The British Resort to Force in the Falklands/ Malvinas Conflict 1982: International Law and Just War Theory
Abstract
During the Falklands/Malvinas conflict of 1982, both Britain and Argentina defended their resort to military action on the basis of some sort of Just War principles. This article analyses the justifications given for the British resort to force. A summary of the history of the dispute and the legal arguments with regard to sovereignty over the Falkland Islands provides the context for this analysis. It is found that both Britain and Argentina have a strong, but not conclusive case. The rigorous application of Just War criteria shows that the British resort to force fails to satisfy each one. In particular, it is shown that British objectives went beyond possible just causes due to Argentine aggression. It is also argued that the British claim to have acted in the enforcement of international law is not tenable. An analysis of how the decision to send the Task Force to the South Atlantic was made, involving the Government, the Royal Navy and Parliament, reveals various extraneous factors and pressures. It is argued that the threat to the Government's survival as a result of the Argentine invasion was the main determining factor in the conduct of the conflict. The crucial turning-point was the week-end of the 1-2 May when the chances for a negotiated solution diminished after the sinking of the General Belgrano. Britain's military action also fails to satisfy the principle of proportionality. The main conclusions of this study are that Britain's resort to force did not satisfy Just War criteria, that a negotiated solution more just than the resort to force may have been possible, and that the Falklands conflict has not been successfully resolved despite Britain's military achievements.
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1. This leaves aside remnants of the 'Holy War' tradition, such as encountered in the Islamic 'Jihad' movement (Kreider & Yoder 1977).
2. The criteria for a Just War stated in Part II are based on the following sources: Bamton 1960; US Bishops 1982; Church of England 1982; Russell 1977; Walzer 1980.
3. This means, since 1758. Nowadays there is no land to discover and the principle has lost its importance (Goebel 1982, p 262).
4 Hoffmann & Hoffmann give a number of good reproductions of ancient maps which constitute con vincing evidence that the Malvinas must have been sighted before the 'discovery' by John Davis in 1592 (Hoffmann & Hoffmann 1984, Ch. 2) The first undisputed discovery is that of Dutchman Sebald de Weert
5. Spain based itself initially on the Papal Bull Inter Caetera of 1493 and subsequently on the Treaty of Utrecht (1713)
6. On the basis of discovery, and the arguments referred to in note 5.
7. Peter Calvert has cast doubt on this conclusion by questioning the technical legalities of the transfer of title from France to Spain (Calvert 1983) Clearly, however, either Spam or France was the holder of the title, and the technical legal method of how they resolved their differences on this point would appear to be irrelevant. To derive support for a British claim on this basis seems absurd See Bluth 1984a, Ch 6, for a more detailed analysis of this argument.
8. The islands were administered by the Spanish as part of the province of Buenos Aires, and from 1774 the viceroyalty of Buenos Aires appointed governors to the islands (ICJ 1982, p. 29).
9. Under present international law this would clearly have been illegal. It could be argued that this would also have been the case in 1833 (one could draw such conclusions from the discussions in Groussac 1936, Chapter I) This, however, is an extremely controversial point.
10. According to Francis Pym in a letter to Tam Dalyell, M.P, reprinted in Dalyell 1982
11. It must be said in all fairness that Argentina's record with respect to the arbitration of territorial disputes is not very good It rejected a British offer to have the title for the Falklands' Dependencies brought to the International Court of Justice foi arbitration in 1947 Since the British claim over the Depen dencies rests on entirely different grounds it is not necessarily the case that any judgement would have had any implications for the Falklands dispute In 1977 the International Court of Justice awarded three disputed islands in the Beagle channel to Chile rather than to Argentina Argentina refused to accept the judgement. Argentina's case was also damaged by the resort to force The above quo tation from Ian Brownhe refers to 'states which at the same time accept obligations of non-resort to force' It is difficult for Argentina to base its case on principles which it doesn't honour in practice
12. Myhre also discusses the difference between Roman and Common law schools of thought The former tend to accept the validity of acquisitive prescription less frequently (Myhre 1983, p. 34).
13 Similar arguments could be applied to Gibraltar 'Interestingly enough, before Great Britain held a referendum in Gibraltar on September 16, 1967. for residents to choose between British or Spanish sovereignty, the Special Committee adopted a reso lution that the holding of the referendum would contradict the provisions of General Assembly Resolution 2231 (XXI) which asked the "admin istrative power to expedite, without any hindrance and in consultation with the government of Spain, the decolonization of Gibraltar " ' (Pearl 1983, p 37).
14 Sometimes it is argued that recognizing such long- standing territorial claims would be absurd owing to the large number of such claims possible, leading to an unmanageable scale of disputes (see e g, Young 1982, p. 329). In the Falklands case, how ever, Argentina has continually disputed the British presence since its beginning, whereas in most other cases acquiescence has clearly occurred. The val idity of long-standing territorial claims in mter national law can by no means be excluded.
15 Just War Theory is here presented not purely as a legal, but also as a political doctrine Since Argen tina and Britain presented their case in legal terms, it is necessary to analyze the legal arguments in their own right
16 This raises the difficult issue as to what constitutes a legitimate authority, which has been answered very differently at different periods of history In modern times the issue of 'just revolution' and the issue of legitimacy with respect to 'puppet govern ments' installed by foreign powers are of particular relevance, but we do not propose to enter into this discussion here
17 Argentina had been willing to negotiate away most of the substance of sovereignty as long as it would be granted the symbol thereof After Ridley's 'lease- back' initiative (whereby Argentine sovereignty would be recognized in return for Britain obtaining a 'lease' of the islands) failed in Parliament in December 1980, the British negotiating position consisted in playing for time and spin out the nego tiations as far as possible The Foreign Office recog nized the dangers in this policy and saw the dispute coming to a head, but failed to win political support for alternative policies
18 This situation has been acknowledged by the House of Commons Foreign Affairs Committee, while arguing that Argentina's resort to force has streng thened the Falkland Islanders' claim to self-deter mination (HC Foreign Affairs Committee 1983-84, p XXIII f )
19. This follows from the text of the General Assembly Resolutions, as well as the UN Charter (cf. HC Foreign Affairs Committee 1983-84). Resolution 2065 (XX) for example calls for negotiations between Britain and Argentina 'bearing in mind .. the interests of the population of the Falkland Islands (Malvinas).'
20 An official document from the FCO expressed this in similar terms 'Aggression must not be rewarded, or small countries across the world would feel thre atened by neighbours with territorial ambitions' (FCO 1982b) It may be that the intended audience for this demonstration of resolve, although this was never said, was the Soviet Union
21 It is a matter of controversy whether or not the Conservative backbenchers would have made good their threats to the Government if it had resolutely refused to send the Task Force The argument presented here about the right intention of the Government is based on the existence of such thre ats and the Government's belief that there was a real chance that without the Task Force it would be forced to resign
22 In 1976, Argentina established a base on Southern Thule, which is located among the South Sandwich Islands, ostensibly for scientific purposes But the Argentine presence was unauthorized and it appeared that Argentina was prepared to defend its base with military force The British Govern ment took no further action on this matter and the Argentine presence remained until it was removed in 1982 in the course of the Falklands conflict (Franks Report 1983, p 14 f ).
23 During the debate on 2 December 1981, Julian Amery concluded his statement on the Falklands issue by saying to Nicholas Ridley, then Minister of State in the FCO : 'Will my hon. Friend look back at the cost to us in terms of oil prices of the surrender of Aden and the Persian Gulf?' (Franks Report 1983, p 103).
24 Haig apparently did not grasp the significance of this (Haig 1984, p. 274 ff ) For comment, see Bluth 1984b.
25 It has been claimed that the British intercepted these signals (Pontmg 1985, p 85, Gavshon & Rice 1984, Chapter 5 & 6; Freedman 1984).
26 The provisions of the 'Peruvian peace plan' were:
1. Immediate ceasefire
2. Simultaneous and mutual withdrawal of forces
3. Involvement of third parties on a temporary basis in the administration of the islands
4. Both sides accepted that a dispute over sov ereignty exists
5. Both sides acknowledge the fact that the views and interests of the islanders must be taken into account in reaching a definitive settlement
6. Formation of a contact group comprising Brazil, Peru, West Germany and the United States
7. By April 30, 1983, a definitive settlement should be concluded, the working out of which would be the responsibility of the contact group.
27. It has now been admitted by Margaret Thatcher that the account given by John Nott on 4 May 1982 was deliberately false for 'security reasons'.
28. The new definition of 'self-determination' did not exclude formal Argentine sovereignty, but demanded substantial local self-government for the islanders. See FCO 1982b.
29 The so-called Ridley initiative, which collapsed in December 1980. Cf. Franks Report 1983, Chapter 2
30 It is well-known that the Argentine bombs, of which quite a number fell on British ships, were wrongly fused and didn't go off (Hastings & Jenkms 1983, p 107. 117; Dalyell 1982, p. 107). Sir John Nott said later 'To this day, it astonishes me how little went wrong in what, by any standards, must have been one of the most remarkable military achieve ments of modern times' (Hansard, House of Com mons, 26 January 1983, col. 945)
31 The alleged purpose of the bombing was merely to put the runway out of action, an objective which it failed to achieve On 1 May, 56 Argentines were killed by these attacks. See the foreword by Paul Rogers to Dalyell 1983.
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