ElQueso said:
The headlines reads "[Argentina] Offers to Change the Constitution."
Then the subheadline really tells what the story is about, which is nothing: "the country would do it to include eventual results of a negotiation over the islands."
I agree, the headline misleads. Clarifying that was the purpose of my last message ('Actually, now that I read the article properly' etc.) Sorry, I hurried when I posted that as 'news'.
ElQueso said:
There could be many reasons the country may change the constitution related to the negociations, although I don't know the Argentine constitution and don't know if some of these apply. For example, I could imagine that it might be changed from an imperative to "regain" (sorry, I couldn't help the quotes) the islands as a territory, to an inclusion of the territory as a province and granting it whatever rights are appropriate, or granting them whatever level of self-rule that is agreed to in the negociations, etc. That would certainly be a change, but not the kind of change the article's title kind of hints at.
The problematic part is where it says that the government should seek
full sovereignty (ejercicio pleno de la soberanía). The rest of the Constitution gives ample flexibility: it welcomes dual nationalities, enforces a federal system where much of the law is local, admits pseudo-provinces with special statuses (e.g., the city of Buenos Aires) and the controverted transitory disposition itself calls for preserving the islander's way of life.
ElQueso said:
What would be more fair would be for Argentina to do certain things, like acknowledge that Britain has ruled there for almost two centuries, that the negociations are complex, and that to get two parties to sit down and talk meaningfully it would make sense for the Argentine government to modify it's consitution to take that out, or perhaps change the wording to something like "Argentina is committed to ensuring that the Malvinas issue is resolved to the satisfaction of all parties involved."
That would be odd. Normally, countries taking part in a dispute have contradictory claims contained in their law. Boundaries are no small part; even if their constitutions don't describe them in detail, I'm confident that no legislature is allowed to change boundaries like if they were passing common law. I mean, I agree that the expressiveness of the clause may be problematic, but I don't think it's so atypical.
Concessions regarding these contradictory claims are normally offered secretly during the process, and materialized after agreeing (it may be a partial agreement while the process goes on). They're not done beforehand. I'm not just saying this because it makes sense to me, I read it in some texts about dispute settlement, though I haven't delved deep into them--we can look more thoroughly if needed.
ElQueso said:
A former British ambassador to Argentina mentioned in a speech that Britain sees the consitutional wording a serious obstacle to discussions because basically there's no reason to talk if the Argentine attitude is the only thing we're going to talk about is Britain's capitulation.
What's Castro's reply? Ah gee, that silly thing isn't any reason not to talk, it's just an excuse. [After all], "When there are negotiations and international treaties are signed, the countries involved alter their domestic legislation to incorporate them. Argentina is willing to do so."
Heh. She does not really strike me a very bright person anyway. I've seen a couple of interviews with her and she just doesn't seem to have much depth, at least. Which doesn't seem to surprise me.
I doubt Castro is prepared enough to be a good ambassador in Britain for us, I agree with you on that, but I think she's right when she says that this kind of argument (from the former British ambassador) is an excuse. For reasons stated above and below.
ElQueso said:
She also doesn't seem to understand the difference between a Consitution and Legislation. The former being the framework for creating and interpreting the second, which is a huge difference in countries where there is at least an attempt made to seriously follow the consitution.
I guess this shouldn't surprise me either, that a high-level Argentine government official, obviously in a position of importance if Argentina has any real desire to "regain" the islands, would not have the sort of depth and understanding necessary for the job, but rather just enough to continue to lay out propaganda in the interests (whatever they really are) of the Argentine government.
Obviously, she has the same understanding of consitutional law that the government itself does, where it is so relatively easy to change the consitution to anything you want it to say, although big changes may take a few years of small steps, a few crises, etc, to get there. I can't wait to see what happens in the next year or two and how it's justified, as far as other changes more critical to the Argentine people.
Well, as a side note, with international law things have become a bit less determinate with the advent of internationalism. Some countries even give priority to international treaties over their constitutions (e.g., Netherlands, Guatemala and Honduras). Since the 1994 reform, our Constitution places international treaties in an order of priority between itself and Legislation, except treaties on human rights which have constitutional priority.
Anyway, there would still be a problem as a treaty calling, e.g., for partial or no sovereignty would contradict the imperative to obtain 'full' sovereignty, the latter having priority. I can think of two ways to possibly solve that, the most straightforward is to simply change the Constitution in what respects to the transitory disposition alone.
Having that kind of limits is acceptable, the 94 reform itself was limited, it couldn't touch the dogmatic part, contained in the first part. A special majority in Congress is needed to pass the law that calls for a constitutional assembly with attributions only on the transitory disposition. After many TV shows and ads, there would be an election of representatives from each province, who would gather and vote. This is not far fetched, it wouldn't debilitate our legal system. Solving Malvinas/Falklands is a big deal, it would justify taking these kinds of steps. It could happen in a midpoint of negotiations, after agreeing with Britain on certain points including this.
It would require, of course, a level of popular support, higher than required for ordinary law. Maybe that was the intent of those who included this disposition, to avoid, for example, that the cause is 'sold' overnight. Perhaps I'm wrong when I criticize that they included this.
The other way involves arguing about the transitory nature of the disposition, and using a referendum to solve the debate that would arise. One way or the other, popular support would be crucial. I find this to be normal. Notwithstanding the immaturity of our institutional framework, and the lack of will shown by this government to maintain it and improve it, I believe it is hard to create any legal framework that contemplates everything, for example the 'boundary dilemma' commented above. In constitutional monarchies, the monarchs have extensive legal powers to solve such special situations, which they seldom (never) use because the situations seldom (never) appear. In republics, this is left to the people via their formal vote or informal support (or lack of protest). As we know, if the monarchs decide arbitrarily, they will get an informal and sovereign kick in the butt from their people, so both procedures are not that different.
In summary, when Castro says that, normally, legislation would change in response to international treaties, I don't think she's offering BS, despite the Constitution being involved.
ElQueso said:
Argentina has not shown that it is responsible. It has not shown that it has the power to even develop whatever resources that may be found in and around the islands and has shown very recently (i.e, YPF) that it even often screws up letting others with more experience and resources develop such natural resources.
I'm not sure I understand your point here. I won't defend what was done recently with YPF, but let's consider that, during the 90s, it was an expanding world-class company of mixed ownership under state control. The agreement to jointly explore for oil at that time, where YPF participated, lead to no results because it was in a different area and with different economics. The area being explored now is inside an exclusion zone declared by Britain unilaterally during the 1982 conflict, and later extended, unilaterally too, plus a few years later they upgraded it into an economic exploitation zone, guess what, unilaterally. Argentina protested to all of this but she wouldn't go and work there because it would probably lead to a military escalation a-la 1982.
ElQueso said:
There is already enough oil in Argentina for her to have plenty of money for her screwy economic and political ideals but the government can't even take advantage of that.
Law should be blind in that it is applied fairly to all. It should not be blind in that whatever little loophole that can be found should be applied when it is obvious that applying such a loophole would be unfair. This world has been so full of terrible events, horribly unfair all of them. There have been compromises made even in sight of such events.
I know. Except the 'screwy' part, Argentina is larger than the current government
. We also know that arguments like 'we're more apt, we're stronger, you've enough already' are not legally relevant. Britain also has a lot, particularly of sea around the world and claims on Antarctica. We're talking of vast territory, international law is important here, is it going to be superseded by the desire of 3000 people (or 1500 in 1982)? Nothing nearly horrible would happen to them. On the contrary, insert into international law that communities are entitled to decide the sovereignty of whatever land they occupy, and horrible things will start to happen to immigrant communities and minorities around the world.
The Falklands isn't a colonial situation in that a native (I don't necessarily mean indigenous) population is under foreign rule and can't be freed due to the tyranny of its master. Even if Argentina had a strong claim (which I don't believe, I think it's at best a bit weak and not as strong as Britain's overall), the fact is, Argentina hasn't controlled those islands in a terribly long time and there are no ex-Argentine, or even Spanish, descendants who are screaming to be out from under the yoke of the "colonialist British."
When some Argentines claim that it is a colonial case, they don't mean it as 'subjugation' of the islanders, but of the Argentines, who are deprived or that part of their territory. I still don't think it is very useful as a characterization of the dispute, though there is a point. I mean, if Britain had kept a loosely-populated portion of India for herself, it would make sense to call it 'the remnant of a colonial situation' regardless of her developing a British settlement while India protested. This coincides with decolonization doctrine when it calls for the respect of territorial integrity.
Instead, it seems Argentina sees that it's in its best interests to antagonize Britain in stupid ways, ensuring that they will not sit down and talk, so that the government can use the emotional issue of the islands, built up over decades of propaganda giving to Argentina school kids declaring the islands are Argentina's - believe it or fail, to help distract attention from the horrible job they are doing of governing the nation.
Argentina oscillated between a 'more-antagonist' stance and a 'more-friendly' one, and just the same we didn't find any openness. For example, during the 1990s we had the so-called 'des-malvinización', while international journals showcased Argentina as an example for developing countries due to our economic reform, freedom of the press, etc. People in charge of foreign policy were learned and competent. Regarding the islands, the deals that closed were to open exploration on a region that was partly disputed and partly non-disputed and, regarding fishing, to regulate without affecting sovereignty, so I don't see any understanding of our position or nothing like it. In the meantime, P&P's propaganda advanced on the (new) WWW (and in the islands evidently), Britain enforced militarily its new claims on the surrounding sea which may now lead to exploitation of nonrecoverable resources there, population in the islands increased strongly, combined with more years passing, the latter two being were used in this thread as arguments against the Argentine case... I'm afraid the British position has been much harder than the reasonableness suggested by your message.