Javier Milei, the embattled president of Argentina, has torn a leaf out of the playbook of 1980s dictator General Leopoldo Galtieri. He has taken to sabre-rattling about the Falkland Islands. Although this time, consistently with the 2020s zeitgeist, he has declared lawfare rather than warfare.
Threats of international litigation aren’t what they were
About 130 miles north of the Falklands, and on their continental shelf, there is a colossal oilfield. It contains nearly two billion barrels, or about 30 years’ production. The Falklands have licensed a joint venture between two large oil companies, the British Rockhopper and the Israeli Navitas, to exploit it from 2028.
Milei is not happy. He has already threatened Argentinian criminal proceedings against Navitas and against Rockhopper executives. In addition, a curious combination of Argentine environmentalists and army veterans has filed suit in Buenos Aires some weeks ago, one suspects with his tacit approval, seeking a court order to halt the development pending an Argentine environmental assessment of possible threats to the marine ecosystem. And in the last few days Milei has raised the stakes by threatening to take the UK to court.
There is little doubt that the legal-sounding language here is largely humbug. This is an openly political bid to re-open the Falklands sovereignty issue by someone who – unfortunately with some reason – sees the UK as weak and divided, and Andy Burnham as a frothy political lightweight. For all the talk of environmentalism it is hard to think that Milei, an ultramontane free-marketeer, would have any qualms about tapping the field for Buenos Aires’ benefit were this possible. Further, his apparent Damascene conversion to the virtues of the current international legal order sits slightly oddly with his castigation of the UN top brass last week as ‘arrogant parasites dressed up as well-intentioned bureaucrats’ after the organisation failed to do his bidding and unequivocally back his claim to the islands. Remember also the domestic aspect. Faced with depressing poll figures, infighting in his party La Libertad Avanza, and continual corruption scandals at home, Milei is desperate for a foreign distraction.
This is a demand that the Prime Minister and Foreign Secretary Miliband should have no compunction in facing down. This is for any number of reasons. First, there is a point of principle. The Falklanders have made their wishes clear, by over 99 per cent at the last referendum in 2013. The Argentinian line that such tiresome references to the inhabitants’ desires are irrelevant because of events going back to the 1830s is a hard one to swallow, particularly when inextricably bound up with an entirely mercenary claim to mineral wealth that would greatly benefit the Argentine economy. By contrast, the UK view that self-determination and democracy should prevail is, if carefully advanced, able to have a good deal of international traction.
Perhaps more importantly, threats of international litigation aren’t what they were. In the days when international courts showed a semblance of dispassionateness and impartiality, it made some sense to profess an attitude of meticulous obedience to their orders. But things are different when we regularly see more blatantly political judgments, for example on anything to do with Israel. Or the 2019 opinion from the International Court of Justice peppered with anti-colonialist rhetoric demanding that the Chagossians be deprived of self-government in favour of a Mauritian administration they detest. Whatever our attitude to domestic lawsuits, when it comes to international litigation in a court that can’t actually enforce its orders, our vital national interests today demand more of a wait-and-see attitude.
Furthermore, in this particular case Milei’s threat of court proceedings might well be less robust than it looks. When in the international sphere someone threatens litigation, we always have to ask, ‘Which court are you going to sue us in?’ Here the answer is the slightly obscure International Tribunal on the Law of the Sea, or ITLOS, set up under an international convention of 1982 largely to deal with maritime boundary disputes and arguments about what activities are proper in particular sea areas. But a moment’s thought shows that this claim isn’t about marine activities. In substance Milei wants to ask ITLOS to adjudicate on who holds sovereignty over the Falklands. And ITLOS has so far made it clear that it does not see its job as deciding issues of territorial sovereignty.
We no longer have dyed-in-the-wool lawyers obsessed with international law as prime minister or attorney general. This is one case where we should take advantage of this fact, hold our nerve, and politely say ‘No’. Such a show of principled resolve would be right. It would also gain at least grudging respect, as opposed to the contempt that greets nations that roll over when faced with impertinent threats like this.
