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Falklands : SPEECH BY THE RT HON THE BARONESS SCOTLAND OF ASTHAL QC REGION ANNUAL CONFERENCE: Tuesday, 12 February 2013
Submitted by Falkland Islands News Network (Juanita Brock) 08.03.2013 (Article Archived on 05.04.2013)

Thank you very much for inviting me to come and do this speech. Can I say what a real pleasure it is to be back in the Falkland Islands and what a privilege it is to be asked to speak on a subject of such topical and definite importance to the Commonwealth and to the Falkland Islands in particular at this time?

SPEECH BY THE RT HON THE BARONESS SCOTLAND OF ASTHAL QC


TO THE PLENARY SESSION PART 1 OF THE 43RD BRITISH AND MEDITERRANEAN


REGION ANNUAL CONFERENCE: Tuesday, 12 February 2013


 


Thank you very much for inviting me to come and do this speech.  Can I say what a real pleasure it is to be back in the Falkland Islands and what a privilege it is to be asked to speak on a subject of such topical and definite importance to the Commonwealth and to the Falkland Islands in particular at this time? 


 


Self-determination is a subject, which as many of you will know, has particular poignancy for me, not just because it forms one of the cornerstones of a vibrant democracy but because it is very much part of my own history as a lawyer and a citizen.


 


As a child of the commonwealth, born on the small, the absolutely exquisitely beautiful Island of Dominica in the West Indies that was part of the British Overseas Territories, I watched Dominica reach towards independence and then obtain its own result of self-determination whilst I, living in the United Kingdom, became Dominican/British. 


 


A number of other Islands in the Caribbean chose a similar independence and autonomy whilst others saw the advantage of remaining part of the British Overseas Territories.  The people of the Caribbean Islands each made their choice as the Falkland Islands will also determine which path they choose to take.


 


Debates about the Falkland Islandsí right to self-determine have been particularly fierce in recent days.    And the Prime Minister, David Cameron, has been unequivocal in reiterating the United Kingdomís views.  His response to the publication of president Kirchnerís letter published in the Guardian on the 3rd of January 2013, read as follows:


 


ďThe future of the Falkland Islands should be determined by the Falkland Islanders themselves.  The people who live there wherever and ever they have been asked their opinion they have said they want to retain their current status with the United Kingdom.  They are holding a referendum this year and I know the president of Argentina will listen to that referendum and recognise it  for the Falkland Islanders to choose their future and for as long as they choose to stay with the United Kingdom, they have my 100% backing.Ē


 


This reiterated what the Prime Minister had said in fact to the Islands on the 21st of December last year.  He said this:


 


ďThe British Government will not stand by and allow the Falkland Islandersí human rights to be ignored.  There is no justification for any country to try and deny them the rights to democracy and to self-determination, nor to make attempts to isolate you, block your trade and undermine your legitimate fisheries, hydrocarbons and tourism industries.Ē


 


This statement puts the right to self-determination at the heart of the dispute over the Falkland Islands.  The Government of the United Kingdom as all of you here know has no doubt about its sovereignty over the Falkland Islands; underpinned by the right to self-determination, enshrined in the UN Charter.  This sovereignty cannot be negotiated away as this would be to override the expressed will of the people of the Falklands.


 


As Dick (Sawle) has already said and made plain British Sovereignty dates back to 1765 Ė some years before the Republic of Argentina came into existence.  The Falkland Islands, as we have already been told this morning, had no indigenous people.  The United Kingdom has never implanted any civilian population.  All the civilians in the Falklands have either voluntarily migrated to or have been born on the Islands. 


 


Civilian migrants voluntarily came from a wide number of countries as they did throughout the whole Americas Region during the 19th century. No civilian population was expelled from the Falkland Islands on the 3rd of January 1833.  As we know the Military garrison which was here from Argentina was here and stayed about three months and their attempt to impose Argentine sovereignty didnít last for very long.  The civilian population was encouraged to remain and the majority of them voluntarily chose to do so.


 


Now, in 1833 the territorial borders of Argentina did not include any territory in the Falkland Islands, Antarctica, South Georgia or the South Sandwich Islands.  The Land which now it the Argentine province of Tierra del Fuego, which the Argentine Government reportedly claimed the Falkland Islands form a part, did not itself become part of Argentina until 1880, by which time three generations of Falkland Islandsí people had resided here and the last time I came to the Falklands in 2001, I had the privilege of meeting some of the descendants of some of those original families. 


 


In May, 1850, Argentina and the United Kingdom ratified a convention for the settlement of existing difficulties and the re-establishment of a friendship and this marked a period of peaceful recognition and understanding.  And in the 90 years following the convention Argentina committed only one official diplomatic protest in respect to the Islands and in 1863 the British Governor of the Falkland Islands officially received a Spanish diplomatic and scientific delegation and received no protest from Argentina.


 


This history is set out simply to make clear the argument advanced by the Government of Argentina that it has territorial sovereignty over the Falkland Islands is unfounded.  And thatís the view administrations in our country and also the Conventions and now I say all three Conventions because we now have a coalition Government. 


 


But it is important to reiterate some of that history because this dispute is more about present realities than historical acrimony. 


 


International law has come a long way since this dispute began in the 19th century.  The right to self-determination is a right of all peoples.  Itís not for the Argentines or, indeed, the United Kingdom or any other State to say that the people of the Falklands cannot exercise this right.


 


The post war period has witnessed a steady decline of colonial structures throughout the world.  They have been replaced by different models of sovereignty and self-rule, which vary widely.    A particular model generally depends on two things which carry different weight depending on the particular situation.  The first is the interests of the people whose territory, State, which are formally under colonial authority. The second is the interests of the colonial power itself.


 


But whichever model is adopted they are each constrained by the rule of law and international principles, which form a framework within which each must fit in order to be assured of legal recognition.


 


The British model has been to promote relationships which are begun during the colonial period through the Commonwealth and eventually Overseas Territories.  And these vehicles are often used to foster economic, political and cultural liaisons throughout the network of nations, which formerly fell within Britainís colonial standard.


 


At the same time there have been renewed attempts to define what it is to be British; and the status of the constituent nations in the United Kingdom.  In Northern Ireland the complex and competing interests have been encompassed within the Good Friday agreement, which has brought a period of peace to the region.


 


In Scotland the people will be given their say on Scottish independence with a referendum planned for the autumn of 2014.  And the referendum is part of the process which began with devolution with a range of powers to start them during Tony Blairís period as Prime Minister and in particular the establishment of a Scottish parliament in 1999. 


 


Now although I know many of you will be only too familiar with the concepts which we will be debating during this conference, I thought it might be helpful if I, as the notional lawyer in our party, looked first at the concept of self-determination itself and its place in international law and international relations.  I will then just touch on some of the ways which self-determination has been applied in Britain and in particular in Scotland and Northern Ireland, not least because the real experts on the delights of the devolution process are here in person to entice you with their contributions later in our programme so I donít want to trespass too much on our word.


 


My contribution is only to outline, perhaps to tease and perhaps provoke some of our subsequent debate.  And to close, I will try and offer some final thoughts on the application of the concept to the Falkland Islands themselves. 


 


The right to determination of peoples is listed in Article 1 of the UN Charter as one of the purposes of the UN and it reads as follows (and I am sure many of you are only too familiar with it):


 


ď..to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace.Ē


 


This overriding purpose is repeated in Article 55 where it provides:


 


ď..with a view to the creation of conditions of stability and well-being, which are necessary for peaceful and friendly relations among nations, based on respect to the principle of equal rights and self-determination of peoples the United Nations shall promote:


1.     Higher standards of living full employment and conditions of economic and social programmes and development,


2.     Solutions of international, economic, social, health related problems and international cultural and educational co-operation and


3.     Universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.Ē


 


 


There is no doubting therefore of semantically of the concept of self-determination to the UN and the ideals which it embodies and the concept has been strengthened further by the subsequent development at the UN.   In 1966 the UN adopted two covenants:  The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both of which share the same Article 1, which provides that all peoples have the right to self-determination by virtue of that right they freely determine their political status and freely choose their economic, social and cultural development and all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations mounting out of any international economic corporation based upon the principle of mutual benefit and international law.  In no case may a people be deprived of its own means of subsistence. 


 


And the State participation at present covenant including those having the responsibility of administration of non-self-governing and trust territories shall promote the realisation of the right to self-determination and shall respect that right with conformity with the provisions of the Charter of the United Nations.  Now the principles of self-determination and sovereignty were reaffirmed by the Declaration on the Principles of International Law affirming friendly relations and co-operation between States in accordance with the Charter of the United Nations adopted by General Assembly consensus in 1970 and The Declaration on the Right to Development adopted in 1986.  An in 2000 the UN Millennium Declaration made specific reference to the right to self-determination of peoples under colonial domination and foreign occupation and this right was again repeated in Resolution 61 in 2005 and contains the 2005 World Summit outcome.


 


So the whole concept of self-determination remains a priority for the UN and December 2010 the General Assembly adopted resolution 65/201 on the Universal Realisation of the Rights of Peoples to Self-determinate their Nations and the resolution specifically welcomed the aggressive exercise of the right to self-determination and expresses its deep concern at any attempt to use force or the threat of force to suppress the right to self-determination of peoples and nations.  And the UN Secretary General has also recently looked into a report on self-determination which I think is really important.


 


So against this background which is defined principally by the UN support for the concept of self-determination, former colonies and autonomous regions and regions which would like to be independent regions have moved towards different forms of exercising that right rather than simply demanding independence. 


 


This process has been labelled by some as post-sovereignty.  In the Basque region for example, Basque Nationalists have divided between those who seek full independence and those who seek some form of accommodation with Spain as a matter of self-rule.  In Quebec a sovereignty partnership model has developed whereby sovereignty, which is accepted by both sides, and in Wales where commonly they have supported devolution of particular powers to a National Assembly rather than independence.


 


Studies have shown that the general public within regions such as these generally do not draw sharp distinctions between independence and devolution and the public recognise that there are (inaudible) between them rather than a clear dichotomy.  And these different models do not mean that sovereignty has disappeared as a concept; and the longer that self-determination, which may lead to that sovereignty.  But it does indicate that the way in which that self-determination is being exercised is not as straight forward as demanding independence from a colonial power.


 


Self-determination has become an iterative process.  And this shift has been driven by a number of factors.  As public memory of the colonial era fades, the importance of history generally weighs in with economic and political realities and consideration of what is in the particular regionís best interest.  Now this is not to say that cultural factors are not so relevant to the issue of self-determination, which may chiefly relate to historical memory.  But the increasing importance of trans-national policy has fuelled this more nuanced approach to self-determination and sovereignty which is currently evident.  And the UN is the most obvious such structure.  The European Union and African Union provides other examples alongside other instruments to which nations may be signatory such as international trade agreements so smaller nations are able to exert greater influence on international affairs through these organisations than they would otherwise reasonably expect to be able to do on their own and they can benefit and some argue disproportionately benefit because of their innate vulnerability about the monies which trans-national entities have to distribute.


 


Now again the complexity needs to be recognised.  The governments of some regions such as Catalonia have recognised that it pays to be part of a larger whole which is Spain which could then have greater influence on the trans-national level of the European Union.  And in Scotland, by contrast, a central plan of the independence campaign has been that the European Union provides an environment which smaller nations such as Scotland can prosper without being attached to another state.  So, in Tony Blairís era as Prime Minister you really saw a significant transfer of power from Westminster to Scotland, Wales and Northern Ireland.  And this devolution of power has been made possible by the recognition of different narratives of national identity and history within the constituent nations of the United Kingdom. 


 


The Model of British identity favoured by successive governments in the post-war era has been to allow different identities to develop with an overriding set of values that each nation can share.  Now this is a very different model to that favoured in Spain, for example.  It is to promote a single national identity and history.


 


In each country the political backdrop at the time can greatly influence the appetite for re-alignment of interests and a thirst for self-determination.  A peopleís desire to be able to express their own identity, the need to be listened to and determine their own path canít become palpable if it is suppressed.  Conversely, if a satisfactory avenue for self-determination within the fabric of the whole is found the union tends to be maintained.


 


And in 1988, after more than a decade of Tory rule from Westminster, almost the entire Scottish Parliamentary Labour Party finds the claim and right of certainty, that sovereignty belonged to the Scottish people.  Independence gained increasing political support through the 1990s driven in part, I believe, by some that Scotland could use its newly found foreseen courses as an independent nation rather than being part of the United Kingdom.  And much of that appetite for self-governance was sated by the Scottish Parliament which was established by the Scotland Act 1998 and now sits in some splendour in Edinburgh. 


 


The first sitting of the Parliament took place on the 12th of May 1999 under the Scotland Act 1998 amended by the Scotland Act 2012 the Scottish Parliament has competency and arrange varies between education, health, economic development.  The Scottish parliament has the power to levy income tax up to 3% and can set borrowing and spending levels and also cover Agriculture, Policy, Justice and Home Affairs.


 


And the Parliament in Westminster continues to be the supreme legislature for Scotland and Scottish MPs continue to sit on it and Westminster retains jurisdiction in International Relations, Defence, the Regulation of International Trade and the Home Civil Service as well as a number of other aspects of economic and diplomatic policies.


 


This dual system has been successful in providing an alternative for the Scottish people to its Parliament to determine issues which impact upon Scotland specifically, while at the same time maintain the Constitutional Unity of the United Kingdom.


 


However, this arrangement has thrown up a challenge for England rather than Scotland, which is centred on the so called West Lothian question.  This is the entirely foreseeable but unintended consequence of devolution whereby MPs from Scottish constituencies are able to vote in Westminster about issues which do not have any impact on Scotland actually.  And a commission of enquiry has been established to look further at the West Lothian question. 


 


But it has not been an easy issue to decide while many Scottish MPs as well as MPs from Wales or Northern Ireland abstain on a convention of a number of issues which do not impact on their constituencies directly.  A formal restriction on their ability to vote would raise complex issues which have so far proved incapable of resolution. And the Scottish National party, as many of you will know, is currently the governing party in Scotland and is not content for constitutional arrangements to remain in play and remains committed to an independent Scotland.  And this is perhaps hardly surprising given the SNP was established in order to achieve independence and states in its founding constitution that it will disband once independence is achieved.


 


Now whether in fact it will disband if independence is achieved, of course, remains to be seen and I am not taking any bets at all.


 


The British Government has, as all of you will know, responded to get SMPs position by agreeing to hold a referendum on Scottish independence in 2014.  Scottish people will be asked to vote YES or NO to the straight forward question: Should Scotland be an independent country?  And the question as originally drafted had been: Do you agree that Scotland should be an independent country?  However, this was deemed by the Electoral Commission not to be meaty enough and I often wonder if I should be allowed into this debate because I am often described as the Baroness of Scotland and not as Baroness Scotland as stated. 


 


Reform Scotland, which is a leading policy institute in Scotland, favoured a middle way between the current system of devolution and independence.  Their proposal, which has been named ĎDevo Plus,í would involve a significant transfer of powers to Scotland in particular in the spheres of economic policy and welfare.  Sovereignty would ultimately remain at Westminster.  And thatís an interesting model but the proposal is starting to gain support.  It was at one stage proposed that it should be put to the Scottish people as part of the referendum.  It was felt, however, that this would be over-complicated and it would complicate the debate and potentially lead to a less clear outcome for the referendum.


 


Now the Governmentís decision to hold a referendum on independence in fact leads to the implication of the importance which is placed on self-determination.  The different proposals which have been put forward of which Devo Plus is the most prominent, is also worth noting as it indicates some of the subtleties in the debate, which at root is about far more than simply breaking away from a perceived subjugation.


 


Questions on determination have also, of course, been central to the history of Northern Ireland.  And there is a long and complex background, which in the short paper which I am seeking to present today is Ė you know, I canít really do justice to it.


 


It nevertheless is worth looking specifically at the way in which the Good Friday Agreement signed in 1998 dealt with this issue.  The genius of the Good Friday agreement was that it enabled all sides to be satisfied that their view of self-determination had prevailed and that their legal position had been preserved in the settlement, achieved a balancing of the peopleís aim of self-determination with the agreement to address a whole range of issues which each group could agree was fundamental to any long-term peace including rights of religious affiliation, political participation, and the protection of language and culture. 


 


The United Kingdom Government is specifically required by the agreement to take steps to promote the Irish language and to consider ratifying the European Charter for regional and minority languages.  Itís important to note that the agreement recognises the right of individuals in Northern Ireland to claim either British or Irish nationality as part of their birth-right.  And this represented the achievement of something which had been considered as specifically rejected at various points during the 20th century.  And this has been rejected in the objectives rejected in 1999 because of the fears of divided loyalties in the new state.  This act in the Good Friday Agreement which allows people to claim different nationalities irrespective of reference reflect from the reality that divided loyalties are present in Northern Ireland even today.


 


There is then an emphasis on the right of individuals to the right to self-determination.  Granting this right will seem as fundamental to the over-arching aim of achieving peace.  And this agreement also deals with the rights of the people as a whole to self-determination.


 


Article 1 provides if the majority of the population in Northern Ireland decide that if they wish to secede from the rest of the United Kingdom, the British Government will put in place legislation to achieve that end.  And interestingly, the article states the people of the Island of Ireland to exercise their right to self-determination, in other words, Northern Ireland and the Republic of Ireland.


 


And this is different to the common understanding of the right of self-determination in its natural role.  Namely that it is for the rights of the people of a state to exercise free external influence.  In the case of Northern Ireland, however, the people of a part of one state must exercise the right in conjunction with the right of the people of another state.  And if Northern Ireland seceded and the Republic of Ireland did not itself determine to accede to the Northís request to join them, the desire of the North would be futile.


 


And so there is an element of risk, of course, of drawing any lessons from the Northern Irish experience, which can be applied evenly elsewhere.  The circumstances are complex and the history is execrably flawed.  So the particular wording used to trigger the right to self-determination, which I described, for example would probably not be applicable to any other situation.  Nevertheless the approach underlines the importance attached to the concept of self-determination and the need to fashion a solution which meets the specific needs and I would say history of the people there.


 


Now where does this leave the concept of self-determination and its application to the Falkland Islands?  I will simply offer a few thoughts on the issue in closing.


 


Conflicts over the right to self-determination are often the most intractable and difficult conflicts to settle.  They involve competing notions of history and culture, which often just cannot be reconciled.  Now this does not mean that conflict is inevitable, although historical and cultural factors no-doubt hold particular personal importance for some people and rightfully so in many cases.  The evidence suggests that their importance has waned and may have been replaced by economic and political realities.


 


Now self-determination and sovereignty are no longer defined by clear dichotomy between independence and direct rule.  And there is a range of alternatives in between these two extremes, which have developed as collective memories of the colonial era and status.  And the right to self-determination can, in fact, be most effective when it translates into a right to negotiate oneís position within a state or within the international order.  So, any exercise of self-determination requires negotiation and compromise. 


 


And the negotiations will impact on the constitutional arrangement and therefore involve building consensus around an issue on which no consensus exists.  And this runs counter to the common view of self-determination i.e. the exercise of free will by a collective being.  But the reality is usually long, hard negotiations of which Northern Ireland finds, perhaps, seriously compromised.  And the Scottish and Northern Irish examples indicate the importance which is attached to the concept of self-determination.  In Scotland there is a commitment to a referendum and there is also vigorous debate.  In Northern Ireland the right to self-determination on its side is at the heart of the Good Friday agreement


 


But achieving a positive outcome in the Falkland Islands will require an understanding of development of the concept of self-determination.  It will also require recognising the need to streamline any solution to the circumstances of the Falklands and of the hard work needed to reach that solution.  But for such a solution to be found, the Argentine government has to play its part. 


 


The Argentine Foreign Minister Timermanís refusal to meet with his British counterpart, David Cameron, during his recent visit to London and the Argentines general refusal to recognise the people of the Falklands legal right to self-determination in accordance with Article 1 sub-paragraph 2 of the UN Charter by which Argentina and the United Kingdom are both jointly bound, or otherwise enter into meaningful discussions with the United Kingdom and the people of the Falkland Islands is not helpful or conducive to a mature debate and/or the revolution of intractable (inaudible).  At its heart this is an issue of self-determination.  Should the people of the Falklands be able to decide their own future? 


 


The British Government is clear that they should and support the proposal for the people of the Falklands to hold a referendum.  The British Government has also made it clear that it seeks full and friendly relations with Argentina as neighbours in the South Atlantic and as responsible southern members of the G-20.


 


The visit of Mr Timerman to London represented an opportunity to begin a dialogue.  Now arguments based on a disputed history should not be allowed to trump international law. That Islanders are entitled to exercise their right to self-determination and any other people.  It cannot be written out of history.  There are three partners to this debate, not just two.  The Argentine constitution seeks sovereignty over the Falkland Islands without any consideration for the wishes of the people of the Falklands and this is a stark contrast to the United Kingdomís approach to the Islands.  The Falkland Islands, like the other British Overseas Territories, are not colonies.  The people are not subjugated and the United Kingdom does not remove any natural resources.  The United Kingdom has strong cultural, economic and institutional links to the territory but that is all.  The relationship is based on mutual consent, partnership and shared values.


 


As the Prime Minister made clear, the United Kingdom has no intention of changing the nature of its relationship with the Falkland Islands unless the people of the Falklands indicate themselves that they seek a change in that relationship.  Until then the United Kingdom will continue to support the democratically elected Government while retaining certain powers necessary to discharge its sovereign responsibilities, particularly defence and external affairs.


 


The current dispute is, in many ways, a tragedy as it prevents the development of a mutually beneficial relationship developing between the Falkland Islands and Argentina.


 


The Argentine Government has made this virtually impossible, however, by a series of hostilities which include, I am sure, many of the acts which we will go through in discussion because I am very conscious of our time.


 


But itís obvious from the Argentine history that much of the actions relate to Argentina seeking to attract economic impact and this has been an unfortunate backdrop to the dispute and has prevented the argentines from entering any meaningful dialogue.


 


Now there is evidence that this history Ė this dispute Ė is also spilling out into other areas, too, which I can certainly say is unfortunate in the extreme.


 


Following the conflict in 1982, the United Kingdom sought to restore normal relations with Argentina while maintaining its obligation to the Falkland Islands.  Many will remember that diplomatic relations were re-established in 1990 following a series of talks in Madrid.  But the United Kingdom has a positive relationship with Argentina on a whole range of issues.  And itís a great shame for relations between those two countries that the Argentines have adopter its present stance in relation to the Falkland Islands, which is in contravention with the will of the people of the Islands and of international law. 


 


But I do not this dispute is inevitable.  I am confident that with good will and with some time the voice of the people of the Falklands will be heard not just by the UK but I am sure by Argentina. 


 


 

 

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