Why the Falklands Dispute Will (Probably) Never Go to Court

Why the Falklands Dispute Will (Probably) Never Go to Court

Our readers are surely aware of the reemergence of the Falklands dispute on the international stage, provoked by the UK’s decision to allow oil exploration in the waters of the Islands, and the possibility that the oil deposits may be quite significant. Over at Opinio Juris, Julian Ku suggests that the UK and Argentina might well take this dispute to court, either the ICJ or the ITLOS.

In my view, this will simply not happen. Ever. I might well eventually be proven wrong, of course, but it seems to me that the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution. Here’s why:

First, the current oil exploration dispute cannot judicially be resolved on its own, since it legally entirely depends on who was title over the islands – the UK or Argentina. If it was Argentina who was the Islands’ proper owner, it would be perfectly within its rights to oppose the UK’s implementation of oil exploration by any non-forcible means. If, on the other hand, it was the UK who had title, then it is clear under the UNCLOS and other applicable law that it has every right to drill away, come what may.

Second, as for title, the issue is extremely complicated. To brutally simplify it, Argentina claims title either through succession from Spain, or by having occupied the Islands on its own shortly after gaining independence. The UK relies on prior discovery, effective occupation since 1833, and prescription. It also relies on the Islanders’ right to self-determination, which they’ve freely exercised by choosing to remain a part of the UK. This is, for example, how the UK’s Ambassador to the UN has just stated the UK’s position:

As British Ministers have made clear, the UK has no doubt about its sovereignty over the Falkland Islands, South Georgia and the Sandwich Islands. This position is underpinned by the principle of self-determination as set out in the UN Charter. We are also clear that the Falkland Islands Government is entitled to develop a hydrocarbons industry within its waters, and we support this legitimate business in Falklands’ territory.

Third, to be blunt, the British statement that they have ‘no doubt’ about their title over the Falklands is total rubbish. Privately (of course) they have every reason to doubt it. In fact, I think it would be fair to say that despite the UK’s de facto control for all these years, it is indeed Argentina that has a somewhat superior title over the Islands. Likewise, the Islanders’ claim to self-determination is dubious for various reasons, and UN practice with regard to the Falklands does not support it. For reasons of space and time I will not venture into this further, but there are two recent exhaustive treatments of the subject which are helpful: R. Laver, The Falklands/Malvinas Case (Nijhoff, 2001); R. Dolzer, The territorial status of the Falkland Islands (Malvinas): past and present (Oceana, 1993).

Fourth, following from three above, the UK knows full well not only that there would be a chance, but that there would be a good chance that it might lose a judicial dispute over the Falklands.

Fifth, the UK has invested an enormous amount of political capital in preserving its sovereignty claim over the Falklands, both internally and externally. It has fought a war over them, which still has a place in the national psyche. It has guaranteed to the population (if perhaps not the ‘people’) of the Falklands the right to determine their own fate. For the foreseeable future, it is politically inconceivable that the UK would be willing to renounce this claim, which it would have to be prepared to do if it submits the case to judicial resolution. Not to mention the fact that an oil bonanza would only render such an option less likely.

Sixth, as a matter of fact, the UK’s hold over the Falklands is strong. It’s military position today is far superior to what it was back in the day when the Argentine junta decided on its little adventure. Argentina has no practical way of forcing the issue.

In sum, because of (1)-(6), it is unlikely in the extreme that the UK would be willing to submit this case to a court. It would of course do so if Argentina would be willing to accept arguendo the UK’s title over the Islands, and thus narrow the dispute down to the current oil exploration issues. Yet Argentina has no interest in doing so, because it also knows that it would lose this dispute if title were out of the picture.

So, the only way forward are negotiations. Such negotiations could probably only be successful if title was kept out of the picture, in exchange for a deal on oil rights and a share of profits. The UK and Argentina had such an agreement in 1995, but Argentina repudiated it in 2007. Whether a new deal on those lines is possible today depends on various political considerations that I know nothing about. I am convinced, however, that little else is practically possible.

Anyway, those desperately wanting to see the Falklands dispute (or a simulacrum thereof) argued in court may wish to come to Washington, DC, from 20-27 March, for the international rounds of this year’s Jessup moot court competition…