Plastic Sabre Rattling

Children quickly master the idea of fairness. On my five-year-old son’s lips, ‘It’s not fair!’ covers an impressive variety of unwelcome contingencies, like his not getting as much ice-cream as he wants, or the fact that it isn’t snowing. Some optimistic political theorists think this shows that an instinct for fairness is hard-wired, or acculturated early on. Others suspect that it shows how fluently humans adapt principled talk to self-interest.

On 22 February, Desire Petroleum, the UK firm set up to prospect for oil in the North Falkland Basin, began exploratory drilling, in the face of Argentine objections. Britain’s claim to these oilfields rests on UNCLOS III, which sets out principles for judging states’ claims to seabed resources: the drilling area lies within the Falklands’ Exclusive Economic Zone, which extends 200 nautical miles from the islands. Argentina’s President Kirchner has implied that extracting oil from the basin would be unfair, since the British title to the oil under UNCLOS III rests on its unfair occupation of the Falklands.

This plastic sabre rattling has been widely seen as Ms Kirchner’s attempt to retrieve popularity ahead of next year’s elections. So she has good reason to play the national card, as General Galtieri did in 1982. In any case, when Desire starts to recover the oil, it will have to rely on co-operation onshore from the Argentines. Presumably they’ll take the tainted shilling when the time comes. In the meantime, it pays to make out that the kelp and mutton-farmers are there only by a violation of natural justice.

This isn’t the first time that Britain has got into a spat over oil. I don’t mean the wars with Saddam. In the 1970s the North Sea oil boom boosted Scottish nationalism, as the relevant bits of seabed lay closer to Scotland than to England. The SNP took 11 seats in the October 1974 election on the slogan ‘It’s Scotland’s oil!’ as Scots fore­saw their oil-tax spondulicks being sucked away by a vampiric Union. Anglo-Nats and unionists, in response, tend to see Scots as subsidy-junkies grown fat on English taxes. The Barnett Formula, which apportions public spending among Scotland, England, Wales and Northern Ireland, is often blamed. But the formula rests on the fair-seeming principle that per capita spending should be equal between the so-called home nations. Scotland lags behind the English population’s growth-rate. North Britons breed prolifically enough, but go on to booze, smoke, smack and saturated-fat themselves into early graves, and also self-export a lot. All this keeps numbers down. Barnett is not unfair, but constantly has to play catch-up.

The larger question is who has just title over resources to start with. In the 70s dispute raged over how the Anglo-Scottish border should be projected seawards to carve up the reserves. Should it follow the 55th parallel, as the Nats argued, since in maritime law this is where Scots rather than English law comes into force? That would have meant the Scots sporraned around 90 per cent of the oil. Meanwhile some unionists shame­lessly argued for a north-north-easterly projection collinear with Hadrian’s Wall.

In the 17th century, Hugo Grotius and John Selden sparred over whether the seas could be owned. In Mare Liberum Grotius urged that the high seas should be open to all, for which he’s sometimes fêted as a prophet of the global commons. But Mare Liberum was part of a larger work, the De Jure Praedae, commissioned as an apologia for the Dutch seizure of a Portuguese ship in the Straits of Malacca. In rebutting Portuguese claims that the Dutch pirates’ presence in these waters amounted to trespass, Grotius’ ulterior aim was to vindicate plunder.

A bigger question: do the populations of Argentina, the Falklands or indeed England have just title to be there at all? All are beneficiaries of historic displacements. The surnames of the Argentine president’s parents are Fernández and Wilhelm, and her married name is Kirchner. Of course, we usurpers aren’t going away, and the aboriginal inhabitants aren’t coming back; nor is the status quo ante.

One mark of successful injustice is that in time it becomes just, or not unjust. Another is that the unjust, or their legatees, can make claims about ‘fairness’ and be taken seriously.