Why the legality of the Chagos MPA matters

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By Elizabeth M. De Santo, Ph.D., Assistant Professor of Environmental Studies, Franklin & Marshall College

The Permanent Court of Arbitration (PCA) is currently meeting to determine the legality of the UK’s 2010 declaration of a marine reserve around the Chagos archipelago. This is the latest in a suite of legal arguments undertaken since the islands’ local population was evicted to make way for the leasing of Diego Garcia to the US to build a military base. I would like to explain why the current case matters, not re-hash the rights and wrongs of the Chagossian eviction and US occupation, nor whether the “special relationship” used the MPA as a means of keeping the zone a de facto militarized space, nor am I reopening the debate on the pros and cons of large MPAs. Rather, the PCA arbitration presents new and worrying implications for former colonial powers designating large swaths of their overseas territories as conservation areas, and it adds yet another layer of negativity to the Chagos MPA that will have repercussions on future designations. 

Mauritius has taken the UK to the PCA to determine whether the declaration of the Chagos MPA is valid under the UN Convention on the Law of the Sea (UNCLOS). According to Mauritius’ petition, “until 1965 the United Kingdom accepted the Chagos Archipelago as part of the Territory of Mauritius, over which it exercised colonial authority. That year, it dismembered Mauritius by purporting to established a so-called “British Indian Ocean Territory”, a new colonial territory consisting of the Chagos Islands, which it excised from Mauritius.” This separation of territories, Mauritius claims, was in breach of UN General Assembly Resolution 1514 banning the breakup of colonies prior to their being granted independence. Mauritius was granted independence in 1968, and has continued to assert that the Chagos Islands are part of its territory – the islands are even included as part of the country’s territory in its constitution. Consequently, Mauritius’ petition to the PCA questions the UK’s status as a “coastal state” within UNCLOS with respect to Chagos and thus whether the UK had the right to declare an MPA around the islands. The UK is arguing that the Tribunal does not have jurisdiction over the issues raised (note that this is a simplification of a complex case, for full details see the PCA website, which has made the Parties’ pleadings public).

Why does the legality of the Chagos MPA matter? It sets yet another negative precedent for MPAs in the eyes of lesser developed countries and it raises questions about the honesty and intent of former colonial powers. Mauritius cites the MPA as a “further expression and continuation” of the illegality of removing the Chagossians from their homeland. As the number of large MPAs being declared in overseas territories increases while former colonial powers struggle to reconcile conservation and development within their own waters, what picture does this paint for the future of ocean management? New declarations in the Cook Islands (1 million square kilometers, former colony of New Zealand) and the French territory of New Caledonia (1.4 million square kilometers) will not be 100% no-take like Chagos, but open to fishing and possibly even mining. Chagos represented a tremendous victory in the eyes of many, but a colossal failure for many others. What opportunities and possible future victories have been lost for effective conservation as a result of this MPA’s poor example? While many issues remain unanswered about the future of Chagos, the PCA’s judgment could lead to the MPA being declared invalid, and this whole experiment being for naught.

Comments

You are of course absolutely right the who governs the Chagos Islands is of paramount importance. However the UK's past licensing of fisheries in the BIOT EEZ was as much a claim of rights under UNCLOS as establishing the MPA, so Mauritius's claim does not stem from the MPA but the UK's sovereign claim over Chagos, that's what the Courts will decide, and I am sure the UK will abide by this judgment. While this fundamentally important point is still at issue, that does not negate the UK's obligations to actively manage the EEZ, while it considers itself to have sovereignty. Many of the world's EEZs have disputed boundaries, if management has to wait for the courts to settle the disputes then these will become 'Tom All Alone' territories from Dickens' Bleak House. In my view the Chagos Island MPA is neither a colossal success or a failure, but represents a small step by the UK Government to meet its legal obligations for marine conservation, something which a decade ago would have been unimaginable. If Mauritius wins the case then they will then have the right to administer the area, of course the UK's declaration will not bind them, but it will have set the precedent. Moreover having established the BIOT MPA, the UK Government have accepted the principle that this is the sort of thing they should be doing. There is no obvious evidence that losing BIOT will make the UK Government or anyone else stop declaring and enforcing MPAs. I do not live in a Panglossian world, and the Chagos MPA certainly has its fair share of problems, but it is not a disaster, like Elizabeth Bennet in pride and prejudice 'it deserves neither such praise nor such censure'. I will certainly watch this with great interest, but I can't draw the same conclusions I am afraid.

Thanks Tom, you raise an interesting point - I'm not sure it's fair to assume that Mauritius' petition was entirely motivated by their legacy of fishing in the area (and desire to do so again). In the press, while Mauritius was initially opposed to the MPA, they have subsequently stated that they are in support of conservation and combatting illegal fishing [1] however this leads to a conservation/preservation debate... Should Chagos be open to some forms of use (as some large MPAs are), or should it be completely closed as a preservation area? If the latter, then it needs to be better enforced, as illegal fishing has been spotted in the area [2]. It has been four (!) years since the MPA declaration, and enforcement is still reliant upon a single, aged vessel [3]. If countries like the UK and France want to close off their overseas territories as preservation areas (and count this percentage towards their national efforts towards the CBD Aichi Protected Area Targets) then they need to be prepared to invest in the best monitoring and enforcement technologies available, otherwise we risk undermining targets [4] by creating more paper parks and a false sense of security, not to mention drawing the ire of lesser developed countries who feel put-upon by conservation targets to begin with. I don't want to see the UK stop declaring MPAs, I want to see them make MPAs that work. I want to see them set an example that the rest of the world will want to emulate. I see no reason for the UK not to have moved more quickly with putting an interim management plan in place. They moved forward on the MPA declaration whilst the European Court on Human Rights decision was pending, why didn't they move forward on an interim management plan while the PCA case was pending? It would certainly help the UK's position if they could show that the areas is being properly managed, which unfortunately they cannot. [1] http://www.theguardian.com/world/2013/jan/28/britain-tribunal-chagos-islands-marine-area ; [2] http://www.greenpeace.org/international/en/press/releases/Greenpeace-finds-illegal-fishing-vessels-urges-UK-to-enforce-Chagos-marine-reserve/ ; [3] https://sites.google.com/site/thechagosarchipelagofacts/eppz-mpa/patrol-vessel ; [4] http://www.sciencedirect.com/science/article/pii/S0301479713000753 (open access version available here: http://bit.ly/RhGLBF)

Dr. DeSanto, Excellent topic for discussion! I commend your efforts and am very interested in reviewing your viewpoints on it. I myself am a marine biologist who has done some work on Diego Garcia in the Chagos for the US Navy (please make no value judgments based on that). I've since left the consulting world and have followed the issues surrounding the Chagos closely. I'm afraid that much of the inertia and resistance that the Chagos currently presents to common sense and sensibility won't change until the US lawmakers and public get engaged. It doesn't change the importance of the roles of the main stake holders among the UK, Mauritius, and the Chagossians. But the whole situation will remain dysfunctional until the US steps up and participates as per its own role in the whole affair - including the creation/management of the MPA and the follow on effects it has toward globe wide MPA's in general. Mauritius has said it would work with the US to keep the Naval Facility on the island of Diego Garcia - and so it's influence also would continue in that case. As to your thesis, I've stated very much the same points of view myself, but in a rather different format. The biggest issue though is finding an audience and an effective conveyance to that audience. See: Chagos Fishery Stew http://ukchagosgumbo.blogspot.com/ The legality of the Chagos MPA does matter, along with the events and wider environment in which it was created. One of the dangers of course is the cynicism that MPAs ala Chagos create. Along with the examples you presented and the issues that get discussed regarding fisheries, add this consideration - that while it was deemed of utmost importance to declare the waters 100% no take (except for the base at Diego Garcia, providing another helping of cynicism) considerations for Marine Mammals seem to have been left out entirely except for what was in place by older agreements - the MPA is being used to light a torch for fisheries, why not cetaceans? Cetaceans are being completely overlooked in a region where military sonar is most likely to have impacts (and where military sonar is a matter of 'in-theater' use rather than just practice and training as it is in US coastal waters). And the Indian Ocean is a region where a general expansion of cetacean knowledge is needed, yet is silently being ignored. So add lack of comprehensive management (or call it "selectively applied" management) to the lack of enforcement ability. I do hope this is all part of the process that leads toward creating MPAs that work...

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