10. Chronicle of a referendum foretold: what next for the Malvinas–Falklands?^*

Cara Levey and Daniel Ozarow

The announcement of the result of the March 2013 referendum on whether the Falklands–Malvinas should remain a British overseas territory came as no surprise in either Britain or Argentina, or on the South Atlantic islands themselves. Indeed, perhaps the biggest shock of all was the news that three inhabitants actually voted against remaining under British rule (Benedictus, 2013). As bewildered Kelpers in the close-knit island community speculated on where the voices of dissent had come from, in the aftermath of the referendum we consider what has really changed and offer insight into what will happen next. In particular, we argue that it is in both British and Argentine self-interest to change their stances in order to resolve the issue.

The elephant in the room

Before considering the significance of its outcome, it is worth mentioning that historically and, in particular, since 1982, media and populace alike, to the contingent stances of the respective political leaders at specific junctures, often rather disingenuously attribute the re-emergence and heightening of the territorial dispute to the respective political leaders in power at the time. Most notably with Margaret Thatcher and the third military junta led by General Galtieri in 1982 and more recently with the somewhat frosty relations between Cristina Fernández de Kirchner and David Cameron at the time of the referendum. In both cases, one might be forgiven for thinking that political elites pulled the issue out of the hat at critical moments in order to distract an easily led populace from the beleaguered economy, low popularity or highly mobilised resistance they faced at home.

Yet, although the issue undoubtedly serves as a convenient political football and lends itself to political point-scoring, it is worth noting that Argentine claims to the ‘Malvinas’ have never been far from the public arena (albeit somewhat more muted at times), both before and since the conflict. Indeed, intermittent secret discussions took place over sovereignty between the Argentine and British governments during the 1950s and right up until the war of 1982. A WikiLeaks cable found that the dictator Juan Carlos Onganía (1966–70) considered retaking them in 1966¹ and, more crucially, Argentina’s Foreign Ministry documents reportedly reveal that the British secretly offered former president Juan Perón (1946–55 and 1973–4) shared control of the Islands on 11 June 1974, with a carefully considered proposal and concrete plans for making it a reality. The plan only failed to materialise because Perón died three weeks later, otherwise the course of history would have been quite different (Jastreblansky, 2012).

Perhaps most controversially, and barely featuring in British collective memory, Sir Lawrence Freedman, professor of War Studies at King’s College London recounts how Margaret Thatcher’s government offered to hand over sovereignty of the Islands at a clandestine meeting with a senior member of the Argentine military junta in June 1980, less than two years before the conflict in the South Atlantic and, unlike in 1974, to a dictatorship rather than a democratically elected government (Freedman, 2005, p. 698). In The Official History of the Falklands Campaign, Freedman explains how the Foreign Office devised a plan to cede sovereignty to Argentina with a leaseback agreement to Britain for 99 years. This was agreed at a secret meeting between Foreign Secretary, Nicholas Ridley and his opposite number, Comodoro Cavandoli in Switzerland. Given that Britain had already enjoyed a cosy relationship with the ruling dictatorship, having sold Lynx helicopters and naval missiles (which were later used against the British forces in 1982) to the regime, the deal was a masterstroke from a business perspective as it would lay the ground for further multi-million pound arms sales for as long as the Junta remained in power. The deal was only scuppered when Ridley visited the Islands in November 1980 in an effort to persuade the Islanders to agree. When Conservative and Labour MPs got wind of the proposal, they objected, as much as anything to its lack of transparency, and it was soon shelved.

Meanwhile, two-time President Carlos Menem (1989–99) – the first Argentine head of state to visit Britain since the conflict in 1982 – may have outwardly promoted more cordial and economic relations between the two nations, but one cannot forget how an amendment to the Argentine Constitution in 1994 [First Temporary Provision] that remains in place today, stipulated that the government can only seek the recovery of the Islands peacefully (in accordance with international law), and also must respect the Islanders’ existing way of life:

To this end then, the 1990s represented a period of ‘rapprochement’, defined as such by Argentina’s then Vice-Foreign Minister Andrés Cisneros, as much towards the Islanders as towards the British government. This policy centred around the prioritising of the need for cooperation in (among other things), the areas of hydrocarbon extraction, fishing and flights – which in turn required a stable political climate without the threat of military conflict. In other words, this desire for advances in these areas by Argentina’s government supplanted the pushing of the sovereignty question on its political agenda, despite the fact that the legal claim persisted. Indeed, the idea that the Malvinas should be Argentine was avoided during diplomatic exchanges at the time precisely in order to further such advances. Effectively its policy was one in which they aimed for discussions around sovereignty to take place at the end of the road towards improving practical understandings, not at the beginning (Erlich, 2015, p. 123).

Although the constitutional clause precludes any possibility of violent conflict, it sought to reassert and legally embed a claim that would not simply dissipate with military defeat. Moreover, although British–Argentine diplomatic relations have fluctuated between moments of tension and affability during the 37 years since the end of the 1982 conflict, a resolution – one that might provide closure to the issue – remains elusive.

The following point of departure came with the election of Néstor Kirchner in 2003, at which point the fulcrum of the change in the Argentine government’s foreign policy centred on its position with respect to the Malvinas. The new diagnosis was that, during the 1990s, President Menem’s policy that focused on cooperation on a range of issues to initiate a path that, in time, would lead to a new discussion around sovereignty, had failed. This was attributable to a number of unilateral acts of British policy, which as Erlich claims, ‘showed them that the United Kingdom did not wish to conform to the spirit of the cooperation agreements’. Therefore, instead, from the inception of kirchnerismo, the axis of the relationship with Britain should centre on the sovereignty disagreement taking the dispute itself as a point of departure and with a series of more agitational tactics employed (Erlich, 2015, pp. 163–4).

This explicit reassertion of sovereignty translated into the diplomatic arena was manifest from the very first meeting that Néstor had with then British Prime Minister Tony Blair, just weeks after his inauguration as president. At this meeting, which marked a watershed moment, Kirchner reaffirmed to his opposite number that the United Kingdom should re-establish a dialogue over the Falklands–Malvinas question, even if the resulting friction caused practical cooperation over the areas named earlier to be suspended. Thus, the origins of Cristina Fernández de Kirchner’s rather boisterous attempts to expose, in public arenas later on, the British government’s anachronistic attitude to the Malvinas can be traced back to the approach that was formulated under her husband’s presidency. This occurred in 2003.

A pointless referendum?

With all this in mind, and given the apparent stalemate, where does that leave things in the wake of the referendum? Arguably, the result has not told us anything that we did not already know. What it has revealed is the need for negotiation and the fact that self-determination is not the only issue at stake here. However, the referendum has served political interests for all parties involved: for the British it has ‘proved’ that the Falklanders are ‘British’; and for the Argentines (who rejected the outcome) that the British are settlers and illegitimate heirs to the territory.

The UN refused to recognise the referendum and hope for a resolution was not aided by its ambiguous and contradictory position in relation to the dispute. Article 1 (paragraph 2) of its Charter of the United Nations enshrines the right to ‘self-determination for all people’. This stance, the British and Falklands governments claim, was confirmed once and for all by the referendum. The Argentines meanwhile claim that article 2 (paragraph 4) includes ‘the inviolability of the territory of the State’, and that the Falklands form part of its national territorial integrity. The clearest position held by the UN is, perhaps, resolution 2065 (passed in 1965), which invites the Argentine and British governments to proceed with negotiations ‘with a view to finding a peaceful solution’, something that the British government has refused to do since 1982. Indeed, the Assembly has not considered the ‘Falkland Islands (Malvinas) Question’ nor adopted any resolution on the question since 1988 when resolution 43/25 reiterated its appeal for the dispute to be resolved through negotiations between the two governments. The case currently sits with the UN Decolonisation Committee.

The problem is that the referendum is not a process into which all parties entered equally, nor did it reveal whether the Islanders wish to keep the status quo as a precursor to full autonomy or to seeking independence from Britain. To add to the ambiguity, the most recent census on the Islands in 2013 suggests that only a third of the Islanders identify as British.³ Had a different question been asked in the 2013 referendum, there might well have been a different outcome. In this sense, the referendum feels like a missed opportunity to engage in a profound and meaningful debate. Yet in spite of the seemingly polarised stances of their respective governments, the reality is that there is much more common ground on which to build than meets the eye.

For a start, whereas Britain highlights the self-determination of the Falkland Islanders as the defining issue and focuses on their ‘British’ identity and way of life, Argentina has already promised to respect these entirely, as stated in its aforementioned constitutional clause. Argentina’s concern is instead one of territorial integrity and sovereignty over the land (and surrounding sea). Such declarations make it even more absurd that the two parties cannot sit around the negotiating table and talk about cooperation.

The emergence of alternative legal interpretations makes prompt dialogue essential

Another consequence of attention once again being drawn to the Falklands dispute in the months leading up to the referendum was that it led several researchers to forensically examine the plethora of pacts and agreements signed by the various imperial powers as part of the decolonisation process in the 1800s. Of course, a number of diverse conclusions were reached about the legality of control of the Islands. Generally these were less favourable for Argentina than previously assumed, but far more serious for Britain. Britain’s claim to the Falklands has always relied not on prior discovery (which occurred before the first British flag was planted on the Islands), but on a small settlement established in 1766 (and abandoned in 1774). When Britain recognised Argentine independence in 1825, it did so without any claim to the Falklands, which were then under an Argentine governor living there. This fact casts doubt over the historic foundation of the legality of the claim, which only became live after the (illegal) 1833 invasion, when the Islands reverted to British rule.

An alternative interpretation that does not sit well with either side can be found in Juan Ackermann y Alfredo Villegas’ 2013 book, which claimed that Uruguay is in fact the only legitimate legal owner, due to its 1841 pact with the Spanish crown, according to which the latter ceded authority over the Islands (Ackerman and Villegas, 2013). The book also provides evidence that both the British governments and Argentine senate subsequently recognised the pact. While the Uruguayan government is yet to lay official claim to the Falklands– Malvinas, this may change if the oil deposits under the sea surrounding the Islands ever become fully refinable and lucrative. Britain and Argentina should seek to reach an agreement now while the fate of the Islands is still within their control.

Singing from the same hymn sheet

The respective governments’ shared visions (yet differing perspectives), combined with the convoluted history of the ownership of the islands, demonstrate the need for dialogue. With this in mind, let us consider what happened in the days, weeks and months after the referendum in both Britain and Argentina, and what might be required of each side in order to break the deadlock.

In the aftermath of the referendum vote, Argentina continued its policy of diplomacy through building alliances in the global south in order to to pressure Britain to return to negotiations, coupled with occasional episodes of publicly embarrassing the British government (such as the attempt by former president Cristina Fernández to hand British prime minister David Cameron a letter marked ‘UN Malvinas’ at the 2012 G20 Summit). It was reported that the Argentine government also wanted to persuade the UN Decolonization Committee potentially to force a UN General Assembly vote, which would pressure the British government into coming to the negotiating table. Given that a year after the vote, a ministerial declaration of the 130 nations of the G77 plus China called upon Britain and Argentina to resume dialogue following a manoeuvre by the latter to make this so in June 2014 (MercoPress, 2014). This declaration gives a strong indicator of how the Assembly might have voted. Indeed, it was arguably only because Argentina was being held to ransom by US vulture funds that the Falklands–Malvinas dispute was not brought before the UN General Assembly.⁴ Instead, Argentina was heavily distracted, as President Cristina Kirchner sought to focus her UN Assembly business on proposing new basic principles on sovereign debt-restructuring processes that were eventually approved in 2015.

While this may have been brinkmanship, such is the potency of the Malvinas issue and its centrality in Argentina’s national identity, that Argentina’s government and entire political class would in fact benefit from having the sovereignty question left perpetually unresolved. Indeed La Cuestión de las Islas Malvinas remains one of only three obligatory subjects that schoolchildren must learn under the National Education Law. Symbols of Argentina’s sovereignty claim are omnipresent in street-names, on school buildings, commemorated in town squares, are a popular choice of tattoo, a regular theme of street demonstrations and a fixture in the school curriculum. If the Falklands were ever ‘returned’ to Argentina, it would no doubt bring enormous short-term popularity for the government in power at the time. Nevertheless, the evidence suggests that Argentines are becoming increasingly cynical about their claim to the Malvinas, especially young people. Some 45% of the Argentine population have little or no interest in the Malvinas, with 18 to 29 year-olds being the most indifferent of all age groups.⁵ Although the recognisable outline of the Islands and accompanying rallying cry remain omnipresent, just how long the claim will remain potent and carry political sway, remains to be seen. With this in mind, the Argentine government is effectively facing a race against time to reach a negotiated compromise agreement.

Curiously, while the claim to sovereignty proved a source of distraction from domestic political problems for both Galtieri’s Junta and Margaret Thatcher’s Conservative government in 1982, the Falklands–Malvinas issue has never become one that possesses electoral potency in either country. Indeed, in Argentina the Malvinas claim is instead arguably a ‘policy of the state’ that transcends party affiliation. This position is illustrated by former president Macri’s (2015–19) perceived ‘weak’ position vis-à-vis reasserting Argentina’s sovereignty claim. Yet although his popularity was damaged by several years of austerity and corruption allegations against his government, the same cannot be said of his return to 1990s-style rapprochement in relation to the Islands. His political opponents struggled to convince the population that he genuinely wanted to forfeit Argentina’s historical demand for control of the disputed territory that dates back to 1833. Further, the Malvinas question barely featured in Alberto Fernandez’ successful presidential election campaign in late 2019. In other words, the issue seems to be one less of electoral significance and more one that is so embedded in the national imaginary for much of the population that to play politics with it domestically is largely symbolic. Meanwhile in the United Kingdom, while the 1982 war is commemorated annually, it barely features in daily political discourse, much less at election time.

However, in terms of how winning over the Islanders might be achieved, Argentina needs seriously to reappraise its perceived hostile approach, because its reference to them as an ‘implanted’ population, as well as its refusal to negotiate with them face-to-face, is not winning them any allies in the South Atlantic. The Argentine government has repeatedly stated that it is ‘committed to respecting the identity and way of life of the inhabitants of the Malvinas, as we do with the 250,000 British descendants living in mainland Argentina’ in spite of the fact that the ‘territory belongs to Argentina’ (Castro, 2013). Yet they need to work on building fraternal relations with the Islanders themselves, or at the very least to adopt a less bellicose discourse towards them. It is naïve of any government to think they can lay claim to an inhabited territory without considering relations with existing residents. This argument has been put forward by a number of Argentine scholars and intellectuals, such as Osvaldo Bayer, who argued that Argentina needs to offer grants for university study in Argentina and organise cultural events to encourage trust-building exchanges between the Islanders and Argentine citizens (Bayer, 2012). Small gestures like these are surely necessary before any meaningful negotiations can take place. In the battle for the hearts and minds of the Falkland Islanders, the British, for now, hold all the cards.

The British government’s position has not changed substantially. The successive Conservative administrations that have been in power since 2010 make negotiation with the Argentines very unlikely, arguably in part because of post-1982 party leaderships not wanting to renege on Margaret Thatcher’s ‘victory’, or the memory of the fallen armed forces personnel. The referendum result served to reinforce its view that the Falkland Islanders have now decided their own fate. Appearing to respect their wishes certainly disguises the government’s rabid enthusiasm for exploiting the hydrocarbons that lie under the seabed. However, like Argentina’s stance, Britain’s position is looking increasingly unsustainable in the face of mounting global opposition. Not even the United States, its closest global ally, was willing to support Britain’s claim (Foster, 2014).

Like the Argentines, the British also need to realise that negotiation is crucial and that the issue will not dissipate, regardless of which president is in power in their southern relation. The government should reflect on the absurdity of clinging onto such a colonial outpost in the 21st century and the reality that it merely serves to buttress a false sense of national pride, years after the sun set on the Empire. Unlike in the 1980s, there is now significant Latin American unity and some form of coherent consensus over the Malvinas question as well as a revival of anti-imperialist discourse that made up part of the pink tide (the election of leftist governments throughout the region). For example, in 2011 the members of Mercosur, the organisation for South American regional cooperation, agreed to close their ports to ships flying the Falklands–Malvinas flag and in 2015, the 18 nations of the Union of South American Nations (UNASUR) repeated its call for Britain to return to dialogue, with the presidency (albeit Venezuelan) of the same organisation condemning British military exercises in the seas surrounding the Islands in a statement that was strongly supportive of Argentina’s 2016 sovereignty claim (UNASUR, 2016). Given the post-Brexit scenario, in which Britain’s trading and investment relationship may well come under significant strain (the EU accounts for £236bn or 43% of all the UK’s exports of goods and services and £318bn or 54% of all imports (ONS, 2018)), developing stronger commercial ties with the region looks vital. Key to the new diplomatic charm offensive will be a softer tone on the Falklands, as the military presence of an imperialist power in Latin American waters continues to prove a source of irritation not just in Argentina, but also from Havana all the way down to Santiago de Chile.

Ironically, Britain’s stubborn refusal to adopt a more flexible approach on the sovereignty question may be entirely self-defeating in terms of both the national self-interest and the Islands’ economy. This is because being able to exploit the recently discovered Islands’ hydrocarbon deposits on a significant scale would depend on access to the Argentine mainland, a condition that Argentina can use as leverage to encourage talks (Milne, 2013). There are surely few stronger incentives for Britain to return to dialogue than that.

Finally, amid the ongoing tension, it is worth briefly speculating on the prospects of a re-run of the conflict of 1982. This scenario seems somewhat unlikely. Britain’s various ill-fated military invasions and occupations in the Middle East, such as of Iraq (2003–11) and Afghanistan (2002–14), mean that overseas wars are increasingly difficult to justify to a sceptical public. Furthermore, British defence spending was slashed following the 2010 Budget review, making another war impossible to afford. Crucially, in 2016 the Royal Navy withdrew from the South Atlantic after 34 years and currently has no aircraft carriers (Axe, 2016). While two new carriers will be deployed from 2021, neither are planned to have a semi-permanent presence in the South Atlantic, so an aerial battle (key to the victory in 1982) appears unlikely. On the Argentine side, army numbers have been drastically reduced since the 1980s; its defence budget has also been exhausted in army pensions; and it is untrained to fight wars against an external enemy. Military solutions, both in terms of possible invasions and defences of the Islands are completely implausible.

The current scenario: temporary détente or decisive breakthrough?

The referendum result itself may not have revealed any hidden or unknown truths, but it showed that dialogue is sorely needed because positions on both sides remain untenable. It also set in motion many of the above events that have seen a softening not only of rhetoric on both sides, but also of genuine bilateral negotiations on a range of questions relating to the Islands and the wellbeing of the Islanders. However, the red line for the British government has been that negotiation of mutual issues does not extend to sovereignty.

Certainly, the abrupt political change marked by the election of Mauricio Macri in late 2015 had a significant impact. In its enthusiasm to deliver on its election pledge to ‘return to the world’, to attract foreign investment as a key tenet of its neoliberal economic programme and establish closer ties with the world’s leading powers in order to enhance its legitimacy internationally (of which Britain has become a prime target), the Cambiemos government led by Macri faced accusations that it has in fact sacrificed Argentina’s claim to sovereignty at the altar of investment opportunities and profit. For instance, the 2016 agreement signed between Argentina’s foreign minister Susana Malcorra and the UK’s secretary of state for the Americas, Sir Alan Duncan, proved highly controversial. While on the one hand, Buenos Aires and London agreed to establish a direct flight between the Falklands and Argentina, explore the possibility of joint hydrocarbon exploration in the South Atlantic and speed up the DNA identification process for unknown fallen soldiers in the 1982 war, many politicians, journalists and civil society groups have been fiercely critical of a series of subsequent actions by the Argentine state.

First, Malcorra’s claim that ‘the Malvinas is no longer the main issue’ for the British–Argentine relationship and also a clause in the agreement that stipulated that appropriate measures would be taken ‘to remove all obstacles limiting the economic growth and sustainable development of the Falkland Islands, including in trade, fishing, shipping and hydrocarbons’, prompted indignation. Not only was this statement interpreted as capitulation to British demands to refrain from any future attempt to assert economic pressure in support of its sovereignty claim, but also the latter was not mentioned in the text at all (Anon, 2016). Second, President Macri did not raise the sovereignty question in any of the meetings that he conducted with the then British prime minister Theresa May. Third, at the time of writing the Argentine ambassador in London, Carlos Sersale, enraged many by doing the unthinkable, and allegedly recognising British authority over the Malvinas by referring to members of the Falkland Islands’ government as the Islands’ ‘top authorities’ in a tweet in December 2018. In an unprecedented act, Argentina’s congress has summoned him to appear before it to explain his actions (Anon, 2018).

There has been an increase in diplomatic activity between the two countries since 2018. In May 2018 Boris Johnson (later Theresa May’s successor as prime minister) became the first British foreign secretary since 1993 to visit Argentina, and numerous senior Argentine government ministers including Chief of Cabinet Marcos Peña, Trade Secretary Miguel Braun, Argentine Central Bank President, Guido Sandleris and Buenos Aires City Governor Horacio Rodrigo Larreta and others have all travelled to London to meet British government officials in an effort to strengthen commercial and political ties. A £1 billion export trade initiative was signed to support British–Argentine trade.⁶ However, for all the rapprochement, only interrupted by the UN Decolonization Committee’s June 2017 Draft Resolution calling once again upon the two nations to resume talks over the dispute,⁷ the retreat from diplomatic pressure on Britain by Argentina has left its north Atlantic nemesis feeling emboldened in its insistence that the 2013 referendum result has resolved the sovereignty question once and for all. The parallels with the Peronist government’s policy during the 1990s and that of Cambiemos since 2016 are striking; the latter’s strategy was overtly to forego the sovereignty question in favour of political manoeuvring (even though the legal route persists) so as to advance economic cooperation.

The reality is that the dispute remains wide open. It will possibly reignite at a diplomatic level following the victory of President Alberto Fernandez’ Peronist government in October 2019 (especially if, as anticipated, it is strongly National–Popular at the level of discourse). And while the wounds of 1982 are still too raw for an outright handover of possession of the Islands to be palatable to the British public, softening inter-generational public opinion as the collective memories fade may make a solution like a Hong Kong style long-term lease back agreement a real possibility at some point in the next decade. One thing is certain, a lasting solution will only be found through negotiation. The 2013 referendum may have done more to facilitate such a possibility than it did to end it.

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* An early version of this chapter was originally published as an op-ed for Al Jazeera in the days following the 2013 referendum. It has subsequently been updated significantly to account for developments that have taken place since then. The authors would like to thank Uriel Erlich for his comments on the draft of this chapter.

1 Urgente 24, 2010.

2 Constitution of the Argentine Nation, 1994.

3 The Guardian, 2013, https://www.theguardian.com/uk/2012/sep/13/falkland-islands-census-british-identity.

4 These vulture funds were NML and Aurelius Capital, and between 2013 and 2015 they sued the government and threatened to ignite a debt default on the scale of 2001 over debts they claimed they were owed on prior speculative bond purchases.

5 ‘Varied views towards the Falkland Islands dispute’, University of Liverpool Press Release, 7 March 2012, available at: https://news.liverpool.ac.uk/2012/03/07/varied-views-towards-the-falkland-islands-dispute/ (accessed 27 April 2020).

6 British Embassy, Buenos Aires, 2017.

7 United Nations, 2017.