I. ch. VI.
211 (1981).
23. The Malvinas Archipelago lay clearly to the west of the Tordesillas line and the Spanish claim
rested on treaties precluding discovery by third states. See § III infra.
tic souls to a closer examination of these windswept roosts of the penguin; and
decades were to pass before men were to set foot upon their shores."24
During the seventeenth century the Islands, however, were visited in 1617 by
the Dutch expeditions of Le Maire and Schouten, possibly in 1684 by William
Ambrose Cowley, who claimed to have discovered islands which he named Pepys
Islands but which afterwards were proved not to exist, and in 1690 by a John
Strong, who sailed between the two principal islands and gave the passage which
separated them the name of "Falkland Sound."25 Although the Islands were
clearly identified on many maps since the Islario de Santa Cruz of 1541 - which
was an official map - under the name of Islas Sanson, a somewhat accurate
depiction of the Islands appears in Frezier's Map of 1716, where they are called
Isles Nouvelles. During the eighteenth century they were frequented by sailors
from the French port of St. Malo, which is why the first French settlers called
them "Malouines."
In summary, on the issue of discovery, the following observations can be
made: (1) the evidence tends to indicate that the British did not discover the
archipelago; (2) even if one was to concede that they had, no acts were per-
formed, symbolic or otherwise, manifesting the intention (animus) to acquire the
Islands for the British crown until the years 1765 and 1766;26 (3) even if such
acts had been performed it is questionable that either Davis or Hawkins (whose
professional activities were not altogether clear) had properly been commis-
sioned to make discoveries in those regions; (4) there is no evidence that Britain
had asserted any claims to the Malouines on the basis of such alleged discoveries
during the period in question; (5) assuming ad arguendum that Britain had
effected a proper discovery and had claimed the Islands, in light of the Spanish
allegations, which were based on treaties signed with England acknowledging a
sphere of interest reserved to that power,27 it is questionable that the islands
could have been considered a res nullius at that time; and (6) if in spite of all these
arguments one still was to concede that the discoveries did give England certain
rights, these would have been in the nature of an inchoate title which would have
had to have been followed up by effective occupation within a "reasonable" period
of time and this did not occur until the year 1766, i.e., 174 years after Davis'
alleged discovery and two years after another power had made a first settlement.
24. GoEBEL, supra note 20, at 46.

25. "The visit of Strong was the first landing of Englishmen on the Falklands. It was of no conceivable
legal consequence, for it invdlved neither a mere formal taking possession of the islands, nor an
occupation." [d. at 137. The origin of the name "Falkland" is controversial. It is likely that it was given in
honor of Anthony, Viscount Falkland (1659-1694) who was a Commissioner of Admiralty at the time
and later First LQrd.!d. at 136 n.44.
26. See § II.B infra.
27. See § III infra.
B. Colonization
In contrast to the issue of discovery - which has given rise to conflicting claims
between candidates of different nationalities - the general facts relating to the
first and subsequent settlements on the archipelago, as such and to the knowl-
edge of this writer, have so far not been disputed.
The first colonizer of the Malvinas was Louis Antoine de Bougainville who
established in early 1764 a settlement of around 29 people, founded Port Louis
on the main eastern island and solemnly declared the group of islands a posses-
sion of the French king. The Bougainville expedition had benefited from the
official patronage of the Duc de Choiseul, the famous minister of Louis XV, and
was organized and equipped from the French Port of Saint-Malo. In 1765
Bougainville, who had left his colony under the charge of Governor Nerville,
returned to the Islands with further reinforcements and the number of settlers,
after a third visit, increased to about 130 people. 28
In early 1765, almost one year after Bougainville had founded his colony on
the main eastern island, Commodore John Byron, after making some surveys of
the coast of the main western island, took formal possession in the name of
George III on a spot in Saunders Island he called Port Egmont. Saunders Island
lies to the northwest of the Gran Malvina (West Falkland). It is important to note
that Byron's expedition did not leave a settlement. 29 A year later, in 1766, and
two years after the founding of Port Louis by Bougainville, a first British
settlement was secretly established in Port Egmont and for a period of around
fourteen months this establishment on Saunders Island coexisted with Bougain-
ville's colony, until the latter was formally transferred to Spain. Although the
French settlers had suspected the possible existence of a British enclave in the
area, the first encounter between both parties did not take place until December
4, 1766 when Captain MacBride sailed into Port Louis. Following an exchange of
28. CAILLET-BOIS, supra note 21, at 85. Goebel claims they reached 150. GoEBEL, supra note 20, at
226. Bougainville's occupation had been ratified by a sealed document signed by Louis XV and dated
September 12, 1764. CAILLET-BOIS, supra note 21, at 83. It should be noted that since August 15, 1761
France and Spain were linked together by an alliance which has gone down in history with the name of
the Family Compact (i.e., between the Bourbon family which ruled both countries). 1 G. F. MARTENS,
RECEUIL DE TRAITES O'ALUANCE, DE PAIX, DE TREVE, DE NEUTRAUTE, DE COMMERCE, DE LlMITES,
d'ECHANGE ETC. ET PLUSIERS AUTRES ACTES SERVANT A LA CONNAISSANCE DES RELATIONS ETRANGERES
DES PuISSANCES ET ETATS DE L'EuROPE 16 (1817). The commission of Bougainville, according to the
explanations given in Aranjuez by the French Ambassador on May 9, 1766 at the request of Bougain-
ville, was aimed at establishing a commercial colony in order to preserve for the House of Bourbon
access to the South Sea. HIDALGO NIETO, supra note 21, at 3.
29. The chief remnant of the Byron expedition appears to have been a vegetable garden. According
to Dr. Brown's "Anglo Spanish Relations in American in the Closing Years of the Colonial Era" (quoted
in GoEBEL, supra note 20, at 232 n.36) the act of possession took place on January 23, 1765. There the
flag was raised and the surgeon of the Tamar "surrounded a piece of ground near the watering place
with a fence of turf and planted it with many esculent vegetables as a garden, for the benefit of those
who might hereafter come to this place." Cj. HIDALGO NIETO, supra note 21, at 5.
notes, Governor Nerville showed MacBride Bougainville's commission and the

English captain sailed away.30
Meanwhile, when the news of the French settlement reached Europe, Spain
demanded explanations and protested to the French court. The negotiations to
which this incident gave rise resulted in the formal recognition on the part of
France of the Spanish rights to the Islands and provisions were made for their
formal restitution to Spain against reimbursement to Bougainville of all ex-
penses incurred in making his settlement.. Pursuant to these arrangements, on
April 2, 1767 the Spanish flag was hoisted and solemn delivery of the colony was
taken from Bougainville in person by Spanish authorities sent out specifically for
this purpose. The first Spanish governor of the Islands was Felipe Ruiz Puente. 31
The next incident on the archipelago was an encounter in late November,
1769 between a schooner which the new Spanish governor had dispatched to
make a survey of the Islands and a British frigate under the command of
Captain Anthony Hunt. During this encounter, and to everyone's astonishment,
the English Captain delivered a written warning, supported by menacing cannon
shots, that the Spanish settlement should leave the Islands within six months. 32
The suspicion that the English had established themselves somewhere in the
neighborhood began to be confirmed and shortly thereafter a more significant
30. In his letter of December 4, 1766 MacBride stated that "Falkland Islands were first discovered by
the Su~ects of the Crown of England, sent out by the Government for the Purpose." MacBride to
Nerville, HIDALGO NIETO, supra note 21, at 6. Governor Nerville responded with a note stating that the
Jason, i.e., the British frigate, should evacuate because the islands were a possession of the French king.
Id. at 7. The next day MacBride responded by saying he had only come to "examine these Islands
Accurately" and· requesting to "execute this Service in an amicable manner." MacBride to Nerville, Dec.
5, 1766, id. at 7. This exchange shows that England knew of the French settlement before it was later
transferred to Spain. Therefore its absence of protest against that transaction, under this perspective,
becomes significant.
31. HIDALGO NIETO, supra note 21, at 12; GoEBEL, supra note 20, at 230.
32. The text of the letter of Captain Hunt, which is transcribed below, was a response to the
courteous inquiries from the Spanish about what he was doing in those regions and invoking "good
treaties" between both states.
Sir:
I have received your letters by the Officer acquainting me that the Islands and Coast thereof
belong to the King of Spain your Mayesty: In return I am to acquaint you that the said Islands
belong to his Britannick Mayesty my Master by right of discovery, as well as Settlement; and
that the Subjects of no other Power whatever can have any right to be settled in the said
Islands, without leave from his Britannick Mayesty; or taking the Oaths of allegiance, and
submitting themselves to his Government; as subjects of the Crown of Great Britain.
I do therefore in his Mayestys Name and by his Orders, warn you to leave the said Islands,
(and) in order that you may be the better enabled to remove your eftects; you may remain six
months from the date hereof, at the expiration of which you are expected to depart accord-
ingly.
I am, Sir, your most obedient
humble Servant,
Anthony Hunt.
Falkland Islands.
December the 10th. 1769.
HIDALGO NIETO, DoCUMENT XIII, supra note 21, at 617.
expedition was launched from Buenos Aires for the specific purpose of discover-
ing the English settlement under the command of Captain Fernando Rubalcava.
This expedition actually entered the bay at Port Egmont on February 17, 1770
and remained there for eight days. Again both parties exchanged notes and
following this encounter Rubalcava sailed over to Puerto Soledad to report his
findings. At last the exact location of the English establishment had been iden-
tified. The next step was the dispatch of an expedition by the Spanish governor
in Buenos Aires, Francisco Bucareli, consisting of four frigates which sailed from
Montevideo on May 11, 1770. The expedition was under the command of Juan
Ignacio de Madariaga and on June 10, 1770 the Spanish succeeded in evicting all
English presence from Port Egmont by force.
The forcible expulsion of the English garrison from Port Egmont almost
precipitated war between England and Spain. A diplomatic settlement of the
matter, however, was reached after a very elaborate and secret negotiation which
took place in London between the Spanish ambassador to the Court of St. James
and the British government. This negotiation concluded on January 22, 1771
with an exchange of notes by which the Spanish agreed to restore Port Egmont
to the status quo ante. The reinstatement of the British garrison at Port Egmont,
together with the Spanish disavowal of the use of force, was effected for the
purpose of repairing the offense caused to the British king. However, this was
conceded under an express qualification, which the English accepted, that such
restoration "cannot nor ought in any way to affect the question of the prior right
of sovereignty over the Malouine Islands, otherwise called Falkland's Islands. "33
It has been stated that the Anglo-Spanish negotiation contained an essential
secret promise on the part of Great Britain to the effect that once honor had
been repaired in the form of a physical restitution of Port Egmont the British
would evacuate the settlement in due course. The Spanish writer, Camilo Barcia
Trelles confirms this interpretation as does the American writer, Julius Goebel,
Jr. Manual Hidalgo Nieto, however, has expressed doubts about it. 34 Whatever is
33. See the text of the declarations in note 48 infra.

34. HIDALGO NIETO, supra note 21, at 227-31. Goebel, however, discusses the matter in detail in
Chapter VII of his book and concludes that the Secret Promise in fact existed. See, in the same sense,
GROUSSAc,supra note II, at 134-143; CAILLET-BOIs,supra note 21, at ch. IX; BARCIA TRELLES, supra note
21, at 56. In this connection more recent research has disclosed that an anonymous eighteenth century
writer (who was, however, never refuted at the time he wrote) stated that:
[T]he subsequent conduct of ~overnment proved, that there were secret stipulations on the
part of Great Britain, which the ministry did not choose should meet the eye of parliament.
For, though Falkland's Islands, Port Egmont, its forts, and other dependencies, were restored
to the English, on the 16th September 1771, in conformity to his Catholic Majesty's declaration,
yet in 1774, orders were sent out for evacuating the place: which was done accordingly, and no
settlement has since been made there ....
THE HISTORY OF LoRD NORTH's ADMINISTRATION, TO THE DISSOLUTION OF THE THIRTEENTH PARLIA-
MENT OF GREAT BRITAIN 30 (printed for G. Wilkie, 1781). Although the writer of this article is not
resting his case on this point, the existence of this promise, in this writer's opinion, is demonstrated
beyond dispute by R. ZoRRAQUIN BECU, INGLATERRA PROMETIO ABANDONAR LAS MALVINAS; ESTUDIO
HISTORICO Y jURiDICO DEL CONFLICTO ANGLO-ESPANOL (1975) [hereinafter cited as ZoRRAQUIN BECU].
the truth ofthis matter, the fact remains that in May, 1774, for alleged reasons of
economy, the British settlement of Port Egmont was duly evacuated. An inscrip-
tion, however, was engraved on a lead plate and affixed to the blockhouse. The
inscription stated:
Be it known to all nations that the Falkland Islands, with this fort, the
storehouses, wharfs, harbors, bays, and creeks thereunto belonging
are the sole right and property of His Most Sacred Majesty George
the Third, King of Great Britain, France and Ireland, Defender of
the Faith, etc. In witness whereof this plate is set up, and his Britan-
nick Majesty's colors left flying as a mark of possession by S. W.
Clayton, commanding officer at Falkland Islands, A.D. 1774.35
Two years later the Spanish Captain Juan P. Callejas found this singular object
and took it back to Buenos Aires. Some thirty years later Colonel Beresford,
who lead the first of the two full-scale British invasions of Buenos Aires in 1806,
allegedly took the lead plate back to London after his defeat. 36
After the British evacuation of 1774 the Spanish remained the exclusive,
undisputed and uninterrupted possessors of the entire archipelago and a con-
tinuing succession of Spanish governors consolidated the colonial administra-
tion.37 In January, 1810 Gerado Bordas, Commander of the Spanish garrison at
Puerto Soledad, received news of the Napoleonic invasion of Spain. However, it
was not until January, 1811 following the establishment of a locally created
government in Buenos Aires (May 25, 1810) that the Spanish Governor of
Montevideo, Gaspar de Vigodet, ordered the evacuation of the Malvinas and
dispatched a vessel to carry out these instructions. From that moment onward
until 1820 the archipelago remained without any visible state authority. It was
nevertheless visited by sealers and whalers of various nationalities who hunted
and fished in the region at their unfettered discretion. Meanwhile, the revolu-
tionary process which had commenced in Buenos Aires in 1810 continued its
course and the independence from Spain was officially proclaimed on July 16,
1816.
III. SPANISH TITLES TO THE ISLANDS
When Bougainville recounted the history of the transaction between Spain

and France of 1767, he pointed out that France had relinquished the Malouines
in favor of Spain pursuant to a principle of European public law. In this connec-
35. GoEBEL, supra note 20, at 410.

36. II Revista de la Biblioteca Nacional, No.6, 301 (1938); B. DEL CARRIL, EL DOMINIO DE LAS ISLAS
MALVINAS 31 (1964) [hereinafter cited as DEL CARRIL); CAILLET-BOIS, supra note 21, at 150 n.4. This
circumstance, however, has legal significance in that it clearly evidences that high ranking British
military officers in 1806 who had, furthermore, been commissioned to effect a military conquest of
Buenos Aires, under whose jurisdiction Malvinas stood, were on notice that it had been removed.
37. See note 51 infra.
1983] SOVEREIGNTY AND DECOLONIZATION OF THE MAoLVINAS 407
tion, he stated that the payment he received of 618,108 French livres had been
an act of generosity of the Spanish Crown given by way of compensation for the
transfer of the colony and of all its establishments to Spain, the costs of which
had been defrayed entirely by his Compagnie de St. Malo. 3s
The principle of European "public law" mentioned by Bougainville was em-
bodied by a complex network of treaties establishing an international status quo
which reflected the balance of power obtained from time to time between the
principal nations of Europe. These nations were in constant competition with
each other and in the age of mercantilism and colonial expansion control of the
sea was probably one of the major points of contention between them.
At the outset of this competition Spain had been favored by the well-known
bulls Inter-coetera (May 3 and 4, 1493) of Pope Alexander VI which had assigned
to the monarchs of Castille and Leon an exclusive right of occupancy and control
over all areas, including the sea, to the west of an imaginary line running from
pole to pole drawn 100 leagues west of the Azores and Cape Verde Islands.
Shortly thereafter this grant was extended by another bull dated September 26,
1493 but was later amended by the Treaty of Tordesillas of June 3, 1494
between Spain and Portugal, which moved the demarcation line 270 leagues
further to the west. The Treaty of Tordesillas was confirmed by the bullEa Quae
issued twelve years later by Pope Julius II. Under these arrangements Spain and
Portugal were assigned spheres of exclusive influence for the purposes of dis-
covery, trade and colonization.
Although there is no question but that these arrangements were legally bind-
ing on Spain and Portugal as against each other, the extent to which either of
these states could evoke such Papal grants against third party states such as
England and France has been questioned. 39 However, notwithstanding this
38. I L.A. BOUGAINVILLE, VOYAGE AUTOUR DU MONDE, PAR LA FREGATE DU ROI "LA BOUDEUSE" ET LA
FLUTE "L'ETOILE" EN 1766, 1767, 1768 ET 1769, at 46 (2d ed. 1772).
39. The text of the bull which begins with the words "Inler Coelera divini majestatis beneplacito" (in Latin
and Spanish) can be found in I C. CALVO, RECUEIL COMPLET DES TRAITES, CONVENTIONS, CAPITULA-
TIONS, ARMISTICES, ET AUTRES ACTES DIPLOMATICQUES DE Tous LES ETATS DE L'AMERIQUE LATINE,
(DEPUIS L'ANNEE 1493 JUSQU'A NOS JOURS) 4-15 (1862) [hereinafter cited as C. CALVO, RECUEIL]. It clearly
is intended to prohibit, under severe penalties, other nations from even getting near those areas. Note
the language used in this connection:
Ac quibuscumque personis cujuscumque dignitatis, etiam imperialis et regalis, status, gradus,
ordinis vel conditionis, sub excommunicationis latae sententiae poena, quam eo ipso si con-
trafecerint incurrant, districtius inhebemus ne ad isulas et terras firmas inventas et invenien-
das, detectas et detegendas versus Occidentem et Meridiem, fabricando et construendo lineam
a polo artico ad polum antarcticum, sive terrae firmae et insulae inventae et inveniendas sint
versus aliam quamcumque pattern, ....
Id. at 12. Note the words "inventas et inveniendas, detectas et detegendas" in relation to the issue of
discovery by third states. Although the writer is not resting his case on the validity of the Papal bulls per
se, there are, however, reasons to believe that by operation of the principle of intertemporallaw they
were binding on England. In this connection, at the time of the bulls England was a Catholic country
and recognized the papal "auctoritas" of the medieval system which gave the Pontiff an ascendancy over
the Christian princes. In this respect it should be remembered that Pope Hadrian IV by the bull
discussion and simply because of their constant invocation by Spain and Por-
tugal, these bulls played a significant political role in the configuration of the
public law of Europe until the time of the American Revolution and in the
establishment of status quo to which England became associated through treaties.
With respect to navigation and commerce in the South Atlantic, the following
treaties between England and Spain should be remembered: (1) Treaty of Madrid
ofJuly 8118,1670. This treaty, known as the American Treaty, was an extension
of the Peace Treaty of 1667 which had terminated war between England and
Spain. It confirmed the Spanish recognition of the English colonies in North
America. However, as a counterpart of this recognition, Article 8 thereof pro-
vided that the subjects of the British king shall not navigate nor engage in
commerce in ports and places held by the Catholic king and vice versa;40 (2)
Treaty of Madrid of March 27, 1713. This was a preliminary treaty of peace which
followed the well-known Assiento Treaty of March 26, 1713 by which the South
Sea Company had been given the monopoly of slave trade in Spanish America.
Article 14 thereof provided that the British Crown had agreed to promulgate the
strongest prohibitions "under the most rigorous penalties, that no ship of the
English nation shall venture to pass to the South Sea" or engage in commerce in
any places in the Spanish Indies except for slave trade which could be carried out
only in the northern ports and in Buenos Aires;41 (3) Treaty of Utrecht ofJuly 13,
1713. Article 8 of this Treaty provided that one of the essential conditions of
peace was that commerce and navigation with West Indies belonging to Spain
Laudabiliter of 1155 gave King Henry II a patent to conquer Ireland. This bull begins with the words
"Laudabiliter & fatis fructuose de gloriose nomine tuo propagando" and can be found in 1 J. DUMONT,
CORPS UNIVERSEL DIPLOMATIQUE {lU DROIT DES GENS (pt. 1), at 80 (1726). See generally A. NUSSBAUM, A
CONCISE HISTORY OF THE LAW OF NATIONS 21 (1947) (Spanish Trans., F. JAVIER OSSET, REVISTA
EDiTORA DE DERECHO PRIVADO (1949); 199 JOHN OF SALISBURY, METALOGICUS, (OPERA OMNIA) PA-
TROLOGIAE UTINEAE 825 (1855), quoted in GoEBEL, supra note 20, at 50 n.4. Under this precedent one
could argue that England was estopped from wntesting the authority of the Pope to issue Inter Coetera.
An illustration of papal "auctoritas" is when the Pope deposed King John following his excommunica-
tion in 1212; but when Phylippe August was appointed to carry out this decision, John appears to have
repented and accepted back his Kingdoms of England and Ireland from the Pontiff. G. STADTMULLER,
GESCHICHTE DES VOLKERRECHTS 80 (1951) (A. Truyol y Serra, Spanish trans. 1961). With respect to the
instructions given by Henry VII to John Cabot in 1496 and the conclusions drawn by Westlake from
them, see GOEBEL, supra note 20, at 85. But there is further to this shortly after Inter Coetera King Henry
VII (whose navy was basically insignificant), far from lodging any protests against the papal grants,
began to pursue negotiations for a royal marriage with Spain. Henry VIII himself, prior to his own
matrimonial problems, received in the year 1521 the title of Defender of the Faith. 4 D. HUME, THE
HISTORY OF ENGLAND 36 (1807). Those who are familiar with the policies and procedures of the Church
of Rome will appreciate the unlikelihood that such a distinction would have been bestowed upon the
head of a state that was openly challenging prerogatives which, as is evident from the text of both Inter
Coetera and Laudabiliter, the Holy See firmly believed to possess in those days in connection with its
mission of preaching the faith in new lands. It seems quite evident that England's opposition to the bulls
came out into the open only after the British reformation.
40. 1 C. CALVO, RECUEIL, supra note 39, at 162, 168-69. 11 THE CONSOLIDATED TREATY SERIES
(1168-1671), at 383 (English translation at 395) (C. Parryed. 1969).
41. 2 C. CALVO, RECUEIL, supra note 39, at 102, 105-06. 27 THE CONSOLIDATED TREATY SERIES
(1710-1713), at 455 (English translation at 462) (C. Parry ed. 1969).
should remain as it was at the time of Charles II except for the Assiento ;42 (4)
Treaty of Utrecht of December 9, 1713. This Treaty of Friendship and Commerce
expressly confirmed and reenacted the Anglo-Spanish treaty of 1670. 43 These
arrangements were further ratified by the Treaties of Madrid of June 13, 1721,
of Seville of November 9, 1729 and of Aix La Chapelle of October 18, 1748. 44
The cumulative import of these treaties in relation to the issue of navigation
should be interpreted in light of the traditional Spanish claims to a closed sea in
all areas surrounding her colonial territories. This point had rigorously been
sanctioned by the Papal bulls and the assertion of this prerogative thereafter had
become an essential cornerstone of Spanish external policy. This policy sought to
assure Spain an exclusive sphere of commercial interests which precluded by
implication the creation of any English establishments whatsoever within her
domains. In this connection, the treaties cited above furnish the necessary
background which explains the surreptitious nature of the British establishment
at Port Egmont, which at the time it was made had been kept a rigorous secret,45
the absence of any British diplomatic protests at the time of the transfer of the
Islands from France to Spain, the need for the British reliance on the question-
able theory of discovery and the underlying legal assumptions upon which the
1771 settlement between England and Spain were premised.
In connection with this latter point, there is a precedent which shows that
England understood these assumptions along the same lines. In 1748 Admiral
Lord Anson 46 had persuaded the British government to establish a colony in the
South Atlantic, preferably in "Pepys or Falkland Islands" or in Tierra del Fuego,
and the British Admiralty started working on the project. The Spanish ambas-
sador in London, the Irishman Richard Wall, learned about it and protested. In
view of this protest the Duke of Bedford instructed the British ambassador in
Madrid to discuss the expedition with the Spanish Minister Carv~al but to
express that "there is no intention of making any settlement in either of those
islands." The Spanish minister firmly resisted the expedition and as a result of
these objections the British project was dropped altogetherY This precedent,
42. 2 C. CALVO, RECUEIL, supra note 39, at 115, 118. 28 THE CONSOLIDATED TREATY SERIES (1713-
1714), at 429 (English translation at 325) (C. Parry ed. 1969).
43. 2 C. CALVO, RECUEIL, supra note 39, at 130, 152. 28 THE CONSOLIDATED TREATY SERIES (1713-
1714), at 429 (English translation at 458) (C. Parryed. 1969).
44. 2 C. CALVO, RECUEIL, supra note 39, at 205; A. DEL CANTILLO, TRATADOS, (CONVENIOS Y DE-
CLARACIONES DE PAZ Y DE COMERCIO QUE HAN HECHO CON LAS POTENCIAS EXTRANJERAS LOS MONARCAS
ESPANOLES DE LA CASA DE BORBON) 198,247,314 (1843) [hereinafter cited as DEL CANTILLO, TRATADOS);
31 THE CONSOLIDATED TREATY SERIES (1718-1724), at 303 (C. Parryed. 1969); 33 THE CONSOLIDATED
TREATY Series (1727-1732), at 253 (C. Parryed. 1969); 38 THE CONSOLIDATED TREATY SERIES (1746-
1750), at 297 (English accession at 328 and Spanish accession at 340) (C. Parry ed. 1969).
45. GoEBEL, supra note 20, at 235-42; ZoRRAQUIN BECU, supra note 34, at 27-29; I COLECCION DE
DOCUMENTOS RELATIVOS A LA HISTORIA DE LAS ISLAS MALVINAS 155-58, 162-66, 202-04 (Instituto de
Historia Argentina, Facultad de Filosofia y Letras, Universidad de Buenos Aires, 1957).
46. G. ANSON, A VOYAGE ROUND THE WORLD IN THE YEARS MDCCXL, I, II, Ill, IV, at 91 (R. Walter
compiler 1748).
47. GoEBEL, supra note 20, at 194-202.
together with the subsequent precedent represented by the recognition by

France of the Spanish rights to the Malouines in circumstances where Spain had
not yet performed a single act of appropriation or possession on the archipelago
itself, should be considered a significant indication that the Islands were gener-
ally believed to belong to Spain simply by virtue of their geographical propin-
quity to the South American Continent.
Concerning the 1771 settlement by which Spain agreed to the restitution of
the British fort at Port Egmont, the text of these documents shows that this was
done solely for the purpose of redressing an offense to the British king whose
forces had been attacked in times of peace and by no means could be taken as a
Spanish recognition of British title to that establishment. On the contrary, these
documents show, on the one hand, an express reservation of rights on the part of
Spain over the entire archipelago and, on the other, an "acceptance" of such
reservations on the part of Great Britain. 48 Britain not only accepted the reserva-
48. The word "counterdeclaration" which is used in Palmerston's note to Moreno of January 8, 1834
(22 BRI1;ISH AND FOREIGN STATE PAPERS (1833-1834), at 1384, 1387 (1847)) was an inaccurate reading of
the 1771 State Papers. DEL CARRIL, supra note 36, at 52-53. The change is not without significance. The
text in French, as it appears in 2 G. F. MARTENS, RECUEIL DES PRINCIPAUX TRAITES (1771-1779), at 1, 2
(2d ed. 1843) sets out the English declaration under the heading of "Acceptation de la Grand Bre-
tagne." See also 44 THE CONSOLIDATED TREATY SERIES (1767-1772), at 425-26 (G. Parry ed. 1969) and
the text in Spanish in 2 C. CALVO, RECUEIL, supra note 39, at 393, 395 and in DEL CANTILLO, TRATADOS
(1700-1842), supra note 44, at 519. The full English text of the exchange of notes appears in 3 C.
JENKINSON, TREATIES 234 (1875). It reads as follows:
Spanish Declaration
His Britannick Majesty having complained of the violence which was committed on the 10th
of June, 1770, at the island commonly called the Great Malouine, and by the English
Falkland's Island, in obliging, by force, the commander and subjects of his Britannick
Majesty to evacuate the port by them called Egmont; a step offensive to the honour of his
crown; the Prince de Masserano, Ambassador Extraordmary 01 his Catholick Majesty, has
received orders to declare, and declares, that his Catholick Majesty, considering the desire
with which he is animated for peace, and for the maintenance of good harmony with his
Britannick Majesty, and reflecting that this event might interrupt it, has seen with displea-
sure this expedition tending to disturb it; and in the persuasion in which he is of the
reciprocity of sentiments of his Britannick Majesty, and of its being far from his intention to
authorize anything that might disturb the good understanding between the two Courts, his
Catholick Majesty does disavow the said violent enterprise, and, in consequence, the Prince
de Maserano declares, that his Catholick Majesty engages to give immediate orders, that
things shall be restored in the Great Malouine at the port called Egmont, precisely to the
state in which they were before the 10th of June, 1770: For which purpose, his Catholick
Majesty will give orders to one of his Officers, to deliver up to the Officer authorized by his
Britannick Majesty and his subjects which were at that place the day above named, agreeable
to the inventory which has been made of them. The Prince de Masserano declares, at the
same time, in the name of the King, his master, that the engagement of his said Catholick
Majesty, to restore to his Britannick Majesty the possession of the port and fort called
Egmont, cannot nor ought in any wise to affect the question of the prior right of sovereignty
of the Malouine Islands, otherwise called Falkland's Islands. In witness whereof, I the
underwritten Ambassador Extraordinary have signed the present declaration with my usual
signature, and caused·it to be sealed with our arms.
London, 22nd. January, 177!.
British Acceptance:
His Catholick Majesty having authorized the Prince of Masserano, his Ambassador Extraor-
dinary, to' offer, in his Majesty's name, to the King of Great Britain, a satisfaction for the
injury done to his Britannick Majesty by dispossessing him of the port and fort of Port
tion but it also accepted, by implication, the continued existence of the Spanish
colony at Puerto Soledad. This circumstance constitutes a clear, albeit implicit,
disavowal of Captain Hunt's earlier threats against the Spanish settlers, even
though during the 1771 negotiations England had been unwilling to concede
this point expressly on paper as the Spanish had requested. Furthermore,
whether for alleged reasons of economy or in fulfillment of a secret promise, the
undisputed fact remains that the British settlement was unilaterally withdrawn
from Port Egmont in 1774.
Sixty years later Viscount Palmerston - in a note of response dated January 8,
1834 to the Argentine minister's earlier protests - developed the argument that
visible signs of possession had been left on the Islands to indicate Britain's
intention to return at some point in the future and that those signs were
sufficient to sustain British sovereignty.49 In other words, if according to classical
international law the act of abandonment of territory on the part of a state,
which is the counterpart to occupation, requires on the one hand, physical
withdrawal of all state activities, and on the other, the intention to disassociate
such territory from the relinquishing state's general territory (animus derelin-
quendi), the second of these conditions was not met in the case of the Falklands.
However, in relation to this assertion, the following observation should be made:
(1) all physical signs of British sovereignty, including the buildings, had deliber-
ately been destroyed by the Spanish settlers after the British had left; (2) the
inscription left by the blockhouse had been removed from the site and taken to
Buenos Aires and the English knew about it;5o (3) the attitude of a state that
Egmont; and the said Ambassador having this day signed a declaration, which he has just
delivered to me, expressing therein, that his Catholick Majesty, being desirous to restore the
good harmony and friendship which before subsisted between the two Crowns, does disavow
the expedition against Port Egmont, in which force has been used against his Britannick
MaJesty's possessions, commander, and subjects; and does also engage, that all things shall be
immediately restored to the precise situation in which they stood before the 10th of June,
1770; and that his Catholick Majesty shall give orders, in consequence, to one of his Officers
to deliver up to the Officer authorised by his Britannick Majesty, the port and fort of Port
Egmont, as also all his Britannick Majesty's artillery, stores, and effects, as well as those of his
subjects, according to the inventory which has been made of them. And the said Ambassador
having moreover engaged, in his Catholick Majesty's name, that what is contained in the said
declaration shall be carried into effect by his said Catholick MaJesty, and that duplicates of
his Catholick Majesty's orders to his Officers shall be delivered into the hands of one of his
Britannick Majesty's Principal Secretaries of State within six weeks; his said Britannick
Majesty, in order to shew the same friendly disposition on his part, has authorised me to
declare, that he will look upon the said declaration of the Prince de Masserano, together with
the full performance of the said engagement on the part of his Catholick MaJesty, as a
satisfaction for the injury done to the Crown of Great Britain. In witness whereof, I the
under-written, one of his Britannick Majesty's Principal Secretaries of State, have signed
these presents with my usual signature, and caused them to be sealed with our arms.
London, 22nd. January, 1771.
GoEBEL, supra note 20, at 359-60.
49. Palmerston to Moreno, 22 BRITISH AND FOREIGN STATE PAPERS (1833-1834), at 1385-86 (1836).
50. See note 36 supra. The English writer Sir Robert Phillimore has criticized the theory of the British
Officers of 1774 who believed that British alleged sovereignty could be retained on Falkland Islands by
means of an inscription unaccompanied by acts of a defacto possession and recognizes that: "The mere
vacates a piece of territory for such an extended period of time, even if for
alleged reasons of economy, is not exactly in a position to support a claim to
sovereignty and such attitude tends, if anything, to confirm lack of interest
therein; and (4) it is difficult to see how an international court, even applying
eighteenth century customary international law, could have held that an inscrip-
tion on a piece of lead constituted a better title than the open, continuous,
effective and peaceful display of state sovereignty over the archipelago generally
on the part of Spain during the thirty-seven years which followed the British
withdrawal. 51
erection of crosses, landmarks, and inscriptions is ineffectual for acquiring or maintaining an exclusive
title to a country of which no real use is made." I COMMENTARIES ON INTERNATIONAL LAw 273 (2d ed.
1954); I'HILLIMORE, supra note 18, at 211 n. h. Sir Thomas E. Holland, referring to the same episode
appears to agree with Phillimore in LECTURES ON INTERNATIONAL LAW 116-17 (Walker ed. 1933)
[hereinafter cited as HOLLAND]. There Holland also quotes the case of Santa Lucia in the Antilles where
the English settlers had been worsted by the natives in 1640. Then "in 1650 the French occupied the
island as derelict, but England contended that her claim was not abandoned, the English settlers having
been expelled by force .... It would appear, Holland notes, that the French claim to treat the islands as
derelict in 1650 was well founded." Id. See VATTEL, supra note 18. See also 1 D.P. O'CONNELL, INTERNA-
TIONAL LAW 512 (1965) [hereinafter cited as O'CONNELL].
51. Mr. H. S. Ferns, when discussing the transfer of Malvinas from France to Spain and the payment
made to Bougainville, states that: "In spite of a capital expenditure of these dimensions the Spaniards
cannot be said to have established evidence of continuous and settled occupation." H. S. FERNS, BRITAIN
AND ARGENTINA IN THE NINETEENTH CENTURY 225 (1960) [hereinafter cited as FERNS]. However, here is
the complete list of Spanish Governors who headed the colony from 1767 until 1811, which can be
found in DESTEFANI, supra note 21, at 353-54 (Appendix No.1): 1. Capitan de navio D. Felipe Ruiz
Puente (Apr. 2, 1767 to Jan. 23, 1773); 2. Capitan de Infanteria D. Domingo Chauri (Jan. 23, 1773 to
Jan. 5, 1774); 3. Capitan de Fragata D. Francisco Gil de Lemos y Taboada (Jan. 5, 1774 to Feb. I, 1777);
4. Teniente de navio Ramon de Carassa y Souza (Feb. I, 1777 to Nov. 22, 1779); 5. Teniente de Navio
D. Salvador de Medina y Juan (Nov. 22, 1779 to Feb. 26, 1781); 6. Teniente de Fragata D. Jacinto
Mariano del Carmen Altoglaguirre (Feb. 26, 1781 to Apr. I, 1783); 7. Capitan de Navio D. Fulgencio D.
Montemayor (Apr. I, 1783 to June 28, 1784); 8. Teniente de navio D. Agustin de Figueroa (June 28,
1784 to May 15, 1785); 9. Capitan de Fragata D. Ramon de Clairac y Villalonga (May 15, 1785 to May
25, 1786); 10. Teniente de Navio D. Pedro de Mesa y Castro (May 25, 1786 to Mar. 15, 1787); 11.
Capitan de Fragata D. Ramon de Clairac y Villalonga (May 15, 1787 to Apr. 10, 1788); 12. Teniente de
navio D. Pedro de Mesa y Castro (Apr. 10, 1788 to May 16, 1789); 13. Capitan de fragata D. Ramon de
Clairac y Villalonga (May 16, 1789 to June 30, 1790); 14. Teniente de navio D. Juan Jose de Elizalde y
Ustariz (June 30, 1790 to Mar. I, 1791); 15. Capitan de fragata D. Pedro Pablo Sanguineto (Mar. I, 1791
to Mar. 1,1792); 16. TenientedenavioD.JuanJosedeElizaldeyUstariz(Mar.1,1792toFeb.1,1793);
17. Capitan de fragata D. Pedro Pablo Sanguineto (Feb. I, 1793 to Apr., 1794); 18. Teniente de navio
D. Jose de Aldana y Ortega (Apr., 1794 to June IS, 1795); 19. Capitan de fragata D. Pedro Pablo
Sanguineto (June IS, 1795 to Mar. IS, 1796); 20. Teniente de navio Jose de Aldana y Ortega (Mar. 15,
1796 to Feb. 20, 1797); 21. Teniente de navio D. Luis de Medina y Torres (Feb. 20, 1797 to Mar. 17,
1798); 22. Capitan de Fragata graduado D. Francisco Xavier de Viana y Alzaibar (Mar. 17, 1798 to Apr.,
1799); 23. Capitan de Fragata D. Luis de Medina y Torres (Apr., 1799 to Mar. IS, 1800); 24. Capitan de
fragata graduado D. Francisco Xavier de Viana y Alzaibar (Mar. 15, 1800 to Mar. 31, 1801); 25.
Teniente de navio D. Ramon Fernandez y Villegas (Mar. 31, 1801 to Mar. 31, 1802); 26. Teniente de
navio D. Bernardo de Bonavia (Mar. 17, 1802 to July 21, 1803); 27. Teniente de navio D. Antonio Leal
de Ibarra y Oxinando (July 21, 1803 to May 21, 1804); 28. Capitan de fragata D. Bernardo de Bonavia
(May 15, 1804 to Mar. 21, 1805); 29. Teniente de navio Antonio Leal de Ibarra y Oxinando (Mar. 21,
1805 to Mar. 20, 1806); 30. Capitan de fragata D. Bernardo de Bonavia (Mar. 20, 1806 to the end of
Aug., 1808); 31. Primer piloto particular D. Gerardo Bordas (Aug., 1808 to Jan., 1810); 32. Segundo
piloto de mimero de la Real Armada D. Pablo Guillen Martinez (Jan., 1810 to Feb. 13, 1811).
Finally, there is a further precedent which should be mentioned. On October

25, 1790 England and Spain signed a treaty known as the Nootka Sound
Convention by which Spain - whose position had been further debilitated since
the French Revolution and could no longer rely on the Family Compact - was
forced to concede recognition of British rights to establish a colony on the
western shore of Vancouver Island. This treaty contained the further concession
of free navigation and fishing in the Pacific or the South Seas subject, inter alia, to
the exception that (i) this should not be a pretext for illicit trade with Spanish
settlements and, to this end, the British should not navigate nor fish within a
distance of ten maritime leagues "from any part of the coast already occupied by
Spain," and (ii) the following limitation contained in an additional article:
It is further agreed with respect to the eastern and western coasts of
South America and the islands adjacent, that the respective subjects
shall not form in the future any establishment on the parts of the
same coast and of the islands adjacent already occupied by Spain; it
being understood that the said respective subjects shall retain the
liberty of landing on the coasts and islands so situated for objects
connected with their fishing and of erecting thereon huts and other
temporary structures serving only those objects. 52
Now therefore, even assuming ad arguendum that the British inscription left on
Malvinas in 1774 could have served as a basis for a claim to sovereignty, because
Spain maintained an actual occupation of the Malvinas at the time it was signed,
this instrument would have extinguished it. 53
IV. ARGENTINE OCCUPATION OF THE MALVINAS (FALKLAND) ISLANDS IN THE

NINETEENTH CENTURY
In 1820 the new government of the United Provinces of the Rio de la Plata
dispatched the frigate "Heroina" under the command of Colonel Daniel Jewitt
with specific instructions to take possession of the Malvinas in the name of the
new Republic. The frigate arrived at the archipelago in early November and
encountered many vessels of different nationalities. There Jewitt notified their
masters in writing of his intentions and on November 6, 1820 in a formal
ceremony the Argentine flag was raised, gun-salutes were fired and a statement
was read declaring the archipelago as territory of the new Republic. 54
52. 3 C. CALVO, RECUEIL, supra note 39, at 356; 1 BRITISH AND FOREIGN STATE PAPERS 663 (1790); DEL
CANTILLO, TRATADOS, supra note 44, at 623; 51 THE CONSOLIDATED TREATY SERIES (1790-1793), at 67
(C. Parry ed. 1969); H. WHEATON, ELEMENTS OF INTERNATIONAL LAw § 168, at 243 (8th ed. 1866).
53. GoEBEL, supra note 20, at 431. The French writer Louis Cavare notes that this Convention
recognized the Spanish occupation of the Ma10uines as a "titre juridiquement valable." See 2
L. CAVARE, LE DROIT INTERNATIONAL PUBLIC POSITIF 587 (1962) [hereinafter cited as CAvAREj.
54. When Jewett arrived at La Soledad, he found disseminated in the Islands, more than 50 foreign
vessels. The names of some of these vessels, their masters and the description of the events are in the
In 1823 Jorge Pacheco, who had earned merits for services to the Republic
during the war of independence, was given a permit by the Buenos Aires
government to colonize the archipelago and was granted thirty leagues of land on
Isla Soledad, including the use of fisheries and cattle. Pacheco was then a partner
of Louis Vernet, an entrepreneur who was the driving force behind the coloniza-
tion project. Shortly before the departure of the expedition, and upon Pacheco's
request, the government appointed Captain Pablo Areguati as Commander of
Soledad Island. Areguati arrived at the Malvinas on February 2, 1824 but it
appears that the first attempt to establish a settlement was unsuccessful. 55 Ver-
net, however, was not to be dissuaded and a further expedition organized and
commanded by Vernet in person arrived at the Malvinas inJune, 1826 and thus
the settlement was established on a more permanent basis. In January, 1828 a
special decree was issued by which Vernet was given a concession of land and
fishing rights. 56 On that same date Pacheco was granted a further concession
with respect to other parts of the Malvinas. 57 In August, 1828 Vernet returned
with reinforcements. On June 10, 1829 the Buenos Aires government created
the Military and Political Governship ("Comandancia Politica y Militar") with
jurisdiction over the islands adjacent to Cape Horn in the Atlantic Ocean with
headquarters on Soledad Island and at the same time Vernet was appointed as
Military and Political Governor. 58 On August 30, 1829 Vernet returned to the
colony clothed in his new investiture and in a formal ceremony held in Puerto
Soledad took up his post. From that time onward the size of the colony was
increased to more than 100 people and began to prosper. 59
On July 30, 1831 Governor Vernet seized three American fishing vessels -
the Breakwater and the Harriet of Stonington and the Superior of New York -
which were violating sealing restrictions. With the master of one of the vessels
Governor Vernet made a deal by which the vessel was allowed to continue sealing
provided that the Governor would get a share of the profits. The other vessel
escaped and the third vessel, the Harriet, was made to sail to Buenos Aires to
stand trial with Vernet on board.
The American consul in Buenos Aires, George Washington Slacum, protested
and threatened reprisals. Shortly thereafter Slacum's protest was supported by
Report of the Political, and Military Commander of the Malvinas dated Aug. 10, 1832, reproduced in 20
BRITISH AND FOREIGN STATE PAPERS (1832-1833), at 369, 419 (1836) [hereinafter cited as Vernet
Report].
56. Decree of Buenos Aires dated Jan. 15, 1828,20 BRITISH AND FOREIGN STATE PAPERS (1832-33), at
420 (1836).
57. CAILLET-BOIS, supra note 21, at 201.
58. Decree of the Government of Buenos Aires dated June 10, 1829,20 BRITISH AND FOREIGN STATE
PAPERS (1832-1833), at 314 (1836).
59. According to 2 FITZROY'S NARRATIVE OF THE SURVEYING VOYAGES OF H.M.S. Adventurer AND
Beagle 266-67 (1839), between 1826 until 1836 the total population was around 100. This information
generally coincides with that of Vernet, who claimed that they had reached 150 by 1832. See CAILLET-
BOIS, supra note 21, at 209.
the presence in Buenos Aires of the U.S.S. Lexington, a war ship under the charge
of Commander Silas Duncan, who demanded that Vernet be punished for piracy
and the Harriet released. Naturally, the Buenos Aires government did not yield
to this request. Thus, having failed to get satisfaction, Commander Duncan
proceeded on his own initiative to Puerto Soledad, where he arrived on De-
cember 28, 1831 flying a French flag. Before descending Duncan invited Ver-
net's lieutenant, Mattheu Brisban, on board but then made him a prisoner. Then
he went on shore with his men and destroyed all military installations, sacked the
habitations, seized sealskins, put most of the inhabitants under arrest and then
left declaring the island free of all government. 60 As a result of this episode,
diplomatic relations between Argentina and the United States were broken and,
to the knowledge of this writer, compensation for this act of plunder has never
been paid by the U.S. government. 6 !
On September 10, 1832 the Government of Buenos Aires appointed a new
interim Military and Political Commander to the Malvinas and adjacencies and
dispatched the gunboat Sarandi, under the charge of Jose Maria Pinedo, to repair
the damages and reinstate law and order in the colony. The Sarandi arrived
at Puerto Soledad and the new Governor, Esteban Mestivier, took the
60. On February 14, 1832 the Buenos Aires government reacted with a proclamation. 20 BRITISH
AND FOREIGN STATE PAPERS (1832-1833), at 327 (1836). Goebel, who examined the log of the Lexington
in the Library of the U.S. Navy Department, remarks that: "It is curious that there is no notice of any of
these transactions in the log-book of the Lexington. Perhaps Duncan was a little ashamed of what he had
done, or perhaps he feared the effect his actions would have upon his government." GoEBEL, sufrra note
20, at 444-45.
61. On the question of fishing rights, see Ij. B. MOORE, A DIGEST OF INTERNATIONAL LAw 876 (1906);
P. C.jESSUP, THE LAw OF TERRITORIAL WATERS AND MARITIME JURISDICTION 52 (1927); H. A. SILVA, LA
ECONOMiA PESQUERA EN EL VIRREINATO DEL Rio DE LA PLATA, FUNDACION PARA LA EDUCACION, LA
CIENCIA Y LA CULTURA (1978). It is interesting to note that a federal court in Connecticut in an action
brought by one of the masters of the captured vessels held that: "[A]n officer of the United States has no
right, without express directions from his government, to enter the territorial jurisdiction of a country
at peace with the United States, and forcibly seize upon property found there, and claimed by citizens of
the United States." Davison v. Seal-Skins, 7 F. Cas. 192 (D. Conn. 1835) (No.3, 661); 1 F. WHARTON, A
DIGEST OF INTERNATIONAL LAw § 65, at 444 (1886). Goebel comments that it was proved in that action
that Vernet was acting under authority of his government and therefore the action, which had been
brought to recover salvage on sealskins originally seized by Vernet and later recaptured by Duncan,
could not be sustained. GoEBEL, sUfrra note 20, at 444 n.88. Goebel comments:
Regarding Vernet, a word is here in place, as he looms large as the villain of the piece, and he is
still embalmed in the amber of the United States' official documents as a scoundrel and pirate.
Vernet was of French origin, but as he had resided for a long time in Hamburg he was
generally spoken of as German. He was a man of character and by no means the uncultivated
barbarian that he was pictured in the American diplomatic correspondence. Captain Fitzroy in
his Narrative ( ...) speaks of the kindness shown a brother officer by Vernet when his ship
stopped at the Falklands.
Id. at 435. In Williams v. the Suffolk Insurance Company, 38 U.S. (13 Pet.) 412 (1839), the Supreme Court
of the United States denied that the Falkland Islands were part of the dominions within the sovereignty
ofthe government of Buenos Aires. 38 U.S. (13 Pet.) at 419-20. However, this conclusion was reached,
not on the merits of the case, but as an act of judicial deference to determinations made by the executive
branch in the field of foreign relations.
oath of office. Two months later, while the Sarandi was away cruising the area,
the garrison of soldiers revolted against the governor and killed him. Upon the
Sarandi's return to Puerto Soledad Commander Pinedo attempted to capture
the mutineers. While these efforts were successfully in progress the British
warship Clio appeared at Puerto Soledad. The captain of this ship, Commander
Onslow, called upon Pinedo and informed him that he had come with instruc-
tions to take possession of the Islands in the name of his Britannick Majesty.
Pinedo firmly protested but was not in a position to offer serious resistance. The
next day the British flag was raised and Pinedo returned to Buenos Aires. 62
V. TITLES CLAIMED BY ARGENTINA
If an international tribunal was called upon to adjudicate the sovereignty

dispute between Great Britain and Argentina the customary procedure would
be for it to examine, in Max Huber's words, "which of the states claiming
sovereignty possesses a title - cession, conquest, occupation, etc. - superior to
that which the other state might possibly bring forward against it."63 However,
since international relations are not static, legal evaluation of the titles displayed
by each contending state is usually affixed with reference to a certain point in
time. In the Palmas Island case the issue was formulated in terms of whether on
December 10, 1898 Spain, which on that date ceded the island to the United
States by the Treaty of Paris, had a superior title than the Netherlands, which had
displayed effective possession on Palmas Island since the seventeenth century. In
the Clipperton Island case (Mexico v. France) the issue was whether on November
17, 1858, when Lieutenant de Kerweguen of the French Navy drew up an
instrument proclaiming French sovereignty over Clipperton Island, France
thereby acquired a better title to the Island than Mexico, which claimed earlier
62. The Perm'anent Representative of Great Britain in the United Nations stated that the British
takeover of 1833 did not constitute an act of force and that: "British reoccupation of the Islands in 1833
and 1834 was effected without a shot being fired." See generaUy note 76 irifra. The use, of the word
"re-occupation," in relation to Puerto de la Soledad is a total novelty in this discussion because, to
our knowledge, England had never maintained any establishments on East Falkland nor, for that
matter, on West Falkland. The only establishment Britain had made was that in Port Egmont on
Saunders Islands. It seems quite obvious that the unhappy circumstances prevailing in the colony
rendered Commander Onslow's mission a relatively easy easy task. However, it is indeed difficult to
visualize how such an expedition would have been successful, in the face of Pinedo's protests, if the Clio
and its crew had been unarmed. The Clio was a warship whereas the Sarandi was only an armed
schooner and a force from the Clio was actually landed by Onslow. GoEBEL, supra note 20, at 455. Black's
Law Dictionary defines "force" of the type relevant to this kind of situation as: "Such display of physical
power as is reasonably calculated to inspire fear of physical harm to those opposing possession of
premises by trespasser." BLACK'S LAw DICTIONARY 774 (1968 ed.) The British Representative also
insinuated that "herr Vernet" was not Argentine. However, it should be noted that Luis Vernet
possessed an Argentine passport (W 310) which had been issued to him by Rivadavia on September 26,
1821. CAILLET-BOIS, supra note 21, at 186.
63. Palmas Island Case (Neth. v. U.S.), 2 R. Int'l Arb. Awards 831, 838-39, 845-46 (1931); if. Decision
of Apr. 5,1933 of the Legal Status of Eastern Greenland (Den. v. Nor.), 61.L.R. 95 (Perm. Ct. of Int'l
Justice, 1933).
titles by discovery from Spain. 64 In the Eastern Greenland case (Denmark v.

Norway) the question was whether Denmark had a better title than Norway on
July 10, 1931 when Norway issued its proclamation purporting to place portions
of Eastern Greenland under its sovereignty.65 And in the Western Sahara case the
General Assembly of the United Nations requested the International Court of
Justice to deliver an advisory opinion on whether Western Sahara (Rio del Oro
and Sakiet el Hambra) was a terra nullius at the time of its colonization by Spain in
1884. 66 However, in many cases the selection of what is known as a critical date is
not always an obvious choice and there are some instances where the issue was
controversial or where no specific date was chosen by the court. 67
In the case of the Malvinas, England invoked titles dating from earlier cen-
turies and this renders the selection of a single critical date a somewhat complex
task. Following the technique used in the Clipperton Island case and Western
Sahara case, one could present the question in terms of whether on November 6,
1820 when Colonel Daniel Jewitt, then a colonel of the Argentine Navy, took
formal and solemn possession of the Malvinas in the name of the Buenos Aires
government, England had a superior title to the Islands. 68 However, since
England did not protest against that act nor otherwise show any interest in the
Islands until November 1829, the controversy did not really "crystallize" - as
Jennings would say - until after the letter of protest signed by the British Charge
d'Affaires was lodged with the Argentine government. Now, a letter of protest
from one state to another in itself does not constitute a root of title and its typical
legal effect is to present or keep alive a claim or preclude an interloping adverse
possessor from acquiring title by prescription. 69 Mr. Woodbine Parish's letter
could not per se have added any merits to the substantive claim of Great Britain
which, as the letter itself stated, was based on an allegation of earlier titles.
Therefore, in view of these circumstances, the more reasonable procedure
would be to analyze the position of each party in 1833, which is when Great
Britain actually took steps with the intention of reducing the islands to its
sovereignty.
64. Qipperton Island Award (Fr. v. Mex.), 61.L.R. 105, 106-07 (Victor Emmanuel III, King of Italy,
Sole Arbiter, 1931); 2 R. Int'l Arb. Awards 1105; Arbitral Award on the Subject oftM Difference Relative to
the Sovereignty over Clipperton Island, 26 AM.]. INT'L L. 390 (1931).
65. 1933 P.C.I.]., ser. NB, No. 53; 3 Hudson, World Ct. Rep. 148 (1938); Decision of Apr. 5,1933
on the Legal Status of Eastern Greenland (Den. v. Nor.), 6 I.L.R. 95 (Perm. Ct. of Int'l justice, 1933).
66. Western Sahara Case, 1975 I.C.]. 12 (advisory opinion).
67. Professor Brownlie quotes as examples, the Miquiers andEcrehos ease (U.K. v. Fr.), 1953I.C.J. 47,
and the Argentine-Chile Frontier Case, 381.L.R. 10 (Ct. of Arbitration, 1966), I. BROWNLIE, PRINCIPLES OF
PuBLIC INTERNATIONAL LAw 133-34 (3d ed. 1979). See JENNINGS, supra note 5, at 31.
68. See note 54 supra. james Fawcett has stated that: "For Britain the critical date was january, 1833
when it occupied the Falkland Islands and expelled the Argentine garrison." Fawcett, supra note 10, at
6.
A. Title by Succession
The concept that Argentina had succeeded, in general terms, to the territorial
titles of Spain in the areas comprising the Viceroyalty of the Rio de la Plata can
be deduced from general rules of international law relating to state succession. 70
Thus, the Austrialian writer Daniel P. O'Connell, when discussing imprecisions
associated with the doctrine of uti possidetis in South and Central America and the
Latin American theory of constructive possession, nevertheless admits that:
"The proposition that the revolted colonies fell heir in fact to an administrative
division of the Empire could be regarded as an application of rules of State
succession, and in this sense the doctrine was acknowledged by the United States
to be one of law."71
The admission on the part of Great Britain that the territorial rights of
Argentina were derived from Spain generally originated not only from British
recognition of Argentine independence, tacitly in 1823 72 and more expressly
with the execution of a treaty of amity, commerce and navigation in February,
1825,73 but also implicitly from the very letter of protest submitted in late 1829.
This letter contained the underlying assumption that if Spain had been under a
duty to respect British sovereignty over the Falkland Islands in the eighteenth
century - and this was the explicit claim - Argentina had to respect that alleged
right by virtue of its status as a territorial successor to Spain. It should be further
noted that Spain herself took steps towards recognition of Argentine indepen-
dence when it signed its Preliminary Peace Treaty with Argentina on July 4,
1823. 74 Therefore, if the British assumption was that Argentina had succeeded
Spain in respect of its alleged localized obligations in the Malvinas - which
before 1810 were clearly within the jurisdiction of the Viceroyalty of the Rio de
la Plata and subject to the Viceroy of Buenos Aires 75 - the counterpart of this
assumption was that Argentina had succeeded to whatever rights Spain had in
that territory as against England. 76 Under this analysis, and taking into account
70. "Partial succession takes place, first, when a part of the territory of an International Person
breaks off in a revolt and by winning its independence becomes itself an international person."
OPPENHEIM, PEACE, supra note 17, § 80, at 157.
71. O'CONNELL, supra note 50, at 491.
72. On December 15, 1823 Foreign Secretary George Canning wrote a letter to the Argentine
government appointing Mr. Woodbine Parish as Consul General in Buenos Aires. Tratados, Conven-
ciones, Protocolos y Demas Actos Internacionales Vigentes Celebrado por la Republica Argentina,
Imprenta de "La Naci6n," 8 (Buenos Aires, 1901).
73. 12 BRITISH AND FOREIGN STATE PAPERS (1824-1825), at 29 (1846).
74. 11 BRITISH AND FOREIGN STATE PAPERS (1823-1824), at 225 (1825). 73 THE CONSOLIDATED
TREATY SERIES (1822-1824), at 261 (C. Parryed. 1969). The text of the Argentine law setting forth the
basis of the negotiations with Spain dated June 19, 1823 is in 10 BRITISH AND FOREIGN STATE PAPERS
(1822-1823), at lOI3 (1850).
75. V. G. QUESADA, VIRREINATO DEL Rio DE LA PLATA 28, 31, 34, 37, 109 (1881).
76. Sir John Thomson KCMG, Permanent Representative of Great Britain in the United Nations, in
his statements to the ~neral Assembly on November 2,1982, denied that Argentine inherited title to
the Islands from the Spanish Empire. However, see note 67 and 68 supra. The right of territorial
that Spain's retrenchment from the Malvinas was more or less coincidental with,
and generally determined by, the events which led to the independence of the
United Provinces of the Rio de la Plata, Argentina could claim for herself the
titles developed by Spain over the Malvinas.
These titles were not only those associated with the public law of Europe in the
eighteenth century, including but not limited to the Papal Bulls and their further
sanction through treaties, but more specifically: (1) titles of prior occupation and
settlement, which had been initiated by the French and later ceded to Spain in
1767; (2) the continued settlement of Spain herself on the Islands for more than
half a century; and (3) the express sanction of such status quo, partially in 1771.
when England accepted the continuing settlement of Spain on Isla Soledad or
East Falkland plus a reservation of rights with respect to the entire archipelago,
and mQre completely after the British withdrawal of 1774 and with the Nootka
Sound Convention of 1790. 77
B. Title by Occupaton and Settlement
Without prejudice to the titles discussed above, it is appropriate to examine

here whether Argentina could claim as in 1833 an independent title by occupa-
tion and settlement based on its own efforts with respect to the archipelago. The
general principle applicable to acquisition of territory based upon occupation
was summed up by the Permanent Court of International Justice in 1933 in the
following terms: "A claim to sovereignty ... involves two elements each of which
must be shown to exist: the intention and will to act as a sovereign, and some
succession was expressly invoked by Moreno's letter of June 17, 1833, on the basis that England and
other powers had recognized Argentina as a state: "Les Provinces- Unies, par consequent, succederent it
I'Espagne dans les droits que cette Nation, de laquelle e1le s'etaient separees, possaidait dans cette
jurisdiction. Les Malounies avaient toujours fait partie de cette Contree, ou de ce District; et, comme
telles, e1les formaient une portion du Domaine, ou de la Propiete publique du nouvel Etat (pat-
rimonium reipublicae publicum)." Moreno to Palmerston, 22 BRITISH AND FOREIGN STATE PAPERS
(1833-1834), at 1366, 1381 (1847). This aspect of the argument was not refuted by Palmerston's
response to Moreno of January 8, 1834. On the contrary, Palmerston there argued that Spain (emphasis
supplied) had acknowledged English rights and that: "The Government of the United Provinces could
not reasonably have anticipated that the British Government would permit any other state to exercise a
right, as derived from Spain, which Great Britain had denied to Spain herself." (Emphasis supplied).
Palmerston to Moreno, 22 BRITISH AND FOREIGN STATE PAPERS (1833-1834), at 1384, 1385-86 (1847).
The implication of this was that the concept of succession presumably made the alleged British claim
against Argentina stronger than it would have been as against a third party state invoking titles other
than as derived from Spain. This observation is further ratified by the late correspondence from the Earl
of Aberdeen to Moreno which emphasized that England's arrangements with Spain in 1771 should be
considered as definitive. See Aberdeen to Moreno, Feb. 15, 1842, transcribed at Note 122 infra. On the
concept of localized obligations, see 2 M. UDINA, LA SUCCESSION DES ETATS AVANT AUX OBLIGATIONS
iNTERNATIONALES AUTRES QUE LEs DETTES PuBLIQUES, 2 RECUEIL DES COURS 669, 704-42 (1933); 41 F.A.
VALLAT, SoME ASPECTS OF THE LAw OF STATE SUCCESSION (Transactions of the Grotius Society) 123
(1956).
77. See §§ II.B & III supra.
actual exercise or display of such authority."78 Such intention and will, as dem-
onstrated earlier, should become manifest through external acts of possession
unequivocally conveying this animus to third parties. In this connection, the acts
carried out on the Malvinas on November 6, 1820 by Colonel Daniel Jewitt, who
was then in the service of the Argentine Navy and had been commissioned by the
Buenos Aires government to take possession of the Islands, clearly achieved this
effect. There Jewitt performed a solemn ceremony of possession and the flag
was hoisted with a salute of twenty-one guns in the presence of many vessels of
other nationalities - according to Governor Vernet's report of 1832 more than
fifty in number - many of whose masters were even notified in writing of the act
of sovereignty and of the prohibition to fish or kill cattle on the Islands under
penalty of detention, and the remission of the infringers to Buenos Aires to be
tried. 79 It should be noted that despite the constant visits of sealers and whalers
the Malvinas were uninhabited at the time and, in this connection, Jewitt's act of
appropriation seems to more than amply satisfy the standards required by
precedents.
In the Clipperton Island award, for example, the arbitrator held that the
document drawn up and signed by Lieutenant de Kerweguen of the French
Navy on board a vessel while cruising one-half mile off Clipperton Island -
followed by geographical notes and a landing by some members of the crew but
without any visible signs of sovereignty being left there - in the absence of any
superior title on the part of Mexico, was sufficient to establish French
sovereignty. On this assumption that act alone was held sufficient to invalidate
occupation of the island by Mexico in 1897. 80 As in the Clipperton Island case,
where the arbitrator attached great importance to the publication of the French
instrument of possession in the Honolulu journal, "The Polynesian," the taking
of possession of the Malvinas was published both in Buenos Aires and Salem,
Massachusetts. 81 It should be further noted that the Buenos Aires government
78. Decision of Apr. 5,1933 on the Legal Status of Eastern Greenland (Den. v. Nor.), 6 I.L.R. 95, 97
(Perm. Ct. of Int'l Justice, 1933).
79. See note 81 irifra.. H. S. Ferns acknowledges that the taking of possession existed and that: "No
one challenged this act, and there does not appear to have been much to challenge." FERNS, supra note
51, at 225. The author of this article states that nothing much may be added, except the acquisition of
sovereignty by the United Provinces over the Islands.
80. Arbitral Award on the Subject of the Difference Reilltive to the Sovereignty over Clipperton Island, 26 AM. J.
INT'L L. 390, 394 (1932); Clipperton Island Award (Fr. v. Mex.), 6 I.L.R. 106 (Victor Emmanuel III,
King of Italy, Sole Arbiter, 1931).
81. Salem Gazette, June 8, 1821 reports that Captain Orne who arriveq here on Tuesday last from
Falkland Islands, has furnished us with the following act of sovereignty (Circular) for publication:
National Frigate Heroina, Port Soledad, 9th Nov. 1820: "Sir, I have the honour to inform you
of my arrival at this Port, to take possession of these islands, in the name of the Supreme
Government of the United Provinces of South America. This ceremony was publicly per-
formed on the 6th day of this present November, and the National Standard hoisted at the
Fort, under a salute from this Frigate, in the presence of several citizens of The United States
and Subjects of Great Britain, I am, etc. D. Jewett." Capt. W. B. Orne, Ship General Knox, of
Salem.
had commissioned Daniel Jewitt to perform such act and subsequently acknowl-
edged it. 82
In the Palmas Island case the arbitrator expressly admitted that:
The acts of indirect or direct display of Netherlands' sovereignty
at Palmas (or Miangas) especially in the eighteenth and early
nineteenth centuries are not numerous, and there are considerable
gaps in the evidence of continuous display. But apart from the
consideration that the manifestations of sovereignty over a small and
distant island, inhabited only by natives, cannot be expected to be
frequent, it is not necessary that the display of sovereignty should go
back to a very far distant period. It may suffice that such display
existed in 1898, and had already existed as continuous and peaceful
before that date long enough to enable any Power who might have
considered herself as possessing sovereignty over the island, or hav-
ing a claim to sovereignty, to have, according to local conditions, a
reasonable possibility for ascertaining the existence of a state of
things contrary to her real or alleged rights. 83
Now, while it is true that no settlement was left on the Malvinas in 1820, there
were both indirect and direct state acts on the part of the United Provinces of the
Rio de la Plata which followed up on Jewitt's acts. In 1821, the government
issued a decree dated October 21, setting forth fishing regulations, establishing
taxes and contemplating grants of land by the government on the Patagonian
coasts. 84 In 1823 a commander for the Malvinas was appointed, Pablo Areguati,
and an actual concession of land was made. 85 In February, 1824 the new com-
mander actually went to the Islands together with Mr. Robert Schofield. 86 In
As reprinted in 20 BRITISH AND FOREIGN STATE PAPERS (1832-1833), at 422 (1836). See Ruda Report, supra
note 22, at 6-7. The event was also reported in El Argos de Buenos Ayres, (No. 31), Nov. 10, 1821, at
211, col. I, which cited also eI "Redactor de Cadiz." See also J. WEDDELL, A VOYAGE TOWARDS THE SOUTH
POLE (PERFORMED IN THE YEARS 1822-24, CONTAINING AN EXAMINATION OF THE ANTARCTIC SEA, TO THE
SEVENTy-FOURTH DEGREE OF LATITUDE AND A VISIT TO TIERRA DEL FUEGO, WITH A PARTICULAR Ac-
COUNT OF THE INHABITANTS ... ) 103-04 (1825).
82. See the introductory paragraph of the June 10, 1829 Decree of the Government of Buenos Aires,
which speaks about "acts of dominion in the said Islands." See generally note 13.
83. See Palmas Island Case (Neth. v. U.S.), 2 R. Int'l Arb. Awards 831, 867 (1931). Max Huber was
speaking there about an island inhabited by natives; however, the concept is equally applicable to
uninhabited islands. What is important is that the Malvinas like Palmas, were far removed from the
centers of population.
84. See text of Decree of Buenos Aires, Oct. 22, 1821, Fishery on the Patagonian Coast, in 20
BRITISH AND FOREIGN STATE PAPERS (1832-1833), at 421 (1836).
85. Id. at 420; Ruda Report, supra note 22, at 7. The decree nominating Pablo Areguati is in Archivo
General de la Nacion, Buenos Aires, Division Colonia, Seccion Gobierno, Guerra y Marina, 1817-1826,
N° 48, expediente 18.
86. "An expedition was, in effect, fitted out, composed of the Brigs, Fenwick and Antelope, which
carried out, among other things, a quantity of horses, and of the Schooner, Rafaela (which was armed)
for Seal-fishery." See Vernet Report, supra note 54, at 419.
June, 1826 a further expedition arrived headed by Louis Vernet and an actual
colony began to be established. 87 In 1828 Vernet received a concession of land
from the government 88 and, finally, on June 10, 1829 the decrees creating the
Military and Political Government of the Malvinas and appointing Louis Vernet
as governor were issued. 89 During those years, i.e., before and after 1828, the
colony began to prosper 90 and in August 30, 1829, i.e., before the British protest,
a warship was assigned to the defense of the Islands. 91 It seems quite evident that
all these acts were open and public. 92
The cumulative effect of these events, it is submitted, clearly meets the stan-
dards required by international case law for establishing, in the absence of any
competing title, an open, peaceful, actual, sufficient, continuous and, given the
circumstances, reasonably effective display of state activities over the Malvinas. If
one considers the distances involved, the means of communication available
during the first half of the nineteenth century and the fact that the Malvinas
were uninhabited, these acts were indeed more than responsive for the purposes
of acquiring good title. On this specific point the Permanent Court of Interna-
tional Justice in the Eastern Greenland case stated that:
It is impossible to read the records of the decisions in cases as to

territorial sovereignty without observing that in many cases the tri-
bunal has been satisfied with very little in the way of the actual
exercise of sovereign rights, provided that the other state could not
make out a superior claim. 93
87. CAILLET-BOIS, supra note 21, at 186-99. See LESSON, RELACH AUX ILES MALOVINES, LA REVUE DE
DEUX MONDES 174-95 (2d ed. 1831). See also GoEBEL, supra note 20, at 434-37.
88. The text of this Decree, dated Jan. 5, 1828 is in 20 BRITISH AND FOREIGN STATE PAPERS
(1832-1833), at 420 (1836).
89. See note 55 supra; Ruda Report, supra note 22, at 7.
90. "By this time the Colonists had become accustomed to the climate, they had commenced various
labours, and counted on a certain and decent subsistence; they had become, particularly, very much
attached to the Colony; and they considered themselves happy, and I likewise considered them so."
Vernet Report, supra note 54, at 423.
91. Id. It is surprising how superficially some authors cover this point, i.e., Y. Z. BLUM, HISTORIC
TITLES IN INTERNATIONAL LAw 109 (1965), states that after 1820 no acts of occupation followed and no
effective control was exercised there by the Buenos Aires authorities who confined themselves to the
appointment of a Governor, who "never visited the Islands."
92. As stated in the Falmas Islnnd case, there was no duty to notify other states, as was later provided
in the Berlin-Congo Conference of 1885. That the display of sovereignty was open and public is referred
to in the Vernet Report in the following words:
In the mean time, prior and subsequently to the Decree of 5th January, 1828 Merchant Vessels
of all Nations frequented the Colony in their voyages to the Pacific, and on their return from
thence. They there took in fresh provisions, refitted themselves and recruited their sick. So
content were they with the treatment they received, that they viewed the Establishment of the
Colony, as a great benefit to commerce in general ... The Fishing Vessels, on the contrary,
which trafficked among the Islands, began to avoid coming in contact with it ... Whenever
they did visit it, they received the best treatment. I have not spoken with any of them, that was
not aware of the prior dominion of the Spaniards, of the prohibition imposed by them to
frequent those Seas, and of the Act of Sovereignty exercised by this Republic in 1820.
20 BRITISH AND FOREIGN STATE PAPERS (1832-1833), at 422 (1836).
93. See note 65 supra. See also the Clipperton Island Award (Fr. v. Mex.) , 6 I.L.R. 97 (Victor
Emmanuel III, King of Italy, Sole Arbiter, 1931).
In connection with this last point - which refers to the issue of a competing
claim - if any state in the world could be considered to have had "a reasonable
possibility for ascertaining the existence of a state of things contrary to her real
or alleged rights" that nation was England not only because of its naval devel-
opment and global interests at the time but also because it had maintained
consular relations since 1823 with Argentina and had signed a Treaty of Amity,
Commerce and Navigation with Buenos Aires in 1825. This latter agreement
further referred in various articles to the territory of the Republic for the pur-
poses of defining the rights of British subjects and contains no reservation
whatsoever in regard to the Malvinas or Falkland Islands. 94
The first and only British letter of protest came, as observed earlier, in Mr.
Woodbine Parish's letter of November 19, 1829. In this connection, it is difficult
to see· how this letter - which involved titles dating backwards for more than
half a century - could have annulled a title which had been perfected earlier,
by Spain first and by Argentina later, or affected in any way the legitimacy of the
continuing exercise of Argentine sovereign rights subsequently to that date and
even after the depredations committed by the Lexington. 95 As recounted earlier,
following the U.S.-Argentine incident, another governor was appointed to con-
tinue the colony.96
94. See Treaty of Amity, Commerce and Navigation, between His Majesty and the United Provinces
of Rio de la Plata (Feb. 1825), 22 BRITISH AND FOREIGN STATE PAPERS (1824-1825), at 29 (1846). D. P.
O'ConneU states that: "In 1774 the English Garrison abandoned the islands, but leaving behind the
British flag and a lead plate .... In 1832 Great Britain again took possession of the islands in spite of
protests by Argentina.... The lapse in British settlement was thus fifty-eight years. Had Argentina in this
period occupied the islands she might have gained a good title . .. " (Emphasis supplied). O'CONNELL, supra note
50, at 512.]. BATY, in THE CANONS OF INTERNATIONAL LAw 390 (1930), when discussing the Malvinas
issue, bluntly states: "The British filched the islands in 1833...."
95. It is important to stress that Argentina's rights did not rest on acquisitive prescription. Such
argument would assume that the rightful origin of its occupation could not clearly be established and
that, therefore, it required an element of consolidation through lapse of time which was capable of
being "disturbed" by a letter of protest. On this latter point, the Permanent Court of International
Justice held expressly that, in view of the peaceful origin of Danish exercise of sovereignty, mere
protests from NlmlJay did not alter the peaceful character of such activity. See Decision of Apr. 5, 1933
on the Legal Status of Eastern Greenland (Den. v. Nor.), 6 I.L.R. 95, cited in 1933 P.C.I.]., ser. AlB, No.
53, at 44, 62. The Lexington experience cannot be interpreted as creating a temporal interpretation of
state sovereignty over the islands. Even if it had it would still not have changed the situation. In the
Eastern Greenland case the Court stated that Norwegian sovereignty in Greenland was not lost when the
first two Nordic settlements in Greenland were massacred by the aboriginal population around the year
1500. Clipperton Island Award (Fr. v. Mex.), 6 I.L.R. 99, 100 (Victor Emmanuel III, King of Italy, Sole
Arbiter, 1931). In the Palmas Island case Judge Huber stated that: "Although continuous in principle,
sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence
and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited
or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is
uncontestally displayed or again regions accessible from for instance, the high seas." Palmas Island Case
(Neth. v. U.S.), 2 R. Int'l Arb. Awards 831, 840 (1931).
96. Decree of Sept. 10, 1832. La Gaceta Mercantil (No., 2577), Sept. 17, 1832, at 2, col. 2; EI Lucero,
Diario Politico, Iiterario y Mercantil, Buenos Aires, Sept. 15, 1832, at 2, col. 3.
VI. TITLES CLAIMED BY GREAT BRITAIN
To the extent that Great Britain had consented to the continued presence of
the Spanish colony in Puerto de la Soledad in 1771, the claim advanced in 1829,
which extended to the entire archipelago, constituted a totally novel claim.
However, the English claim, as expressed in Palmerston's correspondence with
Moreno after the events of 1833, the Spanish claim, as expressed through its
reservation of rights in its 1771 declaration, and the Argentine claim, as ad-
vanced after 1833 and ever since that date, had this much in common: that the
archipelago constituted then, as it still constitutes today, a single territorial unit.
By this token, if the Argentine display of state activity from 1820 until 1833 did
not as a matter of fact make itself felt on every nook and cranny of the ar-
chipelago, its legal effects certainly did. 97
Whatever the legal basis Great Britain chose to adduce in justification of its act
of 1833, under normal circumstances, i.e., unless otherwise directed by the
litigants, an international court would be free to establish the legal interpretation
of the military takeover of the Malvinas by Great Britain in light of international
law and of its own interpretation of the circumstances of the case. This exercise,
which essentially involves ascertaining the rule of decision which governs the
case, requires an investigation of how these facts should be subsumed within the
existing categories of acts which international law, as conceived in the nineteenth
century, had developed in connection with the acquisition of territorial
sovereignty by nations. In this connection, this writer considers occupation,
conquest and subsequent prescription.
A. Occupation
One of the essential features of occupation as a means for establishing state

sovereignty over new territory is that such territory should be a res nullius, i.e.,
not subject to the sovereignty of another state. As a general proposition, this rule
can be considered as a well-settled principle of internationallaw. 98 Therefore, it
97. C. H. M. Waldock has argued that: "When uninhabited or very sparsely inhabited territory is
taken into sovereignty, the occupying state may not necessarily be required to maintain even a single
official permanently on the spot. It is enough if the state displays the function of a state in a manner
corresponding to the circumstances of the territory." WALDOcK,supra note 7, at 336. The absence of any
competing title in the Eastern Greenland case allowed the World Court to hold that the acts of coloniza-
tion by Denmark and Norway over specific points in Greenland established sovereignty over the entire
territory: "His (the King of Denmark and Norway) rights over Greenland were therefore not to be
regarded as being limited to the colonised area". See the Clipperton Island Award (Fr. v. Mex.), 6 I.L.R.
99 (Victor Emmanuel III, King of Italy, Sole Arbiter, 1931).
98. OPPENHEIM, PEACE, supra note 17, §§ 220-21, at 507-08; HALL, supra note 18, at 125; 1
J. WESTLAKE, INTERNATIONAL LAW, PEACE, 98 (2d ed. 1910) [hereinafter cited as WESTLAKE]; R. Y.
JENNINGS, THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAw 6 (1962); 1 L. FAUCHILLE, TRAITE DE
DROIT INTERNATIONAL PuBLIC 746 (1925) [hereinafter cited as FAUCHILLE]; 3 C. E. ROUSSEAU, DROIT
is submitted that the British physical occupation of the Malvinas or Falkland

Islands in 1833 could not be considered a legal occupation because, as shown
elsewhere in this article,99 the Islands were definitely subject at the time to
Argentine sovereignty based on occupation and settlement both by Spain up
until 1811 and by Argentina itself after 1820.
The British claims to title, based purely on constructive possession maintained
through symbolic relics, were baseless not only in law but also in fact. In law
because: (1) the theory that possession could be maintained on an island without
a settlement for such an extended period of time (59 years), as leading British
legal writers have acknowledged specifically with reference to the Falklands/ oo
was itself contrary to the accepted practices of the time; (2) following the Palmas
Island rationale, such a title, if it had been so recognized, could not have pre-
vailed over a superior title based on effective possession and the actual and
peaceful display of another state's sovereignty; and (3) moreover, England had
waived its rights to the Islands in 1790 by treaty. The alleged title was baseless in
fact also because the relics and the lead plate had been removed by the Spanish
in the eighteenth century, and the English knew about it. In this connection,
there is only one period when the Islands could conceivably have been viewed as
a territorium nullius (de facto) by states which did not recognize the Latin American
doctrine of constructive possession based on the uti possidetis iuris rule 101 and that
was between 1811 and 1820. However, during this time, when all Spanish
presence on the Islands had been physically withdrawn therefrom, England did
not occupy them. And if this circumstance is not yet another proof of a British
animus derelinquendi one should be able to argue that it is, indeed, the nearest
thing to it.
B. Conquest
To the knowledge of this writer, the concept that acquisition of the Islands was
effected by conquest has not been advanced by Great Britain. Furthermore, it
should be observed that it is- difficult to see how this argument could be put
forward without actually conceding that the occupation of 1833 was an act of
pure force. However, even taken as a second line of defense, the legal category
of conquest, as developed by international law after the French Revolution and
during the nineteenth century, essentially presupposed situations involving full-
scale military hostilities resulting in the complete subjugation of one of the
INTERNATIONAL PuBLIC § 117, at 156 (1977) [hereinafter cited as ROUSSEAU); CAVARE, supra note 53, at
586; 1 M. SIBERT, TRAITE DE DROIT INTERNATIONAL PuBLIC § 600, at 86(}'70 (1951) [hereinafter cited as
SIBERT); L. DELBEZ, LES PRINCIPES GENERAUX DU DROIT INTERNATIONAL PuBLIC 266 (1964) [hereinafter
cited as DELBEZ); J. L'HUILLER, ELEMENTS DE DROIT INTERNATIONAL PuBLIC § 417, at 244 (1950).
99. See §§ III, IV & V supra.
100. See note 50 supra.
101. It is interesting to note that Professor Gross Espeill of Uruguay, in a lecture given in Buenos
Aires in November 1982, has argued that the traditional theory that England was not bound by the uti
possidetis iuris rule is false and not supported by case law.
belligerents by the other. The Permanent Court of International Justice has

acknowledged this concept when it stated that: "Conquest only operates as a
cause of loss of sovereignty when there is a war between two states and by reason
of the defeat of one of them sovereignty over territory passes from the loser to
the victorious state."102 At that point, according to the conception developed in
periods when the threat or use of force in international relations was a lawful
instrument of the external policy of states, the victorious power could validly
annex the territory of the vanquished state. Territorial acquisitions derived by
conquest, however, were basically associated with the extinction of the losing
state as an independent political entity. As Professor Charles Rousseau expresses
it:
La conquete (debellatio dans la doctrine classique ou subjugation chez

les auteures anglo-saxons) ... suppose qu' a la suite d'operations
militaires ... un Etat a completement aneanti son adversaire ... Elle
est au fond moin un procede distinct d'establissement de la compe-
tence territoriale qu' un mode particulier d'extinction de I'Etat. 103
For this reason, the consent of the extinguished state was not a condition
required to perfect the transfer of territorial rights over areas which thereby had
become vacant. And precisely because of this circumstance the substitution of the
new state's sovereignty occurred immediately, without requiring a subsequent
consolidation of title through the lapse of time nor any other formality suggest-
ing acquiescence or consent on the part of the former belligerent, who no longer
survived as an independent state.
The characterization of the British seizure of the Islands in 1833 as an
acquisition of territorial title by conquest would seem altogether inappropriate.
There was no war at the time between England and Argentina, neither declared
nor undeclared, and although the larger part of the local population of the
Islands was shipped back to Buenos Aires, the Argentine Confederation as such
was not "subjugated." Indeed diplomatic relations with Great Britain even con-
tinued despite the strong protests made against these acts. When an act of force
results in physical occupation of only a part of the territory of a state, as Cohen
Jonathan has pointed out specifically in connection with the Malvinas, such
occupation could not have the effect of transferring sovereignty to the acting
state except by a treaty of peace or of cession, even if such treaty was imposed by
102. Decision of Apr. 5, 1933 on the Legal Status of Eastern Greenland (Den. v. Nor.), 61.L.R. 95
(Perm. Ct. of Int'l Justice, 1933); Clipperton Island Award (Fr. v. Mex.), 6 I.L.R. 95, 99-100 (Victor
Emmanuel III, King of Italy, Sole Arbiter, 1931).
103. ROUSSEAU, supra note 98, § 141, at 190; VATTEL, supra note 18, § 197; 1 G. SCHWARZENBERGER,
INTERNATIONAL LAW 297 (3d ed. 1957). Westlake discusses conquest in the context of the extinction of
states. WESTLAKE, supra note 98, at 63; if. SIBERT, supra note 98, at 891-92. L. Delbez explains that
because the defeated state is extinguished as a subject of international law its territory becomes a res
nullius and therefore subject to occupation. DELBEZ, supra note 98, at 268-69.
force. lo4 However, where the state which suffered an alien occupation of a
portion of its territory did not sign such a treaty, the indication of its renuncia-
tion, acquiescence or consent to the new status quo had to be established through
other means before the occupying state could acquire title. I05 In this connection,
the nearest legal category corresponding to this type of situation would seem to
be that of acquisitive prescription.
C. Acquisitive Prescription
Acquisitive prescription has been defined as "the acquISItion of sovereignty
over a territory through continuous and undisturbed exercise of sovereignty
over it during such a period as is necessary to create under the influence of
historical development the general conviction that the present condition of
things is in conformity with international order."lo6 Acquisitive prescription is
distinguished from "extinctive prescription" ("prescription liberatoire") in that
the latter refers to the law of "limitation" by which claims generally - including
financial claims, damages, etc. - which are not presented or asserted by the
affected state for long periods of time might be held by an international court to
have lapsed and no longer be enforceable. As Johnson explains it "extinctive
104. Cohen Jonathan, supra note II, at 240-41.

105. FAUCHILLE,supra note 98, at 765 states that after 1815 invasion and occupation were notperse
sufficient titles to acquire title to territory as against another state without this being sanctioned by a
peace treaty or accepted by the consent of the population. Id. at 765·66. Moore states that: "[a] territory
conquered by an enemy is not to be considered as incorporated into the dominions of that enemy,
without a renunciation in a treaty of peace, or a long and permanent possession. Until such incorpora-
tion, it is still entitled to the full benefit of the law of postliminy." I J. B. MOORE, A ·DIGEST OF
INTERNATIONAL LAw § 87, at 291 (1906). Chief Justice Marshall in American Insurance Co. v. Canter stated
that: "The usage of the world is, if a nation be not entirely subdued, to consider the holding of
conquered territory as a mere military occupation, until its fate shall be determined at the treaty of
peace." 26 U.S. (I PeL) 511, 540 (1828). "The annexation by one state of part of the territory of another
state which remains an international person cannot produce the legal effects of an annexation unless it
was effected with the co-operation or the agreement of the state whose territory has been dismem-
bered." Bindels v. Administration des Finances, Court of Cassation, Belgium, June 16, 1947, 14 l.L.R.
45, 49. Cf Deneffe v. Administration des Finances, Court of Cassation, Belgium, Jan. 26, 1948, 15
l.L.R. 60.
106. OPPENHEIM, PEACE, supra note 17, § 242, at 576. A leading article on the subject defines it as
the means by which, under international law , legal recognition is given to the right of a state to
exercise sovereignty over land or sea territory in cases where that state has in fact, exercised its
authority in a continuous, uninterrupted, and peaceful manner over the area concerned for a
sufficient period of time, provided that all other interested and affected states (in the case of
land territory the previous possessor, in the case of sea territory neighboring states and other
states whose maritime interests are affected) have acquiesced in this exercise of authority. Such
acquiescence is implied in cases where the interested and affected states have failed within a
reasonable period of time to refer the matter to the appropriate international organization or
international tribunal or - exceptionally in cases where no such action was possible - have
failed to manifest their opposition in a sufficiently positive manner through the instrumentality
of diplomatic protests.
Johnson, Acquisitive Prescription in International Law, 27 BRIT. Y.B. INT'L L. 332, 353-54 (1950) [hereinaf-
ter cited as Johnson].
prescription" is built on the assumption that "the failure to present the claim
must be due to negligence or laches of the claimant party and not due to the
obstruction of the defendant" and that, "as applied to property law ... though
the original possessor can no longer enforce (his claims) by action, his substantive
rights are not abolished."lo7 On the other hand, "acquisitive prescription" is
invoked as a means by which a state acquires sovereign rights over territory erga
omnes based on undisturbed possession over relatively long periods of time. lOB
Although immemorial possession of territory in instances where the validity of
the original title cannot clearly be established is sometimes described as a func-
tion of "acquisitive prescription," the type of "acquisitive prescription" which
might be relevant to the Anglo-Argentine dispute over the Malvinas is that which
is akin to, though naturally not identical with, the concept of usucapio as devel-
oped in Roman law and which is invoked as a means for curing a defect in title
resulting from usurpation of territory of another's sovereignty by the consent
and acquiescence of the former sovereign. 109
The concept of usucapio is clearly borrowed from municipal law and its opera-
tion in international law is usually predicated on the need to preserve peace and
stability in international relations. However, whereas in domestic law the sanc-
tion of usucapio and the conditions of its operations are clearly spelled out by a
civil code, special statute or well-settled rule derived from precedents - and,
therefore, the owner whose property rights have been obstructed by adverse
pC'ssession is "on notice" that unless he sues within the established time frame his
107. Johnson, supra note 106, at 332. See generally Ralston, Prescription, 4 AM. J. INT'L L. 133 (1910).
M. Sorensen believes that both "acquisitive" and "extinctive" prescriptions are two elements of a single
legal category except that:
Ces formes juridiques se distinguent l'une de l'autre, non seulement par des differences dans
les normes positives auxquelles la legislation de chaque pays peut subordonner leur application
pratique, mais aussi par les divers objets auxquels elles se rapportent; on admet.generalement,
en effect, que la prescription acquisitive s'applique aux droits sur des especes et la prescription
liberatoire aux droits sur des choses de genre.
Sorenson, La Prescription en Droit International, 3 ACTA SCANDlVAVICA JURIS GENTIUM 145 (1932) [here-
inafter cited as Sorensonl. J. Symonides, who strongly disagrees with this approach says that: "In the
Polish language there are two terms - zasiendzenie, i.e. acquisitive prescription and przedawnienie, i.e.
extinctive prescription." Symonides, Acquisitive Prescription in International Law, 3 POLISH Y.B. INT'L L.
III, 112 (1970) [hereinafter cited as Symonidesl. See generally P. A. VERYKIOS, LA PRESCRIPTION EN
DROIT INTERNATIONAL PuBLIC (1934) .•5" also Johnson, Consolidation as a Root of Title in International Law,
CAMBRIDGE L.J. 215 (1955).
108. C. C. HYDE, INTERNATIONAL LAw CHIEFLY AS INTERPRETED AND ApPLIED BY THE UNITED STATES
§ 116, at 192-96 (1922) [hereinafter cited as HYDEl; I. G. H. HACKWORTH, DIGEST OF INTERNATIONAL
LAw, ch. IV, § 63 at 432-42 (1940) [hereinafter cited as HACKWORTHl.
109. I. BROWNLIE, PRINCIPLES OF PuBLIC INTERNATIONAL LAw 157 (3d ed. 1979). Brownlie seems to
believe that Acquisition Prescription has three forms: (I) Immemorial Possession (where the origin of
title is uncertain but is presumed to be legal); (2) Prescription under conditions similar to those required
for usucapio: uninterrupted possession, justus titulus, even if it were defective, good faith, and the
continuance of possession for a period defined by the law; and (3) Usucapio, modified and applying
under conditions of bad faith. Thus Hall, Oppenheim and Fauchille - he states - do not require good
faith in the context of international law.
rights will be lost - in international law there is: (1) an element of frustration in
that there is no compulsory jurisdiction where the adverse possessor can be
compelled to appear; (2) an element of uncertainty both with respect to the time
frame and other conditions of its operation and, indeed with respect of the very
existence of usucapio as a general legal category sanctioned for all types of
cases;1I0 and perhaps (3) an element of scandal in that even writers who tend to
admit usucapio, such as Hall for example, have cautioned that:
[W]hile under conditions of civil life it is possible so to regulate its
operation as to render it the handmaid of justice, it must be frankly
recognized that internationally it is allowed, for the sake of interests
which have hitherto been looked upon as supreme, to lend itself as a
sanction for wrong, when wrong has shown itself strong enough not
only to triumph for a moment, but to establish itself permanently
and solidly.1I1
Writers who admit usucapio as a category of international law are not all in
agreement as to what exactly causes the displacement of sovereign title in favor
of the usurper. Whereas some writers have spoken of tacit renunciation of the
110. Grotius admitted immemorial possession but rejected usucapio of the Roman Law. DE lURE
BELLI AC PACIS LIBRI TRES § I, at 7, 9 as reprinted in CLASSICS OF INTERNATIONAL LAw (.I. B. Scott ed.
1925); if. OPPENHEIM, PEACE, supra note 17, § 242, at 575. Among the authorities who reject acquisitive
prescription of the type akin to usucapio are HEFTER, LE DROIT INTERNATIONAL DE L'EuROPE § 12 (4th
ed. 1883); G. F. MARTENS, PRECIS DU DROIT DE GENS MODERNE DE L'EuROPE § 71 (Verge ed.); I RtvIER,
PRINCIPES DU DROIT DES GENS 182-83 (1896); 2 HOLD FERNECK, LEHRBUCH DES VOLKERRECHTS 107;
LISZT, DAS VOLKERRECHT § 30 (iii)(l) (12th ed. 1925). See a150 the dissenting opinion of Judge Moreno
Quintana to the Judgment of April 12, 1960 of the International Court of Justice in the Case Concerning
the Right of Passage over Indian Territory (Port. v. India) which stated that the reasoning in the majority
opinion "implies, by definition, a recognition that territorial sovereignty can be acquired by prescrip-
tion, a private law institution which I consider finds no place in international law." 1960 I.C.]. 6, 88
(1966).
1J 1. HALL, supra note 18, at 143. In domestic law the clear enactment of usucapio in a civil code,
statute or well-settled rule derived from precedent provides a firm legal basis for its operation. In this
connection, the enactment or legal norm that concedes a status of legitimacy to a situation which by its
very definition is illegal should possess a rank, status or hierarchy which is at least equal to the rank,
status of hierarchy of the enactment or legal norm which was violated in the first place because
otherwise the contradiction between law and reality remains unresolved. Whereas in international law
the rules pertaining to territorial sovereignty are in effect very firmly established, there is no general
treaty or well-settled rule of general customary law which in all sincerity can be stated to have
promulgated aquisitive prescription of the type akin to usucapio with equal vigor for all cases. In this
connection J. Barberis mentions that Acquisitive Prescription is first designated by that name in the
Anglo-Venezuelan boundary arbitration Agreement of Feb. 2, 1897 (La Prescripcion Adquisitiva y la
Costumbre, 4 JURISPRUDENCIA ARGENTINA 378, 381 (1967) [hereinafter cited as Barberis]. The writer also
points out that acquisitive prescription has been applied namely in frontier disputes. In this connection
C. C. Hyde remarks:
Thus the doctrine of prescription may be expected to be limited in its application and use to
territorial differences involving comparatively narrow areas such as boundary disputes, and
where the possessor invoking the principle relies upon a title which, although legally deficient
in origin, is based on something more respectable than conquest.
HYDE, supra note 108, § 1J 6, at 195.
430 BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW [YO!. VI, No.2
affected state, others tend to emphasize, on the one hand, the mere acquies-
cence, express or implied, of the one state in the adverse possession of the
other 1l2 in combination with, on the other hand, the general conviction of other
states that the present conditions of things is in conformity with international
order .113 This latter element - the role of the international community - is also
recognized even by hard-liners who describe prescription as a function of the
general principle of effectivity.1l4
In the specific case of the Malvinas dispute, title by acquisitive prescription was
invoked by representatives of Great Britain in the discussions of 1964 held by
Subcommission III of the Decolonization Committee at the United Nations and
in the General Assembly.1l5 However, its applicability to the situation in the
Malvinas was difficult to sustain because of the colonial nature of the dispute. In
this latter connection, the mere invocation of prescription as a title to territory-
with the exception of immemorial possession, which is not the case here -
amounts to an admission that the initial title was originally defective. This in
itself constitutes - even if the United Nations had not recognized it, which
subsequently to those discussions it in fact did - a strong indication of which
112. "It must be clear that it is uninterrupted and undisturbed possession implying full acquiescence
on the part of the foreign and dispossessed claimant, which in theory serves to rob it of its rights and to
lodge them in the actual occupant." HYDE, supra note 108, § 116, at 194. The principle that possession
appears as undisputed ("incontestation possessio") on the part of the former sovereign before the
international community is supported by the following cases: The Cravairola Boundary Case (Switz v.
Italy), award issued by Mr. George P. Marsh on Sept. 23, 1874. 2J. B. MOORE, HISTORY AND DIGEST OF
THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY 2027 (1898); the
award of the President of the French Republic, July 24, 1875 (Gr. Brit. v. Port.) with respect to the
islands of Inyack and Elephant in the Delagoa Bay. [d. at Vol. 5,4984-58; France and the Netherlands:
Award of the Emperor of Russia as to the boundary between France and Dutch Guiana. [d. at Vol. 5,
4869-70. See the U.S. boundary cases in HACKWORTH, supra note 108, § 63, at 432-42. See also Decision of
the Permanent Court of Arbitration in the Matler of the Maritime Boundary Dispute between Norway and Sweden
(Oct. 23, 1909), 4 AM. J. INT'L L. 226-33 (1910); The Chamizal Arbitration between the United States and
Mexico (June 10, 1911),5 Am. J. Int'I L. 782 (1911); the Palmas Island Case (Neth. v. U.S.), 2 R. Int'I
Arb. Awards 831 (1931); and in the Fisheries Case (U.K. vs. Nor.), 1951 I.C.J. 116.
113. OPPENHEIM, PEACE, supra note 17, at § 243. J. Barberis believes that acquisitive prescription is a
manifestation of international customary law and therefore requires an opinio iuris that the occupation is
legitimate and peaceful. Barberis, supra note III, at 384. Sorensen, who believes that prescription is a
general principle of law ("et . . . truve son fondement dans la concience juridique des peuples")
recognizes, however, the role of the international community. Sorenson, supra note 107, at 151.
114. Effectiveness of possession in the case of prescription is determined in a larger measure by
the attitude adopted by the international community as compared to the case of occupation.
The appearance of prescription is made doubtful by the opposition on the part of the
international community, not only in the form of non-recognition but in a concrete action
expressed in a determined support rendered to the claims of the state which had sustained a
loss of part of its territory.
Symonides, supra note 107, at 118. C. DE VISSCHER, THEORIES ET REALiTES EN DROIT INTERNATIONAL
PuBLIC 255-56 (2d ed. 1960).
115. Cf Report of the Special Committee on the Situation with regard to the Implementation of the
Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N. Doc. AI
580(vAdd. 7, p. 53 (1965).
party suffered the colonial action, whose territory was dismembered and, hence,
whose self-determination is at issue for the purpose of decolonization. Concern-
ing the merits of the argument of prescription per se, the evolution of the dispute
shows, not only that Argentina cannot be held to have acquiesced to the British
occupation because of its continuous attitude of protest, but also that there are
clear indications that there is no general conviction on the part of the interna-
tional community that Britain's continuing occupation of the Islands is in con-
formity with the international order.
Indeed the attitude of Argentina in the face of the British military occupation
of January 2, 1833 was of immediate protest. This is evidenced by Foreign
Minister Maza's request for explanations to the British Charge d'Affaires Uanu-
ary 16, 1833),116 the subsequent protest of the same minister Uanuary 22,
1833),117 and the letter of protest addressed by the Minister Plenipotentiary of
the United Provinces of the Rio de la Plata to the Court of St. James, Don Manuel
Moreno, to Viscount Palmerston Uune 17, 1833).118 Palmerston's response dated
January 8, 1834, as explained earlier,119 invoked the arguments of prior discov-
ery and settlement, the reciprocal declarations with Spain of 1771 - which were
attached to the letter but with the curious yet significant substitution of the word
"counter-declaration" for "acceptance" in the heading of the declaration signed
by Great Britain - and the theory based on the visible signs of sovereignty which
had been left at Port Egmont on Saunders Island in 1774. However, despite the
initial rebuff, Moreno's protests were renewed on December 29, 1834,120 De-
cember 18, 1841,121 February 19, 1842122 and March 10, 1842. 123
116. MUNOZ AZPIRI,supra note 7, at 107; 20 BRITISH AND FOREIGN STATE PAPERS (1832-33), at 1197
(1836).
117. MUNOZ AZPIRI,supra note 7, at 108; 20 BRITISH AND FOREIGN STATE PAPERS (1832-1833),at 1198
(1836).
118. MUNOZ AZPIRI,supra note 7, at 125; 22 BRITISH AND FOREIGN STATE PAPERS (1833-1834), at 1366
(1847). Palmerston's response of Jan. 8, 1834 is in id. at 1384.
119. See text accompanying notes 49-51 supra.
120. Moreno to Wellington, MUNOZ AZPIRI, supra note 7, at 158 .
121. Moreno to the Earl of Aberdeen, 31 BRITISH AND FOREIGN STATE PAPERS (1842-1843), at
1003-04 (1858). MUNOZ AZPIRI, supra note 7, at 177. The tone of this letter, as well as that of the earlier
letters, leaves little room for doubt about the intensity with which the Argentine government ad-
vanced the matter and the seriousness of its attitude.
122. Aberdeen had rejected the claim of Moreno in a letter dated February 15, 1841. MUNOZ AZPIRI,
supra note 7, at 183. It is worth transcribing a paragraph of the Earl of Aberdeen's reponse to establish
the nature of the British posture. It read as follows:
The British Government cannot recognize to the United Provinces the right to alter an
agreement concluded forty years before their emancipation, between Great Britain and Spain.
As to their rights on the Islas Malvinas of Falkland Islands, Great Britain considers this
arrangement as definitive. The Government of Her British Majesty communicates this mea-
sure to Mr. Moreno and at the same time the determination that the infringement of the
unquestionable rights of Great Britain on the Falkland Islands shall not be allowed.
The Feb. 19, 1842 letter pursued the matter yet again. Moreno to Aberdeen II, MUNOZ AZPIRI, supra
note 7, at 185.
123. Following an interview between Moreno and Aberdeen held on February 21, 1842 Moreno's
letter of March 10, 1842 said that from then onward, so that the silence of the United Provinces ofthe
The negative reactions which met these protests, together with the mechanical
repetition on the part of Great Britain of the same legal posture - or lack
thereof - revealed each time with greater clarity the reality which lay behind
that mask of words, i.e., that the occupation of 1833 had been an act based on
pure force and that no amount of reasoning based on international law was
going to alter the British intention of retaining the Islands at the expense of
Argentina. It can be stated that the acquiescence of the dispossessed claimant,
which is a condition sine qua non of acquisitive prescription,124 should be ap-
preciated by a court in light of the circumstances of the particular case. In this
connection, the disparity of strength between the British empire in the
nineteenth century and Argentina and, indeed, the very tone of the British
responses each time the matter was raised go far towards explaining why com-
paratively long periods of time transpired during the nineteenth century without
Argentina having corresponded with Great Britain on the Malvinas question.
However, it seems pertinent to question if in a situation where a succession of
protests is met by negative responses in which the respondent does not even
condescend to give serious consideration to the arguments supporting such
protests, in the absence of any alternative course of action or international
organization where the case could be taken, as indeed was the case at that time,
international law can really be construed to require the claimant-state to persist
in the humiliating exercise of knocking its head against the brick wall. 125 That
Britain herself clearly understood this aspect of the case is evidenced by an
episode of decisive importance.
Rio de La Plata should not be taken as implicit acquiescence ("implicita acquiescencia"), that he must
expressly state that these "no peuden ni podranjamas conformarse con la resolucion delgobierno de S.M .. .. que
consideran injustas y opuestas a sus manifiestos derechos." Moreno to Aberdeen III, MUDz AZPIRI, supra note
7, at 189.
124. Johnson, supra note 106, at 344.
125. In the Chamizal arbitration (Mex. v. U.S.) the Commissioners held that a failure on the part of
Mexico to take action which might lead to violence in its relations with the United States could not be
held to jeopardize Mexican rights. There the United States had invoked actual occupation of the
Chamizal tract but it was held that Mexico's attitude had prevented title from arising by prescription.
The Chamizal Arbitration between the United States and Mexico Uune 10, 1911), 5 AM. J. INT'L L. 782 (1911).
If a nation has a right to its dignity and reputation, as Sir Thomas Holland acknowledges then it is
submitted that international law cannot compel a state to put itself in the humiliating position of having
to formulate new protests when the other state has clearly indicated that it does not wish to discuss the
matter any further. HOLLAND, supra note 50, at 110. Cohen Jonathan has acknowledged that:
[lIe gouvernement argentin avait, it plusieurs reprises, expose en detail pourquoi it jugeait
l'occupation britannique illicite, et il avait chaque fois propose au governement britannique de
regler pacifiquement ce litige, en recourant a l'arbitrage par exemple. Le Royaume-Uni y a
toujours oppose un refus laconique, ne daignant me me pas repondre aux objections presen-
tees par Ie gouvernement de Buenos Aires;
Cohen Jonathan, supra note 11, at 243. On the significance of the Argentine attitude, he remarks:
"Neanmoins est-il possible d'ignorer Ie sens exact donne it ce silence ainsi que tout Ie comportement
ulterieur de I'Argentine qui marquait une volonte reelle de s'opposer it cette occupation de fait".1d. at
244.
On July 27, 1849 Palmerston was interrogated in the House of Commons by

one Mr. Baille as to whether Buenos Aires still claimed the Falkland Islands.
According to the newspaper reports of the following day, i.e., the "Times" and
the "Daily News," Palmerston responded that correspondence with Buenos Aires
had been discontinued some years back and, according to the newspapers, took
the position that it would not be advisable to revive a correspondence that had
ceased by the acquiescence of one of the parties (Argentina) and the persever-
ance of the other (Great Britain).126 On July 31, Moreno's instant reaction was
expressed in an official letter to Palmers ton referring to the episode in the House
of Commons and expressly stating that the discontinuation of correspondence
on the subject on the part of his legation in London should not be taken as
acquiescence and that the Argentine Confederation had never consented to the
usurpation of the islands. 127 Palmerston's response to this letter stated that:
... the reply which I was reported by some of the London Newspa-
pers to have made by a question put to me by Mr. Baille in the House
of Commons on the 27th of July, did not correctly describe the State
of the question between the British Government (and) Buenos Aires
respecting the Falkland Islands; and I have the honour to acquaint
you that whatever the Newspapers may have represented me as
having said on that occasion above referred to, I have always under-
stood the matter in question to stand exactly in the way described by
you in your letter .128
This exchange shows that the British government not only did not want to
receive any more protests but was even prepared to acknowledge in writing an
understanding between the parties to the effect that the absence of additional
protests would not imply acquiescence.
Correspondence between Britain and Argentina regarding the Malvinas was
renewed, this time by Great Britain's minister in Buenos Aires, Mr. Edmund
126. Moreno to Felipe Arana, Aug. 2, 1849, MUNOZ AZPIRI, supra note 7, at 193.
127. En consecuencia de esto, Porque el silencio de esta legacion no se tome alguna vez por
confirmacion de la erronea asersion que el Gobierno de Buenos Aires y Confederacion
Argentina nunca ha consentido en el despojo de su soberania en las islas Malvinas que Ie hizo el
Gobierno ingles en 1833; y que lejos de retirar su protesta del 17 de junio de aquel ano,
reiterada en la del 29 de diciembre de 1834 ha mantenido sus indisputables derechos a aquella
posesion, por todos los medios que han estado en su poder, y constantemente ha declarado su
justa queja por falta de satisfaccion.
The final paragraph stated:
En este sentido. han sido las ordenes que ha recibido y continua recibiendo esta legacion, para
vigilar este asunto, y si de algun tiempo a esta parte, la correspondencia no ha sido tan active,
esto es debido a estar la discusion casi agotada, y al estado de las relaciones desde la interven-
cion; pero S.E. el vizconde Palmerston, en su alto saber, no ha podido sin duda equivocar la
intermision de la correspondencia con un consentimiento y aquiescencia tacita 0 expresa, que
de ningun modo se ha dado por el gobierno argentino, a los actos a este respecto del gobierno
de S.M.
Moreno to Palmerston, July 31, 1849, id. at 195-96.
128. Palmerston to Moreno, Aug. 8, 1849, id. at 197.
Monson, in 1884 129 in connection with the preparation of a government-

sponsored map showing the Malvinas as part of Argentina. In the context of that
dialogue, the Argentine Foreign Minister officially proposed that the issue be
resolved through amicable and legal methods adopted by civilized nations for the
resolution of disputes of this kind. 130 However, Britain did not give a response to this
proposal and in February, 1886 the Argentine representative in London, Man-
uel Garcia, raised the proposal again with the British Foreign Secretary Lord
Rosebery.l31 On November 3, 1887 the Argentine minister in London, Luis L.
Dominguez, acting on instructions,132 again requested a response to the above
proposal in a letter addressed to the Marquis of Salisbury, who then held the
position of British Foreign Secretary.133 The belated response was eventually
delivered on behalf of the Foreign Secretary by a Sir Thomas Villiers Lister on
November 14, 1887 and it stated that from the point of view of the British
government the discussion was closed and could not be reopened. 134 Yet another
overture was made by the Argentine Foreign Minister Quirno Costa in a letter
addressed to the British minister in Buenos Aires, Mr. F. Pakenham,135 but it
evoked a similar response. 136 OnJune 12, 1888 the British Charge d'Affairs was
told by the Argentine Foreign Minister, in a formal letter, that the Argentine
claim would not be withdrawn neither as a result of the British position nor by
"the silence maintained by the British Government with respect to the Argentine proposals
for arbitration." 13 7
After these dialogues, the persistent attitude of Argentina was expressed not
only in internal acts, which confirmed that there was no acquiescence on its
part,131l but also in diplomatic correspondence. Thus, reservations of sovereignty
129. Monson to Foreign Minister Francisco J. Ortiz, Dec. 15, 1884, id. at 204.
130. After requesting that the Minister submit a memorandum, which was attached to his letter to
the British government, the letter stated the Argentine government's hopes: "[q]ue la discusi6n
aplazada sera nuevamente abierta por la contestaci6n que el abajo firmado espera a sus observaciones, y
resuelta por los medios amistosos y de derecho que hoy adoptan las naciones civilizadm para arreglar cuestiones de este
ginero". Ortiz to Monson, Jan. 2, 1885, id. at 213·16.
131. C. A. SILVA, LA POLlTICA INTERNACIONAL DE LA NACION ARGENTINA, IMPRENTA DE LA CAMARA DE
DIPUTADOS 640 (official ed. 1946) [hereinafter cited as SILVA].
132. Foreign Minister Norberto Quirno Costa to Dominguez, May II, 1887, MUNOZ AZPIRI, supra
note 7, at 349.
133. Dominguez to Quirno Costa, Nov. 18, 1887, id. at 350-51. See Dominguez to Salisbury, Nov. 3,
1887, id. at 351.
134. Lister to Dominguez, id. at 352.
135. Quirno Costa to Pakenham, Jan. 20, 1888, id. at 354.
136. Jenner to Quirno Costa, Apr. 13, 1888, id. at 360.
137. Quirno Costa to Jenner, June 12, 1888, id. at 360-61. It is interesting to note that a recent book
by the Sunday Times of London states that a memorandum prepared in 1910 by a member of the
Foreign Office research department, Mr. Gaston de Bernhart, showed that the British claim was
indefensible, and therefore the book concludes: "Britain's reluctance to put the dispute before an
international court was therefore understandable!" WAR IN THE FALKLANDS, supra note 3, at 40-41.
138. See SILVA, supra note 131, at 642; MUNOZ AZPIRI, supra note 7, at 362-64. A further protest was
lodged in 1908. See La Reivindicaci6n Argentina de las Islas Malvinas. Comisi6n International de
Juristas. No. 28. June 1982. at 26. 33. In 1919 the Argentine Ministry of Marine ("Ministerio de
over the Malvinas were reaffirmed, whenever the occasion arose, in the context
of discussions concerning radio-telegraph stations in the area,139 venereal dis-
ease conventions,140 postal communications and other subjects which had a
bearing on the dispute. 141
The treatment of the Malvinas question in the United Nations is discussed
later in this article. 142 However, the reference contained in General Assembly
Resolution 2065 (XX) of December 16, 1965 to the effect that official notice was
taken of "the existence of a dispute between the Governments of Argentina and
the United Kingdoms of Great Britain and Northern Ireland concerning
sovereignty over the said Islands" is directly relevant to the question of acquisi-
tive prescription. This pronouncement of the General Assembly had the effect
not only of overruling British arguments based on "acquisitive prescription"
advanced before Subcommission III of the Committee of 24 (Decolonization)
during the debates on the sovereignty question 143 but also had the value of
ascertaining, beyond any possible doubt, that the international community as a
whole did not regard the British possession of the Malvinas as having been
uncontested, undisturbed or consolidated as of that time. Whatever one can say
about the substantive legal value of General Assembly resolutions, it would seem
difficult to dispute the value of those resolutions as "evidence" of what the
attitude of the international community was, and still is, with respect to this
question. This resolution, together with those which followed it, evidences not
only what the world, in general, thought about the substantive status of the
matter, i.e., that there was a dispute with regard to "sovereignty," but also
Marina") instructed all radiotelegraph stations in the Argentine maritime zone not to accept messages
dispatched from the Malvinas. C. DIAZ CISNEROS. LA SoBERANiA DE LA REpUBLICA ARGENTINA EN LAS
MALVINAS ANTE EL DERECHO INTERNACIONAL, AN ALES DE LA FAC. DE CIENCIAS jURimcAS y SOCIALES, LA
PLATA 7, 121 (1951). See In re Carlos Gleadell Watson where the federal court of Rio Gallegos in a
judgment dated February 11, 1935 denied a petition for naturalization by a person born in Port Stanley
on the grounds that
the lands in question continue to form de jure part of the territory of our State, and that
accordingly the petitioner, born there, needs no naturalization, since he has acquired the
natural-born citizenship where Article 1 of Law 346 recognizes in all who have been born on
the national territory or its legal extensions.
In re Carlos Gleadell Watson (Feb. 11, 1935), 8 I.L.R. 180 (Argentina, Fed. Ct. of Rio Gallegos, 1941).
On later incidents,see Cronique des Faits Internationaux, Argentine et Grand-Bretagne, 69 REVUE GEN. DROIT
INT'L P. 111 (1965).
139. See the Protest lodged by Foreign Minister Angel Gallardo with the British Minister in Buenos
Aires, Sir Malcolm Arnold Robertson, Nov. 30, 1925, in MUNOZ AZPIRI, supra note 7, at 365.
140. See correspondence between Gallardo and the Belgian Minister in Buenos Aires Count Robert
van der Straten Ponthoz in respect of the extension of the Bruxelles Convention of Dec. I, 1924 to the
Islands. In his letter of Dec. 28, 1926 the Belgian diplomat confirms to have communicated Gallardo's
protest to his Government.Id. at 368-69.
141. See the note of Foreign Minister Carlos Saavedra Lamas of March 10, 1933,395 and the later
correspondence between Mr. R. A. Leeper and Foreign Minister Atilio Bramuglia, in id. at 375.
142. See § VII infra.
143. See note 115 supra.
whether or not Argentina, in view of its action taken on the matter in the United
Nations, could be stated to have acquiesced to the British occupation.
In summary, on the issue of prescription, the following observations can be
made: (1) The very notion of prescription is controversial and, except for the
very special case of immemorial possession, its indiscriminate application to all
cases could give rise to serious injustices; (2) Cases in which prescription has
actually played a role in international adjudication have involved, by and large,
territorial differences involving comparatively narrow areas such as boundary
disputes where the parties had directed the court to apply prescription and
articulated the conditions of its operation; in other cases, the tendency of the
courts has been not to designate prescription by its name, e.g., the Palmas Island
case; (3) There are. no clear precedents in case law which can be stated to have
sanctioned on the international plane the category of prescription of the type
akin to usucapio operating under conditions of bad faith where the territory in
question was taken by force in circumstances not involving subjugation, or a
treaty signed by the affected state; (4) Even admitting (though only ad arguen-
dum) that this type of prescription actually exists as such, the evolution of the
dispute shows that Argentina did not acquiesce in the British occupation of the
Malvinas and Great Britain was aware of this circumstance; and (5) The discus-
sion of the dispute at the United Nations in 1964 and 1965, Resolutions 2065
(XX) of 1965 and those that followed, which took notice of the existence of a
dispute "concerning sovereignty," clearly show, on the one hand, that the inter-
national community did not - and does not - regard the British occupation to
have been consolidated, and, on the other, that the underlying policies of
prescription could be viewed as being in conflict with the general doctrine of
decolonization as developed by the United Nations on the basis of Resolution
1514 (XV) of 1960. A discussion of this Resolution follows.
VII. DECOLONIZATION OF THE ISLANDS
With the establishment of the United Nations after World War II, the Anglo-
Argentine conflict over the Malvinas became something more than a conven-
tional territorial dispute involving the purely bilateral interests of two nation-
states with respect to a piece of territory. By the action of Argentina, the conflict
became a matter of regional concern within the Organization of American
States. 144 By the action of Great Britain, it became a matter of universal concern
144. The Malvinas issue was raised by Argentina at the Interamerican Conferences of Panama
(1938), Havana (1940) and was debated during the IX Interamerican Conference of Bogota of 1948.
The latter Conference voted Resolution XXXIII which stated the need to end colonialism and the
occupation of territories in the Americas on the part of extracontinental powers. In 1949 a Special
Committee created by that re.solution classified Malvinas, not as a "colony," but as an "occupied territory. "
See J. J. CAICEDO CASTILLA, EL PANAMERICANISMO 84-85 (1961. See I C. DIAZ CISNEROS, DERECHO
INTERNACIONAL PUBLICO 620-24 (1955).
in the United Nations when in 1946, in the face of Argentina's opposition based
on its territorial claim,145 Great Britain included the Islands within the list of
non-self-governing territories - in terms of Chapter XI of the Charter - which
were subject to its administration. Great Britain thereafter regularly furnished
reports to the Secretary General on the economic, social and educational condi-
tions of the Islands as required by Article 73(c) of the Charter. This development
in the United Nations is significant inasmuch as it established British acceptance
of, and its voluntary compliance with, the general proposition that its relation-
ship with the territory of the Islands· could no longer be viewed as a purely
domestic issue of Great Britain or even only a bilateral question with Argentina
and that it had become a matter of international concern which would thereafter
be subject to the supervision and control of the international community exer-
cised through the instrumentality of the United Nations and in accordance with
the purposes and principles of the Charter.
On December 14, 1960 the General Assembly issued its historic Declaration
(the "General Declaration") on the Granting of Independence to Colonial Coun-
tries and Peoples, Resolution 1514 (XV). This famous Resolution declared,
among other things, "that the continued existence of colonialism prevents the
development of international economic cooperation, impedes the social, cultural
and economic development of dependent peoples and militates against the
United Nations ideal of universal peace" and solemnly proclaimed "the necessity
of bringing to a speedy and unconditional end colonialism in all its forms and
manifestations." This declaration, together with other General Assembly resolu-
tions of a general character which supplemented it, gave sanction to the proposi-
tion that colonialism was contrary to the purposes and principles of the Charter,
endangered world peace and security, constituted an international crime 146 and
even rendered legitimate the struggle of peoples subject to alien domination to
sever their colonial yoke .147
145. General Assembly Resolution 66 (I) of Dec. 14, 1946 included a list of non-self-governing
territories which reflected information presented by U.N. members for the purpose of Article 73 (e) of
the Charter which included the Falklands. Argentine reservations were formulated from 1946 onward.
See inter alia, I U.N. GAOR C.4 (25th mtg.) at 156, U.N. Doc. NC.41SR. 25 (1946); 2 U.N. GAOR C.4
(36th mtg.) at 34, U.N. Doc. NC.41SR. 36 (1947); 2 U.N. GAOR C.4 (47th mtg.) at 107, U.N. Doc.
NC.4/SR.47 (1947); 3 U.S ..GAOR C.4 (52nd mtg.) at 7, U.N. Doc. NC.4.SR. 52 (1948); 4 U.N. GAOR
C.4 (llOth mtg.) at 107, U.N. Doc. NC.41SR. 110 (1949); 5 U.N. GAOR C.4 (2llth mtg.) at 62, U.N.
Doc. NC.4J5R. 211 (1951); 7 U.N. GAOR C.4 (256th mtg.) at 48, U.N. Doc. NC.41SR. 256 (1952); 8
U.N. GAOR C.4 (324th mtg.) at 52, U.N. Doc. NC.41SR. 324 (1953); 9 U.N. GAOR C.4 (411th mtg.) at
91, U.N. Doc. NC.41SR. 411 (1954); 10 U.N. GAOR C.4 (472d mtg.) at 14, U.N. Doc. NC.41SR. 472
(1955); 10 U.N. GAOR C.4 (479th mtg.) at 67, U.N. Doc. NC.41SR. 479 (1955).
146. 1970 Program of Action for the Full Implementation of the Declaration, G.A. Res. 2621, 25
U.N. GAOR Supp. (No. 28) at I, U.N. Doc. N8028 (1970); 1970 Declaration of Principles of Interna-
tional Law, G.A. Res. 2625, 25 U.N. GAOR Supp. (No. 28) at 121, U.N. Doc. N8028 (1970).
147. See G.A. Res. 2105, 20 U.N. GAOR Supp. (No. 14) at 3, U.N. Doc. N6014 (1965); G.A. Res.
2189,21 U.N. GAOR Supp. (No. 16) at 5, U.N. Doc. N6316 (1966); G.A. Res. 2326,22 U.N. GAOR
Supp. (No. 16) at 4, U.N. Doc. N6716(l967); G.A. Res. 2465, 23 U.N. GAORSupp. (No. 18) at 4, U.N.
Although Resolution 1541 (XV) of December 14, 1960 had equated non-self-
governing territories governed by Chapter XI of the Charter with "colonies"
within the meaning of the General Declaration,148 the colonial character of the
British presence on the Malvinas Islands was expressly established by a succes-
sion of General Assembly resolutions starting with Resolution 2065 (XX) of
December 16, 1965. 149 These resolutions constituted specific applications of the
General Declaration to the particular situation of the Islands and their value as
an authentic interpretation thereof was evident by the fact that they were issued
by the same body which had sanctioned the General Declaration. Therefore,
appreciation of their proper legal significance calls for an examination of how
the basic principles of decolonization set forth in the General Declaration were
applied by the General Assembly in light of the special nature of the British
colonial presence on the Malvinas or Falkland Islands.
The General Declaration of 1960, which proclaimed the need to end colo-
nialism, in all its forms and manifestations, had established two basic principles by
which decolonization was to be achieved. One was the principle of self-
determination and the other, the principle of territorial integrity. The principle
of self-determination was contained in paragraphs (1), which stated that "All
peoples have the right to self-determination," and (5)150 of the General Declara-
tion. The principle of territorial integrity was expressed in paragraphs (4)151 and
(6) thereof. 152 A similar emphasis on these two principles is given by the U.N.
Doc. Af7218 (1968); G.A. Res. 2548, 24 U.N. GAORSupp. (No. 30) at 5, U.N. Doc. Af7630 (1969); G.A.
Res. 2708. 25 U.N. GAOR Supp. (No. 28) at 7. U.N. Doc. Af8028 (1970); G.A. Res. 2878. 26 U.N.
GAOR Supp. (No. 29) at 16. U.N. Doc. Af8429 (1971); G.A. Res. 2908, 27 U.N. GAOR Supp. (No. 30) at
2. U.N. Doc. Af87.30 (1972); G.A. Res. 3163, 28 U.N. GAOR Supp. (No. 30) at 5. U.N. Doc. Af9030
(1973); G.A. Res. 3328. 29 U.N. GAOR Supp. (No. 31) at 7. U.N. Doc. Af9631 (1974). See generally
A. CRITESCU. THE RIGHT OF SELF-DETERMINATION (1981) [hereinafter cited as CRISTESCU].
148. G.A. Res. 1541. 15 U.N. GAOR Supp. (No. 16) at 29. U.N. Doc. Af4684 (1960) contained an
annexed list of "Principles which should guide Members in determining whether or not an obligation
exists to transmit the information called for in Article 73 (e) of the Charter." This list set forth the
express statement that "the authors of the Charter of the United Nations had in mind that Chapter XI
should be applicable to territories which were then known to be of the colonial type." See Claude. Jr..
Domestic Jurisdiction and Colonialism, in NEW STATES IN THE MODERN WORLD 121, 126 (1975).
149. G.A. Res. 3160, 28 U.N. GAOR Supp. (No. 30) at 108, U.N. Doc. Af9030 (1973); G.A. Res.
31149.31 U.N. GAOR Supp. (No. 39) at 122, U.N. Doc. Af31139 (1976); G.A. Res. 37/9, U.N. Doc.
AfRES/37/9 (1982).
150. "Immediate steps shall be taken, in Trust and Non-Self Governing territories or all other
territories which have not yet attained independence. 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."
151. "All armed action or repressive measures of all kinds directed against dependent peoples shall
cease in order to enable them to exercise peacefully and freely their right to complete independence,
and the integrity of their national territory shall be respected."
152. "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."
Declaration on Principles of International Law Concerning Friendly Relations

and Cooperation Among States in Accordance with the Charter, approved by
Resolution 2625 (XXV) of October 24, 1970.
The applicability of these general rules to the specific case of the Malvinas, in
particular, the rule of self-determination of paragraph (5) of the General Decla-
ration necessarily had to take account of the very special features of the British
Colonial venture on the Islands. These special characteristics proceeded from
the fact that when Great Britain forcefully occupied the Malvinas in 1833, the
population which then inhabited the Islands, rather than being allowed to
remain under the "subjugation," "domination" or "exploitation" of the Euro-
pean power as had been the case with most other colonial experiences, was
simply displaced, shipped back to Buenos Aires and no longer allowed to return
there. After this step had been accomplished, Britain undertook to transfer and
implant its own population on the Island to carry out the colonial project, which
from then onwards was developed without any Argentine participation what-
soever. In this connection, it should be noted that the exclusion of Argentines
from the Falkland Islands is in sharp contrast with the climate of complete civic
freedom under which a substantial British community has prospered in Argen-
tina.
In the course of the debates in the United Nations on the Malvinas (Falkland)
question held in 1964 before Subcommission III of the Special Committee on the
Situation with regard to the Implementation of the Declaration on the Granting
of Independence ("Special Committee"), Great Britain invoked the principle of
self-determination and argued that it should be applied for the benefit of the
British subjects which inhabited the Islands and claimed that decolonization
should be brought about in accordance with the "wishes" of those inhabitants as
freely expressd by them. I53 However, in view of the claim to sovereignty to the
Islands on the part of Argentina, a literal reading of paragraph (5) of the
General Declaration appeared to be in conflict with paragraph (6) of the same
Document. If the sovereignty claim was valid, the exercise of a right of self-
determination on the part of the local inhabitants could result in a "disruption of
the national unity and the territorial integrity" of Argentina.
Quite apart from this dimension of the question, it is submitted that recogni-
tion of a right of "external" self-determination, i.e., a right of self-determination
which is exercised against other states and affects international status of terri-
tory,I54 would have been a sharp contradiction of the basic policies of the
153. See generally Report of the Special Committee on the Situation with Regard to the Implementa-
tion of the Declaration on the Granting of Independence to Colonial Countries and Peoples. U.N. Doc.
Al5800/Add. 7. Annex. paras. 4-12 (statement by representative of the United Kingdom) (1964).
154. "Self-determination is concerned with a change of sovereign status. and not with how
sovereignty is exercised thereafter." H. S. JOHNSON. SELF-DETERMINATION WITHIN THE COMMUNITY OF
NATIONS 49-50 (1967). Although the 1966 International Covenants on Human Rights have promoted
self-determination on a wider front. this concerns primarily "internal" self-determination. This distinc·
General Declaration inasmuch as it had been sanctioned for the general benefit
of peoples who had been subjected to the workings of an "alien subjugation,
domination or exploitation."155 In this connection, it is difficult to envisage how
the General Declaration could have been construed to benefit the same subjects
of the colonial power who - whether they in fact knew it or not - had been the
very instrument of the colonial venture through which British occupation and
continuing presence on the Islands had been maintained in the face of Argenti-
na's protests. The wording of paragraph (1) of the General Declaration, as well
as its entire philosophy, indeed suggests that a population subject to colonialism
eligible for the exercise of a right of self-determination of the type which is here
at issue should possess an identity and interests which can be separated or
distinguished from the identity and interests of the colonizing power. The
essence of colonialism was, and still is, the existence of a conflict of interests
between a group which "exploits," "dominates" and "subjugates" and another
group (or groups) which have suffered such "exploitation," "domination" or
"subjugation."156
In this connection, the general belief and the very assertions of Great Britain
that the Islanders wished, and still wish, to remain British is the best possible
evidence that in this case there is a complete coincidence, if not an identity, of
interests between them. Under this rationale there is little wonder that the
so-called "Kelpers" wish to remain British. They "are" British and for this very
reason the recognition of a right of self-determination for their benefit based
upon a literal application of paragraph (5) to this very special form of colonialism
- in which the candidates for exercising this right do not have a legitimacy
tion between "internal" and "external" self-determination is also acknowledged by Emerson, Self-
Determination, 65 AM.]. INT'L L. 459, 465-66 (1971) and M. POMERANCE, SELF-DETERMINATION IN LAw
AND PRACTICE [hereinafiter cited as POMERANCE).
155. "The subjection of peoples to aline subjugation, domination and exploitation constitutes a
denial of fundamental human rights, is contrary to the Charter of the United Nations and is an
impediment to the promotion of world peace and co-operation." See generally A. MIAJA DE LA MUELA, LA
EMANCIPACION DE LOS PUEBLOS COLONIALES Y EL DERECHO INTERNACIONAL 104 (1968).
156. "The beneficiary of the right of self-determination is a self-conscious politically coherent
community that is under the political subjugation of another community." W. OFUATEY-KoDJOE, THE
PRINCIPLE OF SELF-DETERMINATION IN INTERNATIONAL LAW 156 (1977). This author further states that
the element of sulrjugation is probably the most important characteristic required to validate a claim to
the right of self-determination." Id. at 157. A. Critescu, Special Rapporteur of the U.N., states that the
term "peoples" designates (a) a social entity having a dear identity and special characteristics ("identidad
evidente" and "caracteristicas propias") which has (b) a (legitimate) relationship with the territory, "even
if the people in question has been wrongfully expelled from it and artificially replaced by another
population" ("incluso si el pueblo de que se trata ha sido injustamente expulsado de et y reemplazado
articialmente por otra poblaci6n"). CRISTEScu,supra note 147, at 41. M. Pomerance comments that: "the
'indigenous' credentials of the population of Gibraltar and the Falklands are apparently eyed with some
suspicion, a factor which (along with considerations of territorial extent and size of population) goes far
towards explaining the Assembly's preference for the territorial claims of Spain and Argentina."
POMERANCE, supra note 154, at 2 I.
1983) SOVEREIGNTY AND DE COLONIZATION OF THE MALVINAS 441
relationship with the territory - would have done violence to the spirit of the
General Declaration and defeated the very purposes of its enactment. Further-
more, from the viewpoint of the sovereignty issue, the British assertion con-
tained the curious proposition that British subjects should be vested by the United
Nations with supreme authority to decide, as umpires of final resort and in
accordance with their own "wishes," the ultimate outcome of the territorial
dispute between England and Argentina, and with the added peculiarity that the
umpires potentially could decide, if they so "wished," that the territory really did
not belong to either of these states because it belonged to themselves only.
It is against this general background of issues that the General Assembly, on its
1398th plenary meeting held on December 16, 1965, issued Resolution 2065
(XX) which is transcribed below:
The General Assembly,
Having examined the question of the Falkland Islands (Malvinas),
Taking into account the chapters of the reports of the Special Commit-
tee on the Situation with regard to the Implementation of the Decla-
ration on the Granting of Independence to Colonial Countries and
Peoples relating to the Falkland Islands (Malvinas), and in particular
the conclusions and recommendations adopted by the Committee
with reference to that Territory,
Considering that its resolution 1514 (XV) of 14 December 1960 was
promoted by the cherished aim of bringing to an end everywhere
colonialism in all its forms, one of which covers the case of the
Falkland Islands (Malvinas),
Noting the existence of a dispute between the Governments of
Argentina and the United Kingdom of Great Britain and Northern
Ireland concerning sovereignty over the said Islands,
1. Invites the Governments of Argentina and the United Kingdom
of Great Britain and Northern Ireland to proceed without delay with
the negotiations recommended by the Special Committee on the
Situation with regard to the Implementation of the Declaration on
the Granting of Independence to Colonial Countries and Peoples
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 Falkland Islands (Malvinas);
2. Requests the two Governments to report to the Special Committee
and the General Assembly at its twenty-first session on the results of
the negotiations. 157
The repercussions of this resolution on the question of prescription have been
157. G.A. Res. 2070, 20 U.N. GAOR Supp. (No. 14) at 58, U.N. Doc. Al6014 (1966).
noted elsewhere in this article. Therefore the author here only points out impor-
tant legal implications which flow from it in the context of decolonization: (I)
The Resolution, by calling for negotiations between Great Britain, on the one
part, and "Argentina," on the other, seems to have identified Argentina - and no
other party - as the state affected by the colonial action of Great Britain; (2) By
stating that there is a need for negotiations with a view to settling a dispute
"concerning sovereignty" the Resolution would seem to imply that if Argentina in
fact had possessed sovereign rights over the Malvinas as of 1833, which else-
where in this article has been indicated as a possible critical date of the dispute,
this suggested that the exercise of Argentina's sovereign rights could have been
obstructed thereafter by Britain's colonization. In this connection, the notion of
acquisitive prescription in relation to the Malvinas would give support to the view
that the sovereignty dispute, as defined by Resolution 2065 (XX), could be
appreciated as a conflict between Argentina, on the one part, who is claiming the
'full" exercise of its territorial rights, and Great Britain, on the other, whose
adverse possession of the Islands acts as an obstruction thereof; and (3) By
stating that the negotiations should take into account the "interests" and not the
"wishes" of the local population and the Resolution confirmed that the "interna-
tional" right of self-determination, in the sense expressed earlier in this section,
was not recognized in favor of the local inhabitants of the Islands. Thus, it is
clear that the British arguments were overruled by the General Assembly.
The principle that "external" self-determination must not apply for the benefit
of an "imported" population is well-illustrated within the practice of the United
Nations by the case involving Gibraltar, between Great Britain and Spain. As
occurred with the Malvinas the issue of decolonization of Gibraltar was raised in
1964 before the Special Committee. Here also the Special Committee recom-
mended a "negotiated solution" which should take account of the "interests,"
and not the "wishes," of the local inhabitants. 15s However, notwithstanding the
General Assembly resolution which had confirmed this recommendation, Great
Britain held a referendum in Gibraltar in 1967 which showed clearly that the
overwhelming majority of the local inhabitants wanted Gibraltar to remain in
association with Great Britain. This referendum was expressly rejected by the
United Nations and both the Special Committee and the General Assembly took
the view that because the colonial population had been transferred from Great
Britain in the early eighteenth century in replacement of the earlier Spanish
inhabitants, the wishes of such inhabitants were not controlling. 159
158. See Report of the Special Committee on the Situation with regard to the Implementation of the
Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N. Doc. N
5800/Add. 5 paras. 204-208 (recommendations of the Committee as to Gibraltar) (1964).
159. "The Committee and the General Assembly have taken the view that the wishes of the current
popUlation should not be paramount in the case of Gibraltar because it is an imported, colonial
population, replacing the earlier, largely Spanish population which left the territory at the time of its
capture." D. J. HARRIS. CASES AND MATERIALS ON INTERNATIONAL LAW 110 (2d ed. 1979).
The operation of the principle of territorial integrity is further illustrated by

the more recent decolonization case involving Western Sahara. There Spain, who
had colonized Western Sahara in 1884, had agreed to hold a referendum under
United Nations auspices which would enable the "indigenous" population of
Western Sahara in 1975 to exercise freely its rights of self-determination in
accordance with the General Declaration and a specific recommendation by an
earlier General Assembly resolution. 160 At that point Morocco and Mauritania
advanced separate, but mutually overlapping, territorial claims based upon
alleged titles predating Spanish colonization. On the initiative of these two states
the General Assembly requested an advisory opinion from the International
Court of Justice on the following two points: (1) Was Western Sahara (Rio de
Oro and Sakiet El Hamra) at the time of colonization by Spain a territory
belonging to no one (terra nullius)?; And if the answer to the first question is in
the negative, (2) What were the legal ties between this territory and the Kingdom
of Morocco and the Mauritanian entity?
In its advisory opinion dated October 16, 1975, the Court interpreted question
two as referring to such "legal ties" as may affect the policies and procedures to
be followed in the decolonization of Western Sahara. 161 Although the Court
found that certain legal ties of a religious, cultural and military nature had
existed between some of the nomadic tribes of the region and the Sultan of
Morocco, it concluded that:
The materials and information presented to the Court ... (do) not
establish any tie of territorial sovereignty between the territory of
Western Sahara and the Kingdom of Morocco or the Mauritanian
entity. Thus, the Court has not found legal ties of such nature as
might affect the application of Resolution 1514 (XV) in the decoloni-
zation of the Western Sahara and in particular, of the principle of
self-determination through the free and genuine expression of the
will of the people in the territory.162
The legal implications of this opinion clearly suggest that had legal ties between
Morocco and Western Sahara in effect amounted to ties of territorial sovereignty
on the part of the Sultan of Morocco at the time of the Spanish colonization the
applicability of self-determination, as expressed in paragraph (5) of the General
Declaration, could have thus been affected. In fact, the separate Declaration of
Judge M. Nagendra Singh, while discussing instances where the General Assem-
bly had dispensed with the requirement of consulting with the inhabitants of a
160. G.A. Res. 2229, 21 U.N. GAOR Supp. (No. 16) at 72, U.N. Doc. A/6316 (1966).
ltil. Western Sahara Case, 1975 I.C.]. 12 (advisory opinion). "The General Assembly, as appears
from paragraph 3 of resolution 3292 (XXIX) has asked the Court for an opinion so as to be in a position
to decide on the policy to be followed in order to accelerate the decolonization process in the territory .
. . ." !d. at 27.
162. [d. at tiR.
given territory, clearly stated as follows: "Again cases falling under paragraph (6)
of resolution 1514 would remain outside this rule."163 Furthermore, Judge S.
Petren stated in his separate opinion that:
There is no need to recall the place of decolonization, under the

aegis of the United Nations, in the present evolution of international
law. Inspired by a series of resolutions of the General Assembly, in
particular resolution 1514 (XV), a veritable law of decolonization is
in the course of taking shape. It derives essentially from the principle
of self-determination of peoples proclaimed in the Charter of the
United Nations and confirmed by a large number of resolutions of
the General Assembly. But, in certain specific cases, one must equally
take into account the principle of the national unity and integrity of
States, a principle which has also been the subject of resolutions of
the General Assembly. It is thus by a combination of different ele-
ments of international law evolving under the inspiration of the
United Nations that the process of decolonization is being pursued.
The decolonization of a territory may raise the question of the
balance which has to be struck between the right of its population to
self-determination and the territorial integrity of one or even of
several States. The question may be raised, for example, whether the
fact that the territory belonged, at the time of its colonization, to a
State which still exists today justifies that State in claiming it on the
basis of its territorial integrity.164
Perhaps what is most important about the Western Sahara opinion in relation to
the issues discussed in this article is that if the principle of territorial integrity in
paragraph (6) of the General Declaration could in some cases be held to prevail
over the rule of self-determination by the genuine expression of the "wishes" of
the local population, as in paragraph (5) of the General Declaration, in instances
where such population was truly "indigenous," i.e., with regard to a population
which had supposedly suffered the colonialistic action of Spain, the case for
territorial integrity should become a fortiori even stronger in cases where the
population inhabiting the territory proposed to be decolonized is imported,
implanted and non-indigenous as is the case with Gibraltar and the Malvinas.
Perhaps it is appropriate to close this final section by pointing out that the
opposition between the princip,les of territorial integrity and self-determination,
in the specific case of the Malvinas, may be more apparent than real. When the
General Assembly singles out Argentina, i.e., the sovereign state, as the affected
163. 1975 I.C.]. 81. It should be noted that Judge Dillard, in his separate opinion, pointed out that,
because the Court had denied the existence of any tie of territorial sovereignty there was no "automatic
retrocession" and that, therefore, "it was unnecessary for the Court to pronounce upon the principle of
territorial integrity imbedded in paragraph 6 of resolution 1514 (XV)." [d. at 120.
164. [d. at 110.
party with whom Great Britain must negotiate decolonization, one should be
entitled to interpret this to mean that it is the "people" of Argentina whose
interests are thus affected. It was indeed the "people" of Argentina, who had
happened to organize themselves into a sovereign state as in 1833, that suffered
the colonial action of Great Britain. It was again the "people" of Argentina
who were expelled from the Islands by military force and who were deprived by
the British continued presence and occupation of the Islands for one-and-one-
half centuries from freely establishing on the Islands their "political, economic,
social and cultural systems, without interference in any form by another
state."165 Under this perspective, Resolution 2065 (XX) and those that came after
it would seem to support the argument that the principle of self-determination,
as viewed from the perspective of the Argentine "peoples,"166 could be seen as
operating in conjunction, rather than in conflict, with the principle of territorial
integrity, thus constituting a separate, but closely related building block, of a
single claim to restitution of the Islands.
VIII. CONCLUSION
It seems quite clear that the South Atlantic War between Great Britain and
Argentina has not altered the basic legal status of this ancient, but ever continu-
ing, dispute as defined by Resolutions 2065 (XX) of 1965; 3160 (XXVIII) of
1973; and 31/49 of 1976 of the General Assembly of the United Nations. This
proposition is confirmed by the recent General Assembly Resolution 37/9 of
November 9,1982 167 which, carrying the favorable vote ofthe United States, has
165. G.A. Res. 2131, 20 U.N. GAOR Supp. (No. 14) at II, U.N. Doc. A/6014 (1966), reprinted in
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their
Independence and Sovereignty, 60 AM. J. INT'L L. 662 (1966).
166. That the right of self-determination can also be exercised by "peoples" organized as nation-
states is recognized by CRISTEScu,supra note 147, at 41-43; Gross Espiell, En toroo a laLibre DeterminaciOn
de los Pueblos, 3 ANUARIO DE DERECHO INTERNATIONAL 49, 56, 57 (1976); CARDENAS, El Conflicto de las
Malvinas y el Principio de Autodeterminacion, 56 CRITERIO No. 1887, at 439 (1982).
167. Here is the full text of the resolution:
The General Assembly,
Having considered the question of the Falkland Islands (Malvinas),
Aware that the maintenance of colonial situations is incompatible with the United Nations ideal
of universal peace,
Recalling also Security Council resolutions 502 (1982) of 3 April 1982 and 505 (1982) of 26 May
1982,
Taking into account the existence of a de facto cessation of hostilities in the South Atlantic and the
expressed intention of the parties not to renew them,
Reaffirming the need for the parties to take due account of the interests of the popUlation of the
Falkland Islands (Malvinas) in accordance with the provisions of General Assembly resolutions
2065 (XX) and 3160 (XXVIII),
Reaffirming also the principles of the Charter of the United Nations on the non-use of force or
the threat of force in international relations and the peaceful settlement of international
disputes,
I. Requests the Governments of Argentina and the United Kingdom of Great Britain and
(1) ratified all its earlier resolutions on this question; (2) restated the incompati-
bility of the colonial situation on the Islands "with the United Nations ideal for
peace;" (3) reaffirmed the need to take account of the "interests," as opposed to
the "wishes," of the population of the Islands; and (4) requested new negotia-
tions between both countries on the "sovereignty dispute," this time with the
assistance ofthe Secretary General of the United Nations. It is indeed hoped that
this time the recommendation of the General Assembly, which is the expression
of world opinion acting through the authoritative institutional framework of the
United Nations, will no longer be rendered dead letter by the procrastinating
attitudes ofthe past, whose fair share ofresponsibility for the South Atlantic War
appears, at least to this author, not to have been properly assessed.
Northern Ireland to resume negotiations in order to find as soon as possible a peaceful solution
to the sovereignty dispute relating to the question of the Falkland Islands (Malvinas);
2. Requests the Secretary-General, on the basis of the present resolution, to undertake a
renewed mission of good offices in order to assist the parties in complying with the request
made in paragraph I above and to take the necessary measures to that end;
3. Requests the Secretary-General to submit a report to the General Assembly at its thirty-
eighth session on the progress made in the implementation of the present resolution;
4. Decides to include in the provisional agenda of its thirty-eighth session the item entitled
"Question of the Falkland Islands (Malvinas)".
Among the 90 countries voting in favor of the resolution were the United States, the Soviet Union.
China, Israel and Japan. The 12 votes against it were from the United Kingdom. Antigua-Barbuda.
Belize. Dominica. Fiji. Gambia. Malawi. New Zealand. Oman. Papua New Guinea. Solomon Islands and
Sri Lanka. The remaining countries abstained.

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Boston College International and Comparative Law Review

Volume 6 | Issue 2 Article 3

Sovereignty and Decolonization of the Malvinas

Follow this and additional works at: http://lawdigitalcommons.bc.edu/iclr

respect to the political wisdom, desirability or appropriateness of the decision of

A. The Scope of the Controversy: Other Territories in Dispute

British writers have criticized the Argentine unwillingness to submit to judicial

B. The Scope of this Article

II. HISTORICAL BACKGROUND OF THE DISPUTE

H.E. Don Tomas Guido. WOODBINE PARISH.

of this discussion, however, have failed to distinguish between a discovery which

inchoate title which, in practice, represented only an option or temporary bar to

24. GoEBEL, supra note 20, at 46.

notes, Governor Nerville showed MacBride Bougainville's commission and the

33. See the text of the declarations in note 48 infra.

III. SPANISH TITLES TO THE ISLANDS

When Bougainville recounted the history of the transaction between Spain

35. GoEBEL, supra note 20, at 410.

together with the subsequent precedent represented by the recognition by

Finally, there is a further precedent which should be mentioned. On October

IV. ARGENTINE OCCUPATION OF THE MALVINAS (FALKLAND) ISLANDS IN THE

V. TITLES CLAIMED BY ARGENTINA

If an international tribunal was called upon to adjudicate the sovereignty

titles by discovery from Spain. 64 In the Eastern Greenland case (Denmark v.

B. Title by Occupaton and Settlement

Without prejudice to the titles discussed above, it is appropriate to examine

It is impossible to read the records of the decisions in cases as to

VI. TITLES CLAIMED BY GREAT BRITAIN

One of the essential features of occupation as a means for establishing state

is submitted that the British physical occupation of the Malvinas or Falkland

belligerents by the other. The Permanent Court of International Justice has

La conquete (debellatio dans la doctrine classique ou subjugation chez

104. Cohen Jonathan, supra note II, at 240-41.

On July 27, 1849 Palmerston was interrogated in the House of Commons by

Monson, in 1884 129 in connection with the preparation of a government-

VII. DECOLONIZATION OF THE ISLANDS

Declaration on Principles of International Law Concerning Friendly Relations

The repercussions of this resolution on the question of prescription have been

The operation of the principle of territorial integrity is further illustrated by

There is no need to recall the place of decolonization, under the

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