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.