Articles 2 and 3 of Law 24,309, passed in 1993, approved the incorporation by the Constituent Convention of any necessary transitional provisions into the Constitution, giving rise to the provision that states: "The Argentine Nation ratifies its legitimate and imprescriptible sovereignty over the Malvinas, South Georgia and South Sandwich Islands and the corresponding maritime and insular spaces, as they are an integral part of the national territory. The recovery of said territories and the full exercise of sovereignty, respecting the way of life of their inhabitants and in accordance with the principles of international law, constitute a permanent and inalienable objective of the Argentine people." It was the result of a multi-party consensus in Argentina, led by the Justicialist Movement and the Radical Civic Union, responding to a deep-rooted and cross-cutting popular sentiment regarding the territorial and maritime rights of the Malvinas Islands and other archipelagos in the South Atlantic. The aim of this resolution was to "constitutionalize" the historical claim to the Malvinas Islands and give it the status of "state policy."

The contributions of several prominent jurists, including Dr. Alberto García Lema—a lawyer close to Peronism—and the input and pressure of Malvinas combatants, led to the creation of a final text very aligned with the defense of national sovereignty within the framework of Argentine diplomatic tradition and international law. The Provision should be interpreted as the result of consensus and in the post-1982 context. It was unanimous among Peronists, Radicals, and other parties regarding "the recovery of said territories and the full exercise of sovereignty," the "legitimate, permanent, inalienable, and imprescriptible reaffirmation of the Malvinas."

Incidentally, at the time of writing, it appears that there was no intention to confront the United Kingdom of Great Britain and Northern Ireland, as we understand that this provision should have contemplated a more active Argentine stance, for example, establishing a prohibition on carrying out any act favorable to the British while the invasion lasts.

Nor is there a mechanism established regarding possible violations by the United Kingdom with respect to the provisions of paragraph 4 of UN Resolution 31/49, which " Urges both parties to refrain from taking decisions that entail the introduction of unilateral modifications to the situation, while the Islands are going through the process recommended (of negotiation) of the UN resolutions."

A Congressional Act specifying the scope of this provision is lacking; this government (and previous ones) does not seem to have understood that this Constitutional Provision, as stated, enjoyed the support of the entire political spectrum to institutionalize Argentina's inalienable rights over the Malvinas Islands, the archipelagos of the South Atlantic, and the corresponding waters as "State Policy." This is sufficient reason for no President, Minister, Legislator, etc. to take actions that—directly or indirectly—threaten the recovery of Argentina's full sovereignty over the insular and maritime spaces usurped by the United Kingdom of Great Britain.

There are several violations of the First Transitory Provision of the National Constitution:

a) Lack of official actions and/or declarations, and/or renunciation or omission of the claim of sovereignty—which is legitimate, imprescriptible, inalienable, and permanent—in the face of all acts by the United Kingdom that imply a modification of the 1976 status (UN Resolution 31/49), including, among others, the invasion of 1,639,900 km2 of Argentine insular and maritime territories; the militarization of the islands (NATO); the exploitation of natural resources; the violation of Argentine airspace; and the construction of ports.

b) Approve the Madrid Agreements of 1989/90, which established restrictions on national sovereignty and, among other things, facilitated the appropriation of natural resources and the depredation of the ecosystem.

c) Sanction Law 23,968, which allowed the British delimitation of the coastlines of the Malvinas Islands.

d) Sanction Law 24.184 for the protection and promotion of British investments, which grants privileges to the United Kingdom despite its territorial invasion and exploitation of Argentine resources.

e) Approve Joint Declarations contrary to Argentine sovereignty, such as the 1995 Di Tella-Rifkind Pact, which allowed the United Kingdom to exploit oil in disputed areas; the 2016 Foradori-Duncan Pact, which ratified cooperation in fishing, science, and oil in the South Atlantic, and "promoting the elimination of all obstacles to the development of the Malvinas Islands," an obvious reference to the Constitutional Provision. Then, the 2025 Mondino-Lammy Pact on fishing, flights, and the environment. All of these ratify the Madrid Accords, weakening Argentina's position. The approval of flights between the Malvinas Islands and Punta Arenas and/or with São Paulo—the largest commercial center in Latin America—that fly over Argentine airspace—even between the Malvinas Islands and the mainland—has a clear economic benefit and promotes integration for the islanders, without recognizing Argentina's full sovereignty.

f) Not to apply legal sanctions—despite laws 24.922; 26.386; and 27.564—to fishing by foreign vessels in Argentine maritime spaces off the Malvinas Islands without an Argentine license.

g) Make statements that deviate from Argentina's diplomatic position of upholding the "Argentine territorial integrity" of the areas invaded by the United Kingdom, such as those expressed in September 2023 and June 2024 by former Foreign Minister Mondino and by President Milei on April 2, 2025.

h) Treating the illegitimate authorities of the Malvinas as a legitimate sovereign government, such as, for example, when in February 2024 President Milei stated that “with the Islands in the hands of the United Kingdom” British Foreign Secretary David Cameron had “every right” to visit the Islands.

i) Supporting states—such as Israel—whose Navitas company exploits Argentine oil resources in the Malvinas region, or adopting positions contrary to countries that traditionally support Argentina on the Malvinas issue (such as the Palestine-Israel dispute). Similarly, maintaining contact with Kosovo President Vjosa Osmani in September 2025, whose position is contrary to Argentina's on the Malvinas issue .

j) Lack of active diplomatic, cultural, or economic actions aimed at promoting the Malvinas issue or not including it on the bilateral agenda with the United Kingdom. Tolerating the British Embassy's promotion of scholarships for students to "get to know their neighbors" in the Islands, as if it were an independent state.

k) Promote a "Blue Hole" Marine Protected Area in Congress, as proposed by the NGO Wildlife Conservation Society (WCS), owner of the Sebaldinas Islands in the Malvinas, establishing a protected area for the United Kingdom's fishing interests in the Malvinas, in violation of the Constitutional Provision. There are no actions by the National Executive Branch against this NGO for interfering in Argentine state affairs.

l) Admission and failure to deactivate the installation of the radar antenna of the British-owned company LeoLabs in the town of Tolhuin in Tierra del Fuego, which has orbital tracking capacity (military satellites), despite negative Argentine military reports. Decree of the PEN allowing military exercises in Tierra del Fuego by US troops - partners of the British invaders of the Malvinas Islands - and Chilean troops - a country that collaborated with the British in 1982 - without authorization from the National Congress (Art. 78, paragraph 28 of the National Constitution), violating the Provision due to its relationship with the Malvinas Islands, Antarctica, and Argentine sovereign waters.

m) Not to declare a State of Siege in agreement with the Province of Tierra del Fuego in the territory invaded by the United Kingdom in accordance with Article 23 of the National Constitution.

n) Failure to take the necessary actions with the Republic of Uruguay to conclude the logistical support that country provides in Montevideo to vessels involved in activities in the Malvinas Islands, including illegal fishing, in violation of Argentine laws 24.922, 26.386, and 26.659 and UN resolutions such as UN Resolution 31/49 of 1976, which condemns the unilateral exploitation by the United Kingdom. Furthermore, British military aircraft (RAF) have made stopovers in Carrasco, contrary to Uruguay's obligations, such as those signed at the CELAC Conference of 2011-2014 and UNASUR Resolution 2012.

o) Indebting itself, weakening Argentina's negotiating position and seriously hindering compliance with the Constitutional Provision, and severely limiting diplomatic, legal, and military capacity and sovereignty defense tools.

p) Not promoting strategic infrastructure in the Tierra del Fuego Province (ports, radars, bases, etc.) to strengthen the Argentine presence in the southern part of the South Atlantic.

Any government act that contravenes the First Transitional Provision could be subject to constitutional review by the Supreme Court of Justice, since the provision has constitutional status, and its direct or indirect non-compliance constitutes a "de facto renunciation" by failing to fulfill "the permanent, inalienable, and imprescriptible legitimate objective of full sovereignty over the Malvinas Islands."

Dr. César Augusto Lerena

South Atlantic and Fisheries Expert – Former Secretary of State

October 7, 2025