Abstract
While not an exact ‘mirror reflection’ Chagos and Pitcairn share a number of similarities. Both are small isolated collections of islands over which the United Kingdom exercises sovereignty. They are also prime locations for marine protection areas, in the case of BIOT this was established some time ago, in the case of Pitcairn this has only recently been declared. The motivations behind these MPAs are not those of the islanders, who, in the case of the Chagossians have been removed, and now, it seems, are unlikely to be permitted to return, while in the case of Pitcairn the islanders remain but in reducing and ageing numbers, but reflect wider agendas informed by international and bi-lateral treaties, the lobbying of influential public charities and NGOs, and appeals to ‘world habitat’, the ‘global commons’ and the ‘responsibilities of mankind’. The legal governance of Pitcairn was considered as a possible model for a re-inhabited Chagos, while the implementation and regulation of the BIOT MPA provides a model for that proposed for Pitcairn. At the same time the issues of cost and viability, which have been raised against resettlement of BIOT, raises questions about the sustainable future of Pitcairn. Drawing on the experience of BIOT this paper considers the legal similarities and differences between these two island groups and interrogates the processes and consequences of establishing Marine Protected Areas around remote British Overseas Territories.
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Notes
- 1.
[2016] UKSC 35 (Hereafter Bancoult [2016]).
- 2.
[2008] UKHL 61, [2009] AC 453 (Hereafter Bancoult [2008]).
- 3.
This was prepared by Posford Haskoning Ltd and published in July 2002. The contract for the report was between the Commissioner for BIOT and Posford Duvivier Environment. See Bancoult [2016] [29] (n 1).
- 4.
Para 1.11 General Conclusions. Contrary views were expressed by one of the consultants involved in a BIOT site visit in 2001, Mr Akester, who felt that resettlement obstacles could have been overcome: Bancoult [2016] [67] (n 1).
- 5.
For a summary of the grounds of challenge see Bancoult [2016] [133] (n 1).
- 6.
Bancoult [2016] [25] (n 1). See also an alternative point of view presented as new evidence and considered at [69]: the report of Professor Paul Kench of the University of Auckland. See also the KPMG Report 2014/15, considered below, which factually supersedes the 2B report.
- 7.
See in particular Bancoult [2016] [59] (n 1).
- 8.
See Bancoult [2016] [44] (n 1) which refers to the section on vulnerability in the 2B report.
- 9.
See Bancoult [2016] [44] (n 1).
- 10.
See R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2013] EWHC 1502 (Admin), [2014] EWCA Civ 708.
- 11.
Quoted at Bancoult [2016] [74] (n 1).
- 12.
A report of the House of Commons Environment Audit Committee, Sustainability in the UK Overseas Territories (HC 2013-14, 332-I) para 3, (hereafter ‘Sustainability Report 2014’), states, ‘Taken together, the total population of the UKOTs amounts to some 250,000 people, which is loosely equivalent to that of Nottingham’, a figure which appears to have been taken from Foreign and Commonwealth Office, The Overseas Territories: Security, Success and Sustainability (White Paper, Cm 8374, 2012).
- 13.
Apparently one of the manifesto commitments of the conservative party—currently in power, was to ‘create a “blue belt” of marine protected zones around the 14 overseas territories’ of the UK. Matt Ridley, ‘Protecting the Sea’ (Mattridley Online, 27 March 2016) <http://www.rationaloptimist.com/blog/marine-protected-areas/> accessed 9 February 2017.
- 14.
Although all G20 countries are expected to participate in the creation of marine protected areas and no-take areas competition seems fiercest between the UK and the USA. See Atlas of Marine Protection ‘How much of our ocean is protected’ < http://www.mpatlas.org/> accessed 23 June 2017.
- 15.
Jones and De Santo (2016).
- 16.
HC Deb 1 November 2016, vol 616, column 314WH.
- 17.
UN 2014. See also the Aarhus Convention 1998, UN Framework Convention on Climate Change 1992, the Durban Accord 2005, and the Rio +20 Sustainable Development Goals 2012.
- 18.
The Convention opened for signature on 5 June 1992 at the Rio ‘Earth Summit’ and remained open for signature until 4 June 1993. It entered into force on 29 December 1993.
- 19.
For progress up until 2012 see De Santo (2013), pp. 137, 139–140.
- 20.
See Resolution WCC-2016-Res-050. The resolution suggests that this 30% would have ‘no extractive activities’ https://portals.iucn.org/library/sites/library/files/documents/IUCN-WCC-6th-005.pdf. accessed 9 February 2017.
- 21.
‘How much of our ocean is protected?’ (MPAtlas) <http://www.mpatlas.org/> accessed 9 February 2017.
- 22.
Shugart-Schmidt et al. (2015), pp. 25, 27.
- 23.
HC Deb 1 November 2016, vol 616, col 314WH. This figure is also stated in the Sustainability Report 2014 (n 12), 3. <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmenvaud/332/332.pdf> accessed 22 June 2017.
- 24.
Conservationists and various celebrities for example, called for marine protected areas not only around Pitcairn in the Pacific but also Ascension Island and the South Sandwich Islands in the Atlantic – Vidal (2015). Similarly, Chile plan to create an MPA around Easter Island—regardless of the contention that exist over its claim to the island and New Zealand is proposing one around the Kermandec Islands. See Vaughan (2015a).
- 25.
See Frost and Murray (2015), pp. 263, 265.
- 26.
Foreign and Commonwealth Office, The Overseas Territories Security, Success and Sustainability (Cm 8374, 2012) Executive Summary, 8 (Emphasis added).
- 27.
Frost and Murray (2015), p. 285.
- 28.
HC Deb 25 October 2016, vol 616, col 69WH.
- 29.
See Frost and Murray (2015), but also the continuing litigation regarding Pitcairn.
- 30.
Including Greenpeace UK, the RSPB, The Blue Marine Foundation, National Geographical Society and the Pew Charitable Trusts.
- 31.
Vidal (2015).
- 32.
HC Deb 20 March 2015, vol 594, col 1048.
- 33.
‘Marine Protected Areas examined with stakeholders and NGOs’ Commons Select Committee, 5 January 2017 <http://www.parliament.uk/business/committees/committees-a-z/commons-select/environmental-audit-committee/news-parliament-2015/marine-protected-areas-revisited-ev2-16-17/> accessed 9 February 2017.
- 34.
Koskenniemi (2007), pp. 1, 10.
- 35.
Pitcairn Constitution (h).
- 36.
For a critical analysis of the Constitution see Eshleman (2012), p. 21.
- 37.
Sand v IC and FCO 1 May 2014, Appeal No: EA/2012/0196, [26].
- 38.
Bold and italics in original para 19, page 12. House of Commons Environmental Audit Committee 10th Report ‘Sustainability in the U.K. Overseas Territories’ <https://www.publications.parliament.uk/pa/cm201314/cmselect/cmenvaud/332/33202.htm> accessed 23 June 2017.
- 39.
Foreign and Commonwealth Office Partnership for Progress and Prosperity: Britain and Overseas Territories (Cm 4264, 1999) cited in Eshleman (2012) 2.7.
- 40.
Foreign and Commonwealth Office, Seventh Report of the Foreign Affairs Committee Session 2007-08 (Cm 7473).
- 41.
UK-Overseas Territories Joint Ministerial Council ‘2016 Communique’ para 5. <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565228/Overseas_Territories_Joint_Ministerial_Council_2016_Communique.pdf> accessed 9 February 2017.
- 42.
The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998. The Convention entered into force on 30 October 2001. The UK signed it on 25 June 1998 and ratified it on 23 February 2005. No specific exclusions were noted for the UK compared to, for example, Denmark and France.
- 43.
See the discussion in the Sustainability Report 2014 (n 12) paras 22–25.
- 44.
The Vienna Convention on the Law of Treaties No 18232, 23 May 1969.
- 45.
Sands v IC and FCO EA/12/0196 [30].
- 46.
Sustainability Report 2014 (n 12) para 38.
- 47.
Chagos Refugees Group v IC and FCO EA/2011/0300; Dunne v IC and FCO EA/2012/0257 and Sand v IC and FCO EA/2012/0196.
- 48.
This, as is common in UKOTs and indeed former colonies, applies English law ‘in the Territory only so far as it is applicable and suitable to local circumstances, and shall be construed with such modifications, adaptations, qualifications and exceptions as local circumstances render necessary’.
- 49.
Cap 46 2013, Revised Edition of the Laws of Pitcairn.
- 50.
Earlier iterations are ‘Conserving biodiversity – the UK Approach’ 2007 and the UK ‘Biodiversity Plan’ 1994.
- 51.
See House of Commons Environmental Audit Committee, Marine Protected Area (first report) (HC 2014-15, 221) paras 2–5.
- 52.
2016 Communique, para 13.
- 53.
Anguilla, Bermuda, British Antarctic Territory, Falkland Islands, Gibraltar, Montserrat, South Georgia and the South Sandwich Islands, Sovereign Base Areas, Akrotiri and Dhekelia on Cyprus, and the Turks and Caicos Islands.
- 54.
Pitcairn was a base for a Darwin project secured by Professor T Dawson (Dundee University) on sustainable marine resources (£25,000) 2010–2011. It was claimed that the project would provide training and development of a community-led marine management action plan, although it is certainly not clear who received this training or what systems were developed.
- 55.
Department for Environment, Food and Rural Affairs, Department for International Development, Foreign and Commonwealth Office and Ministry of Defence ‘2010–2015 government policy: UK Overseas Territories’ updated 8 May 2015.
- 56.
ibid.
- 57.
ibid, p. iv.
- 58.
‘Marine conservation in the British Indian Ocean Territory (BIOT): science issues and opportunities’ Report of workshop 5–6 August 2009 (Chagos Trust) <http://chagos-trust.org/marine-conservation-british-indian-ocean-territory-biot-science-issues-and-opportunities-2009> accessed 9 February 2017.
- 59.
Confirmed recently by Lord Reed in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [161] (hereafter Miller).
- 60.
See Eg British Indian Ocean Territory Constitution Order 2004.
- 61.
In Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [ 1965 ] AC 75 at 101. A sentiment re-iterated by Lord Bingham in Bancoult [2008] [69] (n 2).
- 62.
Miller (n 59), citing with approval Lord Hoffmann in Bancoult [2008] [44] (n 2).
- 63.
The Commissioner is a post held by a senior civil servant in the FCO who is assisted by an Administrator.
- 64.
Hendry and Dickson (2011), p. 12.
- 65.
2014 Environment Audit Report, 8.
- 66.
The FCO Minister Foreign and Commonwealth Office, The Overseas Territories: Security, Success and Sustainability, CM 8374, June 2012.
- 67.
Pearce (2005), pp. 57–69.
- 68.
A similar definition is used in the CBD.
- 69.
Dunne et al. (2014), pp. 79, 119.
- 70.
Edgar et al. (2014), p. 216. <http://www.nature.com/nature/journal/v506/n7487/full/nature13022.html> accessed 9 February 2017.
- 71.
De Santos (2013), pp. 137, 141. For an alternative approach see H Govan ‘Status and potential of locally-managed marine areas in the south Pacific: meeting nature conservation and sustainable livelihood targets through wide-spread implementation of LMMAs’ IDEAS <https://mpra.ub.uni-meunchen.de/23818/1/MPRA_paper_23828.pdf> accessed 9 February 2017.
- 72.
See Report of First Session 2014–2015 above.
- 73.
Sustainability Report 2014 (n 12) paras 30–31, emphasis in original.
- 74.
For background and earlier initiatives see Dunne et al. (2014).
- 75.
Achieved by way of the British Indian Ocean Territory Proclamation No 1 of 2010, issued by the Commissioner for BIOT on behalf of her Majesty acting through the Secretary for State.
- 76.
Appleby (2015), p. 529.
- 77.
See e.g. ‘Chagos 2006’ which was a marine research expedition, involving scientists from UK, America, Kenya, South Africa, Seychelles, and Switzerland. Bangor University. ‘Ecology and conservation of the Chagos Archipelago, British Indian Ocean Territory’ <http://www.bangor.ac.uk/oceansciences/research/projects/421> accessed 9 February 2017.
- 78.
Chagos Conservation Trust ‘Marine conservation in the British Indian Ocean Territory (BIOT): science issues and opportunities’, Report of workshop held 5–6 August 2009 at National Oceanography Centre Southampton supported by the NERC Strategic Ocean Funding Initiative (SOFI), Table 3, page 6 <chagos-trust.org/sites/default/files/images/southampton-BIOT-workshop.pdf> accessed 9 February 2017.
- 79.
Those who are lawfully in the islands can fish without licences, and although recreational fishing is intended to be limited to fish for consumption is seems rather unlikely the 3000 or so military personal and support staff are needing to ‘fish for their suppers.’ Much more likely is trophy fishing and Dunne et al. (2014) refer to some evidence for this together with the adverse environmental impact on terrestrial and marine resources caused by the military base.
- 80.
Governed by the Fisheries (Conservation and Management) Ordinance 2007 and related Statutory Instruments from 2007.
- 81.
Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) [2015] Permanent Court of Arbitration.
- 82.
Chagos Conservation Trust Report, above, 8.
- 83.
In February 2015 The Chagos Conservation Trust, working with Google Street View created a virtual tour of a number of the islands and reefs.
- 84.
Less than 50 in the previous 25 years.
- 85.
Foreign and Commonwealth Office, ‘The Overseas Territories: Security, Success and Sustainability’, CM 8374, June 2012, 31. Pitcairn was specifically mentioned as being not economically self-sufficient.
- 86.
Report of First Session 2014–15 para 16 quoting Defra (MPA0027), para 34.
- 87.
ibid, p. 27 para 2.
- 88.
Dunne et al. (2014), p. 119.
- 89.
18 March 2015. Announced in The Budget (HM Treasury HC 1093, 2015) 97, para 2.259.
- 90.
‘Pitcairn Islands’ (ZSL) <https://www.zsl.org/regions/uk-overseas-territories/pitcairn-islands> accessed 9 February 2017. The Darwin Trust is supported by the UK government.
- 91.
A number are members of the Marine Reserves Coalition.
- 92.
Vaughan (2015b).
- 93.
Pitcairn Islands Tourism <http://www.visitpitcarin.pn/marine_reserve/index.html> accessed 9 February 2017. See similarly Howard (2015), which suggests that the then Prime Minister David Cameron could do this by simply announcing it. <http://news.nationalgeographic.com/2015/03/150318-pitcairn-marine-reserve-protected-area-ocean-conservation/> accessed 9 February 2017.
- 94.
‘New Marine Protected Area in the Pitcairn islands’ <https://specialrelationship.uk/2016/03/30/new-marine-protected-area-in-the-pitcairn-islands/> accessed 22 June 2017.
- 95.
Pitcairn Islands Marine Protected Area Ordinance 2016, No 3 2016.
- 96.
The governor signing the Ordinance was Governor Jonathan Sinclair. In a statement reported in the Pacific Islands Report, 15 September 2016, Governor Sinclair was reported as saying ‘it is hoped that the reserve will boost eco-tourism on Pitcairn’ Pacific Islands Report <http://www.pireport.org/articles/2016/09/15/pitcairn-island-establishes-massive-marine-reserve> accessed 22 June 2017.
- 97.
Dunne et al. (2014), p. 86.
- 98.
Sustainability Report 2014 (n 12) para 46.
- 99.
Dunne et al. (2014), p. 88.
- 100.
Bancoult [2016] (n 1).
- 101.
KPMG (2015), p. 34.
- 102.
Carey (2010).
- 103.
‘Happy birthday Great British Oceans!’ (Marine Reserves Coalition) <http://www.marinereservescoaltion.org/2016/02/16/happy-birthday-great-british-oceans/> accessed 9 February 2017.
- 104.
Sir John Randall, HC Deb 20 March 2015, vol 594, col 1048.
- 105.
WikiLeaks suggests that the MPA was a deliberate ploy to prevent Chagossians from returning: ‘US Embassy Cables: Foreign Office Does Not Regret Evicting Chagos Islanders’, The Guardian (London, 15 May 2009) <https://www.theguardian.com/world/us-embassy-cables-documents/207100> accessed 9 February 2017. Appleby (2015), p. 538, points out that the Arbitration Tribunal paid scant attention to these cables or the suggestion that the MPA was established to prevent Chagossians from returning, pointing out that there was a proposal to use Chagossians as wardens of the MPA.
- 106.
Chagos Conservation Trust, ‘Conservation Framework Discussion Paper’ 1/05/2008.
- 107.
Sustainability Report 2014 (n 12) para 48.
- 108.
See for example guidance by the Charity Commission for England and Wales ‘Campaigning and political activity guidance for charities, 1 March 2008 <https://www.gov.uk/government/publications/speaking-out-guidance-on-campaigning-and-political-activity-by-charities-cc9/speaking-out-guidance-on-campaigning-and-political-activity-by-charities> accessed 22 June 2017.
- 109.
Vaughan (2015c).
- 110.
Personal interview with Jacqui Christian, Pitcairn representative to the Overseas Countries and Territories Association to the European Union, St Andrews, Scotland, 29 January 2015.
- 111.
BIOT’s MPA is patrolled by one vessel for example. See De Santos (2013), p. 142.
- 112.
De Santos (2013), p. 142.
- 113.
Dunne et al. (2014), p. 88.
- 114.
‘Marine Protected Areas Beyond National Jurisdiction’ Issue Brief (The Pew Charitable Trusts, 15 March 2016). <http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2016/03/marine-protected-areas-beyond-national-jurisdiction> accessed 9 February 2017.
- 115.
See Jacobsen (2016).
- 116.
‘CCAMLR to create world’s largest Marine Protected Area’ (Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)) <https://www.ccamlr.org/en/news/2016/ccamlr-create-worlds-largest-marine-protected-area> accessed 9 February 2017.
- 117.
See for example similar restrictions on commercial fishing being proposed for an MPA for Ascension Island.
- 118.
Chagos Environmental Network.
- 119.
De Santos (2013), p. 143.
- 120.
In Pitcairn for example it is suggested as 12 km whereas around Easter Island the suggestion is 50 km.
- 121.
These have not yet been published. Whether they will be remains a mute point as further regulations for the BIOT MPA seem not to have materialised.
- 122.
Referred to by the coalition.
- 123.
Secretariat of the Pacific Community ‘Pitcairn Islands Programme: 2014 Report’, Noumea 2014 <http://www.spc.int/crga/sites/default/files/annex_upload/Pitcarin.pdf> accessed 9 February 2017.
- 124.
Marine Conservation Society 18 March 2015.
- 125.
Bancoult [2016] (n 1).
- 126.
Convention on Biological Diversity Target 11—Technical Rationale extended (provided in document COP/10/INF/12/Rev.1) In a note to this text it is observed that an ‘In-depth review of the implementation … identified … slow progress … particularly of element 2 concerning governance, participation, equity and benefit-sharing’.
- 127.
Miller (n 59).
- 128.
(1611) 12 Co Rep 74.
- 129.
Miller [165] (n 59). For comment on Miller which is beyond the scope of this chapter see Elliot (2017).
- 130.
This dilemma is reflected and in some cases aggravated by the role of UNESCO in inscribing MPAs as world heritage sites, further constraining economic activities which can be undertaken by locals. See De Santos (2013), p. 145.
- 131.
Communiqué of the Joint Ministerial Council, [14].
- 132.
Zero on BIOT, 880 on Ascension Island, 264 on Tristan da Cuhna, 2002 on St Helena and 66 on Pitcairn.
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Farran, S. (2018). Learning from Chagos, Lessons for Pitcairn?. In: Allen, S., Monaghan, C. (eds) Fifty Years of the British Indian Ocean Territory. The World of Small States, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-78541-7_12
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