Journal of Environmental Law

Journal of Environmental Law Advance Access originally published online on January 29, 2009
Journal of Environmental Law 2009 21(1):113-137; doi:10.1093/jel/eqn034

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Diego Garcia: British–American Legal Black Hole in the Indian Ocean?

Peter H. Sand^*

*Peter H. Sand is affiliated to the Institute of International Law, University of Munich, Germany (peterhsand{at}t-online.de).

	Abstract

Top Abstract 1. Militarisation 2. Human Rights Black... 3. Environmental Black Hole 4. Remedial Measures and... 5. Impacts of Climate... 6. Conclusions Notes

 
Environmental risks from US military construction on the atoll of Diego Garcia (British Indian Ocean Territory) since 1971 include damage caused by large-scale ‘coral mining’, the introduction of invasive alien plant species, continuous transits of nuclear material and unreported major fuel spills; these risks are now compounded by those of sea-level rise and ocean acidification due to global climate change. The US and UK governments have evaded accountability by way of a persistent ‘black hole’ strategy, contending that some national laws and international treaties for the protection of human rights and the environment do not apply to the island—a position confirmed by a controversial appellate judgment of the House of Lords in October 2008, essentially relying on ‘prerogative’ colonial law. This article draws attention to the fallacy of the black-hole syndrome, and to its potentially fatal consequences for the British claim to a 200-mile environment protection zone in the Chagos Archipelago.

Key Words: marine environment—military impacts • human rights • biodiversity • climate change • law of the sea • environment protection zones

The coral atoll of Diego Garcia (Chagos Archipelago), strategically situated in the middle of the Indian Ocean,¹ is part of the British Indian Ocean Territory (BIOT) established by Order-in-Council on 8 November 1965;² British sovereignty over the territory is, however, contested by Mauritius.³ The expulsion of the island's indigenous population (numbering about 1,500 at the time) between 1967 and 1971 has been the subject of frequent parliamentary debates,⁴ compensation agreements⁵ and judicial proceedings both in US federal courts⁶ and in British courts, culminating in an appellate judgment of the House of Lords on 22 October 2008 (‘Bancoult 2’).⁷

	1. Militarisation

Top Abstract 1. Militarisation 2. Human Rights Black... 3. Environmental Black Hole 4. Remedial Measures and... 5. Impacts of Climate... 6. Conclusions Notes

 
Under a bilateral agreement with the USA, concluded by exchange of notes on 30 December 1966⁸ and supplemented by follow-up exchanges from 1972 to 2004,⁹ the island was turned into a central military base, which has served as a naval ‘prepositioning’ port and ‘bomber forward operating location’ for all US missions against Iraq and Afghanistan from 1990 to 2006,¹⁰ and as a ground station for hydro-acoustic/electronic/satellite surveillance.¹¹ Labelled ‘footprint of freedom’ by its new occupants,¹² and progressively upgraded under a billion-dollar construction programme since 1971,¹³ Diego Garcia has also been identified as the destination of several CIA ‘rendition flights’.¹⁴ However, in response to NGO allegations and parliamentary questions suggesting that prisoners may have been detained and ‘interrogated’ on ships anchored in the Diego Garcia lagoon (a huge natural harbour of about 48 square miles = 125 square kilometres), hence in British internal waters rather than on land,¹⁵ the UK Foreign and Commonwealth Office (FCO) has taken the same position as with regard to the anti-personnel mines (prohibited under the 1997 Ottawa Landmine Convention)¹⁶ reported to be stockpiled on US warships in Diego Garcia¹⁷; that is, they ‘are not on UK territory provided they remain on the ships’.¹⁸ So generous an interpretation would in effect turn the Diego Garcia lagoon into a permanent ‘black site’¹⁹ exempted from inspection or reporting by British authorities.²⁰

	2. Human Rights Black Hole

Top Abstract 1. Militarisation 2. Human Rights Black... 3. Environmental Black Hole 4. Remedial Measures and... 5. Impacts of Climate... 6. Conclusions Notes

 
In Bancoult 2, the Law Lords upheld the position persistently defended by the FCO that the UK Human Rights Act of 1998 does not apply to Diego Garcia because the UK Government did not formally extend its ratification of the 1950 European Convention on Human Rights to BIOT.²¹ While geographical extension to a State's dependent territories is indeed discretionary under Article 56 of the European Convention, that position has sarcastically been described as the ‘human rights black hole’ doctrine²²—given that, by the same token, the UK now treats the Geneva Conventions III and IV of 1949,²³ the UN Human Rights Covenants of 1966,²⁴ the UN Convention Against Torture of 1984,²⁵ the European Convention for the Prevention of Torture of 1987²⁶ and the Statute of the International Criminal Court of 1998²⁷ as inapplicable to BIOT.

	3. Environmental Black Hole

Top Abstract 1. Militarisation 2. Human Rights Black... 3. Environmental Black Hole 4. Remedial Measures and... 5. Impacts of Climate... 6. Conclusions Notes

 
Rarely mentioned is the fact that the FCO has consistently pursued a similar ‘legal black hole’ strategy for Diego Garcia with regard to international environmental agreements. With regard to all treaties ratified by the UK, extension to UK overseas territories is subject to a standardised procedure of selective review and ‘derogations’ in light of political-administrative priorities, overseen by a coordinating committee in the FCO.²⁸ Not surprisingly, security and/or budgetary concerns have prevented or restricted not only the territorial application of human rights treaties in BIOT, but also of environmental conventions to which the UK is a party.

The ‘chief natural glory’²⁹ of the Diego Garcia atoll is its unique coral reef—with well over 100 species of coral, part of one of the richest stores of biodiversity in the Indian Ocean.³⁰ Yet, at least until the 1980s, the FCO tried to suppress ‘any mention of Chagos in scientific reports’.³¹ Because of the US military facility, the FCO has since 1994 vetoed an extension of Britain's ratification of the 1992 Rio Convention on Biological Diversity³² to BIOT.³³ As a result, the only parts of the world where the Biodiversity Convention (with 190 member countries the most widely accepted global environmental treaty) is not applicable today are the USA, Iraq, Somalia and four UK overseas territories: Bermuda, British Antarctic Territory, Pitcairn Islands and BIOT.³⁴ If there ever was a ‘black hole’ in international environmental law, this is it.

Whilst the 1971 Ramsar Convention on Wetlands of International Importance was ratified by the UK in 1976,³⁵ it was not extended to BIOT until more than 22 years later, by declaration on 8 September 1998. It took the FCO another three years (until 4 July 2001) to register the Diego Garcia ‘conservation area’ – so designated under BIOT Ordinance No 6 of 1994, in force 24 November 1997 – as an internationally protected wetland area under the convention, expressly including the lagoon and the territorial waters of the island, though not ‘the area set aside for military uses as a US naval support facility’³⁶—in other words, another legal black hole (comprising the land area of the US base and the adjoining western reef flats) excluded from the scope of the treaty. Nonetheless, naval operations in the lagoon and the atoll's 3-mile territorial sea have since 2001 become subject to the rules and restrictions of the Ramsar Convention (to which the USA is a party, too).

The ‘BIOT Conservation Policy Statement’ issued in October 1997 specified that the entire archipelago will be managed in accordance with the standards of the 1972 ‘World Heritage Convention’; that is to say, ‘the islands will be treated with no less strict regard for natural heritage considerations than places actually nominated as World Heritage sites, "subject only to defence requirements" ’.³⁷ So far, the FCO does not appear to have consulted either the USA or Mauritius (both members of the Convention) about official nomination of the Chagos Archipelago as a protected site.³⁸ In the meantime, the UK Joint Nature Conservation Committee boldly claims that ‘ "because of its military status", the whole of BIOT acts as a de facto protected area’.³⁹

The UK's accession, on 25 July 1997, to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and to the related 1995 Implementation Agreement on Straddling Fish Stocks (on 3 December 1999) was explicitly extended to BIOT—over objections by Mauritius, which reaffirmed ‘its sovereignty and sovereign rights over these islands, namely the Chagos Archipelago which form an integral part of the national territory of Mauritius, and over their surrounding maritime spaces’.⁴⁰ On 17 September 2003, the UK proclaimed a 200-mile ‘Environment (Protection and Preservation) Zone’ around BIOT, under Article 75 of UNCLOS, with geographical boundaries identical to those of a BIOT ‘Fisheries Conservation and Management Zone’ declared in 1991.⁴¹ Unlike the 12-mile territorial sea on which the 200-mile Mauritian EEZ for the same archipelago is calculated,⁴² however, the BIOT territorial sea extends only 3 miles from the coast—except for a 12-mile ‘prohibited zone’ surrounding Diego Garcia.⁴³ To avoid disputes over these irreconcilable claims, the new ‘fishing area map’ annexed to the 2006 Southern Indian Ocean Fisheries Agreement (SIOFA,⁴⁴ to which both the UK and Mauritius are parties) simply excludes the entire 200-miles zone around the Chagos Archipelago—thus carving out yet another black hole. The de facto deletion of BIOT from the SIOFA Agreement is particularly unfortunate in view of the growing threat of illegal fishing in the archipelago (especially by Sri Lankan shark-fin poachers),⁴⁵ and the need for regional cooperation to cope with that threat through international fisheries instruments and institutions under UNCLOS.

3.1 Coral Mining, Landfills and Invasive Alien Plant Species
The construction work undertaken at the military base over the past 38 years inevitably left its mark on the atoll, starting with the elimination of much of the tree vegetation.⁴⁶ The US Navy's ‘Seabees’ engineers (CBs—Naval Mobile Construction Battalions) also began in 1971 to dynamite a larger access channel through the northern reef of Diego Garcia, deep-dredging part of the lagoon, and to locate sites for ‘coral harvesting’; that is, mining the atoll's coral as aggregate material for harbour and airfield construction, and as landfill for the draining and filling of large swamp/wetland areas.⁴⁷ One of the former BIOT Commissioners has described the 1970s as ‘the heroic pioneer days of the new military society on Diego Garcia’, portraying ‘a certain "Wild West" atmosphere’.⁴⁸ The ‘Seabees’ and their diving contractors (‘Oceaneering International’, from Santa Barbara/California) had a reputation for somewhat unorthodox operational practices; for example, surplus unstable dynamite was occasionally disposed of by simply packing and detonating it underwater in the previously blasted holes in the coral reef—with explosions that ‘rocked the island’.⁴⁹

Coral blasting and dredging—in an area of 11.9 square miles (30.8 square kilometres) in the lagoon, and in strips along 4 miles (6.4 kilometres) of seaward reef flat—continued over the next 11 years, both by the ‘Seabees’ and under contracts awarded to foreign commercial firms specialising in harbour dredging (worth a total of $24 million).⁵⁰ In 1981, the US Navy awarded a further contract to an Anglo-American joint venture for major expansions of the runway, wharf and piers, and for a carrier-force turning basin and anchorage in the lagoon.⁵¹ The funding allocated in this context specifically included ‘dredging’, estimated at $13 million for Navy projects and $8 million for Air Force projects in fiscal years 1981–82.⁵² When it turned out that further coral mining alone could not meet aggregate requirements without causing irreparable damage to the reef, limestone aggregate with crushed sand and 157,000 tonnes of cement were imported by sea from Singapore/Malaysia and East Africa instead.⁵³ Coral dredging continued, though, both in the lagoon (as the Navy elegantly put it in 2005, ‘much of its coral was relocated as part of the dredging effort’),⁵⁴ and in the western reef flats: dredged ‘coral fill’ available as raw material on Diego Garcia was estimated at 5 million cubic yards (4.5 million cubic meters) by 1983.⁵⁵ Overall, an area of about 100 acres (40 hectares) was land-filled, and a total of more than 150,000 cubic yards (115,000 cubic meters) of concrete were poured for the construction of airport runways and parking aprons, 18 miles (29 kilometres) of asphalt road, antenna fields and support facilities.⁵⁶ As a result of this Herculean development project, the ‘downtown area’ of the base today is more reminiscent of the Florida Keys than of the Indian Ocean, with all the facilities of a small American town.⁵⁷

It was clear from the outset that this radical transformation of the island would have major, and possibly irreversible, environmental impacts. The 1972 Supplement to the 1966 Anglo-American Agreement on Diego Garcia therefore introduced a ‘conservation clause’ stating that ‘as far as possible the activities of the facility and its personnel shall not interfere with the flora and fauna of Diego Garcia’.⁵⁸ A ‘Natural Resources Conservation Land Management Plan’ drawn up in 1973 by a US Navy biologist recommended a number of measures for nature protection, landscaping and waste disposal in the American sector of the base,⁵⁹ later followed by similar recommendations addressed to construction contractors, ‘to protect specific resources on Diego Garcia’.⁶⁰ Yet, it was not until July 1980—more than 9 years after the US ‘Seabees’ started their massive reef blasting and coral-mining operations—that the Navy commissioned a first comprehensive ‘Environmental Survey of Construction and Dredging Related Activities on Diego Garcia’.⁶¹ Except for recommending alternative dredging technologies, alternative disposal sites for ‘harvested’ coral material, and development of a monitoring programme,⁶² the report in essence concluded that there had been no significant adverse effects and—with regard to future projects planned—that

if the dredging activity is of the same magnitude as conducted during the operations completed in 1976, then recovery of these coral reefs and associated fish fauna is expected. Nevertheless, care must be taken to conduct dredging activities in a manner that would minimize any impacts.⁶³

According to British marine biologists, a brief visit in the late 1970s also ‘showed little damage outside the immediate port area despite dredging’ in the lagoon.⁶⁴ However, they noted the absence of any published observations from the greater port construction work in subsequent years, and categorically rejected any predictions of ‘natural recovery’ in the dredged reef flats.⁶⁵

When the next Anglo-American Supplementary Agreement was signed in London in 1976,⁶⁶ it became clear that the US Navy planned much more radical coral-mining works in the lagoon than ever before—with an area of 4,000 acres (16 square kilometres) now designated for ‘expanded dredging for fleet anchorage’,⁶⁷ and with multi-million dollar dredging contracts awarded from 1981 on to Taiwanese and Japanese firms, and to the Anglo-American RBRM joint venture in particular.⁶⁸ Even so, it was only 6 years later that the BIOT Administration seems to have realised what was going on, and eventually felt prompted to insert a new paragraph 5 in the 1982 Supplement to the Agreement, reading:

Dredging and Reef-Blasting. It will be the responsibility of the US Commanding Officer to ensure that no dredging or reef blasting is conducted in any area where it could cause irremediable damage. Normally, a breadth of live reef of no less than 80 yards [73 meters] will be left intact and free of blasting operations all around the island. If, exceptionally, it is considered necessary to reduce the breadth of the live reef to less than 80 yards at any point, the British Government Representative will be consulted in sufficient time in advance of the proposed action to enable an assessment of the likely ecological consequences to be made by qualified authorities.⁶⁹

The shared responsibilities so invoked inevitably raise the question of the applicable environmental legislation. In 1993, the Conservation Adviser to the BIOT Administration was intrigued to learn that—in what sounds like the US Navy's own ‘legal black hole’ doctrine⁷⁰—‘being located overseas, the US Environmental Protection Agency (EPA) regulations do not apply to Diego Garcia’.⁷¹ Yet, pursuant to the 1979 Presidential Order on ‘Environmental Effects Abroad of Major Federal Actions’,⁷² all federal agencies of the USA are required to undertake environmental impact statements, reviews or studies for any project likely to cause significant harm to the environment of a foreign nation.⁷³ That requirement—considered mandatory for ‘large dredging projects’ and ‘major construction and filling in tidelands/wetlands’, in particular—is also part of the US Navy's ‘Environmental and Natural Resources Program Manual’,⁷⁴ as confirmed in the 1997 ‘Natural Resources Management Plan Diego Garcia’ (NRMP),⁷⁵ and the related ‘Final Governing Standards’.⁷⁶ The Commanding Officer of the Navy Support Facility at Diego Garcia has indeed acknowledged the duty to consider such reviews and studies in current project preparation practice in Diego Garcia.⁷⁷

It is most surprising, therefore, that the US Naval Facilities Engineering Command/Pacific apparently did not prepare formal environmental impact statements, reviews or studies prior to the multimillion-dollar dredging and landfill projects undertaken in the Diego Garcia atoll,⁷⁸ which in retrospect were found (by the Navy's own Natural Resources Specialists) to have had ‘a potential to cause deleterious, long-term impacts, including increased beach and shoreline erosion and ... adverse impacts on marine life’.⁷⁹ A 1996 American scientific expedition commented that the past ‘coral-harvesting’ from the seaward side of the reef was ‘something of an ongoing experiment, with no indication of success or failure in terms of recovery, or protection of the shoreline’, whereupon the 1997 ‘Natural Resources Management Plan’ finally recommended that ‘no new dredging be authorized without first having careful investigations’.⁸⁰ The Plan further recommended annual follow-up monitoring of the dredged areas after 4 years—which, however, does not seem to have been done to date because ‘funding has not been identified’ for that purpose.⁸¹

One confirmed side-effect not assessed beforehand was the introduction of invasive alien plant species from overseas—including tangan-tangan (Leucaena leucocephala, considered one of the top 100 worst invasive species of the world)—with the massive imports of aggregate landfill material from Singapore/Malaysia, and by seeds introduced with Navy equipment; that is, an ecological ‘time bomb that should be defused’, according to the advice of a Navy consultant in retrospect.⁸²

3.2 Nuclearisation
The Diego Garcia lagoon has long served as a turning basin for the US Navy's nuclear-powered submarines and other nuclear-powered warships.⁸³ In March 2007, the Colorado-based construction consortium DGM21 LLC received a $31.9 million contract for wharf improvements and shore support facilities in Diego Garcia, to accommodate the Navy's new nuclear-powered SSGN attack submarines and a submarine tender.⁸⁴ In May and June 2008, Diego Garcia also served as transit point for 550 tonnes of low-grade uranium from Iraq, which the US Department of Defense flew out of Baghdad in 37 cargo plane loads for trans-shipment to Canada by sea, in a $70 million operation code-named ‘McCall’.⁸⁵

Whereas in the 1980s, there was only speculation as to whether the USA deployed nuclear warheads at Diego Garcia,⁸⁶ the movement of nuclear-tipped missiles to and from the island by ships or aircraft is now considered ‘use of the facility in normal circumstances’, which under the 1976 UK–US Agreement no longer requires intergovernmental consultations, but mere advance information from the US Commanding Officer to the British Officer-in-Charge.⁸⁷ In September 2003 for instance, over 100 US-made ‘Harpoon’ missiles were flown to Diego Garcia; Israel's three German-built ‘Dolphin’ submarines then made a port call at the atoll in October 2003 to be fitted with the missiles (which can carry a 200-kg nuclear warhead), before returning to the Gulf of Oman.⁸⁸

The volume of nuclear material and nuclear weaponry regularly transiting the Diego Garcia base poses considerable risks of radioactive contamination, especially to the waters of the lagoon. Curiously, however, neither the US Navy's 1997 and 2005 Natural Resources Management Plans for Diego Garcia nor the BIOT Conservation Management Plan (2003) make any reference to the need for radiation monitoring.⁸⁹ Even though US nuclear-powered submarines are well-known to have experienced radiation leakages elsewhere (e.g. in Japan, 2006–08),⁹⁰ the BIOT Administration has never taken radiation measurements in the Diego Garcia lagoon.⁹¹

The progressive military nuclearisation of Diego Garcia has been a cause of political concern both in neighbouring countries and in the UK since the 1970s,⁹² starting with UN General Assembly Resolution 2832(XXVI) of 16 December 1971,⁹³ and culminating in the African Union's ‘Pelindaba Treaty’ of 1996,⁹⁴ which requires each party ‘to prohibit in its territory the stationing of any nuclear explosive devices’, while allowing each party to authorise visits or transits by foreign nuclear-armed ships or aircraft (Article 4); furthermore, Protocols I and II to the Treaty require parties not to ‘contribute to any act which constitutes a violation of this treaty or protocol’ (Article 2). According to the map annexed to it, the Treaty explicitly covers the ‘Chagos Archipelago – Diego Garcia’, albeit with a footnote (inserted at the request of the UK) stating that the territory ‘appears without prejudice to the question of sovereignty’.⁹⁵

To date, the Pelindaba Treaty has received 26 of the 28 ratifications required, and is expected to come into force in 2009. It was ratified by Mauritius on 24 April 1996; however, both the UK (which signed both protocols and ratified them on 19 March 2001) and the USA (which co-signed the protocols on 11 April 1996, but so far did not ratify them) have since stated their own interpretation of the footnote to the Annex—to the effect that the Treaty ‘does not apply to the activities of the United Kingdom, the United States or any other state not party to the treaty on the Island of Diego Garcia or elsewhere in the British Indian Ocean Territory’.⁹⁶ The net result obviously would be yet another legal ‘black hole’. It may be doubted, though, whether a simple footnote reserving the question of sovereignty will suffice to exclude BIOT from the Treaty.⁹⁷

3.3 Fuel Spills
Another serious and continuous environmental problem for Diego Garcia has been the chronic pollution by fuel spills from the POL storage tanks (petroleum, oil and lubricants) on the island, which hold 1.34 million barrels (177,000 tonnes) of jet fuel and diesel oil.⁹⁸ To illustrate the volume of the flows involved: in 2004, the Diego Garcia Naval Support Facility earned the American Petroleum Institute's ‘Award for Excellence in Fuels Management’, for issuing 88.8 million gallons (266,400 tonnes) of JP-5 jet fuel during Operations ‘Enduring Freedom and Iraqi Freedom’.⁹⁹

The first major spill of approximately 1 million gallons (3,000 tonnes) of JP-5 fuel occurred in the 1980s, possibly as a result of pipeline fractures caused by a size 7.6 earthquake in November 1983. By the time the underground leakage was discovered, it had filled and replaced the entire freshwater lens below the base,¹⁰⁰ so the leaked fuel could be extracted by scavenging wells drilled near the tanks, and re-used after re-refining.¹⁰¹ Three more fuel spills were identified in 1991 (160,000 gallons or 685,000 litres lost), 1997 and 1998.¹⁰² To remedy those spills, ‘bioslurper’ systems were installed, which from March 1996 to October 1997 recovered an estimated 70,000 gallons (300,000 litres) for direct re-use in the diesel-powered electric generating plant of the base, while the rest was considered to have been aerobically degraded in the soil.¹⁰³ In terms of magnitude, the spills far exceeded those reported from other US military bases in Panama, Puerto Rico and the Philippines.¹⁰⁴

Even though recent water quality measurements in the lagoon show relatively low pollution levels,¹⁰⁵ the Chagos Conservation Trust noted in 2004 that ‘the US Air Force has still not cleared up its oil spills, and the US Navy has been slow in implementing its own "Natural Resources Management Plan" for Diego Garcia’.¹⁰⁶

	4. Remedial Measures and Reporting

Top Abstract 1. Militarisation 2. Human Rights Black... 3. Environmental Black Hole 4. Remedial Measures and... 5. Impacts of Climate... 6. Conclusions Notes

 
A report by the then BIOT Conservation Adviser (and former UK Government Representative on the base) had concluded in 1996 that:

during all this time, there has been no significant contribution from the USA, who of course have caused significant ecosystem disturbance in developing Diego Garcia. The UK has even undertaken some NRMP items which should have been funded by the USA ... The USA is not pulling its weight ... Conservation is about the only field of endeavour in which we can earn credit for being in the Indian Ocean where other countries do not want us.¹⁰⁷

To which the authors of the comprehensive British ‘Chagos Conservation Management Plan’, prepared for the BIOT Administration in 2003, laconically added: ‘[t]his has not noticeably changed in the last six years’.¹⁰⁸

In fairness, though, the environment of Diego Garcia is not solely an American responsibility. According to the UK Joint Nature Conservation Committee, ‘enforcement of conservation measures, such as for the existing bird sanctuaries, is the responsibility of the senior UK representative stationed on the island in his role as Magistrate’.¹⁰⁹ And the US Navy's ‘Integrated Natural Resources Management Plan’ of 2005 makes it clear that:

US federal policies and programs apply only to the extent that the UK agrees that they should be applicable and as they conform to British Indian Ocean Territory (BIOT) policies and programs. The full governmental and civilian judicial authority, including that relating to natural resources conservation and environmental protection, rests with the British Representative (BRITREP), a Senior Royal Navy Commander. The UK, through the BRITREP, generally monitors environmental matters. Larger environmental concerns are referred to the annual US/UK Political Military (Pol-Mil) Talks for resolution.¹¹⁰

Under these circumstances, it is all the more difficult to understand the wholly passive role of the UK FCO, reflected in a long series of public statements—defensive, evasive or just looking the other way:

The BIOT Government believes that the American authorities in Diego Garcia are acting in an environmentally responsible manner (26 April 1999).¹¹¹

The United States have produced a Natural Resources Management Plan for Diego Garcia, and we published the Chagos Conservation Management Plan in October 2003. Environmental issues are regularly discussed by the UK and US Governments (12 July 2004).¹¹²

The BIOT Government and the US authorities collaborate on all aspects of the conservation and protection of the natural environment of Diego Garcia and where appropriate of the outer islands of the Territory. In this context, the US authorities on Diego Garcia have established a Natural Resources Management Plan and they expend considerable resources on environmental conservation. The UK Government attaches considerable importance to the conservation of the natural environment of the Chagos islands and the BIOT Government have ensured that the necessary legislation for this purpose is in place and is enforced, and that relevant international conventions are observed (19 July 2004).¹¹³

The site of the Diego Garcia fuel spills is immediately adjacent to the lagoon listed since 2001 by the UK Government as an internationally protected site—excluding the US military facility—under the 1971 Ramsar Convention on Wetlands of International Importance (to which Mauritius and the USA are also parties).¹¹⁴ According to Article 3(2) of the Convention, each contracting party is under an obligation to inform the Convention Bureau, without delay, ‘if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as a result of technological developments, pollution or other human interference’. Yet the 2008 UK ‘Information Sheet on Ramsar Wetlands’ for Diego Garcia, listed as site 1077 (2UK001) under the Convention, still indicates under ‘factors (past, present or potential) adversely affecting the site's ecological character, including changes in land (including water) use and development projects’: ‘not applicable because no factors have been reported’.¹¹⁵ Which means that no reports of any fuel spills, other ‘adverse factors’, ecological changes or risks (such as dredging, or radiation) to the Diego Garcia wetland area or lagoon have ever been communicated to the Bureau of the Ramsar Convention in Gland/Switzerland,¹¹⁶ or to any other ‘competent international organizations’ (under UNCLOS Articles 204–206) for that matter.

The situation is different—albeit hardly more reassuring—under the Convention on Biological Diversity (not ratified by the USA), which also provides for periodic reporting (Article 26) and which requires all Member States, inter alia, to ‘prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species’ (Article 8/h). Yet, because of the FCO's persistent veto against an extension of the Convention to BIOT, the invasive plant species imported by Navy operations and construction in Diego Garcia have never been mentioned in any UK national report.¹¹⁷

Furthermore, given that Britain's overseas territories have also been ‘black-holed’ by the FCO under the 1998 Aarhus ‘Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’, BIOT does not figure in the national implementation reports of the UK.¹¹⁸

	5. Impacts of Climate Change

Top Abstract 1. Militarisation 2. Human Rights Black... 3. Environmental Black Hole 4. Remedial Measures and... 5. Impacts of Climate... 6. Conclusions Notes

 
Meanwhile, alas, far more serious environmental risks threaten the atoll as a result of global climate change. British scientists have documented an alarming rise of the annual average sea temperature around the Chagos islands during the period from 1990 to 2006.¹¹⁹ ‘Temperature shock’ reportedly was the primary cause of severe coral mortality (‘bleaching’, in the wake of El Niño) in 1998, which—together with ocean acidification due to increased uptake of carbon dioxide from the atmosphere—is forecast to lead to even more radical live coral loss in the area in the foreseeable future, to the point where ‘coral reefs will be the first major ecosystem to be functionally extinguished because of climate change’.¹²⁰

Measurements also show an accelerating rise of sea levels in the Chagos Archipelago, with concomitant signs of beach erosion damage¹²¹—in line with current estimates of global sea-level increase ranging from 2.6 feet to 6.6 feet (0.8–2.0 meters) by the year 2100¹²²—which are similar to contemporary observations in other Indian Ocean islands,¹²³ and which in the UK Government's ‘resettlement feasibility study’ of 2002 were actually cited among the reasons against allowing the Chagossian islanders to return to their archipelago.¹²⁴

In a recent Washington think-tank report on ‘National Security and the Threat of Climate Change’ (CNA 2007), prepared by a ‘blue ribbon’ military advisory panel of 11 retired US generals and admirals, the Diego Garcia atoll was singled out—because of its low average elevation of 4 feet (1.3 meters) above sea level—as a prime example of the risk of ‘losing places’,¹²⁵ urgently ‘requiring advance military planning in view of possible climate change impacts over the next 30 to 40 years’. Translated from West Point jargon, this presumably means that the island should now be reconsidered for inclusion in the US Government's ‘global posture review’ (GPR) of overseas military bases; that is, for terminal closure¹²⁶—at the very time when the Pentagon has initiated a $200 million 5-year construction programme for further upgrades, including a new 8 MW power plant using ocean thermal energy conversion (OTEC, on an off-shore platform in the territorial waters of the island),¹²⁷ with military strategists advocating an ‘expanded presence on Diego Garcia’—in other words, yet another ‘surge’.¹²⁸

The CNA Panel also valiantly recommended that ‘the United States should commit to a stronger national and international role to help stabilize climate changes at levels that will avoid significant disruption to global security and stability’.¹²⁹ It seems ironic indeed that the UK and the USA—which are among the world leaders in CO₂ emissions per capita, and hence primarily accountable for these changes—might eventually have to convert the Empire's most expensive ‘strategic island’ into an underwater archaeological site. In the long run, then, the Diego Garcia base will leave no footprint¹³⁰—not even a Cheshire Cat's grin on the face of the Indian Ocean.

While attempts at allocating international legal liability for damage caused by greenhouse gas emissions may still appear far-fetched and a long way from practicality,¹³¹ Bancoult 2 also raises instant legal queries under the UN Law of the Sea Convention: for if it is true—as claimed by the FCO—that resettlement of the depopulated Chagos islands is definitely not economically sustainable, in view of the growing risk of sea-level rise and other imperative factors excluding permanent human habitation (‘settlement is not feasible’),¹³² the 200-miles BIOT ‘Environment (Protection and Preservation) Zone’ established in 2003¹³³ may well be invalid, too, in light of UNCLOS Article 121(3) stipulating that ‘[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’.¹³⁴

Accordingly, the Government of the Maldives (whose own EEZ claim overlaps with the northern part of the British 200-miles claim in BIOT)¹³⁵ on 29 November 2007 notified the UNCLOS Secretariat that it intends to challenge the geographical delimitation of the BIOT zone, on the basis of Article 121(3) and the FCO's own statements.¹³⁶ Both governments now have until May 2009 to justify their claims in accordance with UNCLOS procedures.

	6. Conclusions

Top Abstract 1. Militarisation 2. Human Rights Black... 3. Environmental Black Hole 4. Remedial Measures and... 5. Impacts of Climate... 6. Conclusions Notes

 
If it is true that climate change makes the future costs of BIOT resettlement ‘prohibitive’,¹³⁷ the estimated legal costs of the Bancoult cases to the UK Government (over £2.6 million so far)¹³⁸ might almost sound like a prudent investment. Chances are, however, that the case will nevertheless move forward to the European Court of Human Rights in Strasbourg.¹³⁹ The ‘black hole’ thesis of the FCO, now espoused by the House of Lords—effectively excluding Diego Garcia from the reach of Britain's human rights treaties,¹⁴⁰—is unlikely to impress the Strasbourg Court any more than the UN Human Rights Committee, which repeatedly rejected it and which in 2008 once again urged the UK ‘to include the territory in its next periodic report’.¹⁴¹

In contrast, there is no relief in sight for the environmental law black hole in the BIOT. In deference to what it interprets as the overriding security concerns of the US base: (1) the FCO will continue to block any extension of the Biodiversity Convention (to which the USA is not a party) to BIOT;¹⁴² (2) the Ramsar Convention will continue to be inapplicable to parts of Diego Garcia, even though the USA is a party;¹⁴³ (3) the Chagos islands are unlikely ever to be designated as a protected site under the World Heritage Convention, even though (or rather, because) both the USA and Mauritius are also parties;¹⁴⁴ (4) the UK's ratification of the Aarhus Convention will probably never be extended to BIOT;¹⁴⁵ and (5) the maps of the Southern Indian Ocean Fisheries Agreement and the Pelindaba Nuclear-Free-Zone Treaty will continue to show an ominous dotted line around the black-holed Chagos Archipelago.¹⁴⁶ As summed up by biologist David Bellamy OBE, ‘the British Government's attitude is foolhardy in the extreme and shows as usual a total lack of understanding of their international commitments to Ramsar and Rio’.¹⁴⁷

Finally, the Bancoult case highlights yet another historical ‘black hole’ syndrome. Diego Garcia's tragedy has been that both Britain and the USA consider the island a ‘fortress territory’ where decolonisation is ‘unthinkable’.¹⁴⁸ For the past 40 years now, the UK FCO has successfully concealed BIOT from the United Nations’ so-called ‘Committee of Twenty-Four’,¹⁴⁹ to which the administering powers of all non-self-governing territories must report pursuant to Article 73 of the UN Charter.¹⁵⁰ Condoning the FCO's deliberate evasion of Article 73,¹⁵¹ the Law Lords in Bancoult 2 relied on the colonial ‘royal prerogative’,¹⁵² which in the event of a conflict of interest entitles Her Majesty in Council, ‘on the advice of her United Kingdom ministers, to prefer the interests of the United Kingdom [over the interests of the islanders]’.¹⁵³ That of course flies in the face of the ‘sacred trust of civilisation’ formulated in Article 73, which unequivocally declares ‘the principle that the interests of the inhabitants of these territories are paramount’.¹⁵⁴ It is worth recalling that the ‘sacred trust’ concept was initially coined in 1919 by US President Woodrow Wilson.¹⁵⁵ By 1945, according to international law historians, ‘the doctrine of the "sacred trust of civilization" had replaced formal European imperialism as the perspective from which international law conceived Europe's outside’.¹⁵⁶ Or—has it now?

	Notes

Top Abstract 1. Militarisation 2. Human Rights Black... 3. Environmental Black Hole 4. Remedial Measures and... 5. Impacts of Climate... 6. Conclusions Notes

 
¹ In the view of US Admiral John S McCain (1884–1945, grandfather of the unsuccessful 2008 presidential candidate), ‘as Malta is to the Mediterranean, Diego Garcia is to the Indian Ocean – equidistant from all points’; see A Bhatt, The Strategic Role of the Indian Ocean in World Politics: The Case of Diego Garcia (Ajanta, New Delhi 1992) 7.

² British Indian Ocean Territory Order 1965, SI 1965/1920 and Royal Instructions of 8 November 1965 (SI 1965 III, 6440), as amended SI 1968/11, SI 1976/893, SI 1983/1888.

³ According to Art 111 of the Mauritian Constitution, as amended by Act No 48 of 17 December 1991, ‘Mauritius includes ... the Chagos Archipelago, including Diego Garcia’; cf A Oraison, ‘Le contentieux territorial anglo-mauricien sur l’archipel des Chagos revisité’ (2005) 83 Revue de Droit International et de Sciences Diplomatiques et Politiques 109.

⁴ For example see the often-quoted response by Bill Rammell, Parliamentary Undersecretary of State for Foreign and Commonwealth Affairs, Hansard HC vol 423 col 289 (7 July 2004 W) (2004) 75 British Ybk Intl L 665: ‘The decisions made by successive governments in the 1960s and 1970s to depopulate the island do not, to say the least, constitute the finest hour of UK foreign policy.’ Cf Hearings, US House of Representatives (94th Cong, 1st Sess., 5 June and 4 November 1975), Diego Garcia, 1975: The Debate over the Base and the Island's Former Inhabitants (Government Printing Office, Washington/DC 1975).

⁵ For example the 1982 UK–Mauritius ‘Agreement Concerning the Îlois from the Chagos Archipelago’ 1316 UNTS 127 (1982) 53 British Ybk Intl L 489.

⁶ Olivier Bancoult et al v Robert S McNamara et al 445 F3d 427 (DC Cir 2006), notes in (2006) 100 AJIL 692 and (2007) 120 Harv L Rev 860; certiorari denied 16 January 2007, 127 Sup Ct 1225 (2007).

⁷ R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, note in (2009) 103 AJIL 115. Reversing earlier decisions in the London High Court and the Court of Appeal, the Law Lords upheld the validity of a ‘prerogative’ BIOT Immigration Order of 2004 denying the exiled Chagossians a ‘right of abode’ in their native islands. ‘Looming over the whole debate’ (in the words of Lord Hoffmann for the majority [23]) was the effect of climate change in the archipelago, which in the view of the appellant UK Government rules out any permanent resettlement; see also nn 124, 132 and 137 below.

⁸ Agreement on the Availability for Defence Purposes of the British Indian Ocean Territory, 603 UNTS 273, [1967] UKTS 15 (Cmnd 3231); amended by exchange of notes in 1976 and 1999, see 1032 UNTS 323, [1976] UKTS 88 (Cmnd 6610) and 2106 UNTS 294, [2000] UKTS 1 (Cmnd 4582). For background see P Sand, United States and Britain in Diego Garcia: The Future of a Controversial Base (Palgrave Macmillan, New York 2009).

⁹ See 866 UNTS 302 (1972, n 58 below); 1018 UNTS 372 (1976, n 66 below); 2001 UNTS 397 (1982, n 69 below); and 1576 UNTS 179 (1987, n 50 below).

¹⁰ See R Edis, Peak of Limuria: The Story of Diego Garcia and the Chagos Archipelago (2nd rev edn Chagos Conservation Trust, London 2004) 94. Diego Garcia had previously served (with or without British consent) as one of the launching pads for Operation ‘Eagle Claw’, the ill-starred Iranian hostage rescue mission on 24–25 April 1980; see J Thigpen, The Praetorian Starship: The Untold Story of the Combat Talon (Air University Press, Maxwell/Alabama 2001) 212.

¹¹ R Harkavy, Bases Abroad: The Global Foreign Military Presence (Oxford University Press, Oxford 1989) 49, 184, 274, 310. The Diego Garcia infrasound station (IS-52) has also been registered by the UK as part of the ‘International Monitoring System’ established under Section A(1) of the 1996 Comprehensive Nuclear Test Ban Treaty (35 ILM 1439). The Diego Garcia seismographic station (DGAR) was among the first stations to pick up the catastrophic Andaman earthquake which triggered the ‘Boxing Day Tsunami’ on 26 December 2004; <http://ida.ucsd.edu/SpecialEvents/2004/361/a/DGARunclip.gif> accessed 26 December 2008.

¹² See S Winchester, Outposts: Journeys to the Surviving Relics of the British Empire (Penguin Books, London 2003) 47. The current population consists of several thousand US military personnel and third-country labourers (from the Philippines, Mauritius and Sri Lanka) and a few British administrators.

¹³ See V Bandjunis, Diego Garcia: Creation of the Indian Ocean Base (Writer's Showcase, San José/California 2001) 309; and nn 50–51 below.

¹⁴ ‘Terrorist Suspects (Rendition)’, statement by Foreign Secretary David Miliband, Hansard HC vol 472 col 547 (21 February 2008); and (Gen) Michael Hayden, ‘Director's Statement on the Past Use of Diego Garcia’ (US Central Intelligence Agency Press Release, 21 February 2008). On 3 July 2008, Miliband assured Parliament that ‘our US allies are agreed on the need to seek our permission for any future renditions through UK territory’; ‘Terrorist Suspects (Rendition)’ Hansard HC vol 478, col 58 WS. See also HC Select Committee on Foreign Affairs, Overseas Territories: Seventh Report of Session 2007–08 (Hansard HC 147-II, 6 July 2008) Ev203.

¹⁵ Reprieve, submission to HC Foreign Affairs Select Committee (n 14) at Ev207, identifying US ships believed to have been involved.

¹⁶ Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, adopted at Ottawa on 18 September 1997 (in force 1 March 1999), 2056 UNTS 211, ratified by 156 countries including the UK (with an explicit extension to the BIOT, on 31 July 1998), though not the USA.

¹⁷ Some 10,000 landmines (in ‘Gator’, ‘Volcano’ and ‘MOPMS’ dispenser packages for aircraft delivery) were stored on vessels at Diego Garcia in 1997, according to the International Campaign to Ban Landmines (ICBL, Nobel peace prize laureate 1997), Landmine Monitor Report: Toward a Mine-Free World (ICBL, London 1999) 328; cf US General Accounting Office, Military Operations: Information on U.S. Use of Land Mines in the Persian Gulf War, GAO-102-1003 (30 September 2002) 39 (Table 2 shows a total of at least 10.3 million anti-personnel landmines stockpiled by the US Department of Defence as of 2002).

¹⁸ Statement by British Ambassador D Broucher to the Ottawa Convention Standing Committee meeting on 16 May 2003; see (Maj) C Jacobs ‘Taking the Next Step: An Analysis of the Effects the Ottawa Convention May Have on the Interoperability of United States Forces with the Armed Forces of Australia, Great Britain and Canada’ (2004) 180 Military L Rev 49, 67. Yet, in the view of the International Committee for the Red Cross, ‘permitting the transit of anti-personnel mines through the territory of a State Party would undermine the object and purpose of the [Convention] ... and contradict its prohibition on assisting anyone in the stockpiling and use of anti-personnel mines’; see ICBL Report 1999 (n 17) Annex, pp 1005–6; cf S Maslen, Commentaries on Arms Control Treaties (OUP, Oxford 2004) 100.

¹⁹ Cf J Mayer, ‘The Black Sites’ New Yorker (Vol. 83, no. 24, 13 August 2007).

²⁰ Even though s 5(5) of the UK Landmines Act of 28 July 1998 (Public Acts 1998, Ch 33) exempts ‘international military operations’ involving ‘members of the armed forces of a State that is not a party to the [Ottawa] Convention’ (n 16) from the prohibition of s 2 (possession and transfer of anti-personnel mines), that would not exonerate the UK from its annual reporting duties regarding the total of ‘all stockpiled mines ... under its jurisdiction’ pursuant to Art 7(1)(b) of the Convention; cf Maslen (n 18) 203. The situation is similar under the new 2008 Dublin/Oslo Convention on Cluster Munitions (signed by 94 countries including the UK, but not by the USA), Arts 21(3) and 7(1)(b); and under the 1992 Chemical Weapons Convention (1974 UNTS 75), ratified by the UK on 13 May 1996 (explicitly extended to BIOT on 26 October 2005) and by the USA on 25 April 1997.

²¹ Lord Hoffmann (n 7) [45], [64], [65], Lord Carswell concurring [131].

²² L Moor and B Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’ (2005) 26 British Ybk Intl L 121, 193. The implied analogy, of course, is to the USA base in Guantánamo/Cuba; cf J Steyn, ‘Guantánamo Bay: The Legal Black Hole’ (2004) 53 ICLQ 1; and P Sands, Lawless World: Making and Breaking Global Rules (Penguin Books, London 2006) 143.

²³ Treatment of Prisoners of War, and Protection of Civilian Persons in Time of War, 75 UNTS 135 and 287; ratified by the UK on 23 September 1957 without extension to overseas territories.

²⁴ 993 UNTS 3 and 999 UNTS 171; ratified by the UK on 20 May 1976. The Foreign and Commonwealth Office (FCO) contends that the ratification does not extend to BIOT; see H Fox, ‘United Kingdom of Great Britain and Northern Ireland: Dependent Territories’ in R Bernhardt (ed.), Encyclopedia of Public International Law (Vol. 4 Elsevier, Amsterdam 2000) 1025, 1029. But see also S Allen, ‘International Law and the Resettlement of the (Outer) Chagos Islands’ (2008) 8 Human Rights L Rev 683, 689.

²⁵ 1465 UNTS 85, ratified by the UK on 8 December 1988, and extended to British dependent territories except for BIOT, by declaration of 9 December 1992.

²⁶ 1561 UNTS 363; the UK ratification (of 24 June 1988) was extended to Gibraltar and Guernsey (by declarations in 1988 and 1994), but not to BIOT.

²⁷ 2187 UNTS 3, ratified by the UK on 4 October 2001, without extension to overseas territories.

²⁸ See generally A Aust, Modern Treaty Law and Practice (2nd edn Cambridge University Press, Cambridge 2007) 206.

²⁹ Edis (n 10) 13; cf FCO, Partnership for Progress and Prosperity: Britain and the Overseas Territories (Cm 424, London, 1999) 50.

³⁰ Edis (n 10) 98, 100. See G Bourne, ‘The Atoll of Diego Garcia and the Coral Formations of the Indian Ocean’ (1888) 43 P Roy Soc 440; D Stoddart and J Taylor (eds), ‘Geology and Ecology of Diego Garcia Atoll, Chagos Archipelago’ in Atoll Research Bulletin no 149 (Smithsonian Institution, Washington/DC 1971).

³¹ ‘They really wanted to pretend it did not exist, in case questions were asked’: Prof. Charles RC Sheppard (Conservation Consultant to the BIOT Administration), as quoted by F Pearce, ‘Paradise Lost to Pirates’ 156 New Scientist no 2104 (18 October 1997) 15.

³² Convention on Biological Diversity, adopted at Rio de Janeiro on 5 June 1992 (in force 29 December 1993; 1760 UNTS 79); ratified by the UK on 3 June 1994, also on behalf of selected overseas territories (not including BIOT). The USA signed the convention on 4 June 1993, but never ratified it.

³³ On the political context of the FCO veto, see F Pearce, ‘Britain's Abandoned Empire’ 142 New Scientist no 1922 (23 April 1994) 26.

³⁴ See UN Office of Legal Affairs, Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 2006 (ST/LEG/SER/E.25) (United Nations, New York 2007).

³⁵ Convention on Wetlands of International Importance Especially as Waterfowl Habitat, adopted at Ramsar/Iran on 2 February 1971 (in force 21 December 1975; 996 UNTS 245), currently 158 Member States; ratified by the UK with effect from 5 May 1976 (with a declaration of geographical extension to some British overseas territories, not including BIOT), by the USA with effect from 18 April 1987 and by Mauritius with effect from 30 September 2001.

³⁶ Diego Garcia is listed as site no 1077 (2UK001, with a total area of 135.4 square miles = 354.2 square kilometres); see M Pienkowski (ed.), Review of Existing and Proposed Ramsar Sites in UK Overseas Territories and Crown Dependencies (Department of Environment, Food and Rural Affairs, London 2005) 98, map at 865. See also nn 114–116 and 127 below.

³⁷ BIOT Administration, The British Indian Ocean Territory Conservation Policy (1997) 1. The Convention for the Protection of the World Cultural and Natural Heritage (adopted at Paris on 16 November 1972, in force 17 December 1975, 1037 UNTS 151) has 185 member countries including the UK (ratification on 29 May 1984, with a declaration extending it to all British overseas territories except BIOT), the USA (7 December 1973) and Mauritius (19 September 1995).

³⁸ On the rather dim prospects of a (joint) nomination, see the comments by P Bridgewater and I Orr, ‘The Future Conservation of the Chagos’ (2008) 31 Chagos News 6, 13.

³⁹ D Proctor and V Fleming (eds.), Biodiversity: The UK Overseas Territories (Joint Nature Conservation Committee, London 1999) 38 (emphasis added).

⁴⁰ Declarations of 25 March 1997 (rebutted by the UK on 30 July 1997) and 8 February 2002.

⁴¹ BIOT Fishery Limits Ordinance of 1 October 1991; (1991) 62 British Ybk Intl L 648, map in Sheppard and Spalding (n 108 below) v. According to a ministerial statement in Hansard HL vol 659 (31 March 2004) 240331-30, the designation of the BIOT Environment Protection Zone (by notification to the UN Secretariat on 12 March 2004) was made ‘under Article 75 of UNCLOS’, i.e. as an ‘exclusive economic zone’; (2003) 74 British Ybk Intl L 680, and [2004] no 54 UN Law of the Sea Bulletin 99. Cf P Sand, ‘Green Enclosure of Ocean Space: Déjà Vu?’ (2007) 54 Mar Pollut Bull 374, 375; but see also (nn 135–136 below).

⁴² See Mauritius Governmental Notice No 126 (Maritime Zones Regulations) of 5 August 2005, implementing the Maritime Zones Act No 2 of 28 February 2005, and showing the geographical coordinates delimiting the exclusive economic zone (EEZ) of Mauritius as including the Chagos Archipelago—as already claimed in the earlier Maritime Zones Regulations No 199 of December 1984 (table C1.T165). The Mauritian 200-mile zone was formally recognised by the European Union, in the 1989 Agreement between the European Economic Community and the Government of Mauritius on Fishing in Mauritian Waters, [1989] OJ L159/2 (preamble, and Arts 1, 10).

⁴³ Not notified to the United Nations (n 41); see BIOT Administration, ‘Notice to All Mariners of New Procedures for Yachts Visiting the British Indian Ocean Territory’ (8 December 2006), reissued as ‘Laws and Guidance for Visitors’ (March 2007), section concerning Diego Garcia: ‘Unauthorised vessels or persons are not permitted to access this island and no unauthorised vessel is permitted to approach within 12 nautical miles.’

⁴⁴ Adopted under the auspices of the Food and Agriculture Organization of the United Nations (FAO) at Rome on 7 July 2006; text in [2006] OJ L196/51 (the EU formally approved the Agreement on 15 October 2008). Even though Art 3 of the Agreement defines the geographical area of application [within FAO Statistical Area no 51] as including the Chagos Archipelago, the map in Appendix 3 of the SIOFA Final Act clearly excludes it.

⁴⁵ For an overview of current fishery management and control problems, see the presentation by J Pearce at the 2007 Chagos Conservation Trust Conference (n 38) 9; cf M Spalding, ‘Partial Recovery of Sharks in the Chagos Archipelago’ (2004) 15 Shark News 12.

⁴⁶ A report by a visiting Navy Natural Resources Specialist in December 1973 (n 59 below) 12, lamented the ‘eyesore’ created by the unusable remnants of ‘a thousand or more coconut trees’ that had been bulldozed. When another 1,000+ trees were removed in 2006–07 to make way for a new ammunition pad, the now-resident Natural Resources Specialist for Diego Garcia received the ‘FY07 Chief of Naval Operations Environmental Award’ for his efforts to relocate 265 threatened coconut crabs (Birgus latro) displaced by the project; US Secretary of Defense Press Release, ‘NAVFAC Far East Provides Integral Environmental Support’ (Yokosuka/Japan, 3 March 2008).

⁴⁷ Bandjunis (n 13) 49; Menzie and others (n 61 below) 1.

⁴⁸ Edis (n 10) 86.

⁴⁹ R Lehner (NMCB-1 Explosive Ordnance Detachment, 1977–78), in the ‘war stories’ and ‘combat photography from paradise’ by Diego Garcia veterans on the website of T Morris (USAF Lt Col ret), <http://www.zianet.com/tedmorris/dg/realhistory.html> accessed 26 December 2008; see also T Grenier, ‘Blowing Holes in the Reef for Fun and Profit’ (ibid, posted 17 April 2004), and Y Levi (an Israeli frogman from Oceaneering International), ‘Blowing Open the Ship Channel’ (ibid, updated 30 April 2007).

⁵⁰ A dredging contract for $6.1 million went to the Retired Services Engineering Agency of Taiwan, and another one for $17.9 million to Penta-Ocean Construction Co Ltd of Tokyo; see Bandjunis (n 13) 55, 216. Since 1987, all procurement for construction has been restricted exclusively to Anglo-American joint ventures under US management control; see the Exchange of Notes Constituting an Agreement Concerning the British Indian Ocean Territory and Operations and Construction Contracts on Diego Garcia, concluded at Washington/DC on 16 November 1987 (1576 UNTS 179), providing for a 20% minimum share reserved for UK firms—a clause perhaps best described as a guaranteed kick-back arrangement in view of the increasingly lucrative prospects of US congressional funding for Diego Garcia. For example the major supply contract for the base (current cumulative amount $467.7 million; renewed on 30 July 2008; see Defense Industry Daily, 4 August 2008) has been operated since 1999 by a joint venture ‘DG21 LLC’ led by US Lockheed Martin, in which the UK engineering consultants W.S. Atkins plc hold a 24.5% share. See also (n 127 below).

⁵¹ For a total of over $441 million, awarded on 14 July 1981 and completed in January 1987, to accommodate aircraft carriers and a force of up to 30 ‘prepositioned’ vessels and submarines in the lagoon; see Edis (n 10) 91 and Bandjunis (n 13) 219–20. The joint venture consisted of Texas-based Raymond International, Brown & Root (RBRM, a Halliburton subsidiary), and UK John Mowlem & Co plc; see T Tucker and B Doughty ‘Naval Facilities, Diego Garcia, British Indian Ocean Territory: Management and Administration’ (1988) 84 P I Civil Eng (Maritime Engineering Group: Part 1) 191, and (1989) 86 P I Civil Eng 413.

⁵² US General Accounting Office, ‘Further Improvements Needed in Navy's Oversight and Management of Contracting For Facilities Construction On Diego Garcia’ in Report to the Secretary of Defense GAO/NSIAD-84-62 (US Government Printing Office, Washington/DC 23 May 1984) 46 (Appendix I), and 50 (Appendix II); Bandjunis (n 13) 220.

⁵³ See Tucker and Doughty (n 51) 202–7.

⁵⁴ INRMP Diego Garcia 2005 (n 75 below) 3–4.

⁵⁵ Tucker and Doughty (n 51) 213.

⁵⁶ See R Rais, The Indian Ocean and the Superpowers: Economic, Political and Strategic Perspectives (Barnes & Noble, Towota/New Jersey 1987) 84. Diego Garcia boasts the world's longest slipform-paved runway built on crushed coral (12,000 feet = 3.6 kilometres, designated as an emergency landing site for the US space shuttle).

⁵⁷ Edis (n 10) 3.

⁵⁸ Naval Communications Facility on Diego Garcia: Agreement Supplementing the Agreement of 30 December 1966, concluded at London on 24 October 1972; 866 UNTS 302 [1972] UKTS 126 (Cmnd 516), Art 7. An identical clause—‘feeble as it was’ (Edis n 10) 99—was inserted as Art 8 in the second supplementary agreement in 1976 (n 66 below).

⁵⁹ US Naval Facilities Engineering Command/Pacific Division, Natural Resources Conservation Land Management Plan for Diego Garcia, British Indian Ocean Territories (December 1973); unpublished document released by the US Department of the Navy on 21 May 2008 (upon appeal to the Office of the General Counsel), under US Freedom of Information Act (FOIA) file 5720#08-29.

⁶⁰ US Naval Facilities Engineering Command/Pacific Division, Natural Resources Management Plan for Diego Garcia, Indian Ocean (British Indian Ocean Territory) (25 October 1981); released under FOIA file 5720#08-29 (n 59 above).

⁶¹ C Menzie and others, Environmental Survey of Construction and Dredging Related Activities on Diego Garcia, Indian Ocean (EG&G Environmental Consultants Inc., Waltham/Massachusetts July 1980); released under FOIA file 5720#08-29 (n 59 above).

⁶² Ibid, 90–92.

⁶³ Menzie and others (n 61) 89.

⁶⁴ C Sheppard, ‘The Coral Fauna of Diego Garcia Lagoon, Following Harbour Construction’ (1980) 11 Mar Pollut Bull 228.

⁶⁵ Ibid, Sheppard and Spalding (n 108 below) 30.

⁶⁶ Concluded in London by exchange of notes on 25 February 1976; 1018 UNTS 372, [1976] UKTS 19 (Cm 6413).

⁶⁷ Ibid, Supplementary Arrangements 1976 for Diego Garcia Facility, Related Note 5 #1.

⁶⁸ See (nn 50–52) above.

⁶⁹ Naval Support Facility on Diego Garcia: Agreement Supplementing the Agreement of 30 December 1966, concluded in Washington/DC by exchange of notes on 13 December 1982; 2001 UNTS 397. Cf the written answer by Baroness Symons, FCO Parliamentary Undersecretary of State, Hansard HL vol 600 col 2 (26 April 1999 W): ‘The American authorities on Diego Garcia had been involved in dumping, dredging and coral reef blasting prior to the 1982 UK/US Supplemental Agreement concerning the US Navy Support Facility on Diego Garcia. No estimate of any damage done was made at that point.’

⁷⁰ See (n 22) above.

⁷¹ (Cdr) John MW Topp OBE FLS, Annual Reports of the Conservation Advisor to BIOT Administration 1993–2002, as quoted by Sheppard and Spalding (n 108 below) 28.

⁷² Executive Order 12114 (4 January 1979), 44 Fed Reg 1957, 3 CFR 356 (1979); superseding earlier Executive Orders 11752 (19 December 1973) and 12088 (13 October 1978). See also the Directives and Instructions of the US Department of Defense listed in (n 76 below).

⁷³ On the ‘overseas reach’ of US law on environmental impact assessment, see L Schiffer, ‘The National Environmental Policy Act Today, with an Emphasis on Its Application Across U.S. Borders’ (2003) 14 Duke Envl L Policy Forum 325.

⁷⁴ OPNAVINST 5090.1B: Navy Environmental and Natural Resources Program Manual (CH-4, as updated on 4 June 2003) appendix E; see J Rawcliffe (ed.), Operational Law Handbook, Ch 18-5.6 (US Judge Advocate General Legal Center, Charlottesville/Virginia 2007).

⁷⁵ Natural Resources Management Plan, US Naval Support Facility Diego Garcia (Naval Facility Engineering Command/Pacific Division, April 1997), updated and expanded as ‘Integrated Natural Resources Management Plan Diego Garcia, British Indian Ocean Territory’ (September 2005); unpublished documents released by the US Department of the Navy on 19 July 2007 (upon request filed on 25 January 2007), under US Freedom of Information Act (FOIA) file CNFJ 07-26.

⁷⁶ Ch 17: Environmental Effects Abroad in ‘Final Governing Standards Diego Garcia’ (November 2001), issued pursuant to US Department of Defense Directive DoD 6050.16 (DoD Policy for Establishing and Implementing Environmental Standards at Overseas Installations, 20 September 1991); see also DoD Instructions 4715.5 (Management of Environmental Compliance at Overseas Installations, 22 April 1996) and 4715.8 (Environmental Remediation for DoD Activities Overseas, 2 February 1998).

⁷⁷ For example see the decision ‘to forego preparation of an Environmental Review or Environmental Study’ for MILCON Project P-160 [Wharf Improvements and SSGN Shore Support Facilities, see also (n 84 below)] of 22 May 2006 (Cdr CEC, Diego Garcia) and 28 July 2006 (Regional Environmental Program Director, COMNAVFORJAPAN): ‘This action does not involve non-compliance with the Final Governing Standards, OPNAVINST 5090.1B CH-4 or the host nation's environmental standards.’ Document released under FOIA file 5720#08-29 (n 59 above).

⁷⁸ In response to multiple requests and appeals for documentation under the US FOIA initiated since January 2007, NAVFAC Pacific and the Office of the General Counsel of the Navy were unable to produce or locate a single environmental impact statement for any of the coral-blasting and coral-mining projects undertaken by the ‘Seabees’ in the 1970s (n 49 above) or under the dredging contracts awarded to Taiwanese, Japanese and Anglo-American firms in the 1980s (nn 50–52); see correspondence with the author under FOIA files CNFJ 07-26, 07-23, 07-99 (2007) and PACDIV 5720#08-29 (2008) and (n 77).

⁷⁹ NRMP Diego Garcia 1997 (n 75) B-15.

⁸⁰ Ibid, A-22.

⁸¹ Response to the author dated 19 July 2007 by LCdr Irve C Le Moyne Jr, Deputy Judge Advocate COMNAVFORJAPAN, to Freedom-of-Information-Act Request CNFJ 07-26 (n 78, filed on 25 January 2007); cf Sheppard and Spalding (n 108 below) 32.

⁸² W Whistler, ‘Botanical Survey of Diego Garcia, Chagos Archipelago, British Indian Ocean Territory’ in NRMP Diego Garcia 1997 (n 75) 4–5, 4–19, noting a 31% observed increase in unintentionally introduced plant species between 1988 and 1996, imported with piles of sand from Malaysia, see text at (n 53 above). Eight years later, despite Whistler's recommendations for eradication, observations of the same species were confirmed by another Navy consultant, J Rivers, ‘Botanical Survey Update of Diego Garcia, Chagos Archipelago, British Indian Ocean Territory’ in INRMP Diego Garcia 2005 (n 75) E2-5, warning with regard to Leucaena in particular that ‘if uncontrolled, this species can completely overtake all other species creating monotypic scrub’, and once again ‘strongly recommending’ its control and eradication (6-4 of the plan); cf S Lowe and others (eds), 100 of the World's Worst Invasive Alien Species: A Selection from the Global Invasive Species Database (IUCN/ISSG, Auckland 2004) 6.

⁸³ Some of the port calls by nuclear-powered guided-missile cruisers and submarines (April 1979, October 1980, July 1981, December 1987, February 2002, February 2007) are documented by Morris (n 49 above).

⁸⁴ Wharf construction works to be completed in April 2009; see Defense Industry Daily (4 April 2007). As Diego Garcia is not listed among the ‘inspectable sites’ of the 1991 Strategic Arms Reduction Treaty (‘START-1’, 31 ILM 246), forward placement of the new special-purpose submarines in the atoll would, in the view of Russian observers, ‘avoid violating the legal language of START-1 while undermining its spirit’; A Diakov and E Miasnikov, ‘RESTART: The Need for a New US-Russian Strategic Arms Agreement’ (2006) 36 Arms Control Today 6, 9.

⁸⁵ As announced by Pentagon spokesman Bryan Whitman (CNN-Online, 7 July 2008). The uranium ‘yellowcake’ material originated from the remnants of Iraq's former nuclear facility in Tuwaitha (bombed out of operation by Israel in 1981), and was sold by the Government of Iraq to Cameco Corp. in Ontario for enrichment processing and use in nuclear power plants.

⁸⁶ For example see Bhatt (n 1) 39.

⁸⁷ See (n 66), Art 3.

⁸⁸ P Beaumont and C Urquhart, ‘Israel Deploys Nuclear Arms in Submarines’ Observer (12 October 2003), quoting Israeli and US officials. As the technical modification of the submarines for use of the Harpoon missiles had been funded and tested by the German Government, doubts remain as to the compatibility of the deal with German obligations under the 1998 European Union Code of Conduct on Arms Exports (EU Doc 8675/2/98/Rev.2), with German and US obligations under the 1968 Nuclear Non-Proliferation Treaty (729 UNTS 161), the ‘Guidelines for Sensitive Missile-Relevant Transfers’ (as revised in 1993) of the 1987 Missile Technology Control Regime, and the 2002 Hague Code Against Ballistic Missile Proliferation.

⁸⁹ See (nn 75, 108).

⁹⁰ On the problems of the Guam-based submarine USS Houston (SSN-713), see International Herald Tribune: Asia-Pacific/Associated Press (online, 30 August 2008); and M Yamaguchi, ‘Nuclear Sub's Radiation Leak Revealed’ Seattle Times (online, 8 August 2008).

⁹¹ For example the published results of the 2006 scientific expedition under the auspices of the BIOT Administration, which did take water quality samples from parts of the Diego Garcia lagoon, did not include radiation measurements; see the report by C Sheppard, ‘The Evolving Science in Chagos’ Chagos News (no 30, 2007) 2, 13; and cf (n 115 below).

⁹² See M Bezboruah, U.S. Strategy in the Indian Ocean: The International Response (Praeger, New York 1977) 200. The British Labour Party passed a motion at its 1982 Blackpool congress calling for the ‘denuclearisation’ of Diego Garcia; see J Larus, ‘Diego Garcia: Political Clouds Over a Vital US Base’ (1982) 10 Strategic Rev 44.

⁹³ Declaring the Indian Ocean a ‘zone of peace’, and calling on the great powers to enter into consultations with the littoral states, with a view to ‘eliminating from the Indian Ocean all bases, military installations and logistical supply facilities, the disposition of nuclear weapons and weapons of mass destruction’; see P MacAlister-Smith, ‘Zones of Peace’ in R Bernhardt (ed.), Encyclopedia of Public International Law (Vol. 4 Elsevier, Amsterdam 2000) 1621, 1625.

⁹⁴ African Nuclear-Weapon-Free-Zone Treaty (Cairo, 11 April 1996), 35 ILM 698; named ‘Pelindaba’ after the former South African nuclear reactor.

⁹⁵ See N Pelzer, ‘Nuclear-Free Zones’ in R Bernhardt (ed.) Encyclopedia of Public International Law (Vol. 3 Elsevier, Amsterdam 1997) 705, 712. Cf the FCO's Explanatory Memorandum on the Treaty of Pelindaba, presented to Parliament in December 2000 (Cm 3498).

⁹⁶ See J Goldblat, ‘Nuclear-Weapon-Free Zones: A History and Assessment’ (1997) 4 Nonproliferation Rev 18, 26. The US Arms Control and Disarmament Agency considers the treaty map adequate to ‘protect US interests because any resolution of the [sovereignty] issue will occur outside the framework of the treaty’; see M Rosen, ‘Nuclear-Weapon-Free Zones: Time for a Fresh Look’ (1997) 8 Duke J Comp Intl L 29, 48.

⁹⁷ By the same token, if this peculiar logic were applied, e.g. to the 1959 Antarctic Treaty (402 UNTS 71)—which also reserves, in Art IV, the question of territorial sovereignty—all Antarctic areas subject to conflicting sovereignty claims would automatically be excluded from the geographical scope of that treaty; ie, black-holed (for example, the central sector of the British Antarctic Territory which is also claimed by Argentina).

⁹⁸ Edis (n 10) 90.

⁹⁹ See J Paquin, ‘2004 API Awards for Excellence in Fuels Management’ Navy Supply Corps Newsletter (November–December 2004).

¹⁰⁰ See generally C Hunt Jr, ‘Hydrogeology of Diego Garcia’ in H Vacher and T Quinn (eds), Geology of Carbonate Islands: Developments in Sedimentology (no 54 Elsevier, Amsterdam 1997) 909.

¹⁰¹ For a first-hand description see Morris (n 49 above), ‘General Ecology of Diego Garcia: Human Use and Industrial Waste’ (last updated 31 March 2008).

¹⁰² See J Hansen, ‘Cleanup Plan for Fuel Spills at Air Operations Ramp, Diego Garcia, British Indian Ocean Territory’ in Pentagon Report A87824 (US Air Force Center for Environmental Excellence, Brooks City/Texas 25 May 1999); and G Tribble, ‘Groundwater Geochemistry at the South Ramp Jet Fuel Leak, Diego Garcia Atoll’ in Report SuDoc I 19.42/4:01-4090 (US Geological Survey, Washington/DC 2001).

¹⁰³ Hansen (n 102) 15. See also J Hansen and D Kampbell, ‘Large-Scale Bioslurping Operations Used for Fuel Recovery’ EPA Technology News & Trends no 8 (September 2003) 2; and J Hansen, ‘LNAPL Characterization and Recovery at Diego Garcia’ in Summary of the Remediation Technologies Development Forum (Non-Aqueous Phase Liquid Cleanup Alliance Meeting, San Antonio/TX 7–8 February 2006) Attachment H. The spills were not widely publicised, and there is no reference to them in the otherwise comprehensive worldwide ‘IncidentNews’ website maintained by the US National Oceanic and Atmospheric Administration (NOAA).

¹⁰⁴ On a 109,000 gallon (465,000 litres) JP-5 fuel spill at the US Navy's Arraiján base in Panama in January 1995, see J Lindsay-Poland, Emperors in the Jungle: The Hidden History of the US in Panama (Duke University Press, Durham/North Carolina 2003) 147. On a 100,000 gallon (427,000 litres) JP-5 fuel leakage at Naval Air Station Roosevelt Roads, Cieba/Puerto Rico, in October 1999, see IncidentNews (n 103 above). On jet fuel spills at Clark Air Base in the Philippines, see T Proechel, ‘Solving International Environmental Crimes: The International Environmental Military Base Reconstruction Act, a Proposal, and a Solution’ (2007) 29 Loyola Los Angeles Intl Comp L Rev 121, 127.

¹⁰⁵ Report of measurements taken during the 2006 research expedition, Sheppard (n 91) 13. The measurements were, however, not specifically targeted on contamination by fuel residues; see C Guitart and others, ‘Negligible Risks to Corals from Antifouling Booster Biocides and Triazine Herbicides in Coastal Waters of the Chagos Archipelago’ (2007) 54 Mar Pollut Bull 226.

¹⁰⁶ Edis (n 10) 103. Note that US Department of Defense Instruction 4715.8 (n 76 above) expressly requires remediation of all ‘known imminent and substantial endangerments to human health and safety due to environmental contamination that was caused by DoD operations’.

¹⁰⁷ Topp (n 71 above), as quoted by Sheppard and Spalding (n 108 below) 28. Yet, the Diego Garcia base received the US Navy's ‘Natural Resources Conservation Award (Small Installations)’ for Fiscal Year 2001, with a citation reading as follows: ‘On Diego Garcia, the US Navy continues to show exceptional leadership as one of the best environmental stewards in the world by superbly achieving its set goals in the field of natural resources management’.

¹⁰⁸ C Sheppard and M Spalding, Chagos Conservation Management Plan (FCO, London 2003) 28. In the chapter devoted to Diego Garcia (pp 28–34), the authors raise critical questions regarding gaps in the coverage and practical implementation of the 1997 NRMP, and note the absence of ‘environmental impact assessments and studies done over the past 25 years prior to major works’ (p 30).

¹⁰⁹ Proctor and Fleming (n 39) 42.

¹¹⁰ INRMP Diego Garcia 2005 (n 75) 2–1. While the 1966 Anglo-American Agreement (n 8), Annex II, Art 1(b)(ii), grants the US military authorities the right to exercise criminal and disciplinary jurisdiction over persons subject to US military law, the UK authorities retain ‘exclusive jurisdiction over members of the United States forces with respect to offences, including offences relating to security, punishable by law in force in the territory but not by the law of the United States’.

¹¹¹ Written answer, Baroness Symons (n 69 above).

¹¹² Baroness Symons, Hansard HC vol 423 col 963 (12 July 2004 W); (2004) 75 British Ybk Intl L 951.

¹¹³ Baroness Symons, Hansard HC vol 424 col 62 (19 July 2004 W); (2004) 75 British Ybk Intl L 671.

¹¹⁴ See (nn 35, 36 above), and the explicit reference to US ratification of the Ramsar Convention in the Navy's Natural Resources Management Plan Diego Garcia 1997 (n 75) ES-3, footnote 2.

¹¹⁵ Ramsar Convention Secretariat ‘Information Sheet on Ramsar Wetlands (RIS) UK61002’, prepared by the UK Joint Nature Conservation Committee (Version 3 of 13 June 2008), s 26. See also Pienkowski (n 36) 101: ‘No major factors were reported as adversely affecting the designated Ramsar site in the existing documentation, and none were identified in this review [2005]’. Note that the 1982 UK–US Supplementary Arrangements on Diego Garcia (n 69) [3] expressly provide that ‘the British Government Representative will be informed of any significant fall in the level of the water table or any significant deterioration in the quality of the water, with a view to jointly agreed remedial action’.

¹¹⁶ For example see the information on Diego Garcia in the UK National Report to the 9th Meeting of the Conference of the Contracting Parties to the Ramsar Convention (Uganda, 2005) 75. There is no reference to BIOT in the national report submitted by the UK Department for Environment, Food and Rural Affairs (DEFRA) to the 10th Meeting of the Conference (held in Changwon, Republic of Korea, from 28 October to 4 November 2008).

¹¹⁷ See (nn 32, 33 above). The section on ‘alien species’ in J Williams (ed.), United Kingdom and its Overseas Territories and Crown Dependencies: Third National Report to the Convention on Biological Diversity (DEFRA, London 2005) 76–77, reports on invasive species control and eradication in Ascension Island, the British Virgin Islands, Cayman Islands, Falkland Islands, St Helena and Tristan da Cunha—but not in BIOT.

¹¹⁸ 2161 UNTS 447, ratified by the UK on 25 February 2005 (without extension to overseas territories), but not by the USA. As stated on the DEFRA website, the public authorities of British overseas territories ‘are not covered by the UK Environmental Information Regulations (EIRs)’; see <http://www.defra.gov.uk/corporate/opengov/eir/faq.htm> last updated 15 February 2007. The ten-years implementation report submitted by DEFRA to the 3rd meeting of the Parties to the Aarhus Convention (Riga, 11–13 June 2008) makes no reference to overseas territories other than Gibraltar; see UN Doc. ECE/MP.PP/IR/2008/GBR (6 June 2008).

¹¹⁹ See Sheppard (n 91) 7, Fig 1: ‘Chagos Annual Average Sea Temperature 1871-2006’, showing a dramatic increase of warm periods from 1990 onwards, as compared to the standard reference period 1960–89. Cf C Sheppard, Warming Sea Water and Chagos Reefs (Chagos Conservation Trust Factsheet, London 2007), and the recent upward revision of global ocean temperature forecasts by C Domingues and others, ‘Improved Estimates of Upper-Ocean Warming and Multi-Decadal Sea-Level Rise’ 453 Nature no 7198 (19 June 2008) 1090.

¹²⁰ C Sheppard, ‘A Marine Nutcracker’ (2008) 56 Mar Pollut Bull 799.

¹²¹ See C Sheppard, ‘Island Elevations, Reef Condition and Sea Level Rise in Atolls of Chagos, British Indian Ocean Territory’ in O Lindén and others (eds), Coral Reef Degradation in the Indian Ocean (IUCN/Cordio, Kalmar 2002) 26; Turner and others (n 124 below) 25–26; and J Petit (ed.), ‘Climate Change and Biodiversity in the European Union Overseas Entities’, in Pre-conference Document Vol. 3 (IUCN, Saint-Denis/Réunion, 7–11 July 2008) 90–93.

¹²² Forecasts of global sea-level rise are currently being revised upwards from earlier reports of the Intergovernmental Panel on Climate Change (IPCC); see S Rahmstorf, ‘A Semi-Empirical Approach to Projecting Future Sea-Level Rise’ 315 Science no 5810 (19 January 2007) 368, with technical comments by S Holgate and others, 317 Science no 5846 (28 September 2007) 1866; and W Pfeffer and others, ‘Kinematic Constraints on Glacier Contributions to 21st-Century Sea-Level Rise’ 321 Science no 584 (5 September 2008) 1340.

¹²³ See C Bouchard, ‘Climate Change, Sea Level Rise, and Development in Small Island States and Territories of the Indian Ocean’ in T Doyle and M Risely (eds), Crucible for Survival: Environmental Security and Justice in the Indian Ocean Region (Rutgers University Press, New Brunswick/New Jersey 2008) 258.

¹²⁴ Rammell (n 4), (2004) 75 British Ybk Intl L 669, citing the FCO-commissioned study by Posford Haskoning Consultants, Feasibility Study for the Resettlement of the Chagos Archipelago: Phase 2B (Royal Haskoning, Peterborough 2002); also summarized in (2004) 75 British Ybk Intl L 663–4, 672; and (2006) 77 British Ybk Intl L 638. The conclusions of the study were challenged in a subsequent report by J Howell (ed.), Returning Home: A Proposal for the Resettlement of the Chagos (UK Chagos Support Association, London 2008), which in turn has been critically reviewed by J Turner and others, An Evaluation of ‘Returning Home – A Proposal for the Resettlement of the Chagos Islands’ (Howell Report) (Chagos Conservation Trust, London 2008).

¹²⁵ S Goodman (ed), National Security and the Threat of Climate Change (Center for Naval Analyses, Alexandria/Virginia 2007) 48; see also C Abbott, An Uncertain Future: Law Enforcement, National Security and Climate Change (Oxford Research Group, London 2008) 10.

¹²⁶ Unlike a number of other locations, Diego Garcia so far has not been targeted for closure in the context of the GPR, submitted to Congress by Secretary of Defense Donald H Rumsfeld in 2004; see M O’Hanlon, Unfinished Business: U.S. Overseas Military Presence in the 21st Century (Center for a New American Secuirity, Washington/DC 2008).

¹²⁷ Under a joint-venture project (see n 50), the US Ocean Engineering and Energy Systems International (OCEES) and the UK Ocean Thermal Energy Conversion Systems Ltd (OTECS) are designing a plant (which could be up and running by the end of 2011) to provide sufficient power to desalinate 1.25 million gallons (4.73 million litres) of seawater per day, so as to make the US base independent of fuel supplies; see P McKenna, ‘Plumbing the Oceans Could Bring Limitless Clean Energy’ 200 New Scientist no 2683 (19 November 2008) 28; cf H Krock, ‘Ocean Thermal Energy Conversion Feasibility Study for the Navy’, in Report to US Naval Facilities Engineering Command, contract no N47408-94-D-1038, DO 0014 (University of Hawaii, Manoa 1996). So far, no comprehensive environmental impact assessments of the project appear to have been undertaken either by US or UK authorities, although OTECS acknowledges ‘the assistance of the FCO in relation to this project’; see Comment on Government's Energy Review: A Place for OTEC in the UK Energy Portfolio (OTECS Ltd, Orpington/Kent 12 April 2006).

¹²⁸ A Erickson and others, ‘Diego Garcia's Strategic Past, Present and Future’ (paper presented at the annual meeting of the American Political Science Association, Boston, 28 August 2008) 27; A Erickson and others, ‘The Military Geography of Diego Garcia: Future Implications for U.S. Power Projection in the Indian Ocean’ in C Lord and A Erickson (eds), U.S. Basing and Presence in the Asia-Pacific (Naval War College Press, Newport/Rhode Island 2009); cf S Daggett and others, ‘Fiscal Year 2008 Supplemental Appropriations for Global War on Terror Military Operations, International Affairs, and Other Purposes’, Congressional Research Service Report RL34278 (US Government Printing Office, Washington/DC 10 December 2007), table 2 (military construction). The infrastructure upgrades planned (mainly, airport facilities for modified B-2 stealth bombers and wharf construction for SSGN attack submarines) will, however, require a further supplementary agreement, currently under negotiation between the UK Ministry of Defence and the US State Department.

¹²⁹ Goodman (n 125 above) 47, recommendation 2.

¹³⁰ For ecological variations on the footprint metaphor (n 12); see S Dalby, ‘Empire's Ecological Tyreprints’ (2006) 15 Environmental Politics 1.

¹³¹ For an overview see J Gupta, ‘Legal Steps Outside the Climate Convention: Litigation as a Tool to Address Climate Change’ (2007) 16 Rev Europ Community Intl Envl L 76.

¹³² Rammell (n 4 above); (2004) 75 British Ybk Intl L 669.

¹³³ See (n 41 above).

¹³⁴ See J Charney, ‘Rocks That Cannot Sustain Human Habitation’ (1999) 93 AJIL 863; and R Lavalle, ‘Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the UN Law of the Sea Convention’ (2004) 19 Intl J Marine Coastal L 43. During the UNCLOS negotiations, the UK had opposed Art 121(3) but was outvoted.

¹³⁵ The overlapping exclusive economic zones for the Maldives and the Chagos Archipelago are currently separated by an equidistant median line; map in M Adam, ‘Country Review: Maldives’ in C De Young (ed.), Review of the State of World Marine Capture Fisheries Management: Indian Ocean (FAO Fisheries Technical Report no 488) (Food and Agriculture Organization of the United Nations, Rome 2006).

¹³⁶ See (n 41 above) and text in (n 132 above); cf M O'Shea, ‘Serious Questions Over Sea Boundaries Between Maldives and British Indian Ocean Territory’, <http://www.maldivesculture.com/> (editorial posted online 20 December 2007).

¹³⁷ In the words of Lord Hoffmann (n 7) [55], ‘funding is the subtext of what this case is about’; cf Lord Rodger at [113] and Lord Carswell at [132] concurring. The dire forecasts of the FCO-commissioned feasibility study (n 124) have, however, been challenged by the subsequent Howell Report (ibid, 33), which estimates total resettlement costs at some £25 million ($48 million), also pointing to the availability of external financial resources such as the EU's Development Fund. A further funding option could be the ‘climate change adaptation programme’ of the Global Environment Facility (GEF), which ‘supports interventions that increase resilience to the adverse impacts of climate change of vulnerable countries, sectors, and communities’, in Focal Area Strategies and Strategic Programming for GEF-4 (GEF Policy Paper, Washington/DC, 4 October 2007).

¹³⁸ According to the 7th Report of the HC Committee of Public Accounts, Foreign and Commonwealth Office: Managing Risks in the Overseas Territories, Session 2007–08 (Hansard HC 176, 2008) 22, legal costs since 2000 were in excess of £2.171 million, to which an estimated £500,000 for the House of Lords appeal will now have to be added. During oral hearings on 10 December 2007, MP Austin Mitchell suggested ‘perhaps to submit a bill to the Americans’ (ibid, 23).

¹³⁹ Most of the Chagossians possess (in addition to their Mauritian citizenship) full British and EU citizenship, pursuant to the ‘British Overseas Territories Act’ of 2002; see (2002) 73 British Ybk Intl L 593. The HC Select Committee on Foreign Affairs has recommended extending citizenship also ‘to third generation descendants of exiled Chagossians’ (n 14) 35, 138.

¹⁴⁰ See (nn 21–27 above).

¹⁴¹ Concluding observations on the UK report, Report of the Committee on its 93rd Session (Geneva, 7–25 July 2008) UN-Doc CCPR/C/GBR/CO/6 (30 July 2008) 6 [22].

¹⁴² See (nn 32–34 above).

¹⁴³ See (nn 35–36 and 114–116).

¹⁴⁴ See (nn 37–38 and 117 above).

¹⁴⁵ See (n 118 above). The explanatory memorandum on the Aarhus Convention presented to Parliament by the FCO in January 2005 (Cm 4736, [20]) states that ‘the Overseas Territories and Crown Dependencies were consulted about the extension of the convention to them. Whilst none are currently in a position to ratify alongside the UK, some will return to their consideration of this issue at a future opportunity’. However, in an email message to the author dated 26 November 2008, BIOT Administrator Joanne Yeadon advises that ‘... BIOT has no permanent residents. The [Aarhus] convention, therefore, has no practical relevance to BIOT and as this position is unlikely to change in the foreseeable future, there are no plans to enact legislation or ratify in respect of BIOT.’

¹⁴⁶ See text in (nn 44 and 96 above).

¹⁴⁷ As quoted by Pearce (n 33) 26.

¹⁴⁸ G Drower, Britain's Dependent Territories: A Fistful of Islands (Dartmouth, Aldershot 1992) 65. On the ambivalent US attitude towards decolonisation efforts in the UN General Assembly, see D Kay, ‘The United Nations and Decolonization’ in J Barros (ed.), The United Nations: Past, Present and Future (Free Press, New York 1972) 143, 152.

¹⁴⁹ The ‘Special Committee on the Situation with Regard to Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples’ was established by the UN General Assembly in November 1961 to succeed the Special Committee on Information from Non-Self-Governing Territories, established by UNGA Resolution 146 (II) on 3 November 1947, and renamed by UNGA Resolution 569(V) of 18 January 1952. See U Umozurike, Self-Determination in International Law (Archon Books, Hamden/Connecticut 1972) 74.

¹⁵⁰ An internal advisory opinion of 16 January 1970 by Anthony Aust CMG (then FCO assistant legal adviser) suggested—under the sub-heading ‘Maintaining the Fiction’—that:

the longer that [the native BIOT] population remains, and perhaps increases, the greater the risk of our being accused of setting up a mini-colony about which we would have to report to the United Nations under Article 73 of the Charter. Therefore strict immigration legislation giving such labourers and their families very restricted rights of residence would bolster our argument that the territory has no indigenous population (as quoted by Laws LJ in Bancoult 1 [2001] QB 1080, at 1086).

Maintaining the fiction, a UK Government ‘fact sheet’ in December 1982 referred to the islanders as mere contract workers (Central Office of Information, ‘British Indian Ocean Territory’, HMSO 1982, 2); and in an international encyclopaedia article on the legal status of the UK-dependent territories in 2000, the FCO's Lady Fox CMG QC (n 24) 1026, cites BIOT among examples of ‘those territories which, by reason of the absence of any permanent population, do not satisfy the criteria of effective statehood’ for the purposes of UN Charter Art 73; cf the parliamentary statement by Rammell (n 4 above), (2004) 75 British Ybk Intl L 665 (‘there is no settled population’).

¹⁵¹ See Lord Hoffmann's opinion for the majority (n 7) [55].

¹⁵² Labelled an ‘anachronistic survival’ in Lord Bingham's dissent (n 7) [69].

¹⁵³ Lord Hoffmann (n 7) [49], interpreting the Colonial Laws Validity Act of 1865, 28 & 29 Vict (1865) Ch 63; Lord Rodger [114] and Lord Carswell [126] concurring.

¹⁵⁴ For background see P Allen, Self-Determination in the Western Indian Ocean (International Conciliation no 560) (Carnegie Endowment for International Peace, Washington/DC 1966); and A Rigo Sureda, The Evolution of the Right of Self-Determination: A Case Study of U.N. Practice (Sijthoff, Leiden 1973).

¹⁵⁵ As one of his famous ‘fourteen points’ which found its way into Art 22 of the League of Nations Covenant, 225 CTS 195, 203; see N Matz, ‘Civilization and the Mandate System Under the League of Nations as Origins of Trusteeship’ (2005) 9 Max Planck Yearbook of United Nations Law 47, 50; and M Mazower, ‘An International Civilization? Empire, Internationalism and the Crisis of the Mid-Twentieth Century’ (2006) 82 Intl Affairs 553, 560.

¹⁵⁶ M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP, Cambridge 2002) 171.

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