The Malvinas Islands were discovered in 1520 by members of Magellan’s expedition. Although they received several names in European cartography, they always remained within areas under the actual control of Spanish authorities.
The Papal Bulls and the Treaty of Tordesillas of 1494 were the first instruments to reflect Spain’s titles in accordance with the international law prevailing at the time. The whole southern region of the American continent, with its coasts, seas and islands, was indisputably preserved under Spanish sovereignty through several treaties signed in this period, such as the “American” Treaty of 1670, between Spain and England.
The Peace of Utrecht, signed in 1713, ensured the integrity of Spain’s possessions in South America and confirmed its exclusive right to sail the South Atlantic. Great Britain agreed to such terms as a signatory to the Utrecht agreements and subsequent treaties of the 18th century ratifying it.
In 1749, Spain learned of Britain’s intention to settle in the Malvinas Islands and firmly protested against the United Kingdom, whose government eventually abandoned the plan. In 1764, France expressed its interest in the Malvinas Islands by creating a settlement it called “Port Louis" in Soledad Island. Spain strongly opposed this and earned France’s recognition of Spain’s rights to the islands. France ended its occupation in the archipelago and formally turned the islands over to the Spanish authorities.
Shortly after France’s settlement, Great Britain again expressed its intention to take over the Islands, this time through an expedition that reached the archipelago secretly and erected a small fort that they called “Port Egmont” on an island to the west of Gran Malvina.
Despite the secrecy of the operation, Spain became aware of it, protested insistently and, as it did not receive an acceptable answer in 1770, it expelled its occupants.
The two countries were on the verge of war, until they eventually reached an agreement in 1771 embodied in two Declarations: a Declaration by which Spain gave “Port Egmont” back to the British, making an express reservation of its sovereignty over the whole of the Malvinas Islands archipelago, and an Acceptance of the Declaration in which Great Britain remained silent regarding the reservation of rights made by Spain. The agreement included that the English would withdraw from “Port Egmont" shortly, which indeed occurred in 1774. Since then, the Spanish authorities based in Puerto Soledad continued exercising jurisdiction and control over the whole of the archipelago. In 1790, when the Treaty of San Lorenzo de El Escorial was signed, Great Britain undertook not to establish any settlement on either the Eastern or the Western shores of South America, or on the adjoining islands occupied by Spain, which was the case of the Malvinas Islands.
As from the Revolution of May 1810, the Malvinas Islands were considered by the first Argentine governments an integral part of the territory inherited from Spain. In 1820, despite the internal struggles faced by the emerging Argentine State, David Jewett, an Argentine Navy Colonel, took his oath of office in the Malvinas Islands on behalf of the United Provinces of the River Plate In a public ceremony held In Puerto Soledad, attended by sea lion and whale hunters of several nationalities, including the US and the UK. The news was echoed in US and UK media (The Times of London, 3 August 1821). Despite the publicity given to the ceremony held by Argentine authorities, neither on that occasion nor later In the process of recognition of the Argentine State, which led up to the signature of the Treaty of Friendship, Trade and Navigation of 1825,did Great Britain state any intention to stake a claim to the Malvinas Islands.
The Argentine governments took several steps demonstrative of their sovereignty over the islands, granting land and passing laws related to fishing resources. In this context, Puerto Soledad thrived, with its inhabitants raising cattle, hunting sea lions and servicing the vessels that docked there.
On 10 June 1829, the Argentine government created the Political and Military Commandancy and appointed Luis Vernet as head. Following over half a century of silence since the brief episode of Puerto Egmont, with successive uncontested Spanish and Argentine administrations in the Malvinas Islands, on 3 January 1833, driven by a renewed strategic interest in the South Atlantic, a corvette of the British Royal Navy forcefully expelled the Argentine authorities that refused to recognize any authority on its part.
This act, which took place in times of peace, without any prior declaration or notice from a government that was thought to be a friend of the Argentine Republic, was immediately rejected and protested against by the Argentine authorities. Indeed, on 16 January 1833, when the first news of the events in the Malvinas Islands reached Buenos Aires, the Argentine government requested an explanation from the British Chargé d´Affaires, who was not aware of the action taken by his country. A few days later, on 22 January, the Minister of Foreign Affairs of Argentina submitted a formal protest before him, which was renewed and expanded on several occasions by the Argentine representative in London. The repeated Argentine submissions before the British Government invariably met with negative answers from Britain.
The issue remained pending, as recognized by the UK Foreign Secretary in 1849 in an official communiqué. On Argentina's side, the issue continued to be raised at several levels of government and debated in Congress.
In 1884, in the absence of an answer to the protests, Argentina proposed that the matter be referred to international arbitration, which was also refused by the UK without expressing any reasons for such refusal.
The successive Argentine governments continued to submit, albeit to no avail, protests to the UK and to make the relevant submissions and reservations, at every available opportunity, in order to defend and preserve its rights of sovereignty over the disputed archipelagos.
The Question of the Malvinas Islands in the United Nations
The so-called “Question of the Malvinas Islands", understood as the sovereignty dispute between Argentina and the United Kingdom over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas, even prior to the establishment of the United Nations, was addressed at the San Francisco Conference. In this context, the Argentine delegation made a reservation of rights by which the Argentine Republic in no way accepted that such system be applied to the territories owned by it, whether they be subject to a claim or dispute or in the possession of other States.
The first expression of support from an international organization was displayed at the regional level: the 9th International Conference of American States, during which the participating countries decided to create the Organization of American States (OAS). On that occasion, the Ministry of Foreign Affairs of President Peron, Mr. Atilio Bramuglia, presented the arguments in support of Argentina's claim, enlisting the support of American States "in order to end colonialism or de facto occupation by foreign nations." With the decolonization process advanced by the UN Charter in full swing, on 14 December i960, the United Nations General Assembly adopted Resolution 1514 (XV) "Declaration on the granting of independence to colonial countries and peoples”, which proclaimed "the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations” enshrining two fundamental principles that were to guide the decolonization process: self-determination and territorial integrity.
This Resolution provides in its sixth paragraph that “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.” Indisputably, this Resolution makes it clear that where the principle of territorial integrity of States is at stake, that of self determination cannot apply.
Pursuant to Resolution 1514 (XV), on 16 December 1965, the General Assembly adopted Resolution 2065 (XX) recognizing the existence of a sovereignty dispute between Argentina and the United Kingdom and inviting both countries to negotiate for the purpose of finding a peaceful solution to the dispute.
This Resolution contains the essential elements that outline the Question:
• The Malvinas Islands case is one of the forms of colonialism that must be ended.
• It takes note of the existence of a dispute between the Argentine and British governments.
• The Argentine and British governments are invited to engage in negotiations in order to find a peaceful solution to the problem and report on the outcome of such negotiations to the Special Committee or to the General Assembly.
• For such negotiations, the objectives and provisions of the Charter (including Article 33 related to the obligation of the parties to a dispute of seeking, first of all, a solution by negotiation) and of Resolution 1514 (principle of territorial integrity) must be taken into account, as well as the interests of the population of the Islands (thus setting aside the principle of self-determination).
Shortly after the adoption of the abovementioned Resolution, in January 1966, British Foreign Secretary Michael Stewart visited Argentina and was received by Argentine President Arturo lllia and his Minister of Foreign Affairs and Worship, Mr. Miguel Angel Zavala Ortiz. As a result of this visit, both Ministers agreed on immediately resuming bilateral negotiations "In order to find a peaceful solution to the conflict and to prevent the question from affecting the excellent relations that link Argentina with the United Kingdom." In addition, the Ministers agreed on transmitting this decision to the Secretary General of the United Nations.
In the subsequent years, in the context of the negotiations on the sovereignty dispute, special talks were held on practical aspects related to the well-being of the population of the Islands, with Argentina expressing Its willingness to take their interests into account. As a result of the special talks, In 1971 both governments reached an agreement, under the sovereignty formula, to cooperate In terms of regular air and maritime services and in postal, telegraphic and telephone communications; while Argentina assumed the commitment to cooperate in the fields of health, education, farming and technology.
Nevertheless, in 1973, the UN General Assembly stated the need to speed up the ongoing negotiations and through Resolution 3160 (XXVIII) called upon both governments to continue them without delay.
The negotiations on the matter of substance addressed, officially or otherwise, several solution formulas, all of which contemplated the restitution of the exercise of sovereignty to Argentina. But despite such ongoing negotiations and Argentina’s actions in favour of the interests of the inhabitants of the Islands -that, indeed, relieved the burden of duty of the illegally occupying and administrating power-, the United Kingdom simultaneously carried out purportedly jurisdictional acts, related to the exploration of natural resources in the disputed area, which were protested against by the Argentine Government.
In view of this, in December 1976, the UN General Assembly adopted Resolution 31/49, a very significant one in the light of its content, by 102 votes in favour, 1 against (United Kingdom) and 32 abstentions. Such resolution calls upon both parties to the dispute to refrain from adopting decisions that entail the introduction of unilateral modifications to the situation while the Islands are going through the process recommended by Resolutions 2065 (XX) and 3160 (XXVIII). Today, this Resolution continues to be disregarded by the United Kingdom, which insists on carrying out unilateral activities in the disputed area, related, mainly, to the exploration and exploitation of renewable and non-renewable resources, as well as military activities.
The 1982 conflict did not alter the nature of the sovereignty dispute between Argentina and the United Kingdom over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas, which remained unresolved and with negotiations still pending. This was recognized by the General Assembly in November i982when it adopted Resolution 37/9, and was reiterated through Resolutions 38/12, 39/6, 40/21, 41/40, 42/19 and 43/25.
From 1989 to date, the review of the Question of the Malvinas Islands takes place within the framework of the Special Committee on Decolonization. This Committee annually adopts a resolution whose terms are similar to the relevant General Assembly resolutions. Furthermore, within the framework of the UN, the mandate of the good offices mission of the Secretary-General is maintained and the issue of the Question of the Malvinas Islands has figured since 2004 on the permanent agenda of the General Assembly. It may be discussed upon prior notification by a member State.
The resumption of consular and diplomatic relations between both countries in October 1989 and February 1990 was preceded by an understanding on the conditions on which both countries would consider the sovereignty dispute on the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas.
For this purpose, on the basis of the Joint Statements of Madrid of 1989 and 1990, a sovereignty reservation or safeguard formula was agreed on the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas that, at the same time, constitutes a recognition by both countries of the existence and content of the sovereignty dispute.
However, the issue of sovereignty, which lies at the heart of the dispute, has not been addressed yet, due to the United Kingdom’s refusal to resume negotiations on this matter. The United Kingdom insists on its position rejecting the repeated calls from Argentina, the United Nations, the Group of77 and China, regional organizations (OAS, MERCOSUR, UNASUR, CELAC), IberoAmerican Summits and bi-continental summits ASA (South American and African Countries Summit) and ASPA (South American Countries and Arab Countries Summit), among other multilateral fora.
In addition to refusing to resume negotiations, the United Kingdom invokes a purported right of self-determination of the population of the Islands, which does not apply to this case, and which has been repeatedly rejected by the United Nations. This is because the Organization has understood that a population transferred by the colonial power, such as the population of the Malvinas Islands, is not a people entitled to self-determination, because it is not different from the people of the metropolis.
In recent years, the Argentine Government has received renewed support from different regional and multilateral fora, consolidating the importance of the dispute as a cause embraced by the region. As an example, it is worth noting the statements in support of Argentina’s legitimate sovereignty rights issued by MERCOSUR, UNASUR, ALBA, the Latin America and Caribbean Summit on Integration and Development (CALC), the Rio Group, and the 54 African countries (within the framework of the Africa-South America Summit).
In addition, the following international organizations and fora have urged Argentina and the United Kingdom to resume negotiations in order to find a peaceful and definitive solution to the sovereignty dispute: the Organization of American States (OAS); the Summit of South American and Arab Countries (ASPA), the Ibero-American Summit, the Caribbean Community (CARICOM), the South Atlantic Peace and Cooperation Zone (ZPCAS), and the Group of 77 and China.
With respect to the unlawful hydrocarbon exploration and exploitation activities conducted by the United Kingdom on the Argentine continental shelf, the Argentine Government has been implementing a legal action plan against companies involved in such activities. Argentina’s right to take the abovementioned legal steps has been recognized by MERCOSUR, the Latin American Energy Organization (OLADE), and the Group of 77 and China.
The first temporary clause of the Argentine Constitution, incorporated by the 1994 Reform, establishes that recovering the full exercise of Argentine sovereignty over the Malvinas, South Georgias and South Sandwich Islands, as well as the surrounding maritime areas, while respecting the way of life of their inhabitants and in compliance with International Law, is a permanent and imprescriptible goal of the Argentine people. The political decision to peacefully recover full exercise of sovereignty over the Islands has guided the foreign policy of the successive democratic governments that have ruled the country since 1983, and it has been reaffirmed by the “Ushuaia Declaration,” unanimously adopted by the Argentine Congress, which demonstrates that the Question of the Malvinas Islands is a State policy supported by all Argentine political parties.
In addition, a Secretariat for Affairs Relating to the Malvinas, South Georgias and South Sandwich Islands and the Surrounding Maritime Areas in the South Atlantic was created in 2013, institutionally consolidating, at the State level, the importance given by Argentina to the defence of its legitimate and imprescriptible sovereignty rights over the South Atlantic at the State institutional level.