The judges got it wrong over Chagos

By Sean Carey

The decision by Lord Justice Richards and Mr Justice Mitting in the High Court on Tuesday that the consultation leading up to the announcement that the British Indian Ocean Territory (BIOT), which became the world’s largest “no-take” marine protected area, was lawful hardly came as a surprise, once the ruling had been made during the trial that key evidence from WikiLeaks cables in 2009 was in breach of the Vienna Convention on Diplomatic Relations, and therefore not admissible evidence.

In court, the former commissioner of BIOT Colin Roberts denied on oath telling US diplomats that the marine reserve would prevent the exiled Chagos islanders from returning to their homeland – “no human footprints”– insisting that the real policy driver was conservation. He also denied calling the islanders, the descendants of African slaves and Indian indentured labourers, “Man Fridays”.

Lord Justice Richards stated that it would take a “truly remarkable set of circumstances” if there had been a conspiracy “somewhere deep in government”. He added: “Those circumstances would provide an unconvincing plot for a novel.” Perhaps the judge had read too many tales penned by Jeffrey Archer?

In any event, the story goes something like this. A small group of clever FCO officials keen to flag up the UK government’s “green” credentials were accused of having a light-bulb moment when, prompted in 2007 by the Pew Environmental Group and the British Government’s environmental adviser for BIOT, Professor Charles Sheppard, realised that turning the Chagos Archipelago, excluding Diego Garcia, into an MPA would also make it difficult, if not impossible for the exiled islanders, who have traditionally relied on subsistence fishing, to live on the outer islands if they were not allowed to use hooks, nets or harpoons. In court, such an “improper motive” was denied.

Nevertheless, with the idea floating around the then Foreign Secretary, David Miliband, realised that the proposed MPA would be a real feather in his and Gordon Brown’s green cap just before the UK general election was called. Miliband overruled more cautious senior FCO officials who thought that it was likely to cause trouble internationally. The MPA was declared on 1 April 2010 by Colin Roberts. The timing was very interesting. It came hours after the National Assembly in Mauritius was dissolved in preparation for the island’s general election, thus wrong-footing the island’s politicians, all of whom support Mauritius’s claim under international law to sovereignty of the Archipelago. The judges should have dug deeply into that. Now Mauritius has taken its case to a UN tribunal. It will be heard next year.

It was Karl Popper who pointed out that conspiracies do not happen as often as many people think they do. He was right. Of course, that does not mean that conspiracies do not happen at all. The judges should revisit the Archer novels.

Dr Sean Carey is research fellow in the School of Social Sciences, University of Roehampton

* Published in print edition on 14 June 2013

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