Published: 09 March 2023 Author: Stefan Talmon
The Falkland Islands (Malvinas) are a British Overseas Territory in the South Atlantic Ocean 480 km east of Argentina’s Patagonian coast. The archipelago is also claimed by Argentina as part of its national territory. In December 1966, the UN General Assembly noted the existence of a dispute between the two countries ‘concerning sovereignty over the said Islands’. On 2 April 1982, Argentina invaded the islands, but after a brief war, British rule was re-established on 14 June 1982.
On 1 February and 30 March 2021, German airline Lufthansa conducted two direct charter flights from Hamburg to Mount Pleasant in the Falkland Islands (Malvinas), transporting scientists and staff to replace those currently at the German Antarctic research station ‘Neumayer III’, as well as a fresh crew for the German icebreaker ‘Polarstern’. The ‘Polarstern’ had sailed to Port Stanley (Puerto Argentino), the capital of the Falkland Islands (Malvinas), after the usual route for crew rotation via Cape Town in South Africa had become unviable due to the coronavirus pandemic. In preparation of the flights, Lufthansa asked the civil aviation authority in Argentina for permission to use Argentinian airspace and to use the airport in the Patagonian town of Ushuaia as an alternative airport should its aircraft be unable to land in the Falklands due to bad weather. This triggered the Argentine Ministry of Foreign Affairs to issue the following press release:
Lufthansa airlines duly filed an overflight and landing request with the National Civil Aviation Administration (ANAC) and the Province of Tierra del Fuego, Antarctica and South Atlantic Islands to conduct two charter flights from Hamburg to the Malvinas Islands (the first one to take place on 1 February and the second one on 30 March).
Ushuaia is designated as the alternative airport to the Malvinas Islands for both flights.
The request states that the purpose of both flights is to carry scientists and staff to replace those currently at the ‘Neumayer III’ German scientific station in Antarctica, and to replace the crew of the polar research vessel Polarstern. The German Embassy had requested permission from the Argentine Coastguard for the vessel to enter Puerto Argentino within the framework of Decree 256/2010.
Lufthansa also informs that all those on board will spend 14 days in quarantine before the flight, and that during that time they will be subject to three PCR (COVID-19) tests, four in the case of the Lufthansa crew.
Lufthansa’s request to the Argentine authorities is important in that it entails a recognition of the Malvinas Islands as part of the Argentine territory.
On 22 January 2021, the official responsible for the Malvinas at the Argentine Foreign Ministry wrote on Twitter:
It is an important sign that both the German embassy in the case of the polar research ship and Lufthansa for the flight have asked the Argentine government and the province of Tierra del Fuego for permission to head for the Malvinas Islands. It is an important step in the understanding at a global level that it is a territory over which, as the United Nations recognizes, there is a sovereignty dispute whose only solution is through dialogue within the framework of resolution 2065 of United Nations.
These statements triggered questions whether Germany had recognised the Falkland Islands (Malvinas) as belonging to Argentina. The Federal Government rejected any claim of implied recognition of Argentine sovereignty over the Falkland Islands (Malvinas). A spokesperson for the Federal Foreign Office stated:
The federal government’s position on the Falkland Islands has not changed. The actions of private companies are not attributable to the Federal Republic of Germany and have no consequences under international law.
Neither of the two requests implied recognition of Argentina’s sovereignty over the Falkland Islands (Malvinas). As pointed out by the Federal Foreign Office, the actions of a private airline company, even one that is partially owned by the State, are not acts of the State. But even if the act had been attributable to Germany, Lufthansa’s request did not constitute recognition of the Falkland Islands (Malvinas) being part of Argentina. Lufthansa did not submit a request with the Argentine aviation authorities for landing rights at Mount Pleasant in the Falkland Islands (Malvinas), but for landing rights at Ushuaia, the capital of Argentina’s Province of Tierra del Fuego, Antarctica and South Atlantic Islands. Similarly, the overflight request concerned the airspace above the Province of Tierra del Fuego, Antarctica and South Atlantic Islands, not the Falkland Islands (Malvinas). As the press release makes clear, Ushuaia was designated as the ‘alternative airport’ in case of emergency. Such alternative airports are routinely designated in advance should weather or other circumstances not permit landing at the actual destination. Lufthansa issued a statement on 24 January 2021, which read:
We have requested the necessary permission from the responsible authorities in the Falkland Islands for the landing and from the Argentine authorities for the use of Argentine airspace. Requesting landing and overflight rights is a mandatory practice in international air traffic and solely serves the purpose of conducting the charter flight.
According to the Argentine Foreign Ministry’s release, the German embassy in Buenos Aires requested permission from the Argentine coastguard for the vessel ‘Polarstern’ to enter Puerto Argentino, ‘within the framework of Decree 256/2010.’ While there were no plans for the ‘Polarstern’ to call at a port on the Argentine mainland because of the coronavirus pandemic, authorisation was requested as a precautionary measure in case the vessel was forced to enter an Argentine port or waters due to distress. Authorisation may also have been requested in order not to jeopardize the good relations between the Alfred Wegner Institute for Polar and Marine Research and the Argentine Antarctic Institute, and not to jeopardise future access to the port of Ushuaia – the gateway to Antarctica. The reference to Decree 256/2010, however, was an important qualification of the request for authorisation. In response to British hydrocarbon-related activities in the waters around the Falkland Islands (Malvinas), the Argentine President decreed on 16 February 2010:
Every ship or vessel intending to transit between ports on the Argentine mainland and ports located in the Malvinas Islands, South Georgia and South Sandwich Islands, or to cross Argentine waters towards the latter, and/or charge goods to be transported directly or indirectly between these ports, must request prior authorization issued by the competent national authority.
The decree was intended to hamper the British hydrocarbon activities by, inter alia, preventing ships involved in these activities from being resupplied in Argentine ports. The decree did not deal with access to Port Stanley (Puerto Argentino), let alone require Argentina’s permission to enter that port. The decree’s ambit was limited to vessels transiting or transporting goods between ports on the Argentine mainland and Port Stanley. By virtue of its sovereignty the coastal State may regulate access to its ports. Argentina could thus prescribe that vessels on their way to and from Port Stanley, which wanted to call at a port on the Argentine mainland, request prior authorisation from its authorities. Authorisation was required not for the entry to Port Stanley but for entry to, and for the use of the ports on the Argentine mainland. Similarly, ships en route to Port Stanley were not required to seek prior authorization to enter Port Staley but to cross ‘Argentine waters’ on their way. To the extent that such ships do not (intend to) call at a port on the Argentine mainland and are simply traversing the Argentine territorial sea or exclusive economic zone, Decree 256/2010 violates the right of innocent passage and the freedom of navigation under the United Nations Convention on the Law of the Sea. As the authorisation requirement under Decree 256/2010 was linked to ports on the Argentine mainland and the use of Argentine waters, the request for such authorisation thus could not imply any recognition of Argentine sovereignty over the Falkland Islands (Malvinas).
The position of the Federal Government on the Falkland Islands (Malvinas) remained unchanged. Germany did not take sides in the sovereignty dispute between Argentina and the United Kingdom. The position was clearly spelled out in response to a parliamentary question in November 1986 when the Minister of State at the Federal Foreign Office Jürgen Möllemann stated:
In view of their friendly relations with both countries, it is and remains the policy of the Federal Government to support and facilitate the start of negotiations between the two countries. She expects serious efforts from both sides to find a comprehensive solution to the conflict through negotiations.
Argentina must have been aware of Germany’s position. The Ministry of Foreign Affairs’ press release was deliberately phrased ambiguously to create the impression of recognition where there was none. Thus, it was said that the Lufthansa request ‘entails a recognition’, rather than constitutes or implies recognition. The press release also did not say that the overflight and landing request concerned the Mount Pleasant airport and the airspace above the Falkland Islands (Malvinas) but that it related to ‘two charter flights from Hamburg to the Malvinas Islands’. The statement of the official responsible for the Malvinas at the Argentine Foreign Ministry was more straightforward in this respect, speaking of an ‘important sign’, rather than recognition. Argentina tried to exploit the Lufthansa flight and the journey of the ‘Polarstern’ for political reasons, rather than to support its legal claim to territorial sovereignty over the Falkland Islands (Malvinas).
Category: Territorial sovereignty