Filippo Attinelli, The malvinas islands sovereignty

Rivista elettronica del Centro di Documentazione Europea dell’Università Kore di Enna THE MALVINAS ISLANDS SOVEREIGNTY DISPUTE:
LEGAL-HISTORICAL ROOTS, PRESENT AND
FUTURE PERSPECTIVES
Filippo Attinelli
Research Collaborator of European Union Law at University of Enna Kore
ABSTRACT: L’irrisolta questione anglo-argentina inerente la sovranità contesa sulle Isole Malvinas,
oltre a presentare implicazioni storico-giuridiche alquanto dibattute, mostra, oggi come per il
passato, la propria singolare complessità per via dei recenti sviluppi sia sul piano democratico che
delle relazioni internazionali. La scelta di eseguire la seguente disamina in lingua inglese è dettata
dalla volontà di creare un contrappeso quanto più valido possibile a supporto delle tesi argentine ed
in contrasto con la dottrina a sostegno delle prerogative britanniche.
KEY WORDS: Malvinas Islands; disputed sovereignty; territory; State.
1.
Introduction
Today as in the past centuries, the unresolved Anglo-Argentine question about the
disputed sovereignty over the Malvinas Islands, besides showing a rather debatable legalhistorical implications, has been displaying its own international complexity due to the recent
developments on both democratic and diplomatic levels.
And indeed, it seems to be not easy to understand the reason why two important
countries of Europe and South America have been competing for an apparently useless
archipelago which was sometimes described as a wasteland1. A close examination of the
connected historical and political elements is therefore necessary.
1
Cf. INNOCENTI, Le guerre negli anni ottanta, Milano, 1988, p. 287.
www.koreuropa.eu The international reality has always been theatre of intergovernmental tentions caused
by true or alleged arguments about sovereignty over all sorts of territorial entities: they may
just cover cities or islands and also the polar ice caps2.
The territorial sovereignty is in fact the core of the juridical existence of the state. In
this regard the concept is excellently expressed a sentence of Santi Romano who said that a
state does not have a territory but rather it is its own territory. Part of the academic thought3
observes how sometimes the true reason of a conflict is nether the protection of human rights
nor the creation of a new democratic system, but the mere reaction to a violator state towards
the sovereignty of other countries. The sovereignty fully establishes itself on its own territory.
Getting now straight to the heart of the matter, the centuries-old Anglo-Argentine
content sovereignty over the Malvinas Islands concerns a phenomenon which is intrinsic in
the same nature of the state: it does not represent only a strict legal entity but also a political
one. Thus, the territorial correlation is the direct connection between sovereignty and a
specific geographical portion of world which is the physical ground of the national identity: in
other words, territory is the state body inclusive of its manifold annexed components.
As a consequence, the ownership of the archipelago under consideration does not
pertain only to a simple and undefined economic issue: on the contrary, it revolves around a
real clash between two different sovereign prerogatives arising from controversial
interpretations of facts to the roots of an unsettled dispute.
Overflying the diplomatic and domestic events which created the well known 1982
war4, the wedge issue is the purport of the referendum on political status which was held in
the Islands on 10-11 March 2013: the Islanders were requested whether or not they were in
favor of maintaining their British Overseas Territory status in light of Argentina’s call for
negotiations on the related sovereignty.
The crucial input to go through the will of the people stems from growing diplomatic
tentions after the thirtieth anniversary of the Malvinas war: during this period the government
of the archipelago was announcing its readiness to grant the extraction exploitation over its
territorial waters.
2
Among the various examples of content territorial sovereignties over the last centuries we find: the SinoNipponese Senkaku/Diaoyu dispute; the ongoing Israeli-Palestinian conflict about Jerusalem; the Shebaa Farms
conflict between Israel and Lebanon; the international discussion among various countries (Argentina, Australia,
Chile, France, New Zeland, Norway and the United Kingdom) about the juridical ownership on Antarticaand the
North Pole (aiming at the sole rights to take advantage of the related resources).
3
Cf. ANDO’, SBAILO’, Oltre la tolleranza, Torino, 2003, p. 168.
4
The Malvinas war was defined the last armed conflict between two Western counties of the twentieth century.
About it, cf. ZANATTA, Storia dell’America Latina contemporanea, Roma-Bari, 2010, p. 192. www.koreuropa.eu After this notice the Argentine authorities issued a series legal measures for the
purpose of restricting the transit of oil ships through their waters: that transit was subject to
the request and the following obtainment of specific permits.
At the same time as the above mentioned political maneuvers, the Buenos Aires
increased its diplomatic efforts calling upon various international actors to support the
resumption of negotiations and achieving the backling of the Rio Group and the Community
of Latin American and Caribbean States.
Howbeit, the decisive factor lies on the public statements of the ex Argentine Defence
minister Arturo Puricelli: in 2011 he said that the islanders were nothing but hostages and
insinuated that the British armed forces were the only element upholding the usurpation of
that part of the Argentine territory. In response to this the ex Governor of the Islands, Nigel
Haywood, proposed a referendum with the intention of giving a voice to the popular will in
order to see whether or not islanders desired to remain British and therefore to solve the issue
once and for all.
As we know, the results confirmed the broadly expected high vote to maintain the
status of British Overseas territory. And indeed, in a world where the democratic principles
are one of the bedrocks of the same raison d’être of the Western countries, the popular will
must be respected if legally displayed.
Nevertheless, the current interrogative is about the possible value of a referendum
which leans against very questionable bases and political premises that prefigured the easy
victory of the stronger country.
Before resorting to the obvious popular will, the concerned sovereignty should be
debated on the ground of the real juridical motivations which have been leading Buenos Aires
to claim an illegitimately dispossessed territory for centuries. It is now clear that neither the
Argentine complaints and obstructionisms nor the British false openness to dialogue will put
an end to a problem which has been affecting the mutual relationships for two centuries.
We hope in a new referendum, but this time the popular will should be preceded by a
true and effective cooperation on the political and governative bases of the two countries:
only a long and efficient collaboration will be able to develop a fully aware choice in the
mind of the islanders. Just the interaction between an Argentine virtuous political effort and a
British genuine cooperation will build the foundation of a future change.
Given the current frame, people could not do other than choose to stay under the shield
of the known homeland rather than take a leap in the dark. In the view of the islanders
www.koreuropa.eu Argentina is far from their historical memory: as a logical result, the sovereignty change was
and is still covered by many doubts and diffidence.
Hence, the contestable thing is not the referendum, but the nature of its own ground.
The vote of March 2013 has its roots in a dual juridical incongruity consisting of disputable
historical reasons (the very doubtful British sovereignty over the Islands) and an originally
vitiated democratic instrument.
A long step backwards into history is now useful to analise the juridical contents of the
sovereignty dispute over the Malvinas Islands. With regard to the delimitation of the
chronological frame, the present work will encompass the legal roots of the above mentioned
sovereignty mainly focusing on the historical dynamics of the great colonial expansions.
The facts after the British dispossession of 1833 will not be part of this research. In
this respect, wide space is going to be dedicated to the criticism of the British arguments
which nowadays seem rather vulnerable in terms of legal facts and methodological
interpretation of the sources.
2.
Considerations about the legal value of the papal bulls and the
connected international treaties
Among the various key points through which Great Britain tries to demonstrate the
groundlessness of the Argentine sovereignty over the Malvinas Islands we find the vehement
disagreements over the whole legal value of the papal bulls and the connected international
treaties. As a consequence, they would be ineffective towards the third states.
Against this argument it is necessary to raise a twofold objection. Firstly, the over
mentioned criticism does not fall within any sort of international practice: this latter suggests
that, at that time, a general norm was born, and it conferred a legal arbitral and homologating
power on the pope and about any kind of inter-states agreements. Secondly, the United
Kingdom recognised whole legal validity to the Laudabiliter Bull of 1115 A.C.: with that bull
Pope Adrian IV assigned to the kings of England the title of Dominus Hiberniae and the
following supremacy on Ireland5. Since England accepted the general legality of the papal
bulls in the past, we cannot but consider the negation of the same legality as a specious
argument tied to reasons of convenience. It was also observed how the alleged ineffectiveness
5
In this way Adrian IV authorised King Henry II to invade Ireland in order to stop the ecclesiastical corruption
and bring the Irish Church back to order.
www.koreuropa.eu of the above mentioned treaties6 towards the third States had a relative significance exactly
because it was set within an international historical-political frame where the colonial
countries expanded their own dominions also with due regard of the single interests over the
different areas strategically shared. In this context the Treaty of Tordesillas7 (7th June 1494
A.C.)
between Spain and Portugal, dealing with specific new explored geographical zones, had
effects also towards Great Britain, which had become aware of the agreement and
appropriately behaved in order to maintain the same colonial balance, declaring its own
control on other new areas.
Part of the academic thought8 asserts that the various papal bulls and treaties did not
have any partitioning effect between Spain and Portugal, but they just established an Hispanic
benefit consisting of the possibility of spreading Catholicism over the new conquered
territories, of course where there were indigenous inhabitants to convert. That benefit was not
valid with regard to mere possessions, such as rocks and archipelagos, populated only by
animals and without any previous human presence (like in the Malvinas): according to the
Bull Inter Caetera, the Catholic divulgation could be actualised by the Hispanic imperium on
a population, and therefore not over Malvinas Islands.
Still on this way, it was also highlighted that the Treaty of Tordesillas was valid just
between Spanish and Portuguese Crowns and aimed at reciprocally excluding the possibility
of occupation from the antagonist power over the respective occupied territories9.
Although these theories seem are bright and noteworthy, they do not seem to be
embraceable exactly by virtue of the above-quoted international dynamics under which the
praxis conferred to the Pope a general power of ratification related to the past international
6
The presumed criticism is toward the Treaty of Tordesillas (1494 A.C.). SINAGRA highlights that, in the AngloHispanic agreements, there is no reference to specific territories, but just to general areas and zones: «con il ché
assume diversità di significato e di portata nei suoi effetti un Trattato come quello di Tordesillas del 1494 tra
Spagna e Portogallo anche nei confronti di Stati terzi e in particolare, per quel che ora interessa, della Gran
Bretagna la quale, oltre a non avere mai contestato la generale ed integrale applicazione, sembra averne voluto
viceversa confermare il significato dispositivo con i successivi accordi conclusi direttamente con la Corona
spagnola. Onde, indipendentemente dalla conclusione di tali ultimi accordi potrebbe forse apparire in un certo
senso discutibile, con riferimento al citato Trattato di Tordesillas, opporre da parte britannica un’eccezione
assoluta di ininfluenza di una res inter alios acta, posto che deve almeno presumersi come esistente già alla data
del 1494 un accordo tacito tra Stati interessati che consentiva alla Gran Bretagna la sua presenza ed influenza
solo nell’area geografica del continente nord-americano»: Sovranità contesa. Autodeterminazione ed integrità
territoriale dello Stato. A proposito di una controversia irrisolta da 165 anni, Milano, pp. 31-32.
7
With this treaty the two countries confirmed the exclusive Hispanic sovereignty over any area that was 370
leagues west from Cape Verde, and therefore also the South-Atlantic archipelagos. That treaty was ratified by
Pope Julius II through his Bull Ea Quae (1506 A.C.).
8
BATTAGLINI, Lineamenti della controversia per le Falkland o Malvinas, in FORLATI, LEITA, Crisi delle
Falkland-Malvinas e organizzazione internazionale, Padova, 1985, pp. 11-13.
9
Ibidem.
www.koreuropa.eu treaties, and also because of the conservation of that global balance which was essential for
the consolidation of the imperialism of all the colonising states.
3.
The effective Hispanic-Argentine sovereignty and the principal uti
possidetis iuris
Various documents show the indisputable and recognised Spanish sovereignty over the
Malvinas Islands. The related confirmation is found within the agreement between France and
Spain after the settlement of Louis Antoine de Bouganville10, as well as the never contested
Spanish administration on those areas11.
On the other hand, we can find the British opposition related to the Argentine
sovereignty over that archipelago. The dominion of the United Kingdom was already stable,
real and continuous for over a century: as a result, every Argentine right would have been
expired12. Moreover, the English military invasion of the Malvinas in 1833 A.C. would not
have been illegal by reference to the past juridical precepts.
On the contrary, we must consider the mentioned military invasion as a fully illegal
action: not even the past international legal order would have included a military invasion
within the legal roots of a full and legitimate territorial sovereignty13.
We cannot interpret the continuous and undisturbed British dominion over the islands
as it was an implicit Argentine recognition, but just as the inability of a new born and weak
State to react to abuse of the strong European power. As so often in the past, but also in the
present, the stronger country imposes its own interests on the weaker one, putting them before
each right.
With the objective of thoroughly analysing this argument, a verification of the real
Argentinean sovereignty over the Malvinas is first mandatory14: in this light, we need to
examine the line of succession between Spain and Argentina. As a consequence of the
Spanish abandonment of the Latin America, the new born State acquired the sovereignty of
all the ex colonial territory.
10
France recognized the Spanish sovereignty over the Malvinas Islands during the agreements of 1767 A.C. The Spanish management on those territories was never legally questioned by any claim from the British
Crown.
12
Cf. CONETTI, L’evoluzione della controversia e il problema della sovranità, in RONZITTI, La questione delle
Falkland-Malvinas nel diritto internazionale, Milano, 1984, pp. 41-44.
13
For a thorough examination of this theory, cf. SINAGRA, op. cit., pp. 34-35.
14
Just ascertaining the legal grounds of the Argentine claim we are able to judge the legitimacy of the British
military action and its following eventual appropriateness to produce international effects. About it, cf.
SPERDUTI, Diritto internazionale e sovranità contese, in Il Tempo, Roma, 27th April 1982.
11
www.koreuropa.eu The significance of the principal uti possidetis iuris15 applies to the hypothesis of
iustus possessor of an occupied area and aims at safeguarding whom had undergone an
unlawful supplant from another subject. We can affirm with no doubt that the uti possidetis
iuris was a principal of the public international inter-American law: the territories of the ex
colonial state shall be considered de jure (even if not de facto) occupied from the new born
state16. In 1833 the Malvinas Islands were not res nullius, but an effective integral part of the
territory that Argentina inherited from Spain also in accordance with the principal of uti
possidetis iuris: as a result, the British military dispossession was nothing if not illegal in light
of a consolidated Argentine sovereignty17.
It was also pointed out how the creation of a new juridical situation could also find its
formal roots within an illegal fact, but we cannot always assert its legitimacy in terms of
international law: we would risk to confer a full right to the responsible of a violation18.
4.
About the legitimacy of the British dispossession
Since we must affirm that the Malvinas Islands were not res nullius or derelicta, it is
now worth focusing on the nature of the British dispossession of 1833 with the aim of
verifying the eventual compliance with the international legal requirements which, on the
basis of the general law and praxis, confer validity to the territorial acquisition.
We should preliminarily notice that, also taking into consideration just the
international rules in effect at that time, we cannot find any norm which considered the
eventual legality of a violent territorial dispossession to the detriment of a sovereign state19.
15
This principal derives from Roman law and was on the basis of the interdictus retinendae possessionis: the
praetor conceded this interdictus (thanks to the formula vim fieri veto) to the right possessor and it aimed at
guaranteeing the original possession (quo minus ita possideatis). About it, GAIUS 4.160. For a detailed study
about the Roman interdicta, cf. also NICOSIA, Nuovi profili istituzionali di diritto romano, Catania, 2005, pp.
149-152.
16
Cf. SINAGRA, op. cit., p. 49.
17
According to this point of view, VALVO says: «Premesso, dunque, che nel 1833 le Isole Malvinas non
potevano essere considerate come res nullius ma parte integrante del territorio argentino “ereditato” dalla Spagna
secondo il principio dell’uti possidetis juris»: Il problema della sovranità sulle Isole Malvinas e la loro abusiva
collocazione in ambito U.E. tra i Paesi e i territori d’oltremare, in Rivista della Cooperazione Giuridica
Internazionale, XIII-N.39, Sept.–Dec. 2001, Milano, 2011, pp. 71-72.
18
«L’analisi sull’asserito acquisto della sovranità britannica sulle Isole argentine va condotta alla stregua delle
norme di diritto internazionale che, in qualche misura, conferiscono il carattere di legittimità ai modi di acquisto
della sovranità su un determinato territorio. In proposito, vale la pena ricordare come nel caso delle Malvinas in
nessun modo è possibile far ricorso al principio della effettività ai fini della giustificabilità della permanenza
britannica sul territorio argentino e della sua pretesa di esercitare una pur inesistente sovranità. In effetti, il
ricorso indiscriminato ed acritico al principio di effettività, priverebbe di ogni fondamento il principio stesso e
condurrebbe alla conseguente e inaccettabile giustificazione di ogni atto violativo del diritto internazionale e, per
ciò stesso, alla negazione del diritto internazionale»: Ibidem.
www.koreuropa.eu However, part of the academic thought talks about a general principal of effectiveness
which was current in the past international law and including the use of military force among
the legal ways of territorial sovereignty acquisition.
Nevertheless, it is worth pointing out that we do not find any Argentine acquiescent
behaviour hypothetically suitable for legalising the original defect. Even if we wanted to
alight on the juridical mechanisms which were in force at the time of the British conquest, we
could not say that the general international norm took the principal of effectiveness until
validating an illegal dispossession: the natural consequence would be the transformation of a
right into the law of the jungle. The British dispossession, because of the fact that it was
realised over zones covered by Argentine stable and effective sovereignty, could never have
been considered as a valid right of possession.
In addition, the incessant Argentine claims20 were able to avoid any kind of validation
from the overpowering government.
If it were not true, we would risk to accept dangerous conclusions which would
deprive law of its own raison d’être, leading it to recognise a form of legality within illicit
facts and, as a result, to make aberrant results for individual balances and general justice.
5.
Course of time and acquisitive limitation
Both the theoretical and practical legal-historical evolution have always conferred to
time, generally understood as an extent consisting in sequence of instants related to various
natural and human events, the production of juridical creative, modifying or extinguishing
effects on dispositive facts.
Focusing our analysis on the ways of territorial acquisition to the benefit of the
occupying State which exercises on a determinate zone an effective jurisdiction and authority,
we can firstly affirm that such a sovereignty would find an international enforceability just if
it were conducted in uncontested and undisputed form.
A prerequisite for time producing its effect would be the acquiescence from the state
which has been divested and from the third states in the light of the concrete sovereignty
showed by the occupant power. In view of this, we must exclude the existence of this kind of
situation within our case in issue. We cannot outline any supposed acquisitive period of
19
We substantially have a sovereign state when it fully and legally exercises its whole government prerogatives
on its own territory.
20
It is worth reminding that the lack of concrete reaction from Argentina did not depend on a sort of
acquiescence, but just on political judgments which consisted in the impossibility, from a new born state, of
facing a stronger and hegemonic country as the United Kingdom.
www.koreuropa.eu limitation for the benefit of the English Crown exactly because of a number of interrupting
actions from Argentina throughout the illegal British government over the Malvinas Islands21.
It is clear from the foregoing that, on the ground of public international law, there is no
specific norm which includes prescription or acquisitive limitation as ways22 of building an
unassailable territorial sovereignty23.
The acquiescence of the state must not be transposed and analysed thanks to a sort of
private law practice, but in relation to the international law instruments. We should firstly
verify whether the behaviour showed by the previous territorial owner is able to shape, after
the illegal dispossession, the premise of a tacit agreement of territorial transfer24,
consequently legalising the original unlawfulness. The original fault can be rectified only by
means of the consenting willingness of the entitled state on the international ground25.
It is worth mentioning one more time that, even if we wanted to the general lapse of
time as a mechanism able to produce juridical effects within the international system, it
should always be followed by an effective and undisputed sovereignty: as the Argentine
claims show from 1833 to the present day, this circumstance is absolutely absent within the
Malvinas case26. The majority of the legal thought converges with this point of view.
In any case, the concept of effectiveness of occupation should be subject to the
existence of four preconditions: 1) the occupied territory must be nullius in all respects; 2) the
occupation must be peaceful (otherwise the outcome would be a conflict among concurrent
sovereignty acts and, as a result, the requirement of an appeared acquiescence from the
dispossessed country); 3) the fulfilment of a substantial number of government acts, which is
suitable for demonstrating a state ruling; 4) likewise, a significant and reasonable period of
time for the performance of the related sovereignty27.
Having said that, the archipelago in question could not be considered as a res nullius
and the British dispossession was absolutely not peaceful.
21
Among the innumerable examples we have to remind the various protesting notes from the Argentine
ministerial and diplomatic authorities to the British offices in 1833, 1854, 1875 and 1884. About it, cf. SINAGRA,
op. cit., pp. 59-60.
22
Moreover, both prescription and acquisitive limitation are institution wrongfully and forcedly taken from
private law.
23
In each case, the eventual recourse to those juridical institutions would suppose both a substantial lapse of time
and the undisputed possession of the good in question. About it, cf. VALVO, op. cit., pp. 74-75.
24
Cf. SINAGRA, op. cit., pp. 61-62.
25
As already described, this willingness did not shine through the Argentine intentions which showed, vice
versa, exactly the opposite purpose.
26
Cf. VALVO, op. cit., pp. 75-76.
27
CESARINI, La situazione delle «Falkland Islands Dependencies», in RONZITTI, op. cit., pp. 63-64.
www.koreuropa.eu Furthermore, after the British dispossession Argentina never showed any sort of
acquiescence: as a consequence, we cannot predicate that the original illicit and violent
dispossession turned into a legal possession over the course of time28.
In this respect we can conclude with no doubt that both the concrete territorial
administration over an appreciable period of time and the connected principle of effectiveness
do not implicate the legitimate territorial acquisition for the benefit of the new sovereign state
just thanks to a previous illicit appropriation29.
6.
The role of recognition in the international system
In spite of the above debated arguments, part of the juridical doctrine maintains that
the general recognition from the third states has a substantial effect which is able to create a
full territorial sovereignty, even if its acquisition was illegal because of violent actions and
without any form of acquiescence showed by the stripped subject30.
And indeed, it seems that this doctrinal theory finds room within the praxis and, more
generally, within the collective conscience of the international community.
The fact that the third states can explicitly recognise the illegally annexed area by
means of international agreements with the ruling country, even if these agreements are
related to the controversial geographical territory, does not consist in an implicit annulment of
the violation. If it was not true, the juridical international basis would be dangerously
undermined by political considerations.
Every third state has the right to make its own assessments about its foreign policy and
to act consequently also in front of situations resulting from illegal actions of the
“interlocutor”31, but it cannot and must not product any sort of validating effect.
And we should not be mislead by the fact that the whole international community
could decide not to adopt a position on the issue. We have to interpret this last situation just as
a result of purely political assessments, which are intrinsic in the fragmentary nature of the
international community32. This characteristic structure leads the same community to
subordinate its own action to a necessary analysis about the consequences of the concrete
case: as a result, the community sometimes decides not to interfere.
28
SINAGRA, op. cit., pp. 62-63.
Cf. VALVO, op. cit., pp. 74-75.
30
GIULIANO, Diritto internazionale – Gli aspetti giuridici della coesistenza degli Stati, Milano, 1974, pp. 74-76.
31
Stipulating, for instance, international agreements with the dispossessing country about concessions on the
related area to the detriment of the previous sovereign state.
32
About it, cf. BARGIACCHI, Orientamenti della dottrina statunitense di diritto internazionale, Milano, 2011, pp.
25-82.
29
www.koreuropa.eu This effect comes from the systemic natural fragmentary nature33 and has nothing to
do with the factual illegality of one act. Staying blind in front of something illegal does not
mean that the community does not perceive the unlawfulness of the fact, but just that the
states do not consider appropriate to sanction the lawbreaker (always relating to the concrete
situations and to the specific historical time in which the community makes its own
assessments)34.
The distinction between juridical and political function35 is fundamental in order to
avoid dangerous conclusions and to keep a steady balance within the international
relationships. In the Anglo-Argentine case, coherently with the above written remarks, there
was no explicit declaration about a possible recognition of legitimacy from the third States in
favour of the United Kingdom relating the Malvinas Islands36.
Therefore, we can maintain without any doubt that with regard to the issue in question,
the conduct of the international community was just an acknowledgement of a factual
33
«La funzione del diritto è una specifica funzione sociale: ora è da escludere che si possa veramente indagare
sulla funzione sociale del diritto trascurandone l’origine. La scienza giuridica deve conformarsi all’intera legge
del moto vitale del diritto. Questa legge è esprimibile nei semplici termini che il diritto proviene dalla società ed
alla società si dirige»: SPERDUTI, Osservazioni sulle basi sociali dell’ordinamento internazionale, in Rivista di
Diritto Internazionale, 1963, p. 1.
34
Among the most important examples the war, led by the United States of America and the United Kingdom,
against Iraq in 2003. That war was based on specious premises, such as never proved relationships between Iraq
and international terrorism, as well as a supposed possession of nuclear weapons (never found too). Although the
international community had perceived the unlawfulness of the British and American use of military force, it did
not take any concrete position against the occidental aggressors or to punish the fact with consecutive sanctions.
The military-economic powerlessness or the political assessments cannot legitimate the unlawfulness of the
action which, even if it goes unpunished, is and remains illegal because of a violation of general or specific
international norms.
35
«La funzione del diritto in genere – e del diritto internazionale in particolare – non è quella di determinare o di
garantire un certo ordine sociale, ma soltanto quella di esprimere, di riflettere in termini di valore giuridico un
ordine sociale sostanzialmente già raggiunto nella concretezza della vita e della storia»: GIULIANO, La Comunità
Internazionale ed il diritto, Padova, 1950, p. 221.
36
By particular reference to the Latin American states, we do not find any recognition of legitimacy of the
British occupation. On the contrary, we can notice many expressions of solidarity (even if they were followed by
a related neutrality because of the above mentioned political assessments) towards Argentina from various
neighbouring countries. Among the solidarity examples we can cite the declarations from the Peruvian,
Venezuelan, Panamanian and Chilean governments. In light of all this, SINAGRA says: «la teoria del
riconoscimento, ove pure accolta, non sembra applicabile alla fattispecie in esame allo scopo di legittimare la
sovranità britannica sulle Isole Malvinas. Si aggiunga, inoltre, che sovente presunti atti o comportamenti di
riconoscimento di situazioni determinatesi a seguito di occupazione violenta, cioè di spoglio, da parte di uno
Stato di territori sottoposti legittimamente ad altrui sovranità, esprimono in effetti, come si è detto,
sostanzialmente una mera presa d’atto della nuova situazione allo scopo di non pregiudicare la normale
continuazione di relazioni economiche, commerciali o di altra natura. In altre ipotesi, poi, il riconoscimento in
quanto tale della nuova situazione territoriale ed al quale si possano riconnettere validamente, per il suo
contenuto ed i suoi intendimenti, anche conseguenze sul piano dei rapporti politici internazionali ed effetti
giuridici di legittimazione della nuova situazione territoriale, sottintende implicitamente una già avvenuta
cessazione della rivendicazione territoriale da parte dello Stato spogliato, dunque una sua acquiescenza o
rinuncia, se non consenso, alla cessione del territorio: ma con ciò ci si muove su un tutt’altro ordine di idee e
problemi»: op. cit., pp. 75-76.
www.koreuropa.eu situation, without conforming to that alleged norm of public international law which, from a
general recognition37, would legalise effects from a territorial dispossession made in defiance
of the same international rule of law38.
7.
Groundlessness and irrelevance of the animus possidendi Among the theories put forth by the United Kingdom we can find, in ultimis, the
subsistence of a significant animus possidendi39 continuously shown by the British Crown
until 1774 A.C., year of the voluntary abandonment from their settlement in Port Egmont40.
The British will would have been evident from the plaque that they left on the ground and
where they declared the islands as property of King George III.
As is evident from the ancient Latin word, this argument directly refers to the Roman
legal practice: it therefore appears necessary to highlight the contradictory nature of this
reference on the basis of the Roman legal criteria at the heart of the related British claim. In
order to fully understand what has been mentioned, it is here necessary to spend a few lines
on the key points of the possessio institution from the Roman law perspective. With that term
the Roman jurists technically described the tangible usability of a res corporalis41
independently from the fact that the possessor was the holder of the related proprietas or not.
As a consequence, possessio was not a right, but a legally relevant situation of advantage,
37
It is worth recalling that, when it comes to the general issue of the recognition, we talk about specific theories
which want to subordinate the lawfulness of a given fact (for example, the existence of a State or, anyway, every
kind of situation which is able to product effects on the normative ground) in the international system to the
previous recognition from the international community. The tendential inadmissibility of that point of view is
logically explained by considering the nature and the core of the events. The lawfulness of a fact is always ab
origine or in flux at most, but never ab externo. Something can contain its own legality or illegality, legitimacy
or illegitimacy, solely and exclusively relating its own factual and intrinsic qualities, which are always predetermined compared to any following assessment from external subjects. Although it cannot be denied that,
especially at international level, the assessment of the community is often crucial to development of a specific
situation, the same assessment is not able to validate or legalise something which already had the opposite
characters within its own nature.
38
About it, cf. one more time SINAGRA, op. cit., 72 p.
39
The concept of animus possidendi comes from the ancient Roman law and, more specifically, from the legal
practice of the possessio. In order to have an effective legal recognition of such factual situation the Roman
jurists identified two fundamental elements: animus and corpus, that was the real practice of related dominance
on the res, connected with licit will of dominium. NICOSIA, op. cit., pp. 149-156.
40
It is worth recalling that, after the above-mentioned abandonment, the settlement in Port Egmont (on the
Eastern Malvina) was legal just thanks to a concession given from the Spanish Crown in 1771 A.D.., and not due
to a British autonomous possession right.
41
In accordance with the thought of GAIUS (2.14) res corporalis were all the things physically touchable (que
tangi possunt) as, for example, a soil, a tunic, a slave etcetera. That category was opposed to the one of the res
incorporalis, which were considered as pure juridical entities floating just within the world of law (quae in iure
consistunt); the latter category included hereditas, usufructus and obligationes.
www.koreuropa.eu which consisted in the concrete exercise of the powers belonging to the dominus on the
related res42.
By reference to the dynamic nature of such institution, the Roman jurists focused on the
two fundamental elements of it: the exercise of the possessio had compulsorily to be corpore
(that is by means of actual physical activity of the possessor) et animo (that is the
psychological will behind that aforementioned physical activity). Therefore, the possessio was
good and effective corpora et animo, two connected elements in that exercise, which
necessarily needed that combined presence43.
Regarding the wide case variety that the practice offered, the Roman jurists always denied
that the possessio could be obtained or legitimated just by animo: GAIUS enunciated that norm
as incontrovertible44, and other Roman jurists never questioned that principle45. As a
consequence of this juridical certainty, this principle was entirely formulated within the
Istitutiones Justiniani46 .
This argumentation helps us to understand, at a legal and conceptual level, the
groundlessness of the British pretention based on the animus possidendi. At the root of the
same concept of animus there is indeed a necessary interpenetration between this and corpus,
having evidently and historically excluded the possibility of a legitima possessio just animo.
Consequently the question arises as to whether a lawful possession could be legal only
on the basis of the will to exercise it in an undetermined future: in addition to that, the alleged
animus possidendi was not accompanied by any material activity on the territory that was,
among other things, abandoned for more than fifty years.
Moreover, it is unquestionable that the real possessor is who owns on the res the same powers
of the dominus. And it was not the case of the British Crown, because it had no sovereign
prerogative on those areas: for the benefit of the English activities only mere settlements
existed in order to help commercial business and, furthermore, allowed by the Spanish Crown
after the forced evacuation in 1770 A.D.
The theory that represents the British State as the legitimate possessor of the islands has
to be therefore rejected, as well as any relevance of the only animus possidendi as a
fundament for a future claim. Even if we wanted to attribute a specific but hypothetical
animus to the British plaque left on Port Egmont, it would be substantially irrelevant under
42
Cf. NICOSIA, op.cit., pp. 141-143.
«et apiscimur possessionem corpore et animo, neque per se animo aut per se corpore»: PAULUS, D.41.2.3.1.
44
«nec ulla dubitatio est, quin animo possessionem apisci non possimus»: GAIUS, 4. 153.
45
« igitur ammitti et animo solo potest, quamvis adquiri non potest»: PAULUS, D.41. 2.3.6.
46
Cf. NICOSIA, op.cit., pp. 144-145.
43
www.koreuropa.eu both the historical and international juridical fields. To that act we might merely ascribe a
pure symbolic value but absolutely devoid of any substantial effect47.
8.
Conclusions
In spite of the complex development of historical, political, economic, social and
military events which, over the centuries, characterised and aggravated the Anglo-Argentine
antagonism over the archipelago in question, the related issue is still far from being closed.
The sharp economic rise of Latin America over the last decade is already known. The vast
natural resources and political authority of Brazil and Venezuela, the domestic stability of the
virtuous Chile, and the Uruguayan efforts to growth have been making South America as one
of the potential protagonists of the future international commercial scene48.
Nevertheless, the economic interdependences bind nowadays the various States, which
try to satisfy their own interests also out of the domestic boards. As a result, the internal
growth is clearly conditioned by any related foreign country. Within this frame, the South
American continent needs Occidental support and, maybe even more, the European stand.
Europe is in fact the area to which the transoceanic trade49 can focus on50 and where
the foreign policy agreements require implementing. In this context, the Argentinean role
comes across as something still very opaque.
Despite its broad territory, population and a high patriotism, Argentina has a medium
political influence within South America. And exactly this patriotism has always pushed the
Argentine governments to request the restitution of the Malvinas Islands, which represent a
sort of symbol of the occidental abuse of power51.
But in order to fully understand the present implications around the Malvinas Islands
we must firstly ask ourselves one necessary question. In a globalised world, where economy
revolves around an even more marked interdependence, why two countries, still now after
centuries, have been arguing about an apparently insignificant territory?
47
If we did not do it, if we rather conferred a legal and binding effect to any mere expression of will not
accompanied by factually relevant elements capable of generating licit results on the related legal order, we
would risk to legitimate (or at least to partially accept) specious attitudes: this would be extremely dangerous for
the preservation of the juridical and international balances.
48
About it, cf. INCISA DI CAMERANA, America Latina. Un’epoca particolarmente decisiva, in La Comunità
Internazionale, Vol. LXIV, Ed. Scientifica, 2009, pp. 31-41.
49
Different social and cultural factors put South America and Europe in contact. On the side of the various
political assessments these factors counterbalance the wide ideological diversity between Europe and Asia or
Meddle East.
50
Cf. STEFANINI, L’economia dell’America Latina cresce ma ha bisogno dell’Europa, in Limes, Rivista italiana
di geopolitica, 06/02/2013.
51
STEFANINI, Economia e Falkland: l’Argentina riscopre il nazionalismo, in Limes, op. cit., 12/04/2012.
www.koreuropa.eu By the Argentine side we find of course the will of retaking the good illegally
dispossessed, but the existence of a sort of nationalist obsession towards the archipelago in
question cannot be the only logical reason: given the global dynamics above mentioned, the
fact that Argentina could base its demand just on pride would be against all odds. We can
make similar consideration about the United Kingdom.
Nowadays the answer could concern also an economic factor which was maybe hidden
or just pragmatically in doubt: the possible existence of oil resources in the sea-bed off the
coast of Malvinas and the following exclusive exploitation right for the benefit of the
sovereign State52. And indeed, the Argentine concrete reaction occurred exactly after the
announcement of the concessionary companies about their willingness of boring the
continental shelf around the Malvinas53. On 10th February 2010 Buenos Aires issued the
Decree No.256, by which every boat or ship heading to the archipelago through Argentine
territorial waters must pre-ask ant then obtain a specific permit by the competent authorities54.
During the present decade there was a considerable number of Argentinean claims which had
found solidarity of many Latin American55 and also African56 countries.
However, the British government continued settling itself in buying time by means of
alleged declarations57 of willingness of dialogue about the archipelago. Waiting for the
referendum of March 2013, the ex Argentinean President Christina Fernandez de Kirchner
published one open letter on the English newspapers The Guardian and The Independent,
where she claimed the sovereignty of her country over the Malvinas Islands58. The reply of
the British Premier David Cameron arrived soon and said that his government would do
everything possible to protect the residents of the islands and their wish. It was already known
that the polls forecasted the clear victory of the United Kingdom.
52
Cf. STEFANINI, Falkland Malvinas: questa volta c’entra il petrolio, in Limes, op. cit., 20/02/2010.
53
About it, cf. VALVO, op. cit., p. 69.
The above mentioned decree is known with the name Malvinas Decree and it is linked to art. 32, 89, 92 of the
Law No.20/94, thanks to which the government can forbid or restrict the naval transit through territorial waters
on grounds of public policy. Ibidem.
55
It is worth mentioning the support showed by the ex Venezuelan President Hugo Chavèz and by the Brazilian
President Dilma Rousseff.
56
See Todos los paises de Africa reconocieron los derechos argentines sobre Malvinas, in La Naciòn, Viernes
22 de febrero 2013.
57
Cf. Argentina tiene mas chances de tener su bandera en la luna que non en las Malvinas, in La Naciòn,
Martes 05 de febrero 2013.
58
GESSA, Falkland–Malvinas, riscoppia la “guerra fredda”: Il colonialismo è finito, in Il fatto quotidiano,
03/01/2013.
54
www.koreuropa.eu And so it was. On 10th – 11th March 2013 a referendum on political status of the
Islands was held in the related territory. The kelpers59 were asked whether or not they wanted
to maintain their own status as a British overseas territory in view of the Argentine call for
specific negotiations on the related sovereignty. The outcome of the referendum was
overwhelming60: 98,8% voted in favour of remaining under British sovereignty.
In conclusion, as it already happened in the past, the popular will was speciously
employed to play the role of judge between policy and right. To this day the Malvinas Islands
sovereignty dispute remains an unsolved issue which is far from finding a proper and lawful
answer.
59
The specific nickname of the islanders.
The referendum question was: “Do you wish the Falkland Islands to retain their current political status as an
Overseas Territory of the United Kingdom?”.
60
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