Categories: Marine Article 1

Introduction

Upon the announcement of its creation in April 2010, the Chagos Marine Protected Area (MPA) became the largest of its kind in the world, encompassing nearly 400,000 square miles of ocean, the world’s largest coral atoll structure (the Great Chagos Bank) and several species of endangered plants and animals. The MPA was welcomed by prominent conservation organisations in the UK such as the Pew Environment Group, the Royal Society for the Protection of Birds and Greenpeace UK. In March 2015, however, the Chagos MPA was dealt a heavy blow when an arbitral tribunal in The Hague ruled that the manner of the MPA’s creation was in violation of international law. This verdict came just months after a government-commissioned study found that resettlement of the Chagos Islands by the exiled civilian population of the territory was, contrary to earlier government claims, entirely feasible. In response, the UK government undertook to re-examine its policy towards resettlement. Both developments could carry significant implications for the future of the Chagos MPA and illustrate a broader point that environmental conservation is best served when proponents of specific conservation initiatives – politicians and civil society campaigners alike – demonstrate strategic cognisance of the legal and political context in which they operate.

A Violation of International Law

The question of the Chagos MPA’s legality under international law has its roots in a sovereignty dispute between the UK and Mauritius. In current practice, the Chagos Islands have been governed by the UK as the British Indian Ocean Territory (BIOT), an Overseas Territory (OT) created by London as a Crown Colony in 1965 for the sole purpose of housing a US military installation on the largest island of Diego Garcia. Previously, they had been governed as a dependency of the Colony of Mauritius, which only gained its independence from the UK in 1968 (originally as a Commonwealth realm before becoming a republic in 1992). Mauritius’s lawsuit claiming rights with regard to the Chagos Archipelago was asserted on the grounds that the 1965 excision of the islands went against established international laws on decolonisation, which forbade colonial powers from dismembering colonies before granting them independence. The UK government disputes Mauritius’s claims to sovereignty over Chagos but has repeatedly maintained that it will cede the islands (back) to Mauritius once they are no longer required by London for military purposes. 

In March 2009, Mauritius formally notified the UK government that it would consider the unilateral imposition of an MPA in Chagos an affront to its rights under international law. In effect, it let London know that any attempts to detach important questions of maritime governance from the broader question of sovereignty would not be tolerated. The UK government did not heed this warning when it designated the Chagos MPA 12 months later. As a consequence, the government of Mauritius made several submissions in December 2010 to the Permanent Court of Arbitration (PCA) in The Hague, an international organisation charged with, inter alia, resolving legal disputes between States related to the UN Convention on the Law of the Sea (UNCLOS, a binding treaty to which both the UK and Mauritius are parties). Specifically, Mauritius requested that the PCA establish an arbitral tribunal to decide whether the UK’s creation of the Chagos MPA was consistent with London’s obligations under UNCLOS. In January 2013, the PCA decided to allow proceedings.5 The Mauritian case rested on four claims:
(1) that the UK is not a legitimate coastal State in Chagos (because its occupation of the archipelago is illegal) and so is not entitled to alter the governance of the archipelago such as through designating an MPA;
(2) that, in fact, Mauritius is the relevant coastal State (because Chagos is an integral part of Mauritius) and so should be the sole decider of government and politics in Chagos;
(3) that the MPA’s creation unduly interferes with the process whereby the UK and Mauritius have agreed to resolve disputes arising between them regarding the extended continental shelf in Chagos; and
(4) that the UK failed to meet its obligations under UNCLOS and the UN Fish Stocks Agreement by neglecting to properly consult with Mauritius regarding its plans to create an MPA in Chagos.

After considering Mauritius’s submissions, the Tribunal concluded that the first three of these arguments were, in effect, challenges to British sovereignty over Chagos. The Tribunal thus declined to rule on the merits of these arguments. But the Tribunal did take a position on submission four. Specifically, the tribunal held that Mauritius possesses certain rights and interests in Chagos and that, under international law, the UK is legally bound to take Mauritius’s interests into account when governing BIOT. In other words, the UK is not entitled to act unilaterally in Chagos over matters that will affect other State parties – in this case, Mauritius. Partly, this obligation is based upon Mauritius’s geographical location as a neighbouring State – one that might otherwise have enjoyed certain fishing rights in the ocean around Chagos if not for the imposition of the MPA, for example – but the Tribunal also asserted that the Government of Mauritius holds important rights in Chagos deriving from repeated British assurances that the archipelago will be ceded to Mauritius at some point in the future. Because both parties agree that Mauritius will in the future inherit the Chagos Islands, it follows that Mauritius at the present time has a reasonable interest in the state of the islands. These interests need to be taken into account by the UK and must be discerned through dialogue between the two governments. The Tribunal found that the UK in 2010 did not take sufficient steps to ascertain the position of Mauritius on the MPA proposal and so did not take Mauritius’s legitimate interests into account when announcing the creation of the MPA.

The immediate impact of this ruling was to declare the creation of the MPA incompatible with international law. The Tribunal’s ruling on this question is not subject to appeal. But the potential implications of the ruling go even further than the narrow (but important) question of the MPA’s legality. This is because the Tribunal was explicit that “Mauritius’ rights in the waters of the Chagos Archipelago [are] not limited to fishing”, instead suggesting that Mauritius has a direct interest in the future of the territory writ large: "In the Tribunal’s view, the United Kingdom’s undertaking to return the Chagos Archipelago to Mauritius gives Mauritius an interest in significant decisions that bear upon the possible future uses of the Archipelago. Mauritius’ interest is not simply in the eventual return of the Chagos Archipelago, but also in the condition in which the Archipelago will be returned."

The UK thus has a potentially expansive obligation to consult with Mauritius and take Mauritian interests into account when making decisions on the future of the Chagos Islands that might reasonably be considered consequential for Mauritius as the future sovereign power, whether or not the issue in question relates to environmental protection. Feasibly, this obligation could extend to both the US military presence on Diego Garcia and the prospects of resettlement of the islands by the Chagossians, many of whom live in Mauritius. This is no trivial thing: the Anglo-American Executive Agreement governing the base on Diego Garcia is set for renewal in 2016; and calls for the UK to permit the resettlement of the Chagos Islands show little sign of abatement (see below). If the UK is obliged to meaningfully consult with Mauritius regarded these important matters of policy, then this would mean a radical departure from the status quo regarding how BIOT is governed.

It should be noted that the UK government’s method of creating the Chagos MPA was not without controversy at the time. Protests were lodged by both the government of Mauritius, which issued detailed Notes verbales to the UK government in March 2009 and, more publicly, to the International Union for Conservation of Nature (an organisation of which Mauritius is a member) in early 2010; and by supporters of the Chagossians, who were concerned that a “no-take” MPA would serve to jeopardise the islanders’ future chances of resettlement. Still others noted that an MPA in Chagos would not adequately protect the marine environment of the region unless the military base on Diego Garcia was closed or at least included in the regime to some extent. Perhaps tellingly, the actual announcement to designate the Chagos MPA was made when Parliament was adjourned (for Easter recess), contravening a pledge made by Foreign and Commonwealth Office (FCO) Minister Ivan Lewis that MPs would be briefed on the government’s plans before any announcement was made. Moreover, the announcement was taken only days after a facilitator’s report had been delivered to ministers, which allowed little time for elected officials to consider the hundreds of lengthy submissions made as part of the public consultation process. Newspaper reports and the judgement of the Arbitral Tribunal itself suggest that the UK government acted with undue haste when pushing through the MPA proposal, more concerned with the electoral timetable (a general election was scheduled for May 2015) than conducting a thorough examination of the evidence for and against creating a notake MPA. Now that the manner of the MPA’s creation has been found incompatible with international law, it certainly looks as though it would have been a better political decision to invest time and effort in gaining the consent and cooperation of Mauritius and other relevant stakeholders, instead of acting unilaterally.

Politics in Britain

That the Chagos MPA’s creation has been called into such serious question means that the environmental conservation regime in BIOT likely will need to be revised in some manner. Yet a parallel development regarding the future of BIOT also warrants consideration. In February 2015, a government-commissioned report by professional auditing firm KPMG concluded that resettlement of the Chagos Archipelago by the indigenous people of the islands is entirely feasible and went on to detail several scenarios under which resettlement could be pursued (with the proposals varying in terms of cost, extent and ambition). Having been forcibly displaced from Chagos in the 1960s and 1970s after BIOT had been created and the decision had been made to construct a military base on Diego Garcia, the islanders’ campaign to return has never relented. And although the Chagossians have been denied the right to return by domestic courts (the Law Lords upheld the technical legality of their exile in 2008, while the European Court of Human Rights declined to hear an appeal in 2013 on jurisdictional grounds), resettlement has always been possible in the case of a volte face by politicians in London. For years, however, the government has opposed resettlement – partly on the grounds (in public pronouncements, at least) that resettlement would be impracticable to achieve. In 2002, the government even issued a seemingly comprehensive feasibility study that concluded against resettlement. Yet this study never convinced the Chagossians or their supporters, and has subsequently been discredited by accusations of political manipulation (allegations that have now been lent some credibility given KPMG’s contradictory findings). Bolstered by KPMG’s findings, the many MPs and peers organised in favour of the Chagossians’ right to return now contend that an important (even if imagined) political hurdle to resettling Chagos has been overcome. And in response to KPMG’s report, the outgoing coalition government duly undertook to re-examine its policy.

For many, allowing the Chagossians to resettle their islands is the only moral thing to do. This includes politicians from all major parties such as the Conservative MP for Crawley Henry Smith (whose constituency contains a large Chagossian community), the former Liberal Democrat front-bencher Vince Cable and even the former Labour Deputy Prime Minister John Prescott. In 2015, the Scottish National Party committed to backing the Chagossians’ right to return at their spring conference, while the Green politician Caroline Lucas similarly announced her support for resettlement as early as 2010. But many environmentalists also favour resettlement, viewing it as a socially just alternative to the controversial practice of “fortress conservation”. Indeed, MPAs and civilian populations coexist elsewhere in the world without raising any eyebrows; and resettlement of the Chagossians on Diego Garcia, at least, need not entail any more anthropogenic influences in the Chagos Archipelago than already are inflicted by the massive military presence on that island and the civilian infrastructure required to cater to the base Yet resettling Chagos might also be attractive to politicians in London for reasons of self-interest – that is, as a way to facilitate greater scrutiny of military activities taking place on Diego Garcia and restore the rule of law in a territory that increasingly seems devoid of proper civilian oversight. Recent years have seen the base on Diego Garcia become synonymous with the US Central Intelligence Agency’s (CIA’s) secretive rendition programme for suspects in the global war on terrorism; organisations such as the Council of Europe and the United Nations brand the territory a “black site”. For a while, Britain denied that the US base on Diego Garcia had any role in rendition, but in 2008 the then-Foreign Secretary David Miliband admitted to the House of Commons that this was false, and that several aircraft carrying suspected terrorists had refuelled on Diego Garcia. In January 2015, a former high-ranking Bush Administration official went further by clarifying that detainees in the war on terrorism had, in fact, been held on Diego Garcia for extended periods of time (that is, not merely transited through the territory). Efforts to uncover the true extent to which Diego Garcia has been (and continues to be) used as a detention centre have been hampered by government secrecy. Despite being a known transit point for rendered detainees, for example, Diego Garcia went conspicuously unmentioned in the US Senate Intelligence Committee’s report into CIA torture, and the UK government claims that important documents held by the FCO (including flight logs) have been lost through water damage. As a result, the extent of British officials’ complicity in Diego Garcia’s history as a CIA black site is simply not known by the general public, the scientific community, or even parliamentarians. Resettling the islands with British citizens would mean the introduction of new laws and greater civilian oversight of this secretive territory, and thus should be an attractive option for politicians in London who would prefer to see greater adherence to humanitarian norms on the island.

All in all, the experiment of treating BIOT solely as the dual-purpose home of a military base and wildlife sanctuary has been a relatively unhappy one, both because of the international legal problems discussed above and because the circumstances have allowed for questionable military activities to take place free from proper scrutiny. Neither the cause of sustainable environmental protection nor that of policing a military site is being served by the status quo. In contrast, resettlement of the islands might mean that social and environmental justice can coexist in Chagos: a permanent civilian population of British passport holders would mean the introduction of a civilian governance structure, greater transparency, and the prospect of a firm political settlement to underpin both an environmental protection regime capable of enduring over the long term, and a military presence that is in keeping with the aspirations of concerned parliamentarians.

Conclusion

The lesson to be learnt from the experience of the Chagos MPA is that conservation initiatives cannot be implemented without regard for the wider political context to which they belong. The Chagos MPA, despite its considerable promise to bring protection to a precious marine ecosystem, has been severely damaged. This should disappoint anybody with an interest in conserving the territory’s marine environment. The UK government already has undertaken to respond to the PCA’s ruling by conducting fresh and (presumably) more expansive consultations regarding Mauritius’s maritime rights in the territory. But the broader implication for the UK government is that acting unilaterally in the Chagos Archipelago – over environmental issues or otherwise – might now be politically and legally unsustainable in the long run. An inclusive approach to the government, politics and conservation of BIOT ought to be adopted in place of the current exclusionary approach, which has been shown up to be both short-sighted and counter-productive. Such a “fresh start” inevitably will mean involving Mauritius in a meaningful way in future decision making but also, more likely than not, reaching out to the Chagossians much more so than has hitherto been the case.

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