Comment & Debate
“The Argentine Seizure Of The Malvinas (Falkland) Islands”, History and Diplomacy. Global Security. 1987 – “The British insist that mutual agreements made between Spain and England during the Nootka Sound Convention of 1790 did not affect existing claims to sovereignty. The agreement stipulated that in the future neither party should establish any settlement on the eastern or western coasts of South America or on adjacent islands to the south of those already held by Spain.”
Some point against the extended argument above:
1. Nootka’s applicability to the Falklands only became debateable in the latter half of the 20th century,
when Argentina used it to assert its own sovereignty claims over the islands. Before then, it was widely
held on both sides of the Atlantic that Nootka applied to the Falklands.
2. The treaty was suspended in 1795 when Spain declared war against Britain. The treaty was
reinstated in full after the war, according to the Treaty of Amity and Alliance between
Great Britain and Spain, article 1, signed the 5th of July of 1814, it being an official
document emitted by the British Foreign Office.
3. This was indeed a reciprocal treaty. Britain broke the treaty when British forces invaded
the Falklands in 1833. Tuyu was so named in 1580 by Hernando Arias de Saavedra. The area
denominated “San Clemente” was first identified later in 1744 by Thomas Falkner during a land
survey. The Rosas family had a hacienda; there was no formal Spanish declaration of foundation
of any city, in any way or by any officer of the Spanish Crown, such that could be identified,
for example, as an event comparable to the founding of Buenos Aires by Juan de Garay. Thus, the
first infraction upon Nootka, was in 1833, by the British, at Falklands. It should be noted that
the British twice attempted to invade Buenos Aires (both times without success) prior to HMS Clio’s
arrival to the islands, but at the time the treaty was still suspended, so it doesn’t count.
4. The secret article only mentions “the parts of these coasts situated to the south of the parts
of said coasts”. The secret article DOES NOT MENTION “the islands adjacent”. The secret article
only mentions establishment of any other power ON THE COASTS IN QUESTION. Thus, any settlements
on the islands by Argentina subsequent to its independence would NOT automatically invalidate
Nootka.
5. New states do not inherit treaties without consent, true. Newly-formed independent states, however,
do inherit territories formerly under the control of their predeceding dependent area, prior to their
independence. In the case of Argentina, the predeceding dependent area was the Spanish Viceroyalty
of the River Plate, and the islands fell under its jurisdictional control. The principle cited is
“Uti Possidetis Juris” and it is a well known principle of international law.
6. Argentina inherited the Falklands, without having to inherit the treaty that Spain signed, because
of the fact that at the time of Argentina’s independence in 1816, Nootka was in full effect, with
Spain exercising full and uninterrupted sovereignty over the islands. Concordantly, the position of the
British government in 1920 held that all British claims to the islands prior to 1774 were entirely
null and void after 1790.