The Nootka Sound Convention and the Question of Spanish Succession

Why a 1790 treaty bears on a 1833 dispute

Argentina's claim rests largely on succession: it says it inherited whatever rights Spain held over the islands when it became independent (see the companion article on uti possidetis iuris). If so, what Britain and Spain agreed about the islands before 1811 matters. Two instruments are central: the Anglo-Spanish declarations of 1771, and the Nootka Sound Convention of 28 October 1790. Both sides cite both. What follows sets out the text, then the two readings, without ruling between them.

The text

The Convention was signed at San Lorenzo (El Escorial) by Alleyne Fitzherbert for Britain and the Count of Floridablanca for Spain, to settle a crisis that began with Spain's seizure of British ships at Nootka Sound, on the Pacific coast of North America. Its Article VI is the provision that concerns the South Atlantic:

"It is further agreed with respect to the eastern and western coasts of South America and the islands adjacent, that the respective subjects shall not form in the future any establishment on the parts of the coast situated to the south of the parts of the same coast and of the islands adjacent already occupied by Spain; it being understood that the said respective subjects shall retain the liberty of landing on the coasts and islands so situated for objects connected with their fishery and of erecting thereon huts and other temporary structures serving only those objects." (Nootka Sound Convention (1790), Article VI)

A Secret Article, which provides that it "shall have the same force as if it were inserted in the convention", qualifies it:

"...this stipulation shall remain in force only so long as no establishment shall have been formed by the subjects of any other power on the coasts in question." (Nootka Sound Convention (1790), Secret Article)

Two things are worth noticing before any interpretation. First, the text never mentions the Falkland/Malvinas Islands by name, and Article VI speaks of "establishments", not of sovereignty. Everything that follows is therefore argument about how that general wording applies to the archipelago. Second, English renderings differ slightly: the wording of Article VI quoted by Kohen and Rodríguez is not identical to the Wikisource transcription used here, though the substance is the same.

The Argentine reading

Marcelo Kohen and Facundo Rodríguez argue that when the Convention was signed, Spain was in sole possession of the islands, and that Article VI therefore barred Britain from settling there; in their words the treaty "clearly demonstrates" that the islands belonged to Spain and that Britain "recognised this fact and undertook to respect Spanish sovereignty". They support this with the American historian Julius Goebel's inference that Article VI "by inference forbade any landing at the Falklands as they were a place already occupied by Spain", and with two Foreign Office memoranda (1910 and 1928) that, as they quote them, reach the same conclusion. On the Secret Article they argue it cannot be invoked against Argentina: Argentina succeeded to Spain's rights, so its presence was "a continuation of Spain's rights", not a settlement by "subjects of other powers".

The British reading

The British government's own statement is short. In a written answer of 7 February 1983 (given by Mr Onslow for the Foreign and Commonwealth Office) the government said that under Article 6 "Britain and Spain agreed not to make any settlement on the eastern or western coasts of South America, or on the adjacent islands to the south, already held by Spain", but that the convention "was terminated in 1795 as a result of the war between Britain and Spain", and that "In 1811 Spain evacuated the Falkland Islands and abandoned them, so that, although the convention was revived in 1814, it could not then be taken to apply to the Falkland Islands."

Graham Pascoe, writing from the Falkland Islands side, argues something further: that the Convention was "a great triumph for Britain" because it ended Spain's claim to blanket sovereignty over all of Spanish America. On his account, it divided the Falklands into zones: exclusive Spanish rights around Puerto Soledad in the north-east, a British right of exploitation and permanent settlement in the north-west (including Port Egmont), and a British right of exploitation in the rest. From this he concludes that Argentina inherited only the reduced Spanish rights, not "total unrestricted sovereignty". The earlier British pamphlet by Pascoe and Peter Pepper, as Kohen and Rodríguez summarise it, adds that Argentina's settlement of the islands in the late 1820s would itself have triggered the Secret Article, freeing Britain to settle.

Where the two actually differ

Read together, the two sides agree on more than the slogans suggest: the Convention was in force in 1790, Article VI restricted British establishments south of places Spain occupied, and Spain occupied Puerto Soledad. The disagreement is about four narrower questions:

1. Scope. Did Article VI cover the whole archipelago (Kohen and Rodríguez), or only the parts actually occupied by Spain, leaving other parts open to British settlement (Pascoe)?
2. Duration. The 1983 answer holds that the Convention lapsed in war and, when revived in 1814, could not apply to islands Spain had left in 1811. The Argentine side treats the 1790 position as fixing Spain's title as of the moment Argentine independence began.
3. The Secret Article. Is Argentina among the "subjects of any other power", or a successor standing in Spain's place?
4. Legal effect. Does Article VI amount to British recognition of Spanish sovereignty (Kohen and Rodríguez), or is it a bilateral compromise that, on Pascoe's account, also curtailed Spain's exclusivity?

The 1771 declarations

The 1771 exchange is the other pillar. After Spain expelled the British from Port Egmont in June 1770, the Spanish ambassador, the Prince de Masserano, and Lord Rochford signed declarations on 22 January 1771. Spain disavowed the expulsion and undertook to restore Port Egmont "precisely to the state in which they were before the 10th of June, 1770", and the Spanish declaration adds:

"...the engagement of his said Catholick Majesty, to restore to his Britannick Majesty the possession of the port and fort called Egmont, cannot nor ought in any wise to affect the question of the prior right of sovereignty of the Malouine islands, otherwise called Falkland's Islands."

The British declaration accepts the restitution "as a satisfaction for the injury done to the crown of Great Britain" and says nothing about sovereignty. Kohen and Rodríguez argue that Britain did not reserve its own sovereignty rights in return, and that it also gave a secret verbal promise to leave Port Egmont, citing Masserano's dispatches and remarks in Parliament; they concede that "no written document containing the promise has been found". Pascoe and Pepper deny any such promise existed (as Kohen and Rodríguez report, relying on the failure of the Crown lawyer Sir Herbert Jenner to find one in 1829). Pascoe's own reading is that the 1771 agreement "had forced Spain to tolerate Britain's claim to the islands and to refrain from asserting that Spain had prior rights there", a description a reader can compare with the Spanish declaration quoted above.

Britain withdrew from Port Egmont in 1774. Kohen and Rodríguez date this to mid-May, note that a leaden plaque asserting British ownership was left behind, and treat the episode as an abandonment, arguing that no British protest followed for decades. Pascoe answers that British sealing crews were present throughout, so there was not "55 years of unique Spanish presence", and that under the 1771 and 1790 agreements it "would have been illogical for Britain to protest".

Which law applies?

A principle stated in the Island of Palmas arbitration (4 April 1928) frames how questions like these are analysed: "a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled". The award adds a second limb that matters here: "The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law." In plain terms, a treaty is read according to 1790 law, but whether the resulting rights survived depends on how they continued to be exercised. That is exactly where the arguments above meet: the 1811 Spanish evacuation, the 1814 revival, and the years before 1833. The award concerns an island in the Sea of Celebes region and does not address the Falklands; it is offered here as a general framework, not as authority for either side.

What the treaty can and cannot settle

The Convention establishes that Britain accepted a restriction on new settlements south of Spanish-occupied places in 1790, and the 1771 declarations establish that Spain reserved the sovereignty question when it restored Port Egmont. Neither text says who owns the islands, and neither side can rest its whole case on them: the outcome turns on how Article VI's general wording applies to the archipelago, on what happened between 1811 and 1833, and on the disputed Secret Article. These questions overlap with those treated in the companion articles on acquiescence and on uti possidetis.

A note on sources

Some documents are known here only through the authors who cite them: the 1910 and 1928 Foreign Office memoranda, Masserano's dispatches, Goebel's The Struggle for the Falkland Islands, and the Pascoe and Pepper pamphlet (for which the Pascoe reply is used). Kohen and Rodríguez are Argentine authors and their book is hosted on an Argentine government website; Pascoe is writing from the Falkland Islands side; the Hansard answer and the Island of Palmas award are official texts. The English text of the Convention is a transcription, and the 1771 declarations are taken from a copy hosted by the Falkland Islands Association (flagged as unofficial below).