APRIL 11, 2014 BY DAVID HART QCChagossians update
A lot is happening in various challenges related to the long-running and shameful exclusion of the Chagossian people from their islands in the Indian Ocean.
Here are the headlines, with a reminder of what these cases are about:
First, the Court of Appeal has just (2 April 2014) heard an appeal by the Chagossians against the dismissal of their challenge to the designation of the waters around the islands as a Marine Protected Area.
Second, the closed hearing of the UNCLOS Arbitral Tribunal on the merits of the Chagos dispute (Mauritius v UK) is to be held at Istanbul on 22 April 2014. This also concerns the designation of the MPA.
Thirdly, the public hearing in the UK Information Tribunal on access to Diego Garcia pollution data appeal under the Environmental Information Regulations 2004, which the FCO — contrary to the view of the Information Commissioner — says is inapplicable to overseas territories) is to be held on May 1st, 2014.
Now to a little more detail.
Bancoult in the CA
The appeal is against the decision of the Divisional Court in Bancoult v. FCO (read judgment and see my post here). Mr Bancoult had said that the decision to create the MPA was flawed by having an improper purpose (to stymie the Chagossians’ claims for resettlement), by inadequate consultation, and being a breach of an EU obligation to promote the economic and social development of the islands. The Court ruled against all these claims.
Bancoult had sought to rely on a Wikileaked cable (here) concerning a May 2009 meeting between US high-ups and the HM Commissioner. The cable was sent by the US Embassy in London to departments of the US Federal Government, the US Embassy in Mauritius, and to the US military. UK’s Roberts is recorded to have said
“7. …Roberts … asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents …”
This was the real motive for the MPA, Mr Bancoult said.
But the FCO persuaded the Divisional Court to exclude the document from use in court, on the basis that its use was in breach of the inviolability of mission documents guaranteed by Articles 24 and 27.2 of the 1961 Vienna Convention on Diplomatic Relations: per 27.2, the official correspondence of the mission shall be inviolable.
Mr Bancoult is challenging this ruling and the dismissal of his claim about the MPA designation.
The UNCLOS case
This is an international law challenge from Mauritius before the Permanent Arbitral Tribunal in the Hague under the 1982 UN Convention on the Law of the Sea. In this, Mauritius claims the MPA breaches its fishing rights under the Convention. Preliminary procedural decisions are here. The MPA prohibited fishing and other activities. The MPA extends to a distance of 200 nautical miles from the Chagos Archipelago and thus covers an area of more than half a million square kilometres. Mauritius is contending that the establishment of the MPA violates the Convention and other rules of international law not incompatible with the Convention and seeks an authoritative and legally binding declaration regarding the legality of the MPA.
The Environmental Information Regulations appeal
This appeal to the First Tier Tribunal is due to be heard on 1 May 2014. It is not to be confused with an earlier appeal in 2012, for which see my post here and Panopticon’s posthere.
The issue in the present appeal is whether documents held by the Government of the British Indian Ocean Territory are the subject of the Environmental Information Regulations. On 6 November 2012, the Information Commissioner had found in respect of a previous request that ” in practice the work of the government of the BIOT and the work of the FCO BIOT geographical desk are not always separated.” This decision was not appealed, but the issue now arises on a separate appeal to the FTT, who will be invited to rule upon whether the EIR apply to the BIOT, and whether the US Base Contractor comes within freedom of information legislation in performing its role on Diego Garcia.
The appeal concerns pollution data concerning the BIOT. The FCO had designated the area as an MPA because, as it put it, “the archipelago is one of the most precious, unpolluted, tropical ocean environments left on earth.” Nice to think that the FCO has these values in mind, though, as Peter Sand wryly remarks at p.142 of a forthcoming paper – link here – the entire Diego Garcia lagoon has been listed as part of a nature reserve under the 1971 Ramsar Convention
thus making it the world’s only internationally registered nature protection site that also serves as habitat for nuclear submarines, ammunition supply vessels, and possibly prison ships.”
It is also a tad unfortunate, given this claimed sole motive for MPA designation, that a tug hired to patrol the BIOT, had been discharging waste while docked in waters shared with US Navy vessels, and American ships have been pouring waste including treated human sewage for three decades into the lagoon (see the Independent here). The former account is based upon a report by Professor Charles Sheppard, a scientific adviser to the BIOT on environmental matters, who had reported in 2013 that its patrol vessel was “a regular culprit in terms of sewage discharge” on Diego Garcia. This report had been withheld by the FCO until very recently on the grounds that its disclosure could damage Anglo-American relations.
A recent FCO press release of 8 March 2014 about the discharges, and what the FCO says it is going to do about them, is here.
Many thanks to Peter Sand for assistance with the above. His paper here is shortly to be published by the Oxford University Press. It is an excellent, if chilling, account of 40 years of realpolitik.
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