TIME TO THINK AGAIN

Matthew Parris urges a new understanding

for Argentina's claim to the Falklands - 16 years on

`WHAT have we acquired? What, but a bleak and gloomy solitude, an island thrown aside from human use, stormy in winter and barren in summer; an island which not even the Southern savages have dignified with habitation; where a garrison must be kept in a state that contemplates with envy the exiles of Siberia; of which the expense will be perpetual and the use only occasional; and which, if fortune smiles upon our labours, may become a nest of smugglers in peace and in war the refuge of future buccaneers.'

Thus wrote Samuel Johnson after Britain had established a settlement on West Falldand in 1765. The French were already in occupation of East Falkland but soon sold their title to Spain. Spain then drove us out in 1770. There was a huge fuss in Britain, and we prepared for war.

Then Spain let us back a year later. Mys- teriously we left of our own accord three years after that, in 1774. There had been a complete volte-face by both nations. Spain gave us occupation rights — and we sailed away! Why these dovetailing U-turns by Madrid and London? There was reputed to have been a secret deal in which Lord North (who, it was said, took Dr Johnson's view) quietly assured Madrid that if Spain would just make a show of acquiescence to pacify British hardliners, Britain would physically abandon the place once public interest had abated.

The secret deal, if it existed, made sense. War was averted and we were enabled to disentangle ourselves in a dig- nified manner from a silly quarrel. It is time now, 16 years this week after Argentina's failed bid to capture the Falk- lands, to start thinking about the converse deal. We cede them the sovereignty if they cede us the occupation. And this time nobody need sail away.

To dwell a little, as I shall, on history, might appear to ground my case for con- sidering a compromise with Argentina on the weakness of our claim. That is not my Now, dear, sexual confusion is normal at Billy's age.' intention. From every perspective the de jure position is a mess. Another article could show serious weaknesses in the Span- ish/Argentine case, too. My contention is that both sides would do well to lay history and 'justice' aside and start thinking in terms of modern realities. In history and justice the British claim is deeply flawed, but when did history and justice ever dic- tate the actions of a wheeler-dealing mer- cantile power?

Nor should they. By fair means or foul by both, in fact — we are now in effective possession of those islands and should hold on to as much of this advantage as makes sense not to the islanders but for Britain. My contention that our jurisprudential case won't wash is meant not to solicit support for somebody else's jurisprudential case, but to relegate jurisprudence generally in such matters. I question the argument that justice forbids us from altering our posi- tion.

Justice does no such thing. Sailing away in 1774, we left a small leaden plaque asserting British sovereignty, which the Spanish promptly removed. It was upon that piece of lead that the British rested their case for the invasion of the islands in 1833. But that was almost 60 years later! Never once, during the intervening time, did we dispute Spain's occupation. In 1790 we agreed the Nootka Sound Convention, a document whose underlying principle (more unwelcome at the time to Spain than to Britain) undermined documentary as opposed to de facto claims to the New World. Later Britain recognised the new republic of the 'United Provinces' as suc- cessor to Spain, and in 1825 signed a Treaty of Peace and Friendship without mentioning the islands, of which the repub- lic had taken formal possession five years earlier. Only one conclusion can be drawn. After quitting, Britain had abandoned her ambitions in the Falklands. We had bigger fish to fry.

Then we changed our minds. This hap- pened after the Americans had sacked the islands in 1831. Rather more than a year later two British warships turned up, struck the Argentine ensign and raised our own by force — though the Argentines, whose new governor had just arrived, were in little position to resist. We afterwards claimed that the islands had been empty — a palpa- ble lie — and that we were simply reviving an existing claim (to the leaden plaque).

Only one conclusion can be drawn here, too. We nicked the place, as is the habit of a muscular imperial power. Nothing wrong with that, but let's be honest about it. As the Duke of Wellington remarked in 1829, `It is not at all clear that we have ever pos- sessed the sovereignty of these islands.' The man on the spot — Charles Darwin was by chance there in 1833 — wrote, `Here we, in dog-manger fashion, seize an island and leave to protect it a Union Jack.'

Argentine protests at British occupation of the Falklands have been loud and fre- quent ever since, so Britain's claim that we hold our title by 'prescription' is unsustain- able: most writers on international law agree that a span of at least half a centu- ry's undisputed occupation is needed for this international equivalent of squatter's rights to be invoked. Indeed the argument of 'prescription' serves Argentina better, for before 1833 Britain had let 59 years of Spanish and Argentine occupation pass without protest.

By the beginning of this century Argenti- na had become an important power, and we began looking seriously at the dispute. In 1910 the head of our Foreign Office American department wrote in a memo, . it is difficult to avoid the conclusion that the Argentine Government's attitude is not altogether unjustified.... ' A year later his assistant secretary wrote, 'We can- not easily make out a good claim and we have very wisely done everything to avoid discussing the subject with Argentina.' Our ambassador in Buenos Aires reported, `The Argentine attitude is neither "ridicu- lous" nor "childish" . . . I confess that . . . I had no idea of the strength of the Argen- tine case nor the weakness of ours.' In 1936, the head of the Foreign Office's Latin America department described our invasion of 1833 as the work of 'interna- tional bandits'.

Wisely, we repeatedly refused Argentine offers to go to arbitration, but the debate surfaced powerfully again in the 1940s, leading to a Foreign Office memo of 1946:

Discovery. The evidence substantiating British priority of discovery is not only insuf- ficient but irrelevant.

Occupation. The British case for priority occupation . . . is untenable.

The Secret Understanding of 1770. If in fact there were a secret pledge in 1770, that would demolish the British case prior to 1833.

The Leaden Plaque of 1774. The British did not return to the Falkland Islands for 60 years during which the claim may be deemed to have lapsed.

The briefest outline, therefore, of the ebb and flow of argument since the 1760s explains the embarrassment of British min- isters required to justify our indignation when Argentina captured the islands 16 years ago. For we had one, but only one, halfway decent argument for possession: in 1833 we had taken the territory by force, and force counts. This was the very last line of reasoning it suited Britain to advance on the day Leopoldo Galtieri tried the same thing. Some half-hearted recourse has been had to doctrines of what is called Positive Law, according to which transfer of title by conquest is recognised before 1928 but not after.iBut everyone knows it is not so sim- ple. India seized Goa by force from Portu- gal in 1961 and Britain quickly recognised this as a fait accompli. Syria more or less took over the Lebanon, and Britain accepted it; Iraq seized Kuwait, and Britain did not. It rather depends who your friends are.

All this helps to explain why Francis Pym and Margaret Thatcher fell back on so deeply un-Tory a thought that the late Enoch Powell, at least, was fastidious enough to cavil at: 'the wishes of the islanders'. The argument was double- headed, describing them as our folk, yet according them a distinct status. 'In one breath the Falkland Islanders were called `kith and kin' whom we must protect as we would protect from invasion the residents and territory of the Isles of Scilly; in another they were called a people in their own right, occupying their own territory and entitled to choose their masters.

These two sub-arguments are internally inconsistent. If the islanders are 'kith and kin' then they are not entitled to choose their masters; we are their masters. As David Owen pointed out, there are parish councils with larger populations. A state's natural duty to overseas kith and kin is to defend their interests, not their choices. If, however, the islanders are really entitled to self-determination, that can only be because they are not just a crowd of British people abroad, but a people in their own right, a putative mini-state. A collective wish within a defined territory, potent in international law, argues a state- like entity.

On this Margaret Thatcher was careless in her utterances, saying in 1982, 'They have a right . . . to determine their own allegiance.' Even after the war, Geoffrey Howe was speaking of 'the right of the people of the Falkland Islands to self- determination'. What right? If the idea that it is Britain's duty to try to enforce the wishes of such entities carried any force before the Hong Kong handover, it carries none now.

Enoch Powell was more thoughtful, defending the dispatch of the Task Force in terms of our right to defend our own territory. But of course there is a sting in this argument. If it is our own territory, then, whatever the wishes of our folk there, we have the right to sell it, trade it or give it away. The man I most admired in Margaret Thatcher's government, the late Nicholas Ridley, understood this, and it is to my lasting shame that, before I understood it too, I was among the swarm of backbench mosquitoes who harried his efforts to explain.

Nick Ridley was not the first to explore ways of reaching a compromise with Argentina; the Foreign Office (as you may detect from some of the remarks quoted above) has never been 'sound' on the ques- tion. Before critics slip into the familiar slurs on the FCO's patriotism (and presum- ably Dr Johnson's, Charles Darwin's and the Duke of Wellington's too), they should ask why careful study of the background to this controversy so often seems to lead scholars into a diplomatic silence.

Could it be that not just the history, but any modern calculation of Britain's nation- al interest, points toward an ambivalent conclusion? The 'expense perpetual' identi- fied by Johnson (Michael Portillo, as defence secretary, put it at about £3.6 bil- lion since the conflict ended) is hard to weigh against the 'use occasional', for the use occasional now includes substantial revenues from the sale of fishing licences and may one day include oil revenues at present unquantifiable.

On the other side of the balance, along- side the huge cost, one must place some modest damage to our standing in Latin America and — potentially more serious imponderable problems for the future if substantial and winnable reserves of oil or gas are found and Argentine hostility ham- pers us in winning them. In a world awash with oil, would oil companies invest in fixed installations in a sea where the coastal power threatens sabotage? Will an eco- nomically hard-pressed democracy with a volatile electorate be able to avoid making such threats, if huge oil revenues begin flowing from close to their own shores and to Britain alone? Might it be better to cut a deal soon, before tensions arise and while revenues are hypothetical?

I do not know. I contend only that these are the considerations we should be trying to weigh, and that the weighing process should be conducted in as low-key an atmosphere as possible. This article is no place to discuss the arrangements which might be negotiated, beyond remarking that the idea of Britain's retaining the administration of the islands and a hefty proportion of the income derivable from their resources in return for ceding a for- mal sovereignty to Argentina seems to me eminently discussable.

We could make a start by dismounting from our high horse and accepting that this affair is not really about equity, democracy, international law, self-determination or jus- tice, but about British national interest. Sixteen years after a conflict in which pride mattered, it is time we started thinking in terms of rationality.

Matthew Parris is parliamentary sketchwriter and a columnist of the Times.