Post by Sea Eagle on Jun 30, 2004 12:05:07 GMT -3
To Everyone:
This site is intended, among other things to promote understanding between people who hold opposing views regarding the Falklands.
So I thought it would be a good idea to lay out a few basic facts from my point of view regarding the status of the Islands within the context of the British Overseas Territories and their relationship to the United Kingdom and indeed how that affects relations with other countries.
Some points that Hektor has made need clarifying as they are a little off mark from the actuality of the situation that exists.
Hopefully my interpretations are correct but I will always stand to be corrected if someone can show me where I am wrong.
The Falklands cannot be equated with Tierra del Fuego (Hektor’s view) where discussions regarding its relationship with Argentina are taking place. The Falklands does deserve to be properly represented how it wishes to be represented, not to be patronised by having its ‘interests’ considered as though they were naughty children. It must decide where its own interests lie. Tierra del Fuego’s status is surely determined internally by the Argentine Constitution and Laws as it is an integral part of that country. This is in no way similar to the Falklands which has had its own separate and divergent and completely independent body of law since 1902 separate from the Law of England, Ireland and Scotland which also have their own separate corpus of Law. The Falklands is not an integral part of the United Kingdom and like other British Colonies in the past never has been.. The Law of the United Kingdom does not apply in the Falklands and vice versa excepting that there is UK Law, which defines the position of the Overseas Territories in relation to the UK. Also unlike the USA there is no ‘Federal Law’ common to British Overseas Territories and the UK.
The London Parliament does however from time to time pass laws that are applicable across the United Kingdom; these however do not apply to the Overseas Territories nor the Channel Islands nor the Isle of Man. Very complicated arrangements for non British people to comprehend I know.
The UK retains responsibility for the Defence of the Islands and Foreign Relations but at all times represents the wishes of the Islands in these matters. Indeed it is unlikely that any British Parliament would vote to support any move that was not approved by the Islands Government.
To give an example of the separateness of all British territories; a person who commits a crime in the Falklands cannot be tried in a UK court for that crime although the legal process at a higher level does allow an appeal to the Privy Council representing the Queen who is also the Queen of the Falklands. This is not unique to the Falklands and applies to all British territories that have chosen to adopt this process. Laws passed in the UK Parliament do not apply to the Falklands unless the FIG take active steps to adopt them which they frequently do not, so something which is a crime in the UK may well not be a crime in the Falklands and vice versa. An historical example would be Antonio Rivero who could not be tried in the UK for the Murders he committed in the Falklands as the court had no jurisdiction to do so. Therefore he was set free. This is difficult for Argentines to accept I realize as they are not familiar with our legal system and how it works in relation to overseas territories and indeed previously throughout past times in relation to Colonies and possessions.
The Falklands then is legally a separate entity under the Crown from the UK, a separate state effectively and factually, as for instance are the other Overseas Territories and indeed the Channel Islands and the Isle of Man. Non of this status was brought about to frustrate Argentina’s ambitions, the Falklands is no different to any other Overseas Territories in these respects.
The Channel Islands, as an example, have chosen not to be part of the EU and this choice is fully respected and accepted by the UK Government and the EU. Gibraltar as I understand it is part of the EU and votes in one of the UK constituencies for the European parliamentary representative.
The Falklands on the other hand as a British Overseas Territory is recognized as such by the EU and has associated status and qualifies for certain development grants from the EU. There is a development grant in the pipeline at the moment.
Unlike France and the Netherlands British overseas territories are not incorporated as integral part of the mother country, as much as they may wish to be, (if they were we would not be having this discussion) and therefore they are not directly represented in the UK Parliament and have no vote nor representative there. The Falklands does have its own representative in the Falklands Islands Office in London but this is a diplomatic representation like an Embassy and operates as such.
With regard to self determination this is also not a new British concept invented to frustrate Argentine ambitions it has been around a long time and may have been described by other names over the years such as Self Government, Dominion Status, Independence etc., and applies and has applied to all British Territories and former British territories. It was first applied in the 19th and early 20th Century to the ‘old’ Commonwealth e.g. Australia, New Zealand, Canada, Newfoundland and the Irish Free State and incrementally applied (not without a few bloody noses) to the rest of the shrinking Empire. Just because it was re-stated as self-determination in recent Overseas Territories Legislation does not make it a new concept at all it is the continuing of a long established practice.
Regarding the right to self-determination this should not be seen, as some Argentine commentators see it, as a British catch all that solves the problem of sovereignty because indeed it is not. Self-determination could not be invoked unless there was a body of historical evidence that confirmed the right to such a move. Falkland Islanders have the comfort of knowing that their right to self determination is based solidly on their historical right to the islands as against any Argentine claim, their right by continuous long occupation and recognized stable governmental control of the territory (Prescription) and the rights granted to them by the British Government and the UN.
Prescription is a valid ground on which to base a territorial claim for instance without it Argentina, Peru etc would have to revert to the indigenous peoples if long stable occupation and governance were not to be acceptable as proving a right to sovereignty. The same applies to the US and Canada. There were no displaced indigenous peoples in the Falklands as far as I know.
Historical grounds do include the dodgy ‘discovery’ element but this applies to both sides of course.
With regard to the historical ‘Acts of Possession’ Britain’s dispute was with Spain before Argentina existed also Britain’s ‘Act of Possession’ preceded that of Argentina by more than 50 years. So the publication of Argentina’s Act of Possession in 1821 has literally no effect legally. At best it may possibly be of nominal value in stating a position to generate a territorial dispute, at worst for Argentina, it represents an act designed to try to strengthen a recognised weak claim. In any event Britain’s territorial dispute was with Spain not Argentina. Argentina was a new claimant after Spain and Britain. What indeed was the purpose of such an act if Argentina did not in fact recognize this actuality and its purpose if it had ‘inherited’ the territory. One could interpret such an act as the date on which Argentina made a first formal claim for the Islands and I would argue that this is the case. Britain of course having a prior claim had little need to act against a third party claim until a physical move was made which it did fairly promptly in terms of speed of action in those days.
I would be happy to answer any questions on these matters and clarify any other points where you have strongly held opposing views not dealt with here if asked to do so.
Regards,
Sea Eagle (Ernie)
This site is intended, among other things to promote understanding between people who hold opposing views regarding the Falklands.
So I thought it would be a good idea to lay out a few basic facts from my point of view regarding the status of the Islands within the context of the British Overseas Territories and their relationship to the United Kingdom and indeed how that affects relations with other countries.
Some points that Hektor has made need clarifying as they are a little off mark from the actuality of the situation that exists.
Hopefully my interpretations are correct but I will always stand to be corrected if someone can show me where I am wrong.
The Falklands cannot be equated with Tierra del Fuego (Hektor’s view) where discussions regarding its relationship with Argentina are taking place. The Falklands does deserve to be properly represented how it wishes to be represented, not to be patronised by having its ‘interests’ considered as though they were naughty children. It must decide where its own interests lie. Tierra del Fuego’s status is surely determined internally by the Argentine Constitution and Laws as it is an integral part of that country. This is in no way similar to the Falklands which has had its own separate and divergent and completely independent body of law since 1902 separate from the Law of England, Ireland and Scotland which also have their own separate corpus of Law. The Falklands is not an integral part of the United Kingdom and like other British Colonies in the past never has been.. The Law of the United Kingdom does not apply in the Falklands and vice versa excepting that there is UK Law, which defines the position of the Overseas Territories in relation to the UK. Also unlike the USA there is no ‘Federal Law’ common to British Overseas Territories and the UK.
The London Parliament does however from time to time pass laws that are applicable across the United Kingdom; these however do not apply to the Overseas Territories nor the Channel Islands nor the Isle of Man. Very complicated arrangements for non British people to comprehend I know.
The UK retains responsibility for the Defence of the Islands and Foreign Relations but at all times represents the wishes of the Islands in these matters. Indeed it is unlikely that any British Parliament would vote to support any move that was not approved by the Islands Government.
To give an example of the separateness of all British territories; a person who commits a crime in the Falklands cannot be tried in a UK court for that crime although the legal process at a higher level does allow an appeal to the Privy Council representing the Queen who is also the Queen of the Falklands. This is not unique to the Falklands and applies to all British territories that have chosen to adopt this process. Laws passed in the UK Parliament do not apply to the Falklands unless the FIG take active steps to adopt them which they frequently do not, so something which is a crime in the UK may well not be a crime in the Falklands and vice versa. An historical example would be Antonio Rivero who could not be tried in the UK for the Murders he committed in the Falklands as the court had no jurisdiction to do so. Therefore he was set free. This is difficult for Argentines to accept I realize as they are not familiar with our legal system and how it works in relation to overseas territories and indeed previously throughout past times in relation to Colonies and possessions.
The Falklands then is legally a separate entity under the Crown from the UK, a separate state effectively and factually, as for instance are the other Overseas Territories and indeed the Channel Islands and the Isle of Man. Non of this status was brought about to frustrate Argentina’s ambitions, the Falklands is no different to any other Overseas Territories in these respects.
The Channel Islands, as an example, have chosen not to be part of the EU and this choice is fully respected and accepted by the UK Government and the EU. Gibraltar as I understand it is part of the EU and votes in one of the UK constituencies for the European parliamentary representative.
The Falklands on the other hand as a British Overseas Territory is recognized as such by the EU and has associated status and qualifies for certain development grants from the EU. There is a development grant in the pipeline at the moment.
Unlike France and the Netherlands British overseas territories are not incorporated as integral part of the mother country, as much as they may wish to be, (if they were we would not be having this discussion) and therefore they are not directly represented in the UK Parliament and have no vote nor representative there. The Falklands does have its own representative in the Falklands Islands Office in London but this is a diplomatic representation like an Embassy and operates as such.
With regard to self determination this is also not a new British concept invented to frustrate Argentine ambitions it has been around a long time and may have been described by other names over the years such as Self Government, Dominion Status, Independence etc., and applies and has applied to all British Territories and former British territories. It was first applied in the 19th and early 20th Century to the ‘old’ Commonwealth e.g. Australia, New Zealand, Canada, Newfoundland and the Irish Free State and incrementally applied (not without a few bloody noses) to the rest of the shrinking Empire. Just because it was re-stated as self-determination in recent Overseas Territories Legislation does not make it a new concept at all it is the continuing of a long established practice.
Regarding the right to self-determination this should not be seen, as some Argentine commentators see it, as a British catch all that solves the problem of sovereignty because indeed it is not. Self-determination could not be invoked unless there was a body of historical evidence that confirmed the right to such a move. Falkland Islanders have the comfort of knowing that their right to self determination is based solidly on their historical right to the islands as against any Argentine claim, their right by continuous long occupation and recognized stable governmental control of the territory (Prescription) and the rights granted to them by the British Government and the UN.
Prescription is a valid ground on which to base a territorial claim for instance without it Argentina, Peru etc would have to revert to the indigenous peoples if long stable occupation and governance were not to be acceptable as proving a right to sovereignty. The same applies to the US and Canada. There were no displaced indigenous peoples in the Falklands as far as I know.
Historical grounds do include the dodgy ‘discovery’ element but this applies to both sides of course.
With regard to the historical ‘Acts of Possession’ Britain’s dispute was with Spain before Argentina existed also Britain’s ‘Act of Possession’ preceded that of Argentina by more than 50 years. So the publication of Argentina’s Act of Possession in 1821 has literally no effect legally. At best it may possibly be of nominal value in stating a position to generate a territorial dispute, at worst for Argentina, it represents an act designed to try to strengthen a recognised weak claim. In any event Britain’s territorial dispute was with Spain not Argentina. Argentina was a new claimant after Spain and Britain. What indeed was the purpose of such an act if Argentina did not in fact recognize this actuality and its purpose if it had ‘inherited’ the territory. One could interpret such an act as the date on which Argentina made a first formal claim for the Islands and I would argue that this is the case. Britain of course having a prior claim had little need to act against a third party claim until a physical move was made which it did fairly promptly in terms of speed of action in those days.
I would be happy to answer any questions on these matters and clarify any other points where you have strongly held opposing views not dealt with here if asked to do so.
Regards,
Sea Eagle (Ernie)