In a civilized society, when two individuals or institutions cannot agree about who owns a piece of property, one takes the other to court. Both must accept the court's jurisdiction, and both must abide by its judgment. This is what Britain and Argentina would have to do, even if they were already locked in armed combat.
The society of sovereign nations is not fully civilized, but it has created a court with the capacity to resolve territorial disputes. Every nation that signed the United Nations Charter also signed on to the Statute of the International Court of Justice. Under this statute, the court's jurisdiction extends to all cases that the parties may refer to it. Some U.N. members, including the United Kingdom but unfortunately not Argentina, have agreed to accept the court's compulsory jurisdiction in all cases involving questions of international law or of any fact which, if established, would constitute a breach of an international obligation. U.N. member states are bound to obey the court's decisions. If they do not, the Security Council may take enforcement measures such as economic or military sanctions.
The Falklands-Malvinas issues are ideally suited for judicial resolution. They involve factual and legal claims about sovereignty over people and property of the type that international judicial tribunals have been resolving for centuries. These claims have existed for more than 100 years, and they have been under active negotiation since 1967. They do not involve the truly vital national interests of either party--the people and property in dispute are marginal to the central economic, political and security concerns of both claimants. Perhaps neither side can "afford" to give in to the claims made or the force applied by the other, but any civilized nation can honorably "afford" to submit such issues to a neutral judicial tribunal and to abide by the result.
Modern history is full of judicial settlements of conflicting territorial claims, especially in the new lands of the Western Hemisphere. Neutral arbitration panels have resolved disputes between Venezuela and Britain over the boundary with Guyana, between the United States and British Canada over the Alaskan Panhandle, between Argentina and Paraguay over the Verde-Pilcomayo region, between Colombia and Venezuela over their border, and between Argentina and Chile over the Beagle Channel Islands.
In no case but the last--where Argentina kicked over the traces--has either side refused to accept the decision of the tribunal. Even in the Beagle case, Argentina has joined in resubmitting the issues to a pending "mediation" by the pope, and has not tried to occupy the disputed islands by force.
In the light of this history, it seems puzzling that neither of the parties, nor the United States nor the United Nations, has publicly proposed that if negotiations fail, the Falklands-Malvinas issues, or at least some of them be submitted to the International Court of Justice. It is especially puzzling that the U.N. Security Council has not done so, since Article 36 of the Charter requires the council, in framing its recommendations, to consider that "legal disputes should as a general rule be referred by the parties" to the court.
Perhaps Argentina or Britain would initially refuse-- perhaps one or the other has already done so in response to a non-public proposal--just as Argentina refused a British submission to the court of the sovereignty issues as to South Georgia and Antarctica (but not the Falklands themselves) in 1955. But even so, the proposal should be publicly made--at least by the United Nations with the support of the United States--and the refusing state should be put to the burden of explaining why the claims it asserts to be so strong are not strong enough to submit to the judgment of a neutral judicial tribunal.
In the search for a solution of the Falklands-Malvinas dispute, a method of judicial resolution has been the missing ingredient. Both sides appear agreeable to withdrawing their forces, accepting a neutral interim administration and negotiating a final solution. The main hangup is Argentina's concern that the negotiations will stalemate again, and that has been its reason for stating that its claim of sovereignty is not negotiable. Britain cannot accept this position under the duress of the current Argentine invasion. The reasonable and honorable compromise is to assure Argentina against stalemate in a better way, by an agreement that if the negotiations do not produce a mutually acceptable solution of all issues within a specified time, either side may submit the unresolved issues to the International Court. As the court proved in the case filed by the United States over Iran's refusal to return our hostages, it can act promptly when the need arises.
Whatever else may divide them, the principle of judicial resolution is a banner under which all honorable and civilized nations can stand.