UNITED STATES OBLIGATIONS UNDER THE OAS CHARTER AND THE RIO TREATY: AN ANALYSIS OF THE FALKLAND ISLANDS CRISIS

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pear excessive and therefore illegitimate 306 Another view, how-
'ever, would support Israel's invasion as a legitimate response to
years of hostilities.307 Finally, self-defense would only permit
Israel to remove the danger that arguably resulted from the PLO
arms build-up. Once this danger has been removed, Israel's action
would cease to be defensive and legitimate.31e
306. See supra text accompanying notes 248-52.
307. See supra text accompanying notes 253-58.
308. See supra text axompanying notes 259-60.
' 1 dedicate this article to my wife Ruti whose total support and confidence enabled
me to write this Comment.
UNITED STATES OBLIGATIONS UNDER THE OAS
CHARTER AND THE RIO TREATY: AN
ANALYSIS OF THE FALKLAND
ISLANDS CRISIS
On April 2, 1982, Argentina invaded the Falkland Islands.'
After a three-hour battle most of the defending British marines sur-
rendered to the Argentinians.' Great Britain immediately detached
a naval task force to the Falkland Islands.3
Great Britain subsequently called for a United Nations Secur-
ity Council meeting.4 On April 3, 1982, the Security Council ren-
dered a resolution concerning the Argentine action in the Falkland
Islands.' The Security Council resolution called for an immediate
cessation of hostilities, immediate withdrawal of all Argentine
forces from the islands and solution of the conflict through
diplomacy.6
Argentina responded by ignoring, although not formally re-
jecting, the resolution.' Argentina's Foreign Minister, Mr. Costa
Mendez, stated that the landing of Argentine forces on the islands
was simply a response to the "military preparation and the sending
of warships" by Britain. Mr. Mendez also declared that "Argentina
had not invaded any foreign territory,"' but had merely reclaimed
land which rightfully belonged to the Argentines.
As a result of these incidents, United States President Ronald
Reagan accused Argentina of "armed aggression" in the Falkland
Islands, instituted limited sanctions against Argentina and openly
1. The Argentine military force consisted of approximately 2,000 marines and over a
dozen warships. The British defense force on the Falkland Islands consisted of 84 marines at
the time of the invasion. See N.Y. Times, Apr. 3, 1982, at Al, col. 6; see also Wash. Post.
Apr. 3, 1982, at Al, col. 2.
2. N.Y. Times, supra note 1, at Al. col. 6.
3. The present force consisted of "a substantial number of Royal Navy ships and a
carrier task force [which] was forming off the British Coast to depart Portsmouth on April 7
bound for the South Atlantic." Wash. Post, supra note I, at A24, col. I.
4. See N.Y. Times, supra note 1, at A6, col. 5; see also Wash. Post, supra note I, at
A24. col. 8.
5. S.C. Res. 502, U.N. Doc. S/Res/502, at 679 (1982), reprintedin R. PERL, THE FALK-
LAND ISLANDS DISPUTE IN INTERNATIONAL LAW AND POLITICS 419 (1983).
6. See R. PERL, supra note 5, at 419.
7. Id.
8. Id.
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aligned with Great Britain.' On April 30, 1982, the Reagan Ad-
ministration instituted the following measures against Argentina:
suspension of all military exports, withholding certification of eligi-
bility for military sales, suspension of new Export-Import Bank
credits and guarantees, and postponement of Commodity Credit
Corporation guarantees.10 The United States began to supply mis-
siles, ammunition and other military apparatus in conformance
with President Reagan's decision to support Great Britain in the
conflict." Historical ties between the two countries were cited as
the underlying reason why the United States maintained communi-
cation links, including intelligence-gathering satellites over the
South Atlantic, with the British.12
The United States' position regarding the conflict between Ar-
gentina and Great Britain concerning the Falkland Islands created
a major source of tension within the inter-American system. 13 The
Organization of American States (OAS) peacekeeping system is
comprised of two integral parts: the Inter-American Treaty of Re-
ciprocal Assistance (Rio Treaty) and the Charter of the Organiza-
tion of American States (OAS Charter)." As signatories to both
treaties, the United States and Argentina entered into agreements
based upon the principles of American solidarity and continental
cooperation. The purposes set out in the OAS system are "to
achieve an order of peace and justice, to promote their solidarity, to
strengthen their collaboration, and to defend their sovereignty,
their territorial integrity and their independence."15 The goals of
the Rio Treaty were specifically aimed at providing a collective se-
9. N.Y. Times, May I. 1982- at Al, col. 2.
10. Arms sales and other military equipment assistance for the Argentine government
have been prohibited under U.S. law since September 30. 1978, by the Carter Administra-
tion. These sanctions affect $3.9 million in government shipments and approximately $2
million in shipments by commercial U.S. firms to Argentina. Wash. Post, May 1, 1982. at
A20, col. 1.
11. N.Y. Times, supra note 9, at Al, col. 3.
12. N.Y. Times, May 28,1982. at A8, col. 5. The United States commitment of material
support to Great Britain once again questioned the reliability of the United States as a Latin
American ally. See prepared statement of Thomas D. Enders, Assistant Secretary of State
for inter-American Affairs. U.S. House of Representatives, Washington D.C., August 5.
1982, reprinted in 82 DEPT ST. BULL. 2067 (1982).
13. N.Y. Times. May 28,1982. at A8, col. 5.
14. Inter-American Treaty of Reciprocal Assistance, Sept. 2, 1947, 62 Stat. 1681,
T.I.A.S. No. 1838, 21 C.N.T.S. 93 thereinafter cited as Rio Treaty). The inter-American
system dates back to 1889. developing from a variety of inter-American conferences and
organizations into a multipurpose regional organization; see A. THOMAS, THE ORGANIZA-
TION OF AMERICAN STATES (1963J.
IS. CHARTER OF THE ORGANIZATION OF AMERICAN STATES. Apr. 30, 1948, 2 U.S.T.
2416 T I A S No 2361 119 UNTS 3 -- ---'
1983 OAS CHARTER
curity system to deal with serious problems of aggression and
threats to the sovereignty of member States within the Western
Hemisphere.16
This Comment will explore the issue of whether the United
States' conduct during the Falkland Islands armed conflict was
proper. Particularly, whether the United States breached its obliga-
tions to Argentina under the Inter-American Treaty of Reciprocal
Assistance and the Charter of the Organization of American States.
The history of the islands prior to their seizure will include a dis-
cussion of the military activities of both Argentina and Great Brit-
ain in relation to their respective sovereignty claims and responses.
The obligations incurred by the United States as a party to the OAS
Charter and the Rio Treaty will also be examined. This analysis
will provide a framework in which to evaluate the role of the
United States in the controversy, as well as the effectiveness of the
inter-American treaty system. Finally, this Comment will propose
an expansion of the inter-American peace and security system to
cover similar problems between American nations and extra-conti-
nental States.
I. HISTORICAL BACKGROUND OF THE FALKLAND ISLANDS
Some 250 miles from the Argentine coast there exists a chain
of islands known as the Falkland Islands." These small, secluded
islands have been a source of controversy between Argentina and
Great Britain for over 150 years.'R The history surrounding the
Falkland Islands dispute reveals centuries of conflict between Great
Britain and Argentina over the right to sovereignty. Both Argen-
tina and Great Britain rely upon historical events in support of
their claims to the islands.
Britain claims that the first sighting of the islands occurred in
1592.19 The first authenticated sighting, however, was credited to
16. Rio Treaty, supra note 14 preamble.
17. The Falkland Archipelago is comprised of two main islands, East Falkland and
West Falkland. These two large islands have over 200 surrounding islands and islets. The
name Falkland is British, so named in 1690 by Captain John Strong after Viscount Falkland,
then treasurer of the British Navy. The Argentines call the islands the Malvinas. See J.
Metford, Falkland or Malvinas? The Background to the Dispute, 44 INT'L AFE. 463, 466-467
(1968).
18. J. ARCE, THE MALVINAS (1957); J. GOEBEL. THE STRUGGLE FOR THE FALKLAND
ISLANDS 411 (1927 & photo. reprint 1982).
19. See BRITISH INFORMATION SERVICE, THE FALKLAND ISLANDS AND DEPENDENCIES
3 (May 1978) [hereinafter cited as BIS]. This British sighting was credited to English Cap-
tain John Davis in 1592. Other sightings were reported as early as 1502 by Spanish and
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the Dutch in 1600.11 It was not until 1764 that the first expedition
set foot on the Falkland Islands.21 This French landing resulted in
a number of subsequent expeditions by France, Spain and Great
Britain. The eventual establishment of a French colony aroused
strong protest from Spain; three years later, the French agreed to
turn the settlement over to the Spanish government 22
Meanwhile, in 1766 a small British settlement was founded on
the islands at Port Egmont .23 Five years after the establishment of
this British garrison, Spain forced the British to withdraw from the
islands.24 The two countries approached the verge of war, but in
1771, after lengthy negotiations, the Court of Madrid returned Port
Egmont to the British 25 Four years later, due to economic consid-
erations, Great Britain abandoned the settlement 26 A leaden
plaque was left proclaiming that the islands were the sovereign ter-
ritory of King George Ill.27 Throughout this period Spain retained
de facto possession of France's original Port Soledad settlement 28
Spain continued to maintain settlements on the islands until its
withdrawal in 1811.29 During this time Britain did not attempt to
reestablish a settlement in this territory.30
Portugese navigators; see also M. CAWKELL, THE FALKLAND ISLANDS 1 (1960); I. STRANGE,
THE FALKLAND ISLANDS 47 (1972).
20. I. STRANGE, supra note 19, at 47.
21. Statement by the Representative of Argentina, H. E. Dr. Jost Maria Ruda before
the Subcommittee on the Situation with Regard to the Implementation of the Declaration
On the Granting of Independence to Colonial Countries and Peoples 4 (Sept. 9, 1967) [here-
inafter cited as J. Ruda].
Spain's protest was based upon a legal claim to the islands under the Papal Bull of 1492.
The Papal Bull created a line of demarcation between the Spanish and Portugese areas of
discovery. King Louis XV conditioned the turnover of the French settlement on compensa-
tion for all incurred expenses. 1. STRANGE, supra note 19, at 51-52.
22. J. Ruda, supra note 21, at 4.
23. Id.: BIS, supra note 19, at 3.
24. The Spanish declaration of January 22, 1771, reestablished the British settlement.
Spain's ambassador to London, Prince de Masserano, declared that
his sovereign disapproves the aforementioned violent enterprise and binds himself
to reestablish matters as they were prior to the episode, adding that the restoration
to his Britannic Majesty of the Port and Fort called Egmont, cannot and must not
in any way affect the question of prior sovereign rights over the Malvinas Islands.
See J. Ruda, supra note 21, at 5-
25. Id. at 6: see also J. GOEBEL, supra note 18, at 411; Lindsey, Conquest: A Legal and
Historical Analysis of the Root of United Kingdom in the Falkland Islands, 18 TEX. INT'L L. J-
11,
19
(1983).
26.
BIS. supra note 19, at 3.
27.
I. STRANGE, supra note 19, at 55.
28.
J. GOEBEL, supra note 18, at 433.
29. Id.
30. The Argentine governor of the Falklands seized three American sealing ships.
1983 OAS CHARTER
In 1816 Argentina declared its independence from Spain and
became a sovereign nation. The Argentinians thereafter estab-
lished a settlement in 1820 on the Falkland Islands." The Argen-
tine garrison remained on the islands until 1831, when it was
overthrown by a United States corvette 32 At this time the Ameri-
can captain declared the islands res nullis33
Argentina immediately reestablished the settlement on the is-
lands, only to be forcibly evicted by a British warship attack in
1833. Fifty-nine years elapsed before the British subsequently es-
tablished another permanent settlement. Great Britain thereafter
remained on the Falklands until the recent Argentine invasion.34
By 1843 the islands were officially considered to be part of the Brit-
ish Crown Colonies 35
In 1964 Argentinians initiated formal protests to the United
Nations, calling for the return of the islands to their sovereign
State.36 At the very least, Argentina demanded direct negotiations.
However, no successful progress was made in negotiations. On
March 19, 1982, an Argentine naval transport landed some sixty
salvage workers on the South Georgia Island to dismantle an aban-
doned whaling station .31 Displaying the Argentine flag, the work-
ers were ordered to leave3S by British officials. The workers,
When United States protests were ignored, an American warship destroyed the Argentine
settlement. J. Ruda, supra note 21, at 6; Pinto, Argentina's Rights to the Falkland/Malvinas
Islands, 18 TEx. INT'L L. J. 1, 4 (1983).
31. BIS, supra note 19, at 34; J. GOEBEL supra note 18, at 438.
32. BIS, supra note 19, at 3-4.
33. Id. Res nuits indicates that the land, does not belong to any State either because a
former owner has abandoned it or because it is not capable of private ownership.
34. J. Ruda, supra note 21, at 6-7.
35. "In 1843 an act of the British Parliament put the civil administration on a perma-
nent footing and the Lieutenant Governor's title was changed to Governor. The first Execu-
tive and Legislative Councils were set up in 1845" See BIS, supra note 19, at 4.
36. In 1965, the United Nations General Assembly passed a resolution acknowledging
the disputed claims of Argentina and Great Britain, and called for a settlement by both
parties in accordance with U.N. decolonization law. G.A. Res. 2065. 20 U.N. GAOR Supp.
(No. 14) at 57, U.N. Doc. A/6014 (1965). noted in Pinto, supra note 30, at 6 an. 38 & 39.
In 1974, the General Assembly passed a new resolution urging Britain and Argentina to
arrive at a peaceful solution to the sovereignty conflict. G.A. Res. 3160, 28 U.N. GAOR
Supp. (No. 30) at 109, U.N. Doc. A/9030 (1973), questioned br the inter-American Juridical
Committee in R. PERL, supra note 5, at 387.90; seealso Pinto, supra note 30, at 7 nn. 44 & 45.
37. "The Argentinians had a contract with [a] British owner of the whaling station and
notified British officials in the Falklands of their intentions." Wash. Post, Mar. 31, 1982 at
A6, col. 1.
38. The British ship, Endwore, was sent to back up the British demand that the remain-
ing Argentinians leave the islands. Argentinia responded by sending three warships to the
area. Id.
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498 CALIFORNIA WESTERN INTERNATIONAL LAw JOURNAL Vol. 13 1983 OAS CHARTER 499
however, remained with the support of the Argentine
government 39
Following Britain's first military invasion on April 25, 1982,
Argentina's only cruiser was sunk by a British submarine on May
20, 1982.40 At this point the fighting escalated, with Britain ex-
tending its naval blockade zone within twelve nautical miles of the
Argentine coast .41
On April 28, 1982, a resolution was adopted by the OAS Min-
isters of Foreign Affairs 42 This resolution urged the British gov-
ernment "immediately to cease the hostilities it is carrying on
within the security region defined by Article 4 of the Inter-Ameri-
can Treaty of Reciprocal Assistance, and also to refrain from any
act that may affect Inter-American peace and security." Further,
the resolution called upon the Argentine government "to refrain
from taking any action that may exacerbate the situation."43 Ac-
knowledging Argentina's sovereignty over the islands, the resolu-
tion further urged both governments "to call a truce that will make
it possible to resume and proceed normally with the negotiation
aimed at a peaceful settlement of the conflict . . . ."44 The adop-
tion of political and economic sanctions were to be denounced.
Further, the resolution also urged that such measures be lifted.45
These sanctions were cited as a "serious precedent, inasmuch as
they are not covered by Resolution 502 (1982) of the U.N. Security
39. Id.
40. N.Y. Times, May 22, 1982, at 9, col. 6. On May, 21, 1982, heavy casualties were
sustained by both sides, as the British secured and expanded a beachhead on East Falkland.
Argentine forces countered the landing by heavily damaging five British ships and destroy-
ing one British Harrier jet.
41. Four days later, the British position expanded to fifty four miles and seven more
Argentine planes were downed. Id.
42. Organization of American States: Twentieth Meeting of Consultation of Ministers
of Foreign Affairs Resolutions on the Serious Situation in the South Atlantic. OAS Doc.
OEA/Ser. FII.20, Doc. 28/82 (1982). The resolution was adopted by a vote of 17 in favor
with none opposed, including 4 abstentions.
43. Id.
44. The Foreign Ministers function under the Rio Treaty as the Organ of Consultation
is to determine what action is to be taken whenever a particular conflict arises. Article I I of
the Rio Treaty specifies: "The consultations to which this treaty refers shall be carried out by
means of the Meetings of Ministers of Foreign Affairs of the American Republics which have
ratified the Treaty, or in the manner or by the organ which in the future may be agreed
upon."
Article 39 of the OAS CHARTER confirms Article I I by providing that the Meeting of
Foreign Ministers should serve as the Organ of Consultation. See Rio Treaty, supra note 14
art. 11.
45. Id.
Council,06 and are incompatible with the Charters of the United
Nations and of the OAS and the General Agreement on Tariffs and
Trade."
On April 30, 1982, following the adoption of the April 28 reso-
lution, the United States denounced Argentina's actions as outright
aggression!' Maintaining that Argentina was in derogation of the
United Nations' basic principles which oppose the use of force in
settling disputes,41 the United States openly sided with Great Brit-
ain. Ultimately the United States abandoned their position as me-
diator to a negotiated settlement and pledged to assist British
military forces with "material support." Further sanctions imposed
by the United States against Argentina included a cessation of all
military exports as well as financial assistance49
On May 29, 1982, the OAS Foreign Ministers reconvened to
condemn Great Britain's acts of war against Argentina and to de-
mand an immediate end to such activities.50 In response to the
United States military and economic sanctions against Argentina,
the resolution strongly urged "the Government of the United States
of America to order the immediate lifting of the coercive measures
applied against the Argentine Republic and to refrain from provid-
ing material assistance to the United Kingdom, in observance of
the principle of hemispheric solidarity recognized in the Inter-
American Treaty of Reciprocal Assistance. "51 More importantly,
the Foreign Ministers urged the signatories of the Rio Treaty to
"give the Argentine Republic the support that each judges appro-
priate to assist it in this serious situation, and to refrain from any
act that might jeopardize that objective."" During the next two
weeks the struggle over the islands intensified and was finally re-
solved on June 15,1982.53 On this day Argentine forces surrendered
46. N.Y. Times, May I, 1982, at Al, col. 4.
47. N.Y. Times. May 23. 1982, at A13, col. I.
48. United States Secretary of State Alexander Haig undertook intense discussions,
shuttling between Washington. London and Buenos Aires in an effort to reach a peaceful
solution. See N.Y. Times. Apr. 15. 1982, at B14, col. 4 (analyzing Haig's role in the peace
negotiations.)
49. The Administration's decision affected $5.9 million in arms equipment purchased
prior to the 1978 Carter Administration's ban on Argentinian sales. See N.Y. Times, May 1,
1982, at 1, col. 4.
50. Organization of American States: Twentieth Meeting of Consultation of Ministers
of Foreign Affairs Resolutions on the Serious Situation in the South Atlantic, OAS Doc.
OEA/Ser. F/11.20. Doc. 80/82 rev. 1 (1982).
51. Id.
52. Id.
53. The cost to Argentina and Great Britain to defend their respective sovereignty
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OAS CHARTER 501
Vol. 13 1983
to the British, but only after their 2114 month effort to regain control
of the Falkland Islands.54
Although Great Britain was successful in regaining control of
the islands, the major question of sovereignty still exists. The
Argentine government continues to claim a sovereign right to the
Falkland Islands. The determination of sovereignty is essential to
an evaluation of United States obligations under the inter-Ameri-
can system.
II. THE APPLICATION OF INTERNATIONAL LAW TO THE
SOVEREIGNTY CLAIMS OF ARGENTINA AND GREAT
BRITAIN
There are no treaties between Argentina and Great Britain, or
any other nation, which establish sovereignty over the Falkland Is-
lands. Absent any applicable treaty, any claim that a country
might make would have to be analyzed under the principles of cus-
tomary international law 55 Various modes of territorial acquisi-
tion may be used to establish sovereignty under customary
international law:56 occupation, abandonment, cession and pre-
scription.57 Assertion of title based upon these principles must also
include an analysis of the character of territorial rights at the time
of acquisition and the manner in which possession was acquired.58
Additionally, the validity of each claim must be evaluated both in
light of the law existing at the time of the claim and upon consider-
ation of present legal doctrines.59
A. Occupation/Abandonment
1. Britain's Claim. According to customary international
law, territorial title based on occupation encompasses two ele-
claims was high in terms of both money and lives. Argentina was reported to spend close to
$19 million a day. Great Britain spent approximately $2.6 billion which included the re-
placement cost of seven naval ships and nineteen aircrafts which were lost during the con-
flict. See N.Y. Times, June 16, 1982, at Al, col. 6.
54. Id.
55. W. GouLD, AN INTRODUCTION TO INTERNATIONAL LAw 136 (1957).
56. J. BRIERY, LAw OF NATIONS 162-73 (6th ed. 1963); 2 M. WHITEMAN, DIGEST OF
INTERNATIONAL LAW 1028-31 (1971); G. VON GLAHN. LAw AMONG NATIONS 273 (1976).
57. G. VON GLAHN, supra note 56, at 273. Additional accepted modes of territorial
acquisition are discovery, accretion, conquest and assimilation.
58. See D. BowETT, THE LEGAL RIGHT OF ISLANDS IN INTERNATIONAL LAW 45 (1979):
see also M. SORENSON, MANUAL OF PUBLIC INTERNATIONAL LAW 321 (1968).
59. M. SORENSON, supra note 58, at 321.
ments:60 the intention to act as a sovereign and a demonstration of
authority6' A State may occupy a territory, thereby acquiring sov-
ereignty, only if that territory is not under the jurisdiction of an-
other State62 According to this mode of acquisition, the territory
must not be under the jurisdiction of any other State 63
The first British claim to the Falkland Islands originated with
the establishment of a small British garrison at Port Egmont in
176664 Prior to that the islands had been relinquished by the
French to the Spanish 65 France had established a settlement in
1764;66 therefore, this subsequent British outpost did not establish
sovereignty rights to the islands. Moreover, the islands were relin-
quished by the French to the Spanish during this time period 67
Spain maintained legal jurisdiction over the Falkland Islands based
on their cession68 from France. Thus, the establishment of Spanish
sovereignty effectively prevents Britain from claiming the islands as
their own on the basis of the Port Egmont settlement.
Britain's next claim to the Falklands rests upon the Court of
Madrid's return of Port Egmont to Great Britain.69 Britain ac-
cepted the agreement regarding Spanish sovereignty over the re-
gion without protest 70 Britain relinquished any legal claim to the
islands by remaining silent about the Spanish reservation. Absent a
British protest, their silence can only be deemed as an acceptance of
the condition.71 Therefore, British occupation based upon this
claim would not confer any sovereignty rights to the British over
the islands.
The British abandonment of the 1774 settlement gives rise to
another British claim to the Falkland Islands.72 Upon departure
from the island, a leaden plaque proclaiming British sovereignty
60. D. BOWETI,.wpra note 58. at 53.54; see also LAUTERPRACHT, Legal Status of East-
ern Greenland, in 6 ANNUAL DIGEST AND REPORTS OF PUBLIC INTERNATIONAL LAW CASES
97 (1933).
61. See D. BowETr, supra note 58, at 321.
62. G. SCHWARZENTIERGER. THE MANUAL OF INTERNATIONAL LAW 115 (1976).
63. G. SCHWARZENBERGER, supra note 62. at 115.
64. J. Ruda, supra note 21, at 5.
65. See BIS, supra note 19, at 3; see also 1. Ruda, supra note 21, at 5.
66. I. STRANGE supra note 19, at 51.
67. See supra note 22 and accompanying text; see also R. PERL, supra note 5, at 30.
68. G. VON GLAHN, supra note 56, at 279. Cession is defined as the former transfer of
title over territory to another state. Id See also R. PERL, supra note 5, at 13.
69. J. Ruda, supra note 21, at 5.
70. Id. at 6.
71. Id.
72. Id.
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over the islands was left behind.73 Great Britain might support
their claim by asserting that the plaque preserved the British right
to sovereignty. However, acts of a purely symbolic nature do not
provide a sufficient basis to title."" Moreover, abandonment relin-
quishes any title to territory based on occupation.7S There is no
direct evidence, however, of Britain's intention to abandon their
claim to the islands."' Even without this evidence the plaque is in-
sufficient to establish legal title since Spain continued to maintain a
settlement on the island during this period."
2. Argentina's Claim. Argentina asserts its claim to the Falk-
land Islands as an heir to the territories which Spain possessed
when Argentina gained independence 78 According to interna-
tional law, when a country gains independence or takes over the
territory of the mother country, it assumes all the responsibilities,
obligations and benefits inherent in such ownership.79 Argentina
exercised its right to act as sovereign by acquiring the islands when
it established its independence from Spain. Moreover, their display
of authority was established by maintaining a settlement on the is-
lands. The maintenance of the Argentine settlement until 1831 sat-
isfies the two elements required to establish territorial title based on
occupation: the intention to act as sovereign and a demonstration
of authority.10 Thus, Argentina's occupation of the Falkland Is-
lands and their resulting claim to sovereignty is consistent with in-
ternational law.
Argentina and Great Britain each possess strong claims of sov-
ereignty based upon the occupation mode of territorial acquisition.
However, a sovereign claim of right based on occupation alone is
insufficient to establish title.81 Such a claim must also be based
73. BIS, supra note 19, at 3.
74. D. BOWETT, supra note 58, at 46.
75. G. VON GLAHN, supra note 56, at 275.
76. M. CAWKELL, supra note 19, at 35.
77. 1. STRANGE, supra note 19, at 55.
78. J. Ruda, supra note 21, at 8.
79. See J. GOEBEL, supra note 18, at 467; see also Note. The Falkland Islands. Will the
upon prior discovery rights,82 subsequent treaty rights83 or some
other mode transferring title.84 Under the occupation theory,
Argentina would prevail. The Nationality of the discoverer of the
Falkland Islands, however, still remains unclear."S There are no
known treaties establishing sovereignty to the islands. It is appar-
ent, though, that the Argentine sovereignty claim, based on their
independence from Spain, is very persuasive under the occupation
theory.86
B. Prescription/Possession by Force
Britain's strongest claim to the Falkland Islands is based on
prescription. The British have occupied and exercised dominion
over the islands since 1833."" Under the principles of international
law, prescription is defined as the "continued occupation, over a
long period of time, by a State of territory actually and originally
belonging to another."B8 Prescription is an accepted means of de-
termining sovereignty.89 This concept, however, is so vague that
there is no standard for determining the precise length of time re-
quired to perfect a State's title.90 Great Britain has maintained pos-
session of the islands for 150 years. This lengthy period of
occupation would appear sufficient to establish a valid claim of title
to the islands. Based upon this theory, Argentina's toleration
would have caused title to lapse, thereby yielding a valid title to %
Great Britain.
The difficulty with a British contention based on prescriptive
title is two-fold. First, Britain regained control of the islands by
forcibly evicting the Argentine settlement. Second, Argentina re-
peatedly has protested British actions through diplomatic chan-
nels.91 In 1833 Britain denounced Argentina's 1820 claim. This
challenge was made apparent when a British ship forcibly removed
Argentine inhabitants from the islands.92 Under international law,
however, Argentina's forcible eviction was not a recognized method
82. J. BRIERLY, note 56, at 167.
83. Id. at 171, 317.
84. R. HINGORAN, supra note 81. at 43-49.
Owner Please Stand Up, 58 NOTRE DAME L. REV. 616 (1983).
85.
M. CAWKELL, supra note 19, at I; see also J. ARCE, THE MALVINAS 14
80. Supporting arguments on both sides exist as to who is the rightful owner of the
86.
See supra notes 31, 78 and accompanying text.
islands. Under the occupation theory, Britain's claim could be supported by the establish-
87.
See supra notes 33-34 and accompanying text.
ment of the colony at Port Egmont in 1765. See Hasson, The Soreretgnn Dispute Over the
88.
G. VON GLAHN, supra note 56, at 275.
Falkland Islands, 23 VA. J. INT'L L. 53, 55 (1982).
89.
See supra note 56 and accompanying text.
81. Occupation is a term comprised of two essential elements: discover) and the exer-
90.
J. BRIERLY, supra note 56. at 167.
cise of sovereignty over the territory. Land that has been previously occupied cannot there
91.
G. VON GLAHN, supra note 56. at 275.
after be acquired by occupation. R. HINGORAN, MODERN INTERNATIONAL LASV 43 (1979).
92.
BIS, supra note 19, at 3.
(1951).
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of acquiring sovereignty.93 Since the British possession of the Falk-
land Islands was obtained by force in violation of international law,
this mode of territorial acquisition is insufficient to establish British
sovereignty over the islands.
Argentina has a valid claim to sovereignty based on its occupa-
tion of the islands after gaining independence from Spain.94 Great
Britain, on the other hand, has a valid claim of sovereignty based
on the continued British occupation and possesion of the islands.
Although there are inherent difficulties with each country's claims
of sovereignty, both Argentina and Great Britain have a legally jus-
tifiable response to the issue.
III. RESPONSES TO THE ISSUE OF SOVEREIGNTY
A. The British Response: Argentina's Act of Aggression
Great Britain maintains that by choosing to invade and occupy
the Falkland Islands, Argentina labeled itself as the aggressor95
This response is based on Britain's claim of right to sovereignty
over the islands. The validity of this position is supported by the
United Nations' definition of aggression. On December 14, 1974,
the United Nations General Assembly adopted an eight-article text
defining aggression. Article 1 of that resolution defines aggression
as "the use of armed force by a State against the sovereignty, terri-
torial integrity or political independence of another State or in any
such manner inconsistent with the U.N. Charter, as set out in this
definition."96
Unless the Security Council determines otherwise, Article 2
provides that the first use of armed force by a State is prima facie
evidence of aggression 97 Article 3 outlines acts which are consid-
93. Diplomatic protests may prevent the State from peacefully acquiring the area. Such
protests would also demonstrate a lack of acquiescence to the takeover a preserve the ousted
State's claim. J. BRIERLY, supra note 56, at 170;. ealso Chamizal Case (Mex. v. U.S.), 1911
I.C.J. 309, 328-29; cf. Minquers and Ecrobos Case (Gr. Brit. v. Fr.), 1953 I.C.J. 47. 106.08.
This second case concerned a sovereignty dispute between Great Britain and France over
several small islands. Great Britain argued that the French protests were ineffective because
France did not refer the matter to an international tribunal.
94. See supra note 78 and accompanying text.
95. See supra notes 26-35 and accompanying text.
96. See General Assembly Report, reprinted se R. HINGORA'.. supra note 81, at 306.07;
see also U.N. Charter art. 2. para. 4 (where the term "State" is used to resolve member
recognition questions without prejudice and denotes the plural form when appropriate).
97. See R. HINOORAN, supra note 81, at 306; see also Garvey, The U.N. Definition of
"AggressionLaw and Illusion in the Context of Collective Security, 17 VA. J. INT'L L. 177
(1977).
1983 OAS CHARTER
ered aggressive, regardless of a declaration of war. Under Article 3,
the following acts constitute aggression: (1) an armed attack or
invasion of another state; (2) military occupation; (3) the blockade
of foreign ports or coasts; or (4) an air or sea attack 98 Such acts are
not exhaustive; under the provisions of the Charter, the Security
Council reserves the right to determine if other acts constitute ag-
gression 99 Furthermore, an act of aggression constitutes a crime
against international peace. The U.N. Charter further points out
that potential justifications for such acts will not be considered.10?
Under the terms of the United Nations definition, Argentina is
clearly the aggressor in the Falkland's conflict. Based upon the
provisions of Article 2, the April 2, 1982, take-over of the islands is
prima facie evidence of the first use of armed force constituting ag-
gression. Under Article 3, the military occupation of the islands
would constitute the use of force against the territorial integrity of
Britain, assuming the British have sovereignty over the islands.
Therefore, under Articles 2 and 3 of the United Nations definition
of aggression, the Argentine incursion would amount to an act of
aggression.
Commentators have questioned the degree of binding author-
ity that the Untied Nations definition carries.10' They contend that
the terms of the definition are vague and unenforceable.102 More-
over, it has been asserted that there is a discrepancy between the
definition of aggression and "the reality which the definition is in-
tended to address." 103 Recognizing these positions and foregoing
the use of this definition, Argentina's actions would still have vio-
lated several provisions of the United Nations Charter.
As signatories-of the United Nations Charter, Argentina and
Great Britain are required to adhere to the Charter provisions. By
seizing the Falkland Islands, Argentina violated Article 2(3) of the
Charter. Article 2(3) of the United Nations Charter mandates that
members shall resolve disagreements peacefully in order to main-
tain international peace and security) By seizing the Falkland
98. R. HINGORAN, supra note 81, at 306.
99. /d.
100. Id. at 307.
101. Ferencz, The United Nations Consensus Definition of Aggression- Sieve or Substance,
10 J. INT'L L. ECON. 701, 709 (1975).
102. /d. at 716.
103. Garvey, supra note 97, at I96.
104. U.N. CHARTER an. 2, para. 3. provides as follows: "All Members shall settle their
international disputes by peaceful means in such a manner that international peace and se-
curity, and justice, are not endangered" Id.
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Islands, Argentina thwarted a peaceful settlement. By circum-
venting further diplomatic negotiations with Great Britain, Argen-
tina did not fulfill its obligation to follow procedures enumerated in
the U.N. Charter.
Article 33 of the United Nations Charter also dictates that par-
ties to a dispute must first attempt peaceful methods to resolve a
disagreement which may jeopardize international peace and secur-
ity.105 These methods include "negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agen-
cies or arrangements, or other peaceful means of their own
choice."106 After 150 years without a settlement, Argentina had a
duty to submit the problem to the United Nations Security Council.
Article 37(1) of the Charter states: "[S]hould the parties to a dis-
pute of the nature referred to in Artile 33 fail to settle it by means
indicated in that Article, they shall refer it to the Security Coun-
cil.""' Neither country submitted the matter directly to the Secur-
ity Council. However, in 1965, in an effort to find a peaceful
solution to the problem, the U.N. General Assembly approved a
resolution to hold discussions between the two countries.108 This
attempt at a peaceful solution proved unsuccessful. 109 Great Brit-
ain and Argentina were ultimately unable to mediate an agreement
concerning the sovereignty of the islands. The two countries refuse
to recognize the other's territorial claims. 10
After seventeen years of little or no progress within the Secur-
105. U.N. CHARTER art. 33, para. 1, provides as follows:
1. The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of an, seek a solution by
negotiation, inquiry, mediation, conciliation. arbitration, judicial settlement, resort
to regional agencies or arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to
settle their dispute by such means.
Id.
106. M.
107. U.N. CHARTER art. 37, para. 1, provides as follows:
I. Should the parties to a dispute . . . fail to settle it by the means indicated in
that Article, they shall refer it to the Security Council.
2. If the Security Council deems that the continuance of a dispute is in fact likely
to endanger the maintenance of international peace and security, it shall decide
whether to take action . . . or to recommend such terms of settlement as it may
consider appropriate.
Id.
108. Subsequent discussions were conducted through diplomatic channels, with various
trade and economic agreements being reached concerning the islands. Despite these discus-
sions, the question of sovereignty has seen very little progress. See Pinto, .rrrpra note 30, at 6-
9.
109. See supra notes 36-39.
110. See.urpra notes 1-39 and accompanying text.
ity Council and the General Assembly, Argentina invaded the
Falkland Islands on April 2,1982."' This armed occupation was a
violation of Article 2(4) of the U.N. Charter. Article 2(4) mandates
that "all members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent
with the purposes of the United Nations."' 12 Argentina's armed oc-
cupation was condemned by the United Nations Security Council.
On April 13, 1982, the Security Council adopted Resolution 502,
which:
(1) demanded an immediate cessation of hostilities; (2) de-
manded an immediate withdrawal of all Argentine forces from
the Falkland Islands; and (3) called on the Governments of Ar-
gentina and the United Kingdom to seek a diplomatic solution to
their differences and to respect fully the purpose and principles
of the Charter of the United Nations" 3
The applicable United Nations Charter provisions indicate
that Argentina acted in violation of its obligations as a United Na-
tions member by failing to resolve the sovereignty dispute through
diplomatic channels. Assuming Argentina did have sovereignty
over the islands, the right of self-defense and self-help arguably
warranted the April 3, 1982, seizure.
A The Argentine Response. The Right of Self-Defense and Self-
Help
1. Self-Defense. Customary international law recognizes the
right of self-defense against an armed attack.' 14 In order to exer-
cise the right of self-defense, three conditions must be satisfied:1'
(1) an action against the State exercising the right, (2) an instant
and overwhelming need to act, and (3) the action must be reason-
able and proportionate to the situation."'
The first condition requires a precedent action against the
State which seeks to exercise the right of self defense.17 Britain's
1833 coercive and forcible removal of the Argentine settlement
I11. N.Y. Times, supra note I, at I.
112. U.N. CHARTER an. 2, para. 4.
113. See supra note 5 and accompanying text.
114. J. SWEENEY, C. OLIVER & N. LEECH, THE INTERNATIONAL LEGAL SYSTEM 1254 (2d
ed. 1981).
115. J. BRIERLY, Npra note 56, at 406.
116. Id.
117. Id.
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508 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 13
from the Falkland Islands constitutes such an action against Argen-
tina.18 Second, Britain's retaliatory offensive against Argentina's
seizure of the islands is another aggressive act that would satisfy the
first condition.
The second condition requires that the action be reasonable
and proportionate to the situation. After Britain's seizure in 1833,
Argentina's numerous attempts to resolve the dispute through
proper procedures and diplomatic channels were of no avail.19
Furthermore, under Article 51 of the United Nations Charter, Ar-
gentina has the right to self-defense until the Security Council takes
positive action.12? In light of Article 51, Argentina's initial invasion
was warranted based upon the belief that all possible peaceful
measures of resolving the sovereignty issue with Britain had been
exhausted.
Finally, the third condition of self-defense necessitates an in-
stant and overwhelming need to act. The issue regarding Argen-
tina's use of the principle of self-defense lies in justifying the delay
in instituting "an instant and overwhelming response." There is
only one legitimate answer to the claim that Argentina's 150-year
delay fails to meet this element of the definition. That defense
would emphasize the fact that Argentina had made repeated at-
tempts to negotiate a peaceful solution to this international dispute
before attempting to settle the matter on its own accord. Argentina,
therefore, had the right to defend itself against further armed attack
by Great Britain and to organize a valid self-defense in response.
2. Self-help. Again, assuming Argentina had not invaded
foreign territory but merely reclaimed its own, the remedy of self-
help justifies Argentina's conduct. According to customary interna-
tional law, the doctrine of self-help is the process of legally ob-
taining what one wants, while preventing other States from illegally
obtaining what they want.121 Moreover, the method is applicable
"whenever an injured State chooses to take action against a State
violating its legal rights (in order) to enforce international law."22
There are two fundamental justifications for the continued use
of self help:123 (1) "the failure of the leading powers to take seri-
118. See supra note 34 and accompanying text.
119. Sri supra note 36 and accompanying text.
120. U.N. CHARTER art. 51.
121. W. GoULD, Supra note 55. at 585.
122. Id.
123. M. WHITEMAN, supra note 56. at 494.
ously the commitments mentioned and (2) a paralysis, on too
many occasions, of the United Nations machinery for the peaceful
resolution of international differences."124 After 150 years Britain
has rigidly refused to recognize and discuss the legality of Argen-
tina's territorial claims to the Falkland Islands.123 After several at-
tempts, the United Nations machinery has been unable to
effectively mediate a resolution to this longstanding dispute.
Clearly, the most desirable conclusion to the Falkland Islands con-
flict is a negotiated settlement. In the absence of such a resolution,
the doctrine of self help appears to have been the only effective tool
for Argentina to end this protracted dispute.
Both Great Britain and Argentina possess persuasive argu-
ments regarding responses to the question of sovereignty. Each re-
sponse is founded on a sovereign claim of right to the islands.'26
However, the recorded history of the Falkland Islands is replete
with lapses of historical reports and information which significantly
cloud the sovereignty issue, and thereby prevent an absolute deter-
mination.127 The Falklands crisis involves more than just a battle
between Great Britain and Argentina; it seriously tests the United
States' obligations under the inter-American treaty system.
IV. UNITED STATES TREATY OBLIGATIONS UNDER THE INTER-
AMERICAN SYSTEM
Against the backdrop of the Falklands war, the importance of
analyzing the actions of the OAS is clear. The OAS is one of the
oldest, most accomplished regional security organizations within
the international community.128 As such, this entity plays an inte-
gral role in maintaining and defending the peace and security of
the hemisphere.129 Nevertheless, the United States' willingness to
take a position contrary to the OAS in the Falklands dispute not
only questions the status of other regional security commitments,
but also seriously jeopardizes the United States' role in the inter-
American system. The inter-American security system consists of
124. Id.
125. See supra note 31.42 and accompanying text.
126. See supra note 29-44 and accompanying text.
127. See supra note 19.38 and accompanying text.
128. Seegeeera/Ir M. BALL, THE OAS IN TRANSITION (1969); INTER-AMERICAN INSTI-
TUTE OF INTERNATIONAL LEGAL STUDIES, THE INTER-AMERICAN SYSTEM (1966); A.
THOMAS & A. THOMAS, THE ORGANIZATION OF AMERICAN STATES (1963).
129. A. THOMAS & A. THOMAS,.mpra note 128, at 249.
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510 CALIFORNIA WESTERN INTERNATIONAL LAM JOURNAL Vol. 13 1983 OAS CHARTER 511
two principle documents: 130 the Inter-American Treaty of Recipro-
cal Assistance and the Charter of the Organization of American
States. 131
A. The Inter American Security System
1. The Rio Treaty. The 1947 Inter-American Treaty of Re-
ciprocal Assistance, signed at Rio de Janeiro, was designed to func-
tion as the basis for continental peace and security.131 The purpose
of the Rio Treaty was "to provide for effective reciprocal assistance
to meet armed attacks against any American State and . . . to deal
with threats of aggression against any of them." 133
The Rio Treaty declares that parties to this accord agree that
"an armed attack by any State against an American State shall be
considered as an attack against all the American States."134 As
such, each party to the Rio Treaty is obligated to support the Amer-
ican States in case of attack. 131 These provisions apply to an armed
attack, by either intercontinental or extracontinental states within
specific geographically defined areas. 131
Aggressive acts which do not involve armed force are dis-
cussed in Article 6.137, Under Article 6, there are three situations
which justify a collective response: an act of aggression which is
not an armed attack, an extracontinental conflict or any other fact
or situation that might endanger the peace of America.131 Under
the provisions of Article 6, the March 19, 1982, confrontation be-
tween British and Argentine workers constituted a situation which
might have endangered the peace of the hemisphere. This action
was an extracontinental discord which amounted to an act other
130. Id.
131. Id.
132. Note, The OAS Peace and Security S}'stem, 21 STAN. L. REV. 1156, 1157 (1969).
133. Rio Treaty supra note 14 preamble.
134. Id. art. 3, para. I.
135. "[A[nd, consequently, each one of the said Contracting Parties undertakes to assist
in meeting the attack in the exercise of the inherent right of individual or collective self-
defense recognized by Article 51 of the Charter of the United Nations." Id.
136. The region to which this treaty specifically refers includes the entire Western Hemi-
sphere from each pole, and from Alaska to Greenland. Id. arts. 3, 4.
137. Id. art. 6.
138. Article 6 further requires that:
the Organ of Consultation shall meet immediately in order to agree on the meas-
ures which must be taken in case of aggression to assist the victim of the aggression
or, in any case, the measures which should be taken for the common defense and
for the maintenance of the peace and security of the Continent.
Id.
than an actual armed aggression. In this instance, the Rio Treaty
establishes a legal obligation to assist Argentina in a conflict which
might endanger continental peace.
Article 9 provides two examples of acts which are considered
aggressive: (1) an "unprovoked armed attack by a State against the
territory, the people, or the land, sea, or air forces of another State"
and (2) "invasion, by the armed forces of a State, of the territory of
an American State, through the trespassing of boundaries demar-
cated in accordance with a treaty, judicial decision, . . . invasion
affecting a region which is under the effective jurisdiction of an-
other State."139 The Rio Treaty was intended to deal with acts of
aggression and other major threats to peace.140 Specifically, "it was
designed to deal with major problems of aggression and threats to
the sovereignty and independence of states."141 Britain utilized the
majority of its military strength in response to Argentina's reclama-
tion of the islands.142 As such, a majority resolution of the OAS
characterized this overwhelming response to the sovereignty dis-
pute as a British armed attack.'43
The Rio Treaty is not the only document in the inter-Ameri-
can system which has the principal goal of peace and security of the
continent. These principles and regional obligations are also recog-
nized in the Charter of the Organization of American States.'44
2. The Charter of the Organization of American States. The
Charter of the OAS145 is the second integral part of the inter-Amer-
ican system. The American States established the Charter to
"achieve an order of peace and justice, to promote their solidarity,
to strengthen their collaboration, and to defend their sovereignty,
their territorial integrity and their independence." 141
139. Id. art. 9.
140. Note, supra note 132, at 1157.
141. J. DREIER, THE ORGANIZATION OF AMERICAN STATES AND THE HEMISPHERE CR1-
sts 125
(1962).
142.
See supra note 37-42 and accompanying text.
143.
See supra text accompanying note 43.
144.
OAS CHARTER, supra note 15, arts. 1, 4.
145.
The Charter was signed and ratified by the original 21 states that were parties to the
Rio Treaty. The Charter was drafted in 1948 at Bogata, Columbia. Id.
146. Id. art. 1. Articles 4 and 5 of the Charter list a series of purposes and principles to
guide members in their relationships with other member nations. Of particular significance
are the following essential purposes mentioned in Article 4: "a) To strengthen the peace and
security of the continent; b) To prevent possible causes of difficulties and to ensure the pacific
settlement of disputes that may arise among Member States; c) To provide for common
action on the part of those States in the event of aggression."
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Article 24 of the OAS Charter mandates that every aggressive
act by a State "against the territorial integrity or the inviolability of
the territory or against the sovereignty . . . of an American State
shall be considered an act of aggression against the other American
States."147 This provision is strengthened by Article 25, which de-
clared that the hemisphere's peace and security goals will be upheld
in conformity with existing treaties, specifically the Rio Treaty. 141
The language of Articles 24 and 25 of the Charter, which strongly
resemble the Rio Treaty, emphasizes each member's obligation to
support the American States in case of attack.149
The United States and Argentina are both members of the
OAS Charter as well as signatories to the Rio Treaty. 150 Thus, both
countries are required to adhere to these provisions. The legal au-
thority for insisting that the United States support Argentina's con-
duct is dependent upon whether the United States breached its
commitments to the OAS by unilaterally determining Argentina's
lack of sovereignty rights and providing aid to Great Britain.
B. The Role of the United States in the Falkland Islands Conflict
Assuming the validity of Argentina's sovereignty claim to the
islands, Britain would have been classified as the aggressor.'S1 Brit-
ain's response to Argentina's regaining possession of the islands
gravely affected the inviolability, territorial integrity and sover-
eignty of Argentina.152 As such, this conduct would activate a duty
on behalf of the United States to provide for effective reciprocal
assistance to Argentina. 113 As a signatory to the Rio Treaty and the
147. Id. art. 24.
148. Id. art. 25.
149. Id. arts. 24-25. Article 24 provides as follows: "Every act of aggression by a State
against the territorial integrity of the inviolability of the territory or against the sovereignty
or political independence of an American State shall be considered an act of aggression
against the other American States". Article 25 provides as follows:
If the inviolability of the integrity of the territory or the sovereignty or political
independence of any American State should be affected by an armed attack or by
an act of aggression that is not an armed attack, or by extra-continental conflict, or
by a conflict between two or more American States, or by any other fact or situation
that might endanger the peace of America, the American States, in furtherance of
the principles of continental solidarity or collective self-defense, shall apply the
measures and procedures established in the special treaties on the subject.
150. Id. art. 2; Rio Treaty, supra note 14, at 93.
151. See supra notes 132-39 and accompanying text
152. See Rio Treaty, supra note 14, arts. 3, 6; see also supra notes 132-39 and accompany-
ing text.
153. See Rio Treaty, supra note 14, preamble & art. 3.
OAS Charter, the United States is required to adhere to the provi-
sions of these documents.
Article 3 of the Rio Treaty states "that an armed attack against
an American State shall be considered as an attack against all the
American States.." Consequently, the United States must "assist
in meeting the attack in the exercise of the inherent right of individ-
ual or collective self-defense recognized by Article 51 of the Char-
ter of the United Nations.""' By openly aligning itself with Great
Britain, the United States failed to fulfill the commitment to uphold
the peace and security of the American hemisphere. Under Article
3(2) of the Rio Treaty, member nations may individually determine
the immediate measures they may take in fulfillment of their treaty
obligations, at least until a decision has been reached by the Organ
of Consultation. 156 At this stage the United States was under an
independent obligation to assist Argentina.157 This independent
obligation became a collective one once the Organ of Consultation
met. 1.58
The OAS Ministers of Foreign Affairs adopted a resolution on
April 28, 1982 calling for the British to refrain from hostile acts and
denouncing sanctions against Argentina.159 Once the Ministers of
Foreign Affairs effected this consultation on collective measures,
the parties were obligated to comply with the Organ's decision.`
This decision created a binding legal obligation upon the United
States. 161 Two days later the United States openly aligned itself
with Great Britain,162 thereby failing to fulfill its Rio Treaty com-
mitment to uphold the peace and security of the American hemi-
sphere. By applying coercive measures against Argentina and
giving material support to Britain, the United States effectively cir-
cumvented the provisions enumerated in Article 3 of the Rio
Treaty.
On May 29, 1982, the Foreign Ministers reconvened in re-
sponse to the United States military and economic sanctions taken
against Argentina.163 Clearly, the original OAS resolution merely
154. Id. art. 3.
155. Id.
156. Id.
157. Id.
158. Id.
159. See supra note 44.
160. Rio Treaty, supra note 14, art. 20.
161. Id.
162. See supra notes 9-10 and accompanying text.
163. See supra note 52 and accompanying text.
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL Vol. 13 1983
urged the United States to halt aid to Great Britain." Article 20 of
the Rio Treaty states that all signatory States are bound to accept
the decisions of the Organ of Consultation 165 with respect to meas-
ures taken for the common defense and maintenance of the peace
and security of the continent. However, the United States chose to
ignore the position taken by the majority of OAS members, thereby
violating the terms of the Rio Treaty.
Assuming the validity of Britain's sovereignty claims over the
islands, the United States, at the very least, should have remained
neutral throughout the conflict in observance of the principles of
hemispheric solidarity.166 The United States is bound by the rules
expressly enumerated in the Rio Treaty.""' By supplying military
support and intelligence information to Great Britain in its war ef-
fort against Argentina, the United States undermined the purpose
and theory behind the inter-American mutual defense system.168
Respect for the sovereignty and independence of member States is
the fundamental principle of the OAS. The overall effectiveness of
the System is made suspect by the United States lack of support to
Argentine efforts to condemn Britain. The United States response
to Argentina's actions169 focuses attention upon the ramifications of
an inter-American treaty system in which one member can unilat-
erally determine issues, despite an OAS resolution on the matter.
The principles of sovereignty and aggression became a matter
of prime importance in the Falklands dispute. 170 Both Great Brit-
ain and Argentina arguably had valid claims to the islands. Both
countries considered their reactions to the conflict justified. The
crucial issue for the OAS, however, is not whether Britain or Ar-
gentina had a better claim to the islands or who, in fact, was the
aggressor in the conflict. Rather, the issue in the Falkland Islands
dispute is whether the United States, as an individual OAS mem-
ber, had the power to unilaterally decide who was the aggressor in
the conflict and whether treaty provisions applied. If one member
may determine and unilaterally act upon issues in a treaty-defined
dispute, the inter-American treaty system's principles of collective
action have little or no effect. The question is not whether the
164. N.Y. Times, May 30, 1982, at 1, col. 3.
165. Rio Treaty, supra note 14, art. 20.
166. See supra note 146 and accompanying text.
167. Rio Treaty supra note 14 preamble.
168. OAS Charter note 14, arts. 4, 5.
169. See supra notes 9-12 and accompanying text.
170. See supra notes 1-8 and accompanying text.
United States' actions were proper, but whether, as a member of the
OAS, any country will now have to honor its pledge to support the
independence of a hemispheric nation and to faithfully fulfill OAS
treaty obligations."'
The fact that United States military assistance was given to
Great Britain despite the binding OAS resolution indicates a seri-
ous defect in the treaty provisions. The weakness in the treaty's
defense 'system is the absence of a specific provision prohibiting
support of a country that the OAS Foreign Ministers have deter-
mined is the aggressor in a hemispheric conflict.
V. AMENDMENT OR MODIFICATION OF THE Rio TREATY
The question of whether the present system is sufficient to ef-
fectively deal with similar volatile conflicts in the future is vital.
The critical shortcoming in this defense system, as with other areas
of international law, is the lack of compulsory provisional enforce-
ment. However, the entire system need not fail as an operative
structure of collective security. On the contrary, an expansion of
the system's provisions is needed.
Under the current provisions of the Rio Treaty, the Ministers
of Foreign Affairs meet to decide upon the collective measures to
be taken when the peace and security of the Western Hemisphere is
threatened.12 In the case of an extracontinental conflict" 73 the
Ministers of Foreign Affairs may not respond unless such action
affects "the inviolability or the integrity of the territory or the sov-
ereignty or political independence of any American State."14
Once this limitation is met, the Ministers may implement any of the
collective measures of of Article 8 of the Rio Treaty.1' Article 8
enumerates measures wich the Organ of Consultation may imple-
ment in cases of aggression or threats thereof.16 A decision to im-
pose enomic or diplomatic sanctions is binding on all parties to the
treaty. 117 This enforcement power should be expanded to bind
171.
See note, supra note 133, at 1186.
172.
Rio Treaty, supra note 14, art. I I.
173.
These Articles outline acts that constitute a threat to peace and security. Id. arts. 3,
174.
Id. art. 6.
175.
Id. art. 20.
176.
These measures are:
the recall of chiefs of diplomatic missions; the breaking of
diplomatic and consular relations; the partial or complete interruption of economic relations
or of rail, sea, air, postal, telegraphic, telephonic, and radiotelephonic or radiotelegraphic
communications; and the use of armed force. Id. art. 8.
177. Id. art. 20.
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members to prohibitory acts as well.
An expansion should be made to preclude a signatory State
from directly contradicting the collective action that a majority of
members have determined necessary to maintain hemispheric
peace and security. This expansion would prevent a member na-
tion from directly supporting the aggressive acts of a nonmember
State. Consequently, this additional provision to the Rio Treaty
would effectively ensure the neutrality of the members, as well as
ensuring compliance. No individual member could block action
which the majority of States support by a unilateral determination
of the aggressor in the conflict. Thus, if the majority of American
States agree upon specified actions, a dissenting member would be
bound to prohibitory, but not mandatory acts.
Although this proposed measure would repudiate direct sup-
port of the "aggressor State" by an OAS member, the latter provi-
sion would act as an escape clause. A dissenting State would not be
bound to any mandatory provisions not specified in Article 8 of the
Rio Treaty.18 Therefore, a member could remain neutral in a dis-
pute, absent a decision by the Organ to employ any of the prohibi-
tory measures.
The effectiveness of such a prohibitory clause would prevent a
contracting party from an arbitrary decision of the issues. Al-
though no State is required to use armed force,"" this proposal
would not permit a State to circumvent a decision by the Foreign
Ministers calling for the majority of States to use force. Therefore,
when two-thirds of the voting members1B? at a Meeting of Consul-
tation determine the aggressor in a conflict, each party would at
least be bound to the prohibitory acts in the decision regardless of
individual votes. The success of this expansion of the Rio Treaty
depends upon strict compliance to its obligations by all member
States.
It is essential for the OAS to take action against a member
State which willfully disregards treaty obligations. Without respect
for these obligations the regional measures for maintaining peace
and security will become impotent. However, the overall effective-
ness of potential political or economic sanctions against a noncom-
plying OAS member would be weak due to enforcement problems.
178. Id.
179. Id.
180. Id. This provision requires that all decisions of the Organ of Consultation shall be
taken by a two-thirds vote of the ratifying State.
Presently, there are no enforcement measures against a State which
fails to carry out measures adopted by the Organization to maintain
peace. Consequently, the most workable sanction against a non-
conforming party would be a lack of support from fellow members
in future hemispheric disputes. The effect of such added pressure
continues to be strong enough to assure that member States comply
with the legal commitments under the Rio Treaty. Nations cannot
be sure that hemispheric support from other members will not be
needed in the future. This provision enhances as well as upholds
the theories and principles behind the collective security system.
The purpose and goals of the treaties support an expansion of
the provisions to proscribe noncompliance and direct support of an
aggressor nation. The principle of inter-American cooperation of
member States is imperative to the viability of the Rio Treaty. This
proposal would greatly strengthen and uphold the goals of peace
and hemispheric solidarity.
VI. CONCLUSION
One hundred and fifty years of dispute culminated in the April
2, 1982, Argentine invasion of the Falkland Islands. An examina-
tion of the competing claims to the Falkland Islands reveals that
both Great Britain and Argentina have valid sovereignty claims to
the islands.1e' Great Britain has a valid claim of right based on the
continued British occupation and possession of the islands.182 Ar-
gentina has a valid claim of sovereignty based on occupation of the
islands after gaining independence from Spain.183 Each country
also has a sound response to the other's sovereignty claims.184 Ar-
gentina maintains that Great Britain exercised dominion over the
islands only through a violation of international law in acquiring
possession.' '15 Thus, in the absence of any alternative and success-
ful means of vindicating their vital right to sovereignty, the use of
self-help and self-defensive measures on the part of Argentina was
warranted.186 Conversely, Britain contends that such actions by
Argentina violated the provisions and obligations of the United
Nations Charter.187 Both countries' claims continue to have legal
181. See supra notes 60-94 and accompanying text.
182. See supra notes 60-77 and accompanying text.
183. See supra notes 78-86 and accompanying text.
184. See supra notes 95-27 and accompanying text.
185. See supra notes 32-35 and accompanying text.
186. See supra notes 114-24 and accompanying text.
187. See supra notes 95-106 and accompanying text.
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518 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL vol. 13
4
significance. 1811 The Falklands conflict, however, involves more
than the resolution of this protracted sovereignty dispute.189 More
importantly, it raises the question of the viability of the inter-Amer-
ican system when member nations refuse their obligation to prevent
and control extracontinental conflicts.
United States involvement during the Falkland Islands conflict
illustrates that the OAS collective security machinery is most effec-
tive only when United States policy coincides with the goals of the
organization. United States policy, however, should not be permit-
ted to unilaterally determine what and whether treaty provisions
have been fulfilled. To do so would undermine the goals of the Rio
Treaty. The prime objective of that treaty is to provide a collective
security system to deal with direct threats to the sovereignty of
member States within the Western Hemisphere.
By signing the Rio Treaty in 1947, the United States and other
member countries recognized a strong need for a collective security
system. 19' In consideration of this need, the proposed collective se-
curity mechanism would greatly enhance the viability of, and confi-
dence in, decisions of the OAS. In this way, it would also facilitate
an effective handling of similar disputes in the future.
Tina A. Lamoreaux
BOOK REVIEW
THE UNITED NATIONS AND THE CONTROL OF INTERNATIONAL VI-
OLENCE: A LEGAL AND POLITICAL ANALYSIS. By John F.
Murphy. Totowa, New Jersey: Allanheld, Osmun and Co.,
1983. Pp. 212. $32.50.
Professor Murphy has written an elegant yet profoundly troub-
ling book. Examining many contemporary incidents of interna-
tional violence, he critically analyzes the ability of the United
Nations both to prevent and to respond to international violence.
Throughout the book Professor Murphy effectively integrates both
legal and political analysis into a coordinated public policy. This
interrelated perspective vitalizes his perceptive examinations of the
United Nations' role in preventing and responding to international
violence. The book is divided into two main sections dealing with
traditional and nontraditional international violence.
The United Nations' response to both forms of international
violence is examined primarily from a historical perspective. Par-
ticular attention is paid to the several Arab-Israeli wars and the
continuing instability in the Middle East. Professor Murphy's con-
temporaneous analysis includes an examination of the 1982 Israeli
military incursion into Lebanon. There could not be a more timely
"state-of-the-art" approach. Within the Middle East context, the
continuing Iran-Iraq War is also considered. His examination of
international violence on Cyprus, the Falkland Islands and
Kampuchea extends the analysis beyond the Middle East context.
After a brief review of the League of Nations, the book begins
to focus on the various organs within the United Nations that deal
with international violence. The Security Council and the General
Assembly are critically examined. One interesting chapter profiles
each of the six persons who have held the office of Secretary-Gen-
eral. It is pointed out that when the Security Council and General
Assembly are politically stalemated, it is the unilateral proactive
stance of the Secretary-General that has often provided the most
effective United Nations' response to the threat of international
188. See supra notes 126-27 and accompanying text. violence.
189. See supra text accompanying notes 123-28.
190. See supra notes 132-36 and accompanying text.
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