Wednesday, February 24, 2010

Falklands in the fog of history again 

Well we seem to be into another season of uproars over the Falklands, with Argentina apparently taking the UK to the United Nations over the start of oil drilling in the area. And of course alternative statements of history are proliferating.

A detailed study of the Falklands history timeline (up to May 2008) that maintains the British position is on the Falklands History webpages. Spanish version here. This is a reply to a seminar held in the Argentine embassy in London on 3 December 2007, which was apparently the first time the Argentine case for the Falklands was ever presented in Britain. The study authors, Graham Pascoe and Peter Pepper, have also written a thousand page book ‘The Falklands Saga: a Critical Study of the Falkland Islands in History and International Law’ which appears to be unpublished as yet.

The Islanders own view of the matter back in 1983 is on the Falklands Information webpages.

Compare this to the Wikipedia versions of Falklands history and the history of the dispute which shows certain differences. For example Wiki states that Argentina ‘ever since the establishment of British Rule has claimed sovereignty’. Pascoe and Pepper assert that Argentina renounced its claims in 1850 and only revived them in the 1940’s.

In the 1840s Britain and France intervened militarily in the River Plate region, mainly in what is now Uruguay. However, both countries’ policy was a failure, and both withdrew their forces following treaties concluded with Argentina, which at the time was ruled dictatorially by General Manuel de Rosas, Governor of Buenos Aires. Negotiations between the British representative, Henry Southern, and General Rosas filled most of 1848 and 1849, and resulted in a peace treaty, the “Convention between Great Britain and the Argentine Confederation, for the Settlement of existing Differences and the re-establishment of Friendship”. We refer to it for short as the “Convention of Settlement”; it is also known as the “Arana-Southern Treaty” after its signatories, the Argentine Foreign Minister Felipe Arana and the British emissary Henry Southern. The Convention was referred to as a “peace treaty” many times by both sides; it represented a considerable triumph for Rosas, since he was able to impose his will on two humiliated opponents, Britain and France. But Rosas was prepared to pay a price – the Falklands. By failing to mention Argentina’s claim to the islands in the Convention, he effectively dropped it….

The Convention of Settlement ended Argentina’s protests over the Falklands. After the Message to Congress in December 1849, the Falklands were not mentioned
again in the Messages to Congress for 91 years until 1941
(Pascoe and Pepper)

The Argentine Embassy seminar entirly ignored the 'Convention of Settlement' but repeated what Pascoe and Pepper call the 'lie' that Britain expelled Argentine settlers in 1833. There were 34 civilian residents. Four chose to go, the rest stayed.

En su discurso inaugural en el seminario argentino en el London School of Economics del 3 de diciembre de 2007, el Embajador Mirré repitió lo que es probablemente la deformación más grave en la narrativa argentina – la idea que en 1833 Gran Bretaña expulsó a una población argentina de las Falklands. Argentina ha manifestado esto en repetidas oportunidades ante las Naciones Unidas. Pero esto no es verdad.
Cuándo el Clio llegó a las Falklands, había 34 colonizadores residentes civiles verdaderos; el Capitán Onslow les dio la libre elección de permanecer o partir; no los presionó para que dejasen las islas y realmente alentó a algunos para que permaneciesen… Sólo cuatro escogieron partir – y son nombrados en los libros de los prominentes historiadores argentinos Ernesto J. Fitte y Mario Tesler

Regardless of history things could be messy.

This Falklands business could lead to rather emotive politics in Britain – just look back at what happened in 1982 when the BBC was in effect accused by many Tories of treason. We should watch out for this as it could be an emotional distraction in the upcoming general election, not least because it involves debates in te United Nations and the LibDem position on the Iraq war depends heavily on the credibility of United Nations resolutions .

There are of course some Britons who doubt the British case – see this Comment is Free item by Richard Gott. And back in 1982 I recall there was mention of an alleged study made for the British Foreign Office in 1933, on the centenary of the establishment of continuous British control of the islands. This, based partially on American research materials, apparently showed the British case to be so weak that it has been suppressed ever since, but has made British policy makers cautious over British actions especially in relation to international tribunals. This being from pre-Internet times I cannot find the references to the study. It might be helpful to get references to what is publicly known about this alleged study so we can see if it more reliable than a Wiki history.

Ultimately though the British case is based on a claim that the Falklands were acquired in a legal process of colonial expansion, all done in accordance with nineteenth century norms. This in turn is the foundation to a legally established position in different political times. Those not attracted to colonial expansion either in history or today will no doubt find this justification less persuasive.

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In either case, the Arana-Southern Treaty of 1850 cannot be invoqued as a final solution on grounds of its 'failing to mention Argentina’s claim to the islands in the Convention': if this issue was forgotten or neglected in the treaty, it does not automatically mean it has been dropped by Argentina. Peace agreements can be just partial, some issues may remain unsettled, as was the case of these islands. If the treaty itself was called 'Convention of Settlement' but failed to discuss that crucial matter, it's empty.
According to all the leading legal lights the fact that the islands were not mentioned in the treaty means Argentina had dropped the issue.
to wit:



…The effect of a treaty of peace is to put an end to the war, and to abolish the subject matter of it.
It is an agreement to waive all discussion concerning the respective rights and claims of the parties, and to bury in oblivion the original causes of the war.…


14. The treaty of peace leaves every thing in the state in which it found it, unless there be some express stipulation to the contrary.
The existing state of possession is maintained, except so far as altered by the terms of the treaty.
If nothing be said about the conquered country or places, they remain with the conqueror, and his title cannot afterwards be called in question …


John Westlake
John McHugo
Adam Boleslaw
Robert Yewdall Jennings
Hans Kelsen
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Tuesday, February 02, 2010

The Cameron road to Infangthief 

Never mind the birch as a rallying cry for legal reactionaries – David Cameron seems to be willing the law back to Infangthief.
That is the right of a property owner to exact summary punishment on a criminal found on his property. Or even Outfangthief – the right to pursue and punish off the property. Perhaps understandable as a legal expedient when the only police force was the Hue and Cry Posse, way back in the 1300’s, this concept has rather been eroded by some centuries of the Rule of Law.

Or so one would have hoped. Once more we are reminded of the 19th century controversy over ‘man traps and spring guns’ so wonderfully recounted in E.S. Turners book ‘Roads To Ruin’. This is a book that really really needs re-issuing.

Meanwhile we might all take a look at the new book on ‘the rule of law’ by Tom Bingham, former Lord Chief Justice of the United Kingdom.

As the ‘blurb’ says:

He makes clear that the rule of law is not an arid legal doctrine but is the foundation of a fair and just society, is a guarantee of responsible government, is an important contribution to economic growth and offers the best means yet devised for securing peace and co-operation. He briefly examines the historical origins of the rule, and then advances eight conditions which capture its essence as understood in western democracies today. He also discusses the strains imposed on the rule of law by the threat and experience of international terrorism.

And, incidentally, firmly says that the Iraq war was illegal.

The reviewer in the Independent On Sunday loved it:

He proposes eight essential principles, each of which he illustrates with a wide variety of examples. The first is that the law must be available to everyone and, so far as possible, intelligible and clear….His other principles include the equality of all before the law – "Be you never so high, the law is above you," as Dr Thomas Fuller wrote in 1733 – along with the fair exercise of power by the executive, the right to a fair trial, and the application of law, rather than discretion, when deciding questions of legal right and liability. Importantly, Bingham also includes the protection of fundamental human rights. Though some people might not see human rights as a necessary ingredient of the rule of law, Bingham argues that such a view would be based on an impoverished or "thin" definition, as compared with his own preference – what he calls a "thick" definition – and his arguments are cogent and convincing.

Robert Gaisford IoS 31 January 2010

Sounds like a stinging slap-down to the pathetic Cameron ramble on the Andrew Marr show about burglars ‘forgoing their human rights…’

The rule of law and a fair society. Could that be a LibDem election theme? Against the rule of mob headlines and tax breaks for the rich which has been the mood music of New Labour and looks like being the theme song for the Tories in continuation…

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"The right to search for the truth implies also a duty: one must not conceal any part of what one has recognised to be true." Albert Einstein. "In a room where people unanimously maintain a conspiracy of silence, one word of truth sounds like a pistol shot." Czeslaw Milosz

Great quotes!
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