THE QUESTION OF THE MALVINAS ISLANDS IN THE UNITED NATIONS

The so-called "Question of the Malvinas Islands", understood as the sovereignty dispute between Argentina and the United Kingdom over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas, even prior to the establishment of the United Nations, was addressed at the San Francisco Conference. In this context, the Argentine delegation made a reservation of rights by which the Argentine Republic in no way accepted that such system be applied to the territories owned by it, whether they be subject to a claim or dispute or in the possession of other States.

With the decolonization process advanced by the UN Charter in full swing, on 14 December 1960, the United Nations General Assembly adopted Resolution 1514 (XV)  Declaration on the granting of independence to colonial countries and peoples , which proclaimed  the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations , enshrining two fundamental principles that were to guide the decolonization process: self-determination and territorial integrity. This Resolution provides in its sixth paragraph that  any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations . Indisputably, this Resolution makes it clear that where the principle of territorial integrity of States is at stake, that of self-determination cannot apply.

Pursuant to Resolution 1514 (XV), on 16 December 1965, the General Assembly adopted Resolution 2065 (XX) recognizing the existence of a sovereignty dispute between Argentina and the United Kingdom and inviting both countries to negotiate for the purpose of finding a peaceful solution to the dispute.

This Resolution contains the essential elements that outline the Question:

- The Malvinas Islands case is one of the forms of colonialism that must be ended.

- It takes note of the existence of a dispute between the Argentine and British governments.

- The Argentine and British governments are invited to engage in negotiations in order to find a peaceful solution to the problem and report on the outcome of such negotiations to the Special Committee or to the General Assembly.

- For such negotiations, the objectives and provisions of the Charter (including Article 33 related to the obligation of the parties to a dispute of seeking, first of all, a solution by negotiation) and of Resolution 1514 (principle of territorial integrity) must be taken into account, as well as the interests of the population of the Islands (thus setting aside the principle of self-determination).

Shortly after the adoption of the aforesaid Resolution, a bilateral negotiation process began on the sovereignty of the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas, during which both Parties proposed several solutions, but no agreement was reached. In 1973, the UNGA declared the need to speed up the ongoing negotiations and through Resolution 3160 (XXVIII) called upon both governments to continue them without delay.

In the subsequent years, in the context of the negotiations on the sovereignty dispute, special talks were held on practical aspects related to the well-being of the population of the Islands, with Argentina expressing its willingness to take their interests into account.

As a result of the special talks, in 1971 both governments reached an agreement, under the sovereignty formula, to cooperate in terms of regular air and maritime services and in postal, telegraphic and telephone communications; while Argentina assumed the commitment to cooperate in the fields of health, education, farming and technology.

At the same time, the negotiations on the matter of substance addressed, officially or otherwise, several solution formulas. But despite such ongoing negotiations and Argentina s actions in favour of the interests of the inhabitants of the Islands that, indeed, relieved the burden of duty of the illegally occupying and administrating power, the United Kingdom simultaneously carried out purportedly jurisdictional acts, related to the exploration of natural resources in the disputed area, which were protested against by the Argentine Government.

In view of this, in December 1976, the UN General Assembly adopted Resolution 31/49, a very significant one in the light of its content, by 102 votes in favour, 1 against (United Kingdom) and 32 abstentions. Such resolution calls upon both parties to the dispute to refrain from adopting decisions that entail the introduction of unilateral modifications to the situation while the Islands are going through the process recommended by Resolutions 2065(XX) and 3160. Today, this Resolution continues to be disregarded by the United Kingdom, which insists on carrying out unilateral activities in the disputed area related, mainly, to the exploration and exploitation of renewable and non-renewable resources, as well as military activities.

The 1982 conflict did not alter the nature of the sovereignty dispute between Argentina and the United Kingdom over the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas, which remained unresolved and with negotiations still pending. This was recognized by the General Assembly in November 1982 when it adopted Resolution 37/9, and was reiterated through Resolutions 38/12, 39/6, 40/21, 41/40, 42/19 and 43/25.

As from 1989, an annual review of the Question of the Malvinas Islands takes place within the framework of the Special Committee on Decolonization. This Committee annually adopts a resolution whose terms are similar to the relevant General Assembly resolutions.

Furthermore, within the framework of the UN, the mandate of the good offices mission of the Secretary-General is maintained and the issue of the Question of the Malvinas Islands has figured since 2004 on the permanent agenda of the General Assembly. It may be discussed upon prior notification by a member State.

The resumption of consular and diplomatic relations between both countries in October 1989 and February 1990 was preceded by an understanding on the conditions on which both countries would consider the sovereignty dispute on the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas. For this purpose, on the basis of the Joint Statements of Madrid of 1989 and 1990, a sovereignty reservation or safeguard formula was agreed on the Malvinas, South Georgias and South Sandwich Islands and the surrounding maritime areas that, at the same time, constitutes a recognition by both countries of the existence and content of the sovereignty dispute. However, the issue of sovereignty, which lies at the heart of the dispute, has not been addressed yet, due to the United Kingdom s refusal to resume negotiations on the issue. The United Kingdom insists on its position rejecting the repeated calls from Argentina, the United Nations, the Group of 77 and China, the international community as a whole, regional organizations (OAS, MERCOSUR, UNASUR, CELAC) and from the Ibero-American Summits, among other multilateral fora. In addition to refusing to resume negotiations, the United Kingdom invokes a purported right of self-determination of the population of the Islands, which does not apply to this case, and which has been repeatedly rejected by the United Nations. This is because the Organization has understood that a population transferred by the colonial power, such as the population of the Malvinas Islands, is not a people entitled to self-determination, because it is not different from the people of the metropolis.