The Malvinas/Falklands Dispute in Anti-Imperialist History

Argentinean President Javier Milei’s recent comments about Argentina’s sovereignty over the Malvinas/Falklands Islands and Trump’s latest threat against a European ally, hinting he could support Argentina’s claim as punishment for Britain’s limited support of his Iran War have catapulted the dispute to centre-stage of global discourse once again. As usual, the discussion is felt personally by both Argentineans and British people, who feel strong personal attachment to the islands ultimate fate, not just for historical reasons, but because of the war that embroiled them four decades ago.

As with any high-stakes passionate online disagreement, arguments tend to get overly simplified or even reduced to name-calling. Argentineans will share maps of how far away Britain is to the Falklands and call them “Pirates”. Brits will taunt them on their lost war or their lower living standards. It’s not the most productive discourse. But there is one argument within this fight that I think is worth further exploration – the claim that it is contradictory for Argentineans (or people who support their claim) to call Brits “imperialists” or “colonialists”, because when it comes to the Malvinas/Falklands, it is them – Argentineans – who are the imperialist party.

The argument goes something like this: The Falkland Islanders – the British inhabitants of the Malvinas/Falklands – have a right to self-determination. They have expressed that right through a referendum thirteen years ago, where they voted 99.80% to 0.20% to remain a British Overseas Territory. Argentina, the country that invaded the Falklands in 1982, is trying to take over the land against the wishes of this population – or, put in other terms, Argentina wants to colonise the Islanders.

This argument is compounded when explored from the perspective of Argentina’s long history of Southward settler colonial expansion. Some seventy years after independence, in the late 1870s, Argentina took over Patagonia through genocide and ethnic cleansing of the indigenous Tehuelche, Mapuche, and Selknam Indigenous Peoples through a process called the “Conquest of the Desert”. Thus, Argentina’s claim over the Malvinas/Falklands is put in the same category as an expression of Argentinean settler colonialism.

I want to push back against this claim. Not because I deny Argentina’s settler colonial expansion – I don’t. Not because I think the Falkland Islanders do not have an internal self-determination right to continue to live in the islands – I do (regardless of who owns them!) But because I think the incorporation of the Malvinas/Falklands into this process is not just anachronistic, but it also obscures the prominent role the dispute held in anticolonial and anti-interventionists discourses in Latin America in the early decades after independence (i.e. before the Conquest of the Desert).   

To tell this story, I need to go back to the first half of the 1800s to set out the context in which it the dispute takes place. So let me start with some history.

The History of the Malvinas/Falklands Dispute

There is historical disagreement about who first sighted/discovered the islands in the first place. The Spanish credit Magellan in 1520. The British, John Davis, in 1592. What is historically undisputed is that the islands were first settled by the French, who built Port Saint-Louis in 1764 in Isla Soledad/East Falkland Island. The Spanish, who saw the island as falling within their colonial domains in South America, protested immediately and began negotiations to force the surrender of the French settlement to Spain – which was completed three years later in 1767.

At around the same time, the British built a settlement in Port Egmont in 1765 in Isla Gran Malvina/West Falkland. Just like with the French, however, Spain protested and, after negotiations seemed fruitless, forcefully expelled the settlers in 1770. In order to avoid a full-blown war between Spain and Britain, the settlement was re-established in 1771, but was abandoned in 1774, as Britain faced increased military pressure in its colonies in North America. Famously, the British Commanding Officer at Port Egmont left a plaque stating the islands were “the sole right and property of His Most Sacred Majesty, George the Third, King of Great Britain, France and Ireland, Defender of the Faith”. There is strong disagreement between Argentina and Britain over the legal value of this plaque, with the latter claiming it preserved British title, and the former claiming it is evidence that the British could not maintain an unlawfully constructed settlement in Spanish lands and abandoned it.

As the famous Island of Palmas case confirmed in 1928, the law of nations at the time of this plaque was clear: “an inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered”. Spain maintained its effective occupation of the Islands through Puerto Soledad. Britain did not, abandoning Port Egmont less than a decade after.

As British jurist and Judge of the High Court of Admiralty, Sir Robert Philmore noted in his 1871 book “Commentaries Upon International Law”, this was a widely recognised rule in international law even in the 18^th century. In his words:

“It may therefore be considered as a maxim of International Law, that Discovery alone, though accompanied by the erection of some symbol of sovereignty, if not unaccompanied by acts of a de facto possession, does not constitute a national acquisition.
A different opinion appears, indeed, to have been entertained by the officers of Great Britain in 1774, at the period of her temporary abandonment of the Falkland Islands. But the doctrine in the text may now be said to be very generally established”.

In 1790, Britain and Spain signed the First Nootka Sound Convention, averting war over their claims to the Pacific Northwest, in modern-day Canada. In this Convention, Spain and Britain agreed that mere discovery would not suffice as title to land. They agreed their subjects would “not be disturbed or molested (…) in landing on the coasts of those seas in places not already occupied, for the purpose of (…) making establishments there”. In other words, the law of nations had no “keepsies” clause. Title to territory required effective occupation, not mere discovery, nor temporary possession.

This Convention is important in the context of the Malvinas/Falklands dispute due to the differing value each party gives to Article VI. This article states “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 coast situated to the south of the parts of the same coasts and of the islands adjacent already occupied by Spain”. To the Argentines, Article VI covers the Malvinas islands as a Spanish-occupied island adjacent to South America, meaning Great Britain would be barred from title to the islands. To the British, Article VI does not cover the Falklands because West Falkland was not specifically occupied by Spain (Puerto Soledad being in East Falkland) and the famous Port Egmont plaque continued to preserve British title. The British position seems in direct contradiction to the overall conclusion of Nootka Sound, that plaques simply do not confer title and the geographical reality of the Malvinas/Falklands, which had always been treated as a single entity, though.    

In any case, in 1808, Napoleon invaded Spain, catapulting the collapse of the Spanish colonial empire. In May 1810, after news of Spain’s defeat reached the River Plate, Argentinean independentists, acting as the United Provinces of the River Plate, declared war on Spain and ultimately expelled Viceroy Francisco Javier de Elio. As part of his return operations, de Elio ordered the abandonment of Puerto Soledad. Like the British before him, de Elio also left a plaque reserving title over the Islands for Spain. 

In 1820, the government of the United Provinces send a frigate to the Malvinas/Falklands and retook them for Buenos Aires. In 1826, the United Provinces granted Luis Vernet, a German immigrant in Argentina, authorisation to resettle Puerto Soledad, renaming it Puerto Luis, alongside fifty settlers. Vernet’s daughter, Matilde Vernet y Saez, was born there four years later.

In 1832, Great Britain dispatched the HMS Clio to retake the islands. Outmanned and outgunned, the islands River Plate inhabitants left for Buenos Aires in January 1833, leading to the current status quo – at least until the failed Argentinean invasion of 1982.

The Context of the British-Argentinean Dispute

As is widely known, the newly created republics of Latin America – the United Provinces of River Plate included – declared themselves inheritors of Spanish possessions in Spain through the application of the uti possidetis principle, whereby everything that had been under Spanish control passed to now River Plate control. Thus, as far as the new government in Buenos Aires was concerned, the United Provinces had similarly inherited the Malvinas/Falklands from Spain as a result of uti possidetis.

At the time, the uti possidetis principle was much more than a simple rule of state succession. As 19^th century Argentinean anti-imperialists explained, it was meant to be a counter-weight to interventionism and gunboat diplomacy coming from outside the region – a different, Latin American way to organise international relations, based instead on the permanency of borders and peaceful solution of disputes. And there was a very real need for such a system: with the collapse of the Spanish colonial empire, competitor European empires saw an opportunity for recolonisation, territorial gain and/or economic subjugation of the new republics.

Thus, in 1836, the United States intervened in Mexico in favour of US settlers during the Texas Rebellion. In March 1838, France blockaded Buenos Aires. In November 1838, France also blockaded Veracruz, in Mexico. In 1845, France and Great Britain blockaded Buenos Aires. In April 1846, the United States invaded Mexico. In January 1862, France recolonised Mexico. In 1866, Spain attempted to recolonise Chile and Peru, bombing Valparaiso and taking over Peru’s Chincha Islands. Every single one of these interventions had as an objective either the taking of land no longer under colonial protection or the economic subjugation of young new republics.    

The British takeover of the Malvinas/Falklands in 1833 therefore did not happen in isolation. When seen through Latin American eyes it becomes obvious that it was part of this broader context of attempted recolonisation. After all, Britain had abandoned Port Egmont nearly six decades prior and arguably abandoned its claim to settle the islands in 1790. In fact, Great Britain made no mention of any pending territorial claim to the islands in the 1825 Treaty of Friendship signed with the United Provinces.

Thus, just like Nootka Sound sought to establish effective occupation over discovery as the basis for title to territory, uti possidetis sought to establish the continuity of borders and peaceful settlement as the basis for title to territory rather than de facto military action. Under uti possidetis it does not matter how much power a state can display to effectively seize territory. What ultimately determines what land belongs to whom is the state of things (the “uti possidetis”, in Latin) at the specific chosen date – in this case, 1810. And since the Malvinas/Falklands were under Spanish possession in 1810, then they passed on to Argentina and no display of force should be allowed to change that.

This explains, for instance, why British sources tend to argue that Argentina’s claim is weaker than Britain on account that its occupation of the islands was only “five years long” (from 1828, the formal establishment of Puerto Luis, to 1833, the expulsion of its garrison). As far as Argentina (and most of Latin America) are concerned, Argentina did not need to show effective occupation of the islands, because it simply continued that of Spain, from 1764 to 1833, through uti possidetis.

Seen through Latin American eyes, the 1833 expulsion was an unlawful intervention that recolonised already independent territory. Take for instance the work of renowned Argentinean publicist Carlos Calvo. His landmark work “Theoretical and Practical International Law in the Americas and Europe”, published in 1868, offered a massive study of the reasons for intervention under international law, including in the Malvinas/Falklands. Calvo’s overall conclusion is that Europe simply used different rules for intra-European interventions than for extra-European interventions. “The only reason that sustains these interventions”, Calvo says, “is the different political significance of the peoples of the Americas and of European states, as well as the memory by the latter of a time when the great American continent was a colony of Europe” (p. 186).

Calvo had therefore identified a legally relevant difference between imperialist and non-imperialist interventions. Intra-European interventions, he notes, were “highly exceptional” (caracter especialisimo) and were always grounded on “principles of international politics” such as balance of power. They are all, he says “eminently rational” (p. 159-160). They were not based on a desire for economic subjugation or recolonisation.

With this framework, Calvo describes the Malvinas/Falklands dispute as one not yet resolved through “strict justice”, but rather only through “force” (p. 227). For Calvo, given that Britain had renounced its claim in 1790, its reoccupation of the Malvinas/Falklands had no actual basis in law. It was an “inconceivable and unjustifiable abuse of force”, which he compared to the equally unlawful attempt by Britain to seize Copenhagen in 1807. While the takeover of Malvinas/Falklands was seen by some European actors as acceptable under the law of the time, the takeover of Copenhagen had not, further showing how extra-regional intervention followed a double standard.  

Venezuelan diplomat Rafael Seijas went further in 1884, claiming that Britain would have lost rights to the islands even in absence of the Nootka Sound Convention, because the 1774 abandonment “would reduce any ulterior claim to nothing” (p. 150). This was also the position taken by Peruvian historian Mariano Felipe Paz Soldán in 1885 (p. 22).

The position of Latin American anti-imperialists, therefore, was that even in the 19^th century, use of force had limitations. Of course, these were nowhere near as broad as current limitations to use of force, but it was in the analysis of the Malvinas/Falklands case that these limitations were first explored. “A country that abandons a claim cannot later resurrect it through force against uti possidetis” may be a very limited qualification in a world were conquest was still a valid manner to acquire territory. But it was a starting point.

It is therefore ironic to see this dispute described in current times as an example of Argentinean imperialism and settler colonialism. There is, no doubt, plenty of other Argentinean case studies to pick from to make that exact claim. The Malvinas/Falklands dispute is not one of them. It is rather one of the earliest cases where the Latin American tradition of international law sought to limit the right to use force in international relations, particularly use of force seeking to recolonise territory.