Address to the Adam Smith Institute

Esta conferencia describe los cambios experimentados en las islas, sus pobladores, el Reino Unido y el gobierno local desde la guerra de las Malvinas. En un nuevo aniversario del inicio de la guerra, bien vale la pena detenerse a analizar la perspectiva del otro lado. Las conclusiones quedan para el lector.
Guillermo Fajardo

Address to the Adam Smith Institute
By Councillor Mike Summers, Falkland Islands Government

Thank you for the invitation to join you today to talk about constitutional evolution in the Overseas Territories, using the Falkland Islands as a case study. I hope we will be able to draw some more generic conclusions in respect of all the Territories during the discussion phase.

I will talk principally about the drivers and key events stimulating constitutional change in the Falklands (whether formal or informal), the effect that change has had on the Islands themselves, how this affects our relations with the United Kingdom and, importantly in the circumstances of a disputed sovereignty claim, how it affects relations with our neighbours in Argentina.

In recent years there have been three key milestones in our constitutional development. Some are changes to the written constitution itself (or what caused them), others are not changes to the written word, but give effect to the Constitution and are equally important.

The first milestone unsurprisingly was the war in 1982. This created an awareness of the Falklands, both in the public eye and in political circles that previously did not exist. It caused those responsible for the Falklands, from the very top down, to re-evaluate our development and governance, and what should be done for the future. Amongst other things this resulted in the 1985 Constitution, which was our first real emergence from the feudal and colonial eras.

The "constitution" up until this point had consisted of three sets of letters patent, four Orders in Council, eight amending orders, six sets of Royal Instructions, and nineteen sets of statutory instruments.

The '85 Constitution was mercifully a single document, simply written and understandable. It introduced for the first time a full suite of protections of fundamental rights and freedoms of the individual. It set out provisions for a fully elected Legislative Council, made significant changes to the make-up of Executive Council, so that only elected members now had the right to vote. Council members nominated by the Governor to the Executive and Legislative Councils were dispensed with altogether, and ex-officio members also lost the right to vote. It also set out certain provisions on financial management and the independence of the judiciary.

But most importantly the new Constitution included in the preamble a section which reflects Article 73 from the International Covenant on Civil and Political Rights of the General Assembly of the United Nations, which deals with the right to self-determination of non-self-governing territories. The argument for inclusion of this section was hard fought, and was the first formal appearance of such a provision in our laws.

Although the '85 Constitution was a major step forward in internal self-government, ultimate executive authority remained vested in the Governor. The Islands remained poor in economic terms, and were still reliant on reconstruction funds from the UK following the war. The implications of this are unfortunate but obvious; real power and authority lies where the money is.

The next milestone therefore, the declaration of the 150 mile Falklands Interim Conservation Zone around the Islands in 1986, and the introduction of legislation that enabled lisencing of fishing activity around the Islands, was crucial. This too was a hard won victory, but it put the Falklands on the path to economic self-sufficiency save for the cost of defence, having utilized the last of our ODA grant monies in 1990. After that we no longer relied on the UK Government for funding, at least in terms of annual operating expenditure and development expenditure. We could begin to call our own tune.

As a consequence since 1987 the Falklands has embarked on a major programme of reinvestment in infrastructure, development and services (roads across the Islands, new schools and medical services, improved housing, power and water, private sector investment assistance) that has enabled the community to flourish.

In parallel with this, there was one other programme that had a major political impact. It started before the war and gained momentum after it. It was the land reform programme (funded initially by the ODA as a result of the 1976 Shackleton Report) a process of buying up large farms from expatriate landlords and sub-dividing them for sale to owner occupiers.

So what has this got to do with constitutional development ? Well actually everything; when you own your own land and business, and pay your own way, you get to make your own choices. When you don't have to beg for money, or you are not controlled by big bosses from afar, you don't have to ask permission to do the obvious things, and there are less opportunities to be bullied (sorry, advised differently).

Because of the income generated throughout the community from the fishery, the changes to the '85 Constitution became more meaningful. Internal self government and self belief became the order of the day, and we have seen responsibility for the government of the Islands increasingly taken on by the elected members, who are no longer the elected opposition to appointed administrators from outside, but the political leaders and policy makers.

The third milestone was the 1999 White Paper on the Overseas Territories. This was an important piece of work because it did away once and for all with Dependencies and Colonies. And it was more than a symbolic name change, because it introduced and codified the concept of a partnership between the UK and its Overseas Territories, building on long historic ties, but tailored for the modern world. The partnership Is founded on self-determination, and gives the territories the absolute right to progress to independence, or remain as part of the sphere of influence and responsibility of the UK if they wish.

It creates responsibilities on both sides, for sustainable development and good governance.

It requires that the Territories exercise the greatest possible control over their own lives; an obligation with implications for both sides. We have to take up those responsibilities where we can, and the FCO has to relinquish unnecessary controls.

But UK will continue to provide help where it is needed.
The '99 White Paper has given us the confidence and the framework to push forward with further structural and constitutional reforms, and to be truly internally self-governing. A number of proposals are in formation to further protect the rights of the individual through adoption of provisions in the European Convention on Human Rights, to make elected members more directly accountable to the electorate, and to streamline the activities of Government. We aim to effect these improvements within the next two years.

So where does this leave us in our relations with the UK, and the continuing territorial claim of the Argentines ?

Well, firstly, colonialism is well and truly dead. We no longer feel as though we are a colony, and the UK does not act towards us as though we were. This must be something of a disappointment to the Argentines since a key part of their claim is that we are a colonial relic; and indeed their aspirations are entirely colonial. How else could you construe the statements of a country that says that under its administration it would respect the interests of the Islanders; not the wishes - which is the concept of self-determination enshrined in the UN Covenant - but the interests. And who do you think would determine what our interests were under their administration, us or them ?

It is worth noting that the fundamental difference between interests and wishes was one we argued for decades with the British Government before it was finally accepted. The first time I heard an absolutely unequivocal commitment to the wishes of the Islanders being paramount was not until 1992 in a speech by the then Secretary of State for Defence Archie Hamilton in the Town Hall in Stanley, well after Mrs Thatcher had been ousted from government (though she was sitting next to him at the time). I have not heard any senior UK politician deviate from this line since then.

So to pursue its claim Argentina has to disavow the concept of self-determination - as it does - and rely on the notion of territorial integrity, a very dubious notion indeed in respect of a country you have never owned, and which is over 400 miles distant from the coast. The Falklands are geographically, geo-physically, culturally, historically, linguistically and politically very different from the Argentines. The notion of territorial integrity would have to stretch a very long way indeed to encompass us. And as our friends from Gibraltar observed recently in an address to the UN, there is no such thing, in UN doctrine, as the principle of decolonisation by the application of the principle of territorial integrity.

Meanwhile Argentina actually seeks to frustrate self-government in the islands, by trying to prevent Islanders from representing themselves at international bodies and at trade fairs, putting illegitimate pressure on organisers and hosts to exclude us.

So where does all this leave us ?

First, our constitutional evolution has progressed to the point where the anachronisms of colony and colonist no longer characterise our relationship with the UK. This has important implications not only for our development, but also for our place in the world and Britain's international standing.

Second, we have a strong and satisfactory relationship with the UK, based on partnership, increasing self-government and self-determination. There is no desire in the Falkland Islands for independence, but we do guard closely our right to run our own affairs.

Every member of the Legislative Council in this Government, and every Government before it, has been elected on a mandate of continuing our ties with the UK. Equally every member has been elected on a mandate of no concessions to Argentina on sovereignty, although we are committed to taking forward co-operation in agreed areas of mutual interest - in particular protection of the regions fish stocks.

And third, we believe that the evolution of our constitution, our enshrined right to self-determination and increasing self government, will in the long term be an irresistible argument against Argentine colonialist aspirations, in a world that is increasingly intolerant of those who pursue territorial disputes, whilst ignoring the wishes of the people of those territories.

It might take time. We can wait.