South Atlantic Council
Occasional Papers

No. 11

DISTRIBUTED SOVEREIGNTY AND THE
FALKLAND ISLANDS (MALVINAS) DISPUTE
  By Peter Willetts, Emeritus Professor of Global Politics,
City University, London

June 2012

Abstract

Sovereignty is traditionally seen either as being possessed in untrammelled form or as having been lost to some higher, supranational authority. Changes in the late twentieth century mean that Argentina, Britain and other states cannot be divided into these two simple categories. They should be described as having distributed sovereignty: the degree of autonomous authority governments possess varies from one state to another and from one issue to another.

International lawyers have long recognised that customary international law and treaty law constrict state sovereignty. In addition, practice at the United Nations has changed substantially since it was founded, so that many domestic policy questions are subject to UN influence. In particular, the expansion of the UN's human rights mandate means all governments face intervention in their domestic affairs.

International organisations have become much stronger. Four criteria allow assessment whether encroachment on sovereignty has occurred – can members withdraw from the organisation; can it decide on its own competence; can it make legally-binding decisions; and are decisions taken by majority voting? On this basis Argentina has lost sovereignty to the UN Security Council and Britain has lost sovereignty to the European Union, with mixed answers for other organisations. Transnational corporations (TNCs) can also prevent effective use of sovereignty through four fundamental mechanisms: extraterritorial jurisdiction, transfer pricing, regulatory arbitrage and triangulation of their activities. Finally, the management of global public goods requires collective decision-making and collective action by many or all governments. Thus, sovereignty is now distributed between governments, international organisations and TNCs.

The future of the Falklands must be seen in the same context. Peaceful settlement of the dispute with Argentina is possible by different aspects of sovereignty being distributed between Britain, Argentina, Canada, the USA, special international organisations and an autonomous Falklands legislature.

 
The views expressed in South Atlantic Council Occasional Papers are those of the author and are not necessarily shared by all members of the Council.

© South Atlantic Council, and Peter Willetts, June 2012.
 

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Emeritus Professor of Global Politics, City University, London
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