Categories: Marine Article 4

Introduction

On 1 April 2010, the UK Foreign and Commonwealth Office (FCO) announced the establishment of a marine protected area (MPA) in the British Indian Ocean Territory (BIOT), to be enacted by ordinance of the Director of the FCO Overseas Territories Department, acting as BIOT Commissioner in exercise of the Government’s colonial “prerogative powers” (i.e., without parliamentary approval, pursuant to the 1865 Colonial Laws Validity Act). The new marine reserve is to cover the entire 200-mile exclusive economic zone (EEZ) around the territorial waters of the Chagos Archipelago, approximately 544,000 km² (more than double the size of the United Kingdom). The only geographical exception will be the inner sector around the main island of the archipelago, the coral atoll of Diego Garcia with its lagoon and three-mile territorial sea (approximately 470 km²). The island happens to be the site of one of the largest and most secretive US bases overseas – proudly labelled “footprint of freedom” by its current occupants – constructed and upgraded at a cost of over US$3 billion, and home port to a sizable fleet of long-range bombers, nuclear submarines and naval supply vessels; in the science-fiction movie Transformers II: Revenge of the Fallen (M. Bay and S. Spielberg, Paramount Pictures, 2009), Diego Garcia even figures as secret operations and training facility for assorted robots and American heroes who save the Earth from extraterrestrial invaders. Within the new BIOT MPA, the US base now becomes a legally-exempt military enclave effectively surrounded by a 200-mile “green zone”.

The UK Government’s decision to enclose this huge ocean area for ecological reasons – even though widely acclaimed by conservationists and environmental organisations as creating the world’s largest nature reserve to date – generated a considerable amount of controversy in Parliament and in the media, mainly because of its perceived interference with pending litigation before the European Court of Human Rights in Strasbourg, instituted since 2004 by native Chagos Islanders who were forcibly expelled to make way for the US base and who are now seeking the right to return. Designation of the area as a restricted marine park at this stage constitutes a fait accompli in open defiance of the Strasbourg proceedings (scheduled for adjudication by October 2010), not withstanding repeated FCO assurances to the effect that “should circumstances change, all the options for a marine protected area may need to be reconsidered”. In the view of many critical observers, the unilateral enclosure of the Chagos Archipelago is either an anachronistic example of “environmental imperialism”, or evidence of an equally outdated variant of “fortress conservation” that disregards human rights under the noble guise of nature protection. Quite apart from the public law issue of the Chagossians’ minority rights, however, the new BIOT MPA also raises a number of broader international legal questions, which the present note will address in turn:

• competing claims to sovereignty and jurisdiction, by Mauritius and the Maldives;
• compatibility with the United Nations Convention on the Law of the Sea (UNCLOS), and related regional instruments; and
• applicability of other multilateral agreements.

Disputed Sovereignty and Jurisdiction

After acceding to independence in 1968, Mauritius has continuously contested UK territorial sovereignty over the Chagos, claiming that the archipelago had been “excised” from the former British colony of Mauritius in violation of several UN resolutions on decolonisation.16 According to Article 111 of the Mauritian Constitution, “Mauritius includes … the Chagos Archipelago, including Diego Garcia”. There is no evidence for the BIOT excision “to have been accepted, at least as a temporary measure” by Mauritius; on the contrary, the country repeatedly affirmed its claim to sovereignty over the territory in the UN General Assembly and in numerous declarations upon signature, ratification or accession to international treaties. In December 1984, Mauritius declared a 200-mile EEZ around the Chagos Archipelago pursuant to UNCLOS Article 75, based on a twelve-mile territorial sea, with geographical coordinates submitted to the UN Division for Ocean Affairs and the Law of the Sea on 20 June 2008; and in May 2009 submitted a further preliminary claim to an extended continental shelf area (measuring approximately 180,000 km²) some 170 miles beyond the southern part of the Chagos EEZ. The Mauritian EEZ was recognised in the “Agreement between the European Economic Community and the Government of Mauritius on Fishing in Mauritian Waters”, of 10 June 1989; and the Organization for African Unity (now the African Union) unanimously endorsed the sovereignty of Mauritius over the Chagos Archipelago in 1980, 2001 and 2010.

The UK has persistently disputed Mauritian claims to sovereignty over the Chagos and to jurisdiction over its surrounding waters, while conceding that the islands would eventually be “ceded” to Mauritius at some unspecified future time “when they are no longer needed for defence purposes”. On 1 October 1991, the FCO in turn proclaimed a 200-mile BIOT Fisheries Conservation and Management Zone, and on 17 September 2003 a BIOT Environment (Protection and Preservation) Zone, based on a three-mile territorial sea, with geographical coordinates notified to the UN Secretariat under Article 75(2) on 12 March 2004. The northern boundary of the zone remains legally undetermined, however, in view of competing claims of jurisdiction in the sector overlapping with the 200-mile zone of the Maldives. Although the coordinates of the EEZ communicated to the United Nations by the FCO show an equidistant “median line” boundary between these competing claims, a draft delimitation agreement negotiated with the Maldives at a technical level in 1992 was never signed and is not in force. Following bilateral talks between Mauritius and the Maldives in February 2010, the Mauritian Foreign Ministry now envisages a joint claim to an extended continental shelf area in the northern part of the Chagos Archipelago, similar to the joint claim with the Seychelles submitted on 1 December 2008.

The Maldivian objection to a median-line delimitation is based on the contention that the only inhabited island of the Chagos Archipelago is Diego Garcia, whereas the smaller “outer islands” islands to the north (such as Peros Banhos and Salomon, included in the current coordinates of the BIOT 200-mile zone) are uninhabited; and according to official FCO statements, their long-term re-settlement would be economically unsustainable. Consequently, UNCLOS Article 121(3) applies (as in the notorious case of Rockall Island), which provides that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”. Indeed, if the FCO’s own conclusions are correct (“settlement is not feasible”), a national MPA in the Chagos Archipelago would be restricted to the 200-mile arc around Diego Garcia, which with approximately 484,000 km² is at least 10 percent smaller than the EEZ now claimed by the UK – and its equivalent BIOT “fisheries conservation and management zone”, in which the FCO has since 2003 collected a total of over US$8 million in licence fees from foreign tuna-fishing companies.

Compatibility with UNCLOS and Related Instruments

The 1982 UN Convention on the Law of the Sea makes no explicit provision for MPAs in the 200-mile EEZ. In the course of negotiations for the treaty, proposals to grant coastal States the option to establish a 100-mile “environmental protection zone” were opposed – not least by the United States – as an encroachment on the customary freedom of navigation, and were rejected except as regards jurisdiction over ice-covered areas (Article 234, not an immediate prospect in the Chagos). Subsequent unilateral attempts by certain coastal States to establish “ecological protection zones” beyond territorial sea limits in the Mediterranean (France, Croatia, Slovenia and Italy, 2003–2006) have remained controversial. According to UNCLOS Article 56(2), a coastal State exercising its environmental protection jurisdiction in the EEZ “shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of the Convention”. UNCLOS Article 211(6)(a) thus allows the creation of pollution prevention and control areas in a coastal State’s EEZ solely on the basis of “appropriate consultations through the competent international organizations with any other States concerned”. A fortiori, therefore, the establishment and enforcement of fully-fledged marine conservation areas beyond a coastal State’s territorial waters are subject to multilateral consultations and designation through the international bodies so empowered. Significantly, all four examples cited as “comparable” role models for the BIOT MPA – Australia’s Great Barrier Reef Marine Park; Ecuador’s Galapagos Marine Reserve; Kiribati’s Phoenix Islands Protected Area; and the US Northwestern Hawaiian Islands Marine National Monument – happen to be designated multilaterally: (a) as “World Heritage sites”, by decision of the UNESCO World Heritage Committee (WHC); and/ or (b) as “particularly sensitive sea areas”, by decision of the International Maritime Organization’s Marine Environment Protection Committee (MEPC). Now that a similar status is envisaged for the Chagos Archipelago, the FCO will be expected to initiate appropriate steps for this purpose on the basis of intergovernmental consultations with other countries in the Indian Ocean region, inevitably including Mauritius and the Maldives. The Chagos Archipelago also falls within the geographical scope of several regional legal regimes relevant to living resource management and conservation in the BIOT.

Applicability of Other International Agreements

As a UK overseas territory, the BIOT is not automatically covered by international treaties to which Britain is a party. In keeping with standard FCO practice, geographical extension of any treaty ratified by the UK to any of the territories concerned is determined case by case. That practice, sometimes described as a kind of “atavistic dualism”, was indeed vindicated by the 2008 decision of the House of Lords’ Appellate Committee in Bancoult 2, holding that the 1998 British Human Rights Act does not apply to the BIOT because the UK had not formally extended ratification of the 1950 European Convention on Human Rights (ECHR) to the territory.64 In the case of the BIOT, treaty extensions continue to be withheld for political reasons, as illustrated not only in human rights law, but also in the fields of environment and disarmament.

Human Rights
From the outset, the FCO took the position that the BIOT, “by reason of the absence of any permanent population”, is not subject to the reporting obligations for non-self-governing territories under Article 73(e) of the UN Charter.65 On the same grounds, the United Kingdom contends that its ratification (on 20 May 1976) of the 1966 UN Covenants on Human Rights66 does not extend to the BIOT67 – a view contested by the UN Human Rights Committee, which has repeatedly indicated that it considers the Covenants to apply to the BIOT, and in its concluding observations on the UK report in 2008 urged the United Kingdom “to include the territory in its next periodic report”. The 1949 Geneva Conventions III and IV (Treatment of Prisoners of War, and Protection of Civilian Persons in Time of War, ratified by the UK on 23 September 1957) were never extended to the overseas territories; neither was the 1998 Statute of the International Criminal Court (ratified by the UK on 4 October 2001). The 1984 UN Convention against Torture (ratified by the UK on 8 December 1988) was extended to most UK dependent territories except the BIOT by declaration on 9 December 1992. Not surprisingly therefore, the BIOT has been referred to as a “human rights black hole”.

Environment
According to the 2001 BIOT Environment Charter, the UK Government is to “facilitate the extension of the UK’s ratification of multilateral environmental agreements of benefit to the BIOT and which the BIOT has the capacity to implement”. To date, however, only five global agreements have been extended to the territory: viz., the 1946 International Whaling Convention; the 1971 Wetlands (Ramsar) Convention; the 1973 Convention on Trade in Endangered Species (CITES); the 1979 Migratory Species (Bonn) Convention; and the 1985 Ozone Layer (Vienna) Convention with its 1987 (Montreal) Protocol. Among the environmental treaties not so extended, there are five that were never ratified by the United States, and which the FCO therefore seems to consider as potential irritants for UK-US relations regarding operation of the military base in Diego Garcia:
i) The 1989 Basel Convention on Transboundary Movements of Hazardous Wastes, ratified by the UK on 7 February 1994, with an extension to the British Antarctic Territory, though not to the BIOT. The US base on Diego Garcia generates some 200 tons of solid waste annually, most of which is incinerated and land-filled on the island. Following a 1982 UK-US supplementary agreement,hazardous wastes have been exported by sea, initially to the Philippines, in 2006 traded to Dubai, and periodically shipped to disposal sites in the United States. Extension of the Basel Convention to the BIOT would subject those exports to mandatory licensing (and potential prohibition) by the UK authorities.
ii) The 1992 Convention on Biological Diversity (CBD), ratified by the UK on 3 June 1994, with an extension to the British Virgin Islands, the Cayman Islands and St Helena. Extension to the BIOT continues to be vetoed by the FCO; as a result, the only parts of the world where that Convention – with 192 member countries, a universally accepted environmental treaty – is not applicable today are the United States, Andorra and five UK overseas territories (BIOT, Bermuda, Falkland Islands, Pitcairn Islands and British Antarctic Territory). Given that the BIOT boasts “a greater marine biodiversity than the rest of the UK and its other territories combined”, and that the FCO invokes “the interest of the biodiversity of the planet” as the main rationale for its BIOT MPA, the continuing exclusion of the territory from the CBD borders on the absurd.
iii) The 1997 Kyoto Protocol to the 1992 UN Framework Convention on Climate Change, ratified by the UK on 31 May 2002, and extended (on 7 March 2007) to Bermuda, the Cayman Islands and the Falkland Islands, but not to BIOT. Ironically perhaps, Diego Garcia has since been singled out – because of its low average elevation of four feet (1.3 m) above sea-level – as the US base most immediately threatened by global warming. 
iv) The 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, ratified by the UK on 23 February 2005, but still boycotted by the US State Department. In the view of the FCO, the Convention has “no practical relevance to BIOT” because “BIOT has no permanent residents”, and will therefore not be extended to the territory. 
v) The 2001 Stockholm Convention on Persistent Organic Pollutants, ratified by the UK on 17 January 2005 (without extension to overseas territories), but not ratified by the United States. Considering that the Chagos Archipelago is potentially vulnerable to certain persistent organic pollutants used on the US base in Diego Garcia (such as perfluorooctane sulfonate, a toxic ingredient of fire-fighting foam listed on the Stockholm Convention annex since 2009, or airborne dioxins emitted by the two waste incineration plants on the island), the FCO’s exclusion of the BIOT from the geographical scope of the treaty is particularly unfortunate.

As regards the 1972 World Heritage Convention (ratified by the UK on 25 May 1984, with a declaration extending it to all British overseas territories except the BIOT), a 1997 BIOT Conservation Policy Statement declares that “the islands will be treated with no less strict regard for natural heritage considerations than places actually nominated as World Heritage sites, subject only to defence requirements”. The 1971 Ramsar Convention on Wetlands of International Importance (ratified by the UK with effect from 5 May 1976 and extended to the BIOT on 8 September 1998) applies to Diego Garcia except for “the area set aside for military uses as a US naval support facility”. Doubts remain as to whether the on-going military uses of the Diego Garcia lagoon (which was not so set aside, and hence is part of the internationally protected site, as shown in the official Ramsar map) by a large fleet of US naval supply vessels and nuclear submarines are compatible with the purposes of a nature reserve. In particular, there has been a series of major fuel spills at the US base in 1984, 1991, 1997 and 1998 (totalling more than 1.3 million gallons of JP-5 jet fuel), which had still not been cleaned up by 2004, but which were never reported to the Ramsar Secretariat under Article 3(2) of the Convention and its “Montreux Record”, or to any other “competent international organizations” under UNCLOS Articles 204–205 for that matter.

Furthermore, the transit of 550 tonnes of uranium “yellow-cake” from Iraq in May-June 2008, which the US Department of Defense flew to Diego Garcia in 37 cargo planeloads for trans-shipment to Canada by sea, raises questions of radionuclide contamination risks for the lagoon. So does the announcement by the US 5th Pacific Fleet Command that, from 2010 onwards, Diego Garcia will serve as home port for a fleet of nuclear-powered fastattack submarines (SSNs) and guided-missile submarines (SSGNs), to be serviced by the very same submarine tender (USS Emory S. Land) which in 2007 had to leave her previous home port in the Mediterranean after public protests over massive radioactive pollution of an adjacent MPA. Rather surprisingly, the US Navy claims that it “does not have any records regarding radionuclide monitoring carried out in the Diego Garcia lagoon and adjoining territorial waters”; and the only radioactivity survey ever undertaken in Diego Garcia by the UK authorities dates back to 2006. In turn, the FCO’s Conservation Adviser for the BIOT affirms: “Basically, radiation is outside my remit. I do not monitor it… for details you would need to ask the navies concerned, not me”.

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