Judicial Review of the Chagos Marine Protected Area

Political Motives Revealed

On 10 June the High Court delivered its judgment on the Chagos Islanders’ Judicial Review of the Marine Protected Area (MPA). The judges found in favour of the FCO. During the trial they had ruled that the WikiLeak cables were inadmissible because the Vienna Convention on Diplomatic Relations protected diplomatic documents.  This was a contentious ruling and deprived the Islanders of essential evidence for their claim that there had been an improper purpose. The MPA still remains in legal limbo because of the possibility of an appeal and because Mauritius has a case against it, before a UN Arbitral Tribunal, which will not be heard before next year.

The judgment, however, could clear the way for a political accommodation with the Chagossians, and possibly Mauritius. The current review of policy, including resettlement, which William Hague announced last December, should consider the simple expedient of adapting the MPA to meet the concerns of the Chagossians and Mauritius. If this had been done in the first place there would have been no need for this costly and time consuming litigation.

This was the Chagossians’ third legal defeat. In October 2008 the Law Lords held by a majority of 3:2 that the 2004 Orders in Council, which had reinstated the ban on Chagossians returning to live in their homeland, were valid, although five senior judges in the courts below had disagreed. Last December the European Court of Human Rights ruled by a majority that their case for breach of several articles of the European Convention on Human Rights was inadmissible.  Human rights were once again trumped on technical grounds.

The MPA proposal seems to have started off from good intentions but officials quickly saw that it could have the added advantage of making it more difficult for the Chagossians to return. WikiLeaks revealed that one official urged the US embassy, when in discussion with Chagossian advocates and the All-Party Parliamentary Group, to “affirm that the US Government requires the entire BIOT for defence purposes” as a means of countering the argument that resettlement on the Outer Islands would have no impact on Diego Garcia.

While the US embassy cables reporting on the meeting with FCO officials revealed that the MPA was discussed partly in terms of blocking resettlement, it is clear that the then Foreign Secretary’s primary concern was to secure a green legacy, days before the general election was announced. But David Miliband could hardly have been unaware of scientific, public and parliamentary support for an MPA which took account of Chagossian resettlement and Mauritius’ interests.

The documents released for the judicial review provide fascinating insights into the advice being submitted to the Foreign Secretary, leading up to the announcement of the MPA on 1 April 2010.   Officials cautioned that the results of the public consultation should be announced but not rushed, pending careful “management” of the Chagossians and Mauritius. “There was further work to do with stakeholders before establishing an MPA.”  Officials warned that “Our best defence against the legal challenges which are likely to be forthcoming is to demonstrate a conscientious and careful decision making process. A rapid decision now would undermine that… We would expect to recommend a phased introduction of a no-take MPA which would give time to put a sustainable funding package in place.”

Within hours David Milband brushed aside official advice and decided on an immediate designation of a full ‘no-take’ MPA. On 31 March senior officials made last ditch attempts to head the Foreign Secretary off. One noted, “I think this approach risks deciding (and being seen to decide) policy on the hoof for political timetabling reasons rather than on the basis of expert advice and public consultation. That’s a very different approach to the one we recommended yesterday… to be developed over time with the involvement of many stakeholders and to be based on science as well as politics.” That evening officials were instructed to prepare a statement announcing the MPA the following day just as Parliament went into the Easter recess. It sparked emergency debates in both Houses five days later.

The judgment observes that “it was the personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of officials.”  So his green legacy was secured but at much cost in terms of worldwide perceptions of the MPA, the UK’s reputation, the deepening mistrust, felt by the Chagossians and Mauritius, and the litigation which three years later is still with us. Further discussions, as officials recommended, could have resulted in an MPA that accommodated Chagossian and Mauritian interests.  The Coalition Government would probably have insisted on it anyway.

David Snoxell
Coordinator of the Chagos Islands (BIOT) All-Party Parliamentary Group

* Published in print edition on 21 June 2013