THE QUESTION OF THE MALVINAS ISLANDS
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THE QUESTION OF THE MALVINAS ISLANDS. Brief Review. Title and Rights. Succession to the rights of Spain / Uti Possidetis Juris: Discovery; Spain-England Treaty, American Treaty of 1670 and Treaty of Utrecht of 1713; Recognition by France in 1767; Recognition by England in 1774;

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THE QUESTION OF THE MALVINAS ISLANDS

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The question of the malvinas islands

THE QUESTION OF THE MALVINAS ISLANDS

Brief Review


Title and rights

Title and Rights

  • Succession to the rights of Spain / Uti Possidetis Juris:

  • Discovery;

  • Spain-England Treaty, American Treaty of 1670 and Treaty of Utrecht of 1713;

  • Recognition by France in 1767;

  • Recognition by England in 1774;

  • Treaty of San Lorenzo del Escorial between Spain and England, 1790;

  • 32 Spanish governors not contested by England.


Exercise of sovereignty by the argentine government

Exercise of Sovereignty by the Argentine Government

  • Performance of real acts of possession and jurisdiction between 1811 and 1833:

  • Appointment of authorities;

  • Granting of licences for using natural resources;

  • Assignment of lands;

  • Granting of benefits for the promotion of a stable population;

  • Creation of the Political and Military Command for the Malvinas Islands and the islands adjacent to Cape Horn in the Atlantic Sea.


Usurpation by the united kingdom 1833

Usurpation by the United Kingdom - 1833

  • It took place within the context of the British colonial expansion throughout the world and was preceded by a failed incursion into the River Plate in 1806 and 1807.

  • The islands were seized and occupied by force and despite the fact that England had recognized the independence of Argentina in 1825, on which occasion it did not make any claims with regard to the peaceful, public and continuous possession of the Islands by Argentina.

  • The Argentine authorities and people who lawfully resided there were expelled and were not allowed to return.

  • From then on, a community was formed, with people from the mother country and strict immigration rules. Argentine nationals from the mainland were forbidden to enter and/or acquire resident status.


Argentina s reaction

Argentina’s Reaction

- Argentina immediately protested against the usurpation of its territory by Great Britain.

- Argentina reiterated that protest on every pertinent occasion, demanding the restitution of its exercise of sovereignty and without ever consenting to the act of force that resulted in the usurpation.

- Argentina continuously offered Great Britain resort to peaceful dispute settlement mechanisms and even proposed international arbitration in the second half of the 19th century, but this was rejected by Great Britain.


United nations

United Nations

  • Statement of reservation by the Argentine Delegation at the San Francisco Conference when discussing the issue of non-self-governing territories and the trusteeship system they would be subject to, rejecting the application of that system “to territories belonging to Argentina, whether they are subject to a claim or dispute or are in the possession of other States”.

  • General Assembly of 1946, List of Non-Self-Governing Territories. Argentina protested against the British attempt to include the Malvinas Islands as British NSGT.

  • Transmission of British information under Art. 73 e).

  • Resolution 1514 (XV), of 1960:

    - Takes into account the principles of self-determination and territorial integrity;

    - Defines the beneficiaries of the decolonization process: “subjection of peoples to alien subjugation, domination and exploitation”;

    - Proclaims the necessity of “bringing to a speedy and unconditional end colonialism in all its forms and manifestations”.

  • Creation in 1961 of the Special Committee on Decolonization to examine the application of Res. 1514 (XV), make suggestions and recommendations on the progress made and the scope of its application and provide information to the General Assembly in that regard.


Resolution 2065 xx

Resolution 2065 (XX)

  • First resolution specifically dealing with the Question of the Malvinas Islands, which covers the sovereignty dispute over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas:

  • - The Question of the Malvinas Islands is a form of colonialism to which Resolution 1514 (XV) applies.

  • - The Resolution recognizes the existence of a sovereignty dispute between Argentina and the United Kingdom, which must be resolved by both countries through negotiations to that end.

  • - The objectives and provisions of the Charter, as well as the interests of the inhabitants of the Islands, must be taken into account.

  • Both countries must inform the General Assembly and the Committee about the results of the negotiations.

  • Argentina and the United Kingdom expressly acknowledged that resolution 2065 (XX) establishes the definitive dispute resolution process and conducted negotiations on the merits of the dispute within the framework of such resolution.


Period of negotiations on sovereignty

United Nations

-Editorial Directive of 1966

-Resolution 3160(XXVIII) of 1973.

-Resolution 31/49 of 1976

Bilateral Context

- Memorandum of Understanding of 1968 (transfer of sovereignty/safeguards and guarantees);

- Practical aspects: Communications Agreement of 1971 (sovereignty formula);

- Consideration of joint dominion formulas (1974/1975)

- Consideration of transfer of sovereignty and British lease (1980)

Period of negotiations on sovereignty


Armed conflict of 1982

Armed Conflict of 1982

  • Casualties: 649 Argentine nationals – 255 British nationals

  • It did not alter the nature of the sovereignty dispute, as recognized in Res. 37/9 of 1982 and successive resolutions adopted by the UN General Assembly, including its Special Committee on Decolonization.

  • Resolutions 502 (1982) and 505 (1982) of the Security Council

  • Mediations: Secretary of State Alexander Haig and Secretary-General Pérez de Cuellar


Period without diplomatic relations

United Nations, OAS, NAM

-Resolutions of the General Assembly: 37/9, 38/12, 39/6, 40/21, 41/40, 42/19, 43/25;

- Rejection by the General Assembly of two British amendments suggesting the incorporation of the principle of self-determination (1985);

- Resolutions of OAS;

- Declarations by Non-Aligned Countries;

- Resolutions of the Special Committee on Decolonization.

Bilateral Context

- Joint Declaration of 1989 (sovereignty formula; resumption of consular relations)

Period without diplomatic relations


1990 2012 period

United Nations, OAS and regional and bi-regional groups.

- Secretary-General’s Good Offices Mandate.

- Resolutions of the Special Committee on Decolonization.

- OAS Declarations.

- Declarations of MERCOSUR Member and Associate States.

- Declarations of: Rio Group; South Atlantic Peace and Cooperation Zone, Ibero-American Summit, CALC Summit, ASPA Summit, ASA Summit, UNASUR.

Bilateral Environment

- Resumption of Diplomatic Relations, February 1990;

- Provisional Understandings on practical matters under the sovereignty umbrella:

Joint Statement on Conservation of Fishing Resources (1990).

- Joint Declaration on Cooperation over Offshore Activities in the South West Atlantic (1995).

1999 Joint Declaration (communications, memorial, demining).

1990 – 2012 Period


Undermining of provisional understandings by the united kingdom

2005: last Meeting of the Fisheries Committee

2007: the Joint Declaration on Cooperation over Offshore Activities in the South West Atlantic of 1995 ceased to apply

Law No. 26386 amending the Federal Law of Fisheries, June 2008.

Resolution No. 407 of the Secretariat of Energy, March 2007

Decree No. 256/2010, April 2010

Law No. 26659 on Hydrocarbons, April 2011

Undermining of Provisional Understandings by the United Kingdom

Illegal unilateral activities including, among others, exploration for and exploitation of renewable and non-renewable natural resources, as well as military exercises in the disputed area.


Mercosur and associate states

MERCOSUR AND ASSOCIATE STATES

  • “Declaration of the Mercosur Member and Associate States on vessels that fly the illegal flag of the Malvinas Islands”, issued on the occasion of the 42nd Meeting of the Common Market Council and the Summit of MERCOSUR Presidents, held in the City of Montevideo on 19 and 20 December 2011, respectively:

  • The Presidents of the MERCOSUR Member and Associate States reiterated the commitment that they had undertaken to adopt, pursuant to international law and to their respective internal laws, all measures susceptible of being regulated in order to prevent access to their ports by vessels flying the illegal flag of the Malvinas Islands.

  • Any vessels previously denied access to any port of the region must avoid requesting access to the ports of the other MERCOSUR Member States and Associate States while they fly such flag. Otherwise, the measures provided for in the first paragraph of this declaration will be applied to those vessels, pursuant to international law and to the respective domestic laws.

    Montevideo, 20 December 2011"

  • “Special Declaration of the Presidents of the MERCOSUR Member and Associate States on the Malvinas Islands”, issued on the occasion of the 41st Meeting of the Common Market Council and the Summit of MERCOSUR Presidents, held in the City of Asunción on 28 and 29 June 2011, respectively:

  • “COMMUNIQUÉ OF THE MERCOSUR MEMBER AND ASSOCIATE STATES ON THE STATEMENTS OF THE BRITISH GOVERNMENT REGARDING THE QUESTION OF THE MALVINAS ISLANDS”

  • The MERCOSUR Member and Associate States emphatically reject the regrettable statements made by the UK Secretary of State for Defence regarding the deployment of fighter planes and war ships to the Malvinas Islands area.

  • The MERCOSUR Member and Associate States pointed out that in such statements the United Kingdom continues to disregard the repeated calls by the international community for it to engage in negotiations with the Argentine Republic to resolve the sovereignty dispute, pursuant to the resolutions of the United Nations General Assembly, the Special Committee on Decolonization and the Organization of American States.

  • The MERCOSUR Member and Associate States contended that such statements evince, once more, an attitude that is at odds with the region’s firm decision to support the Argentine Republic in its permanent search, through dialogue, for a peaceful solution to the sovereignty dispute.

  • MERCOSUR Member and Associate States reiterated their endorsement to the legitimate and imprescriptible rights of the Argentine Republic over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas.


Unasur

UNASUR

  • On the occasion of the Ordinary Meeting of the Council of Foreign Ministers of UNASUR, held in Asunción, Paraguay, on 17 March 2012, the Member States adopted a new Declaration on the Question of the Malvinas Islands, which reads as follows:

    DECLARATION ON THE QUESTION OF THE MALVINAS ISLANDS

  • The Council of Foreign Ministers of the Union of South American Nations (UNASUR) reiterates its firm support for the legitimate rights of the Argentine Republic in the sovereignty dispute over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas, consistent with the statements of the Summits of the Council of Heads of State and Government of the Union, the UNASUR Declaration on Military Activities of the United Kingdom in the Malvinas Islands, the Declaration on Cooperation of UNASUR Member Countries on Relevant Movements of Vessels Whose Route Includes the Malvinas, South Georgias and South Sandwich Islands, which embodies the commitment by Member States to adopt all measures susceptible of being regulated in order to prevent access to their ports by vessels flying the illegal flag of the Malvinas Islands, and the Declaration on the Departure of the Frigate HMS Montrose for the Malvinas Islands.

  • The Council regrets the fact that, despite the time elapsed since the adoption in 1965 of resolution 2065 (XX) of the United Nations General Assembly and, subsequently, of resolutions 3169 (XXVIII), 31/49, 37/9, 38/12, 39/6, 40/21, 41/40, 42/19 and 43/25, this prolonged dispute is still unresolved and that, despite the widespread international support for negotiations to take place between the Governments of the Argentine Republic and of the United Kingdom of Great Britain and Northern Ireland aimed at finding a peaceful solution to the sovereignty dispute as soon as possible, the decolonization mandate of the United Nations General Assembly resolutions on the Malvinas Islands remains unfulfilled.

  • The Council highlights the Argentine Government’s ongoing constructive attitude and disposition to reach, through negotiations, a peaceful and definitive solution to this anachronistic colonial situation in the American continent and condemns the United Kingdom’s refusal to resume sovereignty negotiations, ignoring each and every call of the international community.

  • In this regard, the Council highlights the commitment assumed by the Government of Argentina, in compliance with the mandate of such resolutions and enshrined in its Constitution, to take into account the interests and respect the way of life of the inhabitants of the Malvinas Islands, pursuant to international law principles.

  • In this respect, the announcement that the President of the Argentine Republic, Cristina Fernández de Kirchner, will attend the upcoming session of the Special Committee on Decolonization ratifies the Argentine government’s willingness, expressed at its highest political level, to reach a peaceful and definitive solution to the sovereignty dispute.

  • The Council highlights that the military presence of the United Kingdom of Great Britain and Northern Ireland on the Malvinas Islands, South Georgias and South Sandwich Islands and the maritime surrounding areas is contrary to the region’s policy aimed at searching for a peaceful solution to the sovereignty dispute and reiterates its rejection of such presence, as well as of the conduct of military exercises, which violate UNGA resolutions, especially Resolution 31/49.

  • The Council of Foreign Ministers of UNASUR reaffirms the call upon the Government of the United Kingdom, in response to the full disposition expressed by the Government of Argentina, to resume negotiations for the purpose of ending, as soon as possible, the sovereignty dispute related to the question of the Malvinas Islands pursuant to United Nations General Assembly resolutions. It also reiterates the request to the Secretary-General contained in the letter of April 2011, signed by all Heads of State and Government of UNASUR, for him to renew his efforts in the fulfillment of the good offices mission entrusted to him by the United Nations General Assembly.

    Asunción, 17 March 2012

    DECLARATION ON THE DEPARTURE OF THE FRIGATE HMS MONTROSE FOR THE MALVINAS ISLANDS

  • The Member States of UNASUR, aware of the notice issued by British military forces regarding the sending of the frigate HMS Montrose to the South Atlantic for a term of six months in order to maintain a “presence to bring calm to the region” and protect “British interests”, reiterate their rejection to British military presence in the Malvinas Islands, South Georgias and South Sandwich Islands and the surrounding maritime areas.

  • As expressly stated by UNASUR on 12 October 2010, such military presence is contrary to the region’s policy aimed at finding a peaceful solution to the sovereignty dispute over the Question of the Malvinas Islands, especially pursuant to United Nations General Assembly Resolution 31/49.

  • In that regard, they reaffirm the statements made in previous Declarations, reiterate their firm support for the Argentine Republic’s legitimate rights in the sovereignty dispute with the United Kingdom of Great Britain and Northern Ireland over the Malvinas Islands, South Georgias and South Sandwich Islands and the surrounding maritime areas, and ratify the region’s permanent interest in the United Kingdom of Great Britain and Northern Ireland agreeing to resume negotiations with the Argentine Republic in order to find – as soon as possible – a peaceful and definitive solution to this dispute, pursuant to the guidelines of the international community, previous UNASUR Declarations and Communiqués, and relevant declarations and resolutions passed by the United Nations (UN) and the Organization of American States (OAS).

    Asunción, 29 October 2011


The question of the malvinas islands

ALBA

  • SPECIAL COMMUNIQUÉ OF THE ELEVENTH ALBA-TCP SUMMIT ON THE COLONIAL SITUATION IN THE MALVINAS ISLANDS, 4 and 5 February 2012.

  • The Heads of State and Government of the Bolivarian Alliance for the Peoples of Our America (ALBA), gathered in Caracas, Venezuela, on February 4-5, 2012, reiterate their strongest support for the legitimate claim by the Republic of Argentina on its sovereign right over the Malvinas, South Georgia and South Sandwich Islands, as well as the surrounding maritime areas.

  • Hope that the Republic of Argentina and the United Kingdom and Northern Ireland resume negotiations to attain a peaceful and definite solution to said dispute, in accordance with the relevant provisions of the United Nations (UN), the Organization of American States (OAS), and the Community of Latin American and Caribbean States (CLACS).

  • Urge the parties to abide by Resolution 31/49 of the UN General Assembly, refraining from adopting decisions that entail introducing unilateral modifications into the situation while the aforementioned Islands are going through the process recommended by the General Assembly.

  • Support the decision made by the countries of the region to ban ships with the colonial flag imposed on the Malvinas from entering their ports.


Latin american and caribbean summit

LATIN AMERICAN AND CARIBBEAN SUMMIT

  • Declaration on the “Question of the Malvinas Islands”, adopted by the Heads of State and Government, on the occasion of the Latin American and Caribbean Unity Summit held in Cancún, México, on 22 and 23 February 2010.

    The Heads of State and Government of Latin America and the Caribbean, gathered in the Unity Summit, reaffirm their support for the legitimate rights of the Argentine Republic in the sovereignty dispute with the United Kingdom of Great Britain and Northern Ireland related to the Question of the Malvinas Islands.

  • They recall the regional interest in the Governments of the Argentine Republic and of the United Kingdom of Great Britain and Northern Ireland resuming negotiations in order to find as soon as possible a just, peaceful and definitive solution to the sovereignty dispute over the Malvinas, South Georgia and South Sandwich Islands and the surrounding maritime areas, pursuant to the relevant resolutions and declarations of the United Nations and the Organization of American States.

  • They further express, in relation to the Lisbon Treaty amending the Treaty on European Union and the Treaty establishing the European Community, that the inclusion of the Malvinas, South Georgia and South Sandwich Islands in the regime of Overseas Country and Territory Association is incompatible with the legitimate rights of the Argentine Republic and with the existence of a sovereignty dispute over such archipelagos.

  • Special Communiqué on Hydrocarbon Exploration on the Continental Shelf

  • Within the framework of the Latin American and Caribbean Unity Summit, the President of the Argentine Republic, Cristina Fernández de Kirchner, informed the Heads of State of Latin America and the Caribbean of the persistent unilateral British action in relation to the exploration and exploitation of hydrocarbons on the Argentine continental shelf.

  • The Argentine President pointed out the arrival of a semi-submersible oil rig in an area of the Argentine continental shelf located some 100 nautical miles to the north of the Malvinas Islands for the purpose of starting exploration works. In this regard, on 2 February 2010, the Argentine Government submitted a protest letter to the United Kingdom, rejecting its attempt to authorize such activities. Such protest letter has been circulated as official UN and OAS documents.

  • In this regard, the Heads of State and Government of Latin America and the Caribbean recalled the provisions of UNGA Resolution 31/49 calling upon both parties to refrain from adopting decisions that entail the introduction of unilateral modifications to the situation while the islands undergo the process recommended by the General Assembly.


Celac

CELAC

  • Draft Special Communiqué on the Malvinas Islands

  • 1. The Heads of State and Government of Latin America and the Caribbean, gathered in Caracas, Bolivarian Republic of Venezuela, on 3 December 2011, on the occasion of the Summit of the Community of Latin American and Caribbean States (CELAC), reiterate their strongest support for the legitimate rights of the Argentine Republic in the sovereignty dispute over the Malvinas, South Georgia and South Sandwich Islands and the surrounding maritime areas and the permament interest of the countries of the region in the Governments of the Argentine Republic and of the United Kingdom of Great Britain and Northern Ireland resuming negotiations in order to find –as soon as possible – a peaceful and definitive solution to such dispute, pursuant to the relevant resolutions of the United Nations Organization (UN) and of the Organization of American States (OAS), as expressed by them in the previous Declarations of the Rio Group and of Latin America and Caribbean Summit (CALC), and especially the Declaration of the Summit of Riviera Maya, Mexico, of 23 February 2010, which are part of the historical heritage of CELAC.

  • 2. Furthermore, they reiterate the importance of observing UNGA Resolution 31/49 calling on both parties to refrain from adopting decisions that entail the introduction of unilateral modifications to the situation while the Islands go through the process recommended by the General Assembly.

  • 3. They highlight the permanent constructive attitude and willingess of the Argentine Government to reach, through negotiations, a peaceful and definitive solution to this anachronistic colonial situation on the soil of the Americas.

  • 4. In this regard, the Heads of State and Government of the Community of Latin American and Caribbean States (CELAC) instruct the Presidency Pro Tempore to request the UN Secretary-General, Mr. Ban Ki-moon, to renew his efforts in the fulfilment of the good offices mission entrusted to him by the General Assembly through successive resolutions with a view to the resumption of the negotiations aimed at finding as soon as possible a peceful solution to such dispute and report to us any progress achieved in the fulfilment of his mission.

  • 5. The Heads of State and Government of CELAC thank the Presidency Pro Tempore for its efforts.”


Ibero american summit

Special Communiqué on the Question of the Malvinas Islands adopted by the Heads of State and Government at the 21st Ibero-American Summit, held in Asunción, Paraguay, on 28-29 October 2011:

The Heads of State and Government of the Ibero-American countries, gathered in Asunción, Paraguay, on the occasion of the 21st Ibero-American Summit:

Reaffirm the need for the Governments of the Argentine Republic and of the United Kingdom of Great Britain and Northern Ireland to resume, as soon as possible, negotiations aimed at finding a prompt solution to the sovereignty dispute over the Malvinas, South Georgia and South Sandwich Islands and the surrounding maritime areas, within the framework of the resolutions passed by the United Nations Organization, the Organization of American States and the provisions and objectives of the Charter of the United Nations, including the territorial integrity principle. We further highlight the Argentine Republic’s permanent disposition for dialogue.

With regard to the unilateral actions of exploration and exploitation of renewable and non-renewable resources that the United Kingdom has been carrying out in the disputed area, they recall the international community’s call to refrain from adopting decisions that entail unilateral modifications to the situation of the Malvinas Islands pursuant to Resolution 31/49 of the United Nations General Assembly, which do not contribute in any way to reaching a definitive solution to the territorial dispute.

Reiterate that the conduct of military exercises by the Government of the United Kingdom, including the firing of missiles from the territory of the Malvinas Islands, in addition to amounting to a violation of Resolution 31/49 referred to above, is incompatible with the policy aimed at searching for a peaceful solution to the territorial dispute between the Governments of the Argentine Republic and the United Kingdom of Great Britain and Northern Ireland.

In this regard, they highlight the successive UNGA resolutions urging the Secretary-General to carry out good offices efforts aimed at the resumption of negotiations for finding as soon as possible a peaceful solution to the aforesaid dispute.

IBERO-AMERICAN SUMMIT


Group of 77 and china

GROUP OF 77 AND CHINA

  • Ministerial Declaration

  • The Ministers of Foreign Affairs of the Member States of the Group of 77 and China met at the United Nations Headquarters in New York on 23 September 2011 on the occasion of their Thirty-fifth Annual Meeting and adopted the following Declaration:

  • The Ministers reaffirmed the need for the Government of the Argentine Republic and the Kingdom of Great Britain and Northern Ireland to resume negotiations in accordance with the principles and the objectives of the United Nations Charter and the relevant resolutions of the General Assembly, in order to find, as soon as possible, a peaceful solution to the sovereignty dispute relating to “the Question of the Malvinas Islands”, which seriously damages the economic capacities of the Argentine Republic and the need for both parties to refrain from taking decisions that would imply introducing unilateral modifications in the situation while the islands are going through the process recommended by the General Assembly.


The question of the malvinas islands

GEODATA

Land AreaMalvinas Islands 11,410 km2South Georgia Islands 3,560 km2South Sandwich Islands 307 km2Exclusive Economic Zone and continental shelf up to 200 miles Malvinas Islands: 448,094 km2South Georgia and South Sandwich Islands: 1,122,970 km2 to the North 60°SSouth Georgia and South Sandwich Islands: 151,030 km2 to the South 60°S


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