Argentine President Javier Milei is hardening Argentina’s sovereignty claim over the Malvinas/Falkland Islands while paving the way for severe sanctions against British companies. He has also initiated a sanctions process against 45 companies and legal entities, including 16 British and 13 Israeli companies.
How are we to determine who is in the right in the present controversy between Argentina and Great Britain concerning the Malvinas/Falklands Islands?
One argument in favor of England is the 1982 war between it and Argentina. It was won by the former, and some people maintain “to the victor belong the spoils,” or “might makes right.” This is nonsensical and must be rejected out of hand, at least if we seek justice on the matter. In any case, it is very unclear which country would win a war between the two if it were to occur at present. Argentina, under Milei, has strengthened its economy (which plays a great role in military power), while Great Britain has suffered economically and is thus far less able to win a war.
More relevant is John Locke’s theory of justice in ownership. It is based upon homesteading. Whoever first “mixed his labor” with the land is the rightful owner of it. According to natural law, governments attain sovereignty on the basis of the wishes of the individual people who are citizens and occupants of the territory.
An apropos legal aphorism is that “possession is nine/tenths of the law.” The legal nod goes to whoever occupies the contested terrain and whichever government they favor. The burden of proof lies not with those who are ensconced in the area. It is an obligation of those who would remove them to establish prior ownership.
The United Kingdom seemed to have justice on its side from this perspective. In 1982, there were 1800 occupants of the disputed island, and virtually all of them, 99%, were Englishmen, who desired to be ruled by that country. Argentina was thus in the wrong.
However, if we dig a little bit deeper — okay, okay, a lot more deeply — and examine the history thoroughly, we reach the very opposite conclusion: The Argentine gauchos had been there long before the British settlers arrived, and many of them were forcibly removed by Britain in 1833. Here are the specifics.
The first permanent settlement was Bougainville’s French colony (1764). Spain purchased this settlement in 1766; Britain withdrew in 1774 and recognized Spain’s claim at Nootka Sound in 1790. Between 1820 and 1829, Argentina resettled the islands through Vernet. The United States’ Lexington raid in 1831, followed by the British landing in 1833, drove out the Argentines. This is the opposite of homesteading: the forcible dispossession of a possessor who had mixed his labor with the land. This Goebel-Rothbard line of reasoning strengthens Argentina’s claim here while reducing Britain’s to “naked aggression.” In 1846, the British government’s sale of land to Lafone, and later to the Falkland Islands Company, was not homesteading either; it was a feudal grant. A state cannot legitimately sell what it did not own in the first place.
Britain’s defense after 1833 is this: the expulsion is ancient history; there are now British-descended settlers living on the islands; they have mixed their labor with the land; therefore, the land belongs to them. But this turns homesteading on its head.
According to this John Lockean theory, it is the first homesteaders who are the proper owners, not those who forcibly evicted them — the latter are squatters, trespassers.
In 1833, the land was not unowned. There was the Vernet colony, composed of Argentines; they built houses, hunted seals, and had an organized fishing system. Britain forcibly removed them. A seized parcel does not become res nullius again. The fact that a thief, or settlers invited by the thief, later puts up fences, raises sheep, and builds houses does not erase the original owner’s title. Otherwise, every successful expulsion would create its own “justice.”
The Lafone sale in 1846 and the Falkland Islands Company do not cleanse this chain of events either. A state cannot justly create private property by selling land improperly acquired through dispossession. A feudal grant does not ethically constitute homesteading. The company’s 43% stake, its wool monopoly, and the illicit landlords were all privileges built upon the events of 1833, not unowned land opened through labor.
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The Kelpers’ (Britons, living on the Malvinas) choice of London in 2013 is a separate matter. Consent indicates which state the people living on seized land want to belong to. The vote of those invited by the dispossessor does not extinguish the rights of the dispossessed who were expelled in 1833. Otherwise, “self-determination” becomes a machine for legitimizing every land theft. The will of the trespassing Kelpers did not justify sending a navy 8,000 miles away.
Nor is the argument that “too much time has passed” between 1833 and 1982 valid. Prescription applies where the owner cannot be identified or has actually abandoned the property. Argentina never abandoned its claim. It refused to recognize the 1833 takeover. There was no abandonment. Therefore, the British settlement that continued from 1833 to 1982 did not constitute new homesteading; rather, it was the continuation of dispossession.
Walter E. Block is the Harold E. Wirth Eminent Scholar Endowed Chair and professor of economics at Loyola University New Orleans. Ege Fakkusoglu is a Turkish student researcher and writer focused on Austrian Economics, libertarian political economy, and Argentina’s economic transformation under Javier Milei.