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OT 427: Letter to the Chair of the Committee from Rt Hon David Miliband MP, Secretary of State, Foreign and Commonwealth Affairs

 

Thank you for your letter of 5 February about your meeting with the High Commissioner for Mauritius, H.E. Mr Abhimau Kundasamy.

 

As requested, I enclose a short paper on the Government's proposal to declare a marine protected area in the British Indian Ocean Territory (BlOT).

 

I remain convinced that furthering environmental protection in the Indian Ocean is a goal that both the UK and Mauritius can share. I welcome the news that Mauritius is looking to establish domestic marine protected areas as part of 'Maurice: Ile Durable'. I look forward to considering the (already significant) responses to the consultation on whether to create a marine protected area in BIOT before deciding on the way ahead.

 

23 February 2010

 

 

British Indian Ocean Territory: Marine Protected Area

 

Public consultation

 

In March 2009, the Chagos Environment Network presented their vision of "The Chagos Archipelago: its Nature and the Future" which advocates the creation of one of the world's greatest natural conservation areas. This presents the UK with a remarkable opportunity to create one of the world's largest marine protected areas and double the global coverage of the world's oceans benefiting from full protection.

 

Any declaration of a Marine Protected Area in the British Indian Ocean Territory would be made by the BIOT Commissioner and not by the UK Government. Although the BIOT Commissioner is not bound by UK Government guidelines on public consultation, the Foreign Secretary decided that there is sufficient international and public interest related to this proposal to merit such a consultation.

 

On 10 November 2009, the Foreign Secretary launched a public consultation into whether to establish a marine protected area in the British Indian Ocean Territory. The consultation seeks views from all stakeholders and interested parties to help the Government assess whether an MPA is the right option for the future environmental protection of the Territory. The Government strongly encourages as many people as possible to participate in the consultation. The consultation's original deadline was 12 February but due to the significant interest expressed in the consultation and in an effort to reach everyone with an interest in the issue, the Foreign Secretary extended the consultation until 5 March. The Foreign Secretary wrote to the Committee on Thursday 11 February to inform them of the extended deadline.

 

A decision on whether to create an MPA will not be taken until the consultation is over, the report on all responses written by the facilitator, and the way ahead decided upon after consideration of her report.


Mauritius

 

UK officials discussed the establishment of a marine protected area with the Mauritian government in bilateral talks on the British Indian Ocean Territory-the most recent being in July 2009. The Mauritian government welcomed in principle the concept of environmental protection in the area. As set out clearly in the consultation document, the UK government has confirmed to the Mauritians that the establishment of a marine protected area will have no impact on the UK's commitment to cede the Territory to Mauritius when it is no longer needed for defence purposes. We also made clear that even though we have gone out to public consultation on the proposal for an MPA, this does not preclude us continuing to discuss the protection of the environment with the Mauritians. The Foreign Secretary also discussed the proposed MPA with the Mauritian Prime Minister and Foreign Secretary in November 2009. The Prime Minister also spoke to Prime Minister Ramgoolam about the proposal at CHOGM.

 

Whilst not against the idea of increased environmental protection in the region, Mauritius has expressed concern over the public consultation. As set out in the paper handed to the Committee by the High Commissioner of Mauritius, the Mauritians do not consider that the UK Government should consult outside of the UK/Mauritius bilateral framework. They also consider that any MPA should take account of their sovereignty position and resettlement of the Chagossians. HMG's position on sovereignty is clear: we do not recognise the Mauritian claim but will cede the Territory once it is no longer needed for defence purposes. Our High Commissioner maintains regular contact with his host government and meets Mauritian government Ministers and officials on a weekly basis.

 

Chagossian resettlement

 

On resettlement, HMG's position is that following the Law Lords judgment in October 2008 in the Judicial Review of the BIOT 2004 Orders-in-Council, no-one has a right of abode in BIOT and all visitors need a permit. The Government has no plans to resettle the Territory. Any decision to establish an MPA in the Territory would be taken in this context. This consultation and any decision that may follow for the establishment of a marine protected area are, of course, without prejudice to the outcome of the current, pending proceedings (Chagos Islanders v UK) before the European Court of Human Rights (ECtHR). This means that should circumstances change, all the options for a marine protected area may need to be reconsidered.

 

While the establishment of an MPA has no direct impact on the Chagossian communities, the UK government is interested in their views. As well as being able to reply direct to the consultation (the consultation document with details of how to respond has been posted on the websites of the British High Commissions in Seychelles and Mauritius and the consultation has been widely publicised in the UK and Mauritian press), we are also arranging for the consultation facilitator to hear the views of the Chagossian communities directly.

 

Paper submitted to the Committee by High Commissioner Kundasamy

 

Turning to the points raised in Mr Kundasamy's paper:

 

1. As under both Mauritian law and international law, the Chagos Archipelago, including Diego Garcia, is under the sovereignty of Mauritius. The creation of any marine protected area (MFA) around the Chagos Archipelago would therefore require the agreement of the Government of Mauritius.

 

The UK has no doubt about its sovereignty over the British Indian Ocean Territory which was ceded to Britain in 1814 and has been a British dependency every since. As the UK has reiterated on many occasions and as is clearly set out in the public consultation document, we have undertaken to cede the Territory to Mauritius when it is no longer needed for defence purposes.

 

2. Since there is an on-going bilateral Mauritius-UK mechanism for talks and consultations on issues relating to the Chagos Archipelago, it is inappropriate and insulting for the British Government to pursue consultations globally on the proposal for the establishment of an MPA outside this bilateral framework.

 

The UK has made it clear that it is keen to continue to discuss environmental protection with the Mauritians within the bilateral framework or separately. The public consultation does not preclude, overtake or bypass these talks.

 

3. The manner in which the Marine Protected Area proposal is being dealt with makes us feel that it is being imposed on Mauritius with a pre-determined agenda.

 

FCO officials discussed environmental protection and the possible creation of a marine protected area with Mauritian officials in bilateral talks on the British Indian Ocean Territory on 14 January 2009 and on 21 July 2009. The Foreign Secretary also discussed the proposal with the Mauritian Prime Minister and Foreign Minister in November 2009. No decisions on whether to create a Marine Protected Area in the Territory have yet been taken; nor will they be taken until the consultation is over.

 

4. The establishment of an MPA around the Chagos Archipelago must be compatible with the sovereignty of Mauritius over the Chagos Archipelago. Any endorsement of the proposed unilateral initiative of the FCO's, particularly in some scientific quarters, would be tantamount to condoning the violation of international law and the enduring human tragedy.

 

5. Moreover, the issue of resettlement in the Chagos Archipelago, access to the fisheries resources, and the economic development of the islands in a manner which would not prejudice the effective exercise by Mauritius of its sovereignty over the Chagos Archipelago are matters of high priority to the Government of Mauritius.

 

6. The exclusion of such important issues from any MPA project and a total ban on fisheries exploitation would not be compatible with the resolution of sovereignty over the Chagos Archipelago and progress in the ongoing talks between Mauritius and the UK.

 

The UK does not recognise Mauritius claim to sovereignty over the Territory. We have undertaken to cede the Territory when it is no longer needed for defence purposes. The UK's position on resettlement is clear. Following the judgment of the Law Lords on 22 October 2008 which upheld the validity of the 2004 BIOT Orders in Council, no-one has a right of abode in the Territory and all visitors need a permit. The Government does not intend to resettle the Chagossians in the Territory.

 

7. The existing framework o f talks between Mauritius and the UK on the Chagos Archipelago and the related environmental issues should not be overtaken or bypassed by the public consultation launched by the British government on the proposed establishment of an MPA around the Chagos Archipelago.

 

FCO officials have made it clear that the UK is keen to continue to discuss environmental protection with the Mauritians. The public consultation does not overtake or bypass such discussions.

 

8. The establishment of an MPA around the Chagos Archipelago should also address the benefits that Mauritius derive from any mineral or oil that may be discovered in or near the Chagos Archipelago (as per the undertaking given in 1965).

 

The undertaking states "the right of prospection and the benefits of any minerals or oil discovered in or near the Chagos Archipelago reverting to the Mauritius Government". As we have reiterated on many occasions, the Territory will be ceded to Mauritius when it is no longer needed for defence purposes.

 

9. Why is the FCO in a hurry to establish a marine protected area around the Chagos Archipelago?

 

· Is it because of the case which the Chagossians have brought before the European Court of Human Rights.

· Is because the lease agreement concluded by the UK and US Governments on 30 December 1966 for the use of the Chagos Archipelago for defence purposes will expire in 2014? {NB: this should be 2016}

 

As has been made clear in the consultation document, the consultation and any decision to create a Marine Protected Area in the Territory is without prejudice to the current, pending proceedings before the European Court of Human Rights.

 

The use of the British Indian Ocean Territory (including Diego Garcia) is regulated by a series of bilateral agreements (Exchange of Notes) between the UK and US within the context of broader US-UK defence arrangements. The 1966 Exchange of Notes provides that the islands of the British Indian Ocean Territory, including Diego Garcia, shall be available for an initial period of 50 years ie., until 2016 and continuing thereafter for a further period of 20 years unless terminated by either Government at the end of the initial period. There have been no discussions with the US about the possibility of terminating the agreement or changing its terms but the UK and US will, of course, continue to consult closely on their mutual defence needs.

 

Why is it that the excision of the Chagos Archipelago from Mauritius in breach (if two UNGA resolutions is not being considered as a gross violation of international law by the British Government?

 

The UK does not accept the Mauritian claim to sovereignty over BIOT which has been British since France ceded the islands to Britain in 1814. The UK also did not support UN Resolution 2066 which called on Britain not to take any action which would dismember the Territory of Mauritius and violate its territorial integrity. The UK maintained that the term dismemberment was inapplicable because the islands were not an integral part of the Territory of Mauritius.

 

UK/Mauritius Bilateral Relationship

 

Looking beyond the subjects of the British Indian Ocean Territory and Marine Protected Area, the UK continues to have a broad and deep relationship with Mauritius, with regular contacts at all levels. The extent of the relationship is reflected in recent and planned bilateral activities, including local celebrations of the 200th anniversary of UK involvement in Mauritius later this year, a visit to Mauritius by the UK Privy Council in 2009 (they are set to visit again this year) and the recent formation of a UK All Party Parliamentary Group on Mauritius.

 

Mauritius shares many of the UK's outlooks on international issues and, subject to regional voting constraints, the Mauritian Government is generally sympathetic to HMG positions in international fora. Within regional blocs, Mauritius is often a voice supporting UK aims such as good governance (e.g. in Zimbabwe and Madagascar).

 

There are over 5000 British passport holders (many dual-national) in Mauritius, and there is a large Mauritian Diaspora in the UK-indeed the UK is historically the destination of choice for Mauritians studying overseas. Financially the UK has been the largest source of Foreign Direct Investment to Mauritius on several occasions in recent years, and the UK is Mauritius' largest export market.