November 2012 update

PARLIAMENT

The Chagos Islands (BIOT) All-Party Parliamentary Group will reconvene for its 32nd meeting on December 5th 2012.

 

There were three parliamentary questions this month, two of which came from our Chagossian supporter and Labour MP Jeremy Corbyn.  On the 1st November Jeremy was provided with a written answer which was simply a referral to an earlier response provided back in March.  Here is Jeremy’s question:

 

“To ask the Secretary of State for Defence what recent requests he has received from the US administration for the use of Diego Garcia for (a) military action against Iran and (b) operations in the Persian Gulf.”

 

This was answered by Andrew Robathan MP, Minister of State for the Armed Forces:

 

“I refer the hon. Member to the answer given by the then Minister for the Armed Forces, Sir Nick Harvey, on 6 March 2012, Hansard, column 660W. The UK continues to work with other countries to achieve a diplomatic solution to Iran’s nuclear ambitions. We wish to see a peaceful, negotiated diplomatic settlement to the Iranian nuclear crisis, by which Iran gives the world confidence that it is not developing and will not develop nuclear weapons. All our efforts are devoted towards such a peaceful resolution through a twin track strategy of engagement and sanctions, although we are clear that all options for addressing the issue remain on the table.

There have been numerous occasions in the past when the US has requested, and we have agreed, the temporary use of UK bases and base areas or UK sovereign territory. The precise circumstances are always subject to the closest consultation, including all legal aspects.”

 

The exchange from the 6th March was as follows:

 

Fabian Hamilton (Leeds North East, Labour)

To ask the Secretary of State for Defence if he will make it his policy to seek the approval of Parliament before allowing the use of US bases in the UK by the (a) US Administration and (b) governments of other countries to launch military strikes against targets in Iran.

Nick Harvey (Minister of State (Armed Forces), Defence; North Devon, Liberal Democrat)

The UK continues to work with other countries to achieve a diplomatic solution to Iran’s nuclear ambitions. We want a negotiated solution, not a military one, but all options should be kept open.

The potential use by US forces of bases in the UK would be a matter for joint decision by the two Governments in the light of the circumstances prevailing at the time. The Government has made clear in the Cabinet Manual their intention to abide by the convention that before the commitment of UK forces to military action, Parliament should have an opportunity to debate the matter.

 

On the 8th November, Jeremy also asked:

 

“The Secretary of State for Foreign and Commonwealth Affairs pursuant to the answer of 30 October 2012, Official Report, columns 174-5W, on British Indian Ocean Territory (BIOT), whether the five Diplomatic Service officers who work in his Department and form the BIOT Administration are subject to the Freedom of Information Act 2000 and
the Environmental Information Regulations 2004.”

 

Mark Simmonds FCO Minister responsible for OTs replied:

 

“The five officers who work in the Foreign and Commonwealth Office (FCO)
and who also form part of the British Indian Ocean Territory (BIOT)
Government are not all Diplomatic Service Officers. One is a Home Civil
Service Officer.

Under the Freedom of Information Act 2000 (FOIA) and the Environmental
Information Regulations 2004 (EIRs) specific individuals are not
subject to the FOIA or EIRs. The FOIA and EIRs apply to public authorities.

The FCO is a public authority for the purposes of the FOIA and EIRs. As
such, information held by the FCO is subject to the FOIA and EIRs. The
Overseas Territories of the UK are constitutionally separate to the UK.
They are not subject to the FOIA or the EIRs, nor are the governments of
the Overseas Territories public authorities for the purposes of the FOIA
or EIRs. As such, information held by the BIOT Government is not subject
to the FOIA and EIRs.”

 

One of our supporters has suggested that further parliamentary questions may follow this and has pointed out four areas which require clarification:

 

  • If these 5 officers who work at the FCO and “also” form part of the BIOT Government, then to the extent that they work at the FCO they must be subject to the FOIA and EIR since the FCO itself is subject to these Act and Regulations.
  • Who pays their salary – is it not the British tax payers, and, if so, should they not be accountable to the British tax payers through the appropriate legislation?
  • Whether or not the BIOT is subject to the EIRs currently before the Information Tribunal.
  • Is it correct that the British Government, more specifically the FCO, should create an artificial entity such as the BIOT Commissioner and so-called Government of BIOT, when all the individuals involved are in fact employees of the British Crown, there is no local government on the ground in the BIOT, and the entire budget of the BIOT is derived from the FCO? Where is the accountability and transparency that the government has promised?

 

On the 6th November, Michael Fabricant, the Conservative MP for Litchfield, asked:

 

“the Secretary of State for Foreign and Commonwealth Affairs what recent discussions his Department has had with US officials on the future of the leasing arrangement held by the US on Diego Garcia.”

 

Mark Simmonds replied:

 

“The 1966 Exchange of Notes with the US provides that the islands of the British Indian Ocean Territory (BIOT), including Diego Garcia, shall be available to them until 2016 and continuing thereafter for a further period of 20 years unless terminated by either Government in the period 2014-16. There have been no substantive discussions to date with the US on the future of the US presence in BIOT post-2016.”

 

As a supporter pointed out, this contrasted with the view of others who believe that there must be negotiations between Britain and the United States if the latter wishes to extend the agreement beyond 2016.

 

FOREIGN AFFAIRS COMMITTEE

Earlier this month the Foreign Affairs Select Committee was scheduled to meet to question Mark Simmonds regarding the Overseas Territories White Paper which was published in June.  The meeting was subsequently postponed to 11 December as the minister had to travel urgently to the Congo.

 

OLIVIER BANCOULT STATEMENT

Chagos Refugee Group President Olivier Bancoult issued the following statement in response to the illegal fishing activities taking place within the Marine Protected Area (MPA):

 

I have taken note of various articles published in the last 24 hours regarding illegal fishing in the Marine Protected Area.  It is clear that our case filed at the High Court of London contesting the legality of the MPA is justified.

 

Not only has the UK wrongfully declared the Chagos Archipelago a Marine Protected Area but it fails to implement it correctly! This is not a surprise! It is impossible to implement an illegal policy correctly after all!

 

It is clear that the intention was not to protect and preserve the environment but only as revealed by the Wikileaks, to prevent the Chagossians from resettling and to deny them any means of livelihood!

 

How is it possible that the British authorities have not noticed the Sri Lankans fishing in the Chagos Archipelago?  Sri Lankans are fishing illegally in the waters while we Chagossians are prevented from exercising our traditional right to fish?!

 

The Chagossians are human beings and fishing is what we know best and how we earn our living. How can we accept the fact that others are benefiting from our natural resources while we are living in dire poverty because all our fishermen are not allowed to fish?!

 

We are indeed looking forward to our judicial review case in November!

 

SUMMARY OF THE JUDICIAL REVIEW OF THE MPA

Judicial Review of the Chagos MPA

 

Summary 

In the High Court on 13 November two judges agreed, despite FCO opposition, to additional  pleadings to the forthcoming Chagossian action for judicial review of the MPA. These address the traditional fishing rights of the Chagossians, the flawed science of the 2002 Feasibility Study and the requirement under the EU Treaty for social and economic development of the OTs of member states. The judges also granted an application that the Feasibility Consultants, Royal Haskoning, release all documents pertaining to the Study, which they hold. The FCO then applied for and was granted more time to prepare. So the Judicial Review was postponed from 21-23 Nov until March 2013

 

The Mauritian case at ITLOS against the MPA will be heard in July. Thus the MPA will remain in limbo, lacking international legitimacy, into a 4th year.

 

Background

 

In Aug 2010, Olivier Bancoult and the Chagos Refugees Group launched a legal action to challenge the lawfulness of the Chagos Marine Protected Area, declared by the former Foreign Secretary on 1 April 2010. The basis for the claim was that the Public Consultation exercise in 2009/10, preceding the declaration, was flawed because it did not reveal  that resettlement of the islands was feasible, and also that there had been a failure to disclose certain information.

 

On 28 Oct 2010, Mr Justice Burnett stayed the action and ordered that the hearing take place after the European Court of Human Rights in Strasbourg had given its judgment on a case brought by the Chagos Islanders in September 2004, against the UK for violation of the European Convention for the Protection of Human Rights. Judgment is still awaited.

 

On 16 March 2012, following an application by Mr Bancoult’s lawyers, which was opposed by the Foreign Secretary, Mr Justice Ouseley lifted the stay, ordered that the hearing should be expedited, and gave permission for the grounds of the action to be amended to include ‘improper motive’, namely that a motive of the MPA was to create a means to prevent Chagossians from resettling in their homeland. This was based on confidential US cables (wikileaks) reporting a meeting at the embassy, in London in May 2009, with two FCO officials. One official, the BIOT Commissioner, had told US Embassy officials, inter alia, that “establishing a marine park would in effect, put paid to resettlement claims of the archipelago’s former residents”.

 

On 4 July 2012, Mr Bancoult’s lawyers applied to the High Court for permission to cross-examine the two FCO officials, named in the US cables. This was strongly opposed by the Foreign Secretary. The application was granted by Lord Justice Burnton who acknowledged that cross-examination in judicial review proceedings was exceptional, but nonetheless, that the claim could not be fairly or justly determined without recourse to cross-examination.

 

A hearing date was set for 21-23 November 2012, but on 13 November 2012 an application was made by Mr Bancoult’s lawyers for permission to amend their case further. This application, which was again opposed by the Foreign Secretary, was based upon:

 

(1) documents concerning the 2002 Feasibility Study which the FCO had denied existed since 2005, but which had been found by the Treasury Solicitor in May 2012 and released in the course of these proceedings.

(2) further evidence of Chagossian traditional and historic fishing rights in Chagos, discovered in the release, in April 2012, of FCO archives, going back to the 1960s.

 

The application was to add two further grounds –  that there had been a failure to disclose that the MPA proposal would adversely affect the  traditional Chagossian fishing rights, and  that the MPA was in breach of obligations under Article 198 of the EU Treaty which requires the UK to promote the economic and social development of its OTs which include BIOT.

 

The application was heard by Lord Justice Richards and Mr Justice Ouseley. They granted permission for all the amendments to be made. The Foreign Secretary’s lawyers applied for a postponement to allow more time for preparation in the light of the new evidence. This was granted and the Judicial Review will now take place in March.

 

DAVID HART HUMAN RIGHTS BLOG UPDATE

In September David Hart QC had provided a comprehensive report on the various legal battles on behalf of the Chagos community.  This month he has provided the following update and where the battle lines have been drawn ahead of a busy series of proceedings in the Spring.

 

As I pointed out in my earlier post, the Divisional Court was due to hear the Chagossians’ challenge to the designation of the waters around the islands as a Marine Protected Area, which prohibited all fishing. They said that this designation was motivated by a decision to stymie any remaining economic viability which the islands may have – the Chagossians’ traditional livelihood arose out of fishing.

 

The main hearing of this challenge was due this week. The Court has now adjourned it, to be heard sometime in the New Year.

 

In so doing, the Court gave permission to the Chagossians to add two arguments to those already deployed against the making of the MPA:

 

(i) Article 198 of the Treaty on the Functioning of the European Union is said to require the UK to promote the economic and social development of the British Indian Ocean Territory and the interests and prosperity of the Chagos Islands (which form part of the BIOT); the making of the MPA was in breach of this duty; it is plain that this is legally controversial, not least because the FCO says that such a breach, even if proven, confers no individual rights, and, because a similar claim has been dismissed by the European Commission, and can only be determined by the General Court (part of the European Court of Justice);

 

(ii) a further claim that the consultation on the MPA was flawed because the FCO did not reveal that it had undertaken to grant fishing rights to all Mauritians in BIOT waters as long ago as 1965; the Chagossians were now Mauritian citizens and could therefore exercise those rights; the consultation should have revealed this undertaking and the consequent fishing rights which the Chagossians derived from it. The FCO said again that this was an international law claim which the domestic courts could not rule upon. Indeed, Mauritius has brought arbitral proceedings against the UK in respect of the MPA, asserting that the MPA breaches those self-same fishing rights; in this case the tribunal is that set up under the UN Convention on the Law of the Sea, and the proceedings are still going through the written documents stage.

 

The Divisional Court ruled on the merits of neither of these arguments, other than to say that they are at least arguable – though in the Article 198 instance, it reached that conclusion, despite not finding the Claimants’ argument “immediately persuasive” on an initial view.

 

Roll on the spring, when this fascinating challenge comes to be heard. In the meanwhile, we need to keep an eye on the Chagossians’ application to Strasbourg, as well as the UNCLOS proceedings in respect of the MPA. So I suspect that this will not be the last of these posts.

 

PASCALINA NELLAN GRADUATION

On the 19th October the Aurelie Lisette Talatte Chagossian Community Centre hosted a celebration marking the graduation of Pascalina Nellan who had graduated this year from the University of Mauritius.  The milestone was rightly applauded and should serve as an inspiration to Chagossians around the world that they too can scale the ladder of opportunity against mounting odds.  The Chagos Refugee Group blog tells us more of the extraordinary day of pride for everyone involved with the cause:

 

All eyes were on Pascalina Nellan dressed in her graduation gown, a symbol of  academic success and achievement in spite of all the obstacles that young Chagossians have to face on the hard education path. Pascalina’s degree is in the field of Political Science. For her degree dissertation she decided to work on a comparative study of the Chagos Refugees Group and the Chagossian Social Committee. As Chairman of the Chagossian Welfare Fund which supported Pascalina’s university studies, and also as CRG leader, Olivier Bancoult expressed his deep appreciation and pride while announcing that CRG would approach the Mauritian and UK governments to support Pascalina in her plan to go further and embark on a Master’s degree.

 

This association commends Pascalina on her exceptional achievements and wishes her every success in her future studies as she contemplates adding to her degree with a Master’s.

 

OBAMA MUST ATTEND TO THE CHAGOS ISLANDS

Following his victory in the US Presidential election earlier this month, Maureen Tong (acting head of the Thabo Mbeki African Leadership Institute) wrote about the urgent need for Barack Obama to intervene in the dispute and “take some bold decisions on US foreign policy and military strategy.”

 

The Cold War is over but the US is still holding on to its military base on Diego Garcia. While the US has more than 1 000 military installations, facilities and bases outside its own national borders, they regard Diego Garcia as of “unparalleled strategic importance” especially since 9/11 and the “War on Terror”.

 

Diego Garcia is located in the middle of the Indian Ocean, almost equidistant to India, Australia, the Arabian Gulf and Africa. It is one of the most expensive US military bases, hosting B 52 bombers and other long-range missile projecting weaponry.

 

There are several cases involving displacement of populations of non-self-governing territories to serve the military, economic and political interests of the US. They include Thule in Greenland; Okinawa in Japan; Vieques in Puerto Rico; Bikini and other atolls in the Marshall Islands. Diego Garcia is unique in that it is without a permanent civilian population.

 

This came about after the UK deported the entire permanent population of former African slaves from the Chagos Islands to Mauritius and Seychelles and passed them off as the citizens of those countries. As the WikiLeaks scandal has revealed, the US has no intention of allowing Chagossians to return home and the UK does not regret deporting the Chagossians and has now declared a Marine Protected Area over the Chagos islands as an excuse to bar the Chagossians’ return.

 

The US allows Cubans to co-exist at Guantanamo Bay despite its political animosity towards Cuba. Obama should allow the Chagossians to return and to co-exist with the military base on Diego Garcia in terms of their right to self-determination.

 

CHAGOS NATIVES LUNCH

On Sunday 14th October, around 70 first generation Chagossians gathered in Crawley for a celebratory lunch event which was partially funded by the association.  Our treasurer, Jenny Bertrand, provides this glowing feedback:

 

It is with much pleasure that we, Chagos Islanders Welfare Group members, would like to express our gratitude to the committee UKChSA and all the supporters for having accepted our request for a funding regarding the Lunch event we had on Sunday the 14th of October 2012 for the Native of Chagos Island.

 

We can assure you that this event was a real success and the feedback we received from the attendance was all positive.  And the word on everyone lips was  more -“Encore”.

 

There was some 70 Chagossians in attendance overall, as some elders were accompanied by their grandchild.  They were served with a variety of Food and drinks including the famous Chagossian meal the “Seeraz”, all prepared by members of our group.  We had the opportunity to listen live to a Chagossian Famous Singer “Babale” who volunteered to sing some of his sega songs free for all of us.  There were also some moments for dancing and a little projection on Chagos.

  

We also celebrated Mrs Jessie Marcelin’s Birthday on that day who was most happy to be among the Chagossian family and she even make us the honor to introduce a little song, the way they use to do it on their island, ‘singing about the actual event’.

 

We were also honored with the presence of Mrs Bernadette Dugasse Chagossian native herself also member of UKChSA and her niece. 

 

Overall for a first time event of this type in Crawley, it was really a great pleasure to see all our Native having fun and not thinking about how much they need to pay as it was all free of charge for them on that day and this was able to happen with your valuable help.

 

Again thank you

 

CHAGOS DAY FESTIVITIES

On Saturday 3rd November, Chagossians gathered once again in Crawley for a celebratory mass and reception marking Chagos Day.  Chagos Day is the most significant day in the calendar in that it commemorates the deportation of the Chagossian community from their islands four decades ago.

 

The date also coincides with the initial court victory achieved by Olivier Bancoult in London a dozen years ago.

 

The festivities were primarily organised by Sabrina Jean who felt the event was the biggest Chagos Day celebrations ever hosted in this country.  She was accompanied in attendance by joint patron of the association Philippa Gregory.

 

A big thank you to everyone involved for making this year’s particularly historical commemorations even more special than ever before.

 

STATEMENT FROM ROCH EVENOR

Roch Evenor, Chairman of the UK Chagos Support Association has submitted his resignation due to personal reasons.  He has issued the following statement:

 

I take the opportunity for all the support, advice and assistance given to me by everyone during my tenure of the office, especially Philippa Gregory, Patron, who has been my rock over the years and always there for her invaluable advice and support. My wish is that Philippa and others give their support to whoever will be my successor.

 

The Association would like to thank Roch for his years of dedication and hard work and wish him the very best in the future.  A successor will be announced in due course.

 

CHAGOS PETITION

Our petition recently passed 300 signatories and has subsequently passed the half way mark in this seemingly insurmountable challenge.  Our petition as always, can be found here: http://bit.ly/LLvt4P

 

As always thank you for your continuing interest and support,

Clency Lebrasse (Update Compiler)