[Coral-List] Chagos MPA - UNCLoS Tribunal

[David Evans]

Dear All,
First, I apologise if this is just part of a flood of coming posts about the Chagos MPA that becomes hard or unpleasant to follow. I will try to make this quick and clear and unemotional, though this is made difficult by the very nature of the subject itself...
The implications that jump out at me by this decision of the International Tribunal of the United Nations Convention on the Law of the Sea (UNCLOS) is: How does this relate to fishing activity historically and currently occurring near shore and on the reefs at Diego Garcia by individuals stationed on the island as attached to US DoD activities?
We attended to these fishing activities in our 2004 Marine Biological Survey report* (DoN 2005) for the US DoN, but without implication to Mauritius and UNCLOS. This fishing activity has also been mentioned several times on this list.
The thrust of my question is this - does this apply to fishing activities by US and UK military personnel and contract laborers and it hinges on this statement from the Tribunal's ruling: "Mauritius holds legally binding rights to fish in the waters surrounding the Chagos Archipelago.... and to the preservation of the benefit of any minerals or oil discovered in or near the islands"
And on this fact of US Environmental Law:  "US Executive Order, EO 12114 on Environmental Effects Abroad of Major Federal Actions (32 CFR 187) -  issued in 1979 to further environmental objectives consistent with U.S. foreign and national security policies by extending the principles of the NEPA to the international stage."
Beyond the formation of the MPA, has the Government of Mauritius been involved or consulted in this local fishery activity in the waters of Chagos at Diego Garcia?
This question might also be applied to the mineral rights statement of the Tribunal's findings: Specifically - the reef shelf harvesting that occurred at Diego Garcia when the shallow algal/coral platform was mined to make landfill for the inner rim of the atoll. Though limestone rock may not be the intent of that finding, it may still be applicable.
All this aside, it has been my understanding that the Government of Mauritius has, at least in word, been supportive of the benefits of protecting the marine resources of the Chagos and the concept of an MPA. I believe they took offense at the unilateral way it was achieved and the disenfranchisement of the Chagossians that occurred in the process.
It has also recently come to my attention that the MPA never in fact protected marine animals especially sensitive to powerful underwater sounds of various frequencies or intensities within various ranges of effect. Though this exception is allowed for by law, it should still be a known and discussed element of this so called Marine Protected Area.
I believe it was found also, or at least argued by some, that the process was rushed for political ends.
In all of this, I hope at least that attention is being paid and lessons being learned along the way. 
Regards,
David J. EvansMarine Biologisthttp://refractum.blogspot.com/p/about-me.html


*references:Dept. of Navy (DoN). 2005; Deslarzes, K, D Evans, S Smith. Marine biological survey at United States Navy Support Facility, Diego Garcia, British Indian Ocean Territory, July/August 2004 – Final Report. Geo-Marine, Inc. by contract for Pacific Division, Naval Facilities Engineering Command, Pearl Harbor, HI.
US Executive Order EO 12114 on Environmental Effects Abroad of Major Federal Actions (32 CFR 187)http://www.navfac.navy.mil/content/dam/navfac/Environmental/PDFs/MRA/Eastern_Mediterranean_MRA.pdfEO 12114 on Environmental Effects Abroad of Major Federal Actions (32 CFR 187) was issuedin 1979 to further environmental objectives consistent with U.S. foreign and national security policiesby extending the principles of the NEPA to the international stage. Under EO 12114, federal agenciesthat engage in major actions with the potential to significantly affect the environment outside of U.S.jurisdiction must prepare or consult appropriate documents to determine the effect such actions mayhave on the environment. These documents may include environmental impact statements (EIS),overseas EISs, relevant bilateral or multilateral environmental studies in which the U.S. is aparticipant, environmental assessments (EAs), summary environmental analyses, or any otherdocument relevant to the issue at hand. The type of document that must be consulted or prepared isdependent upon where the major federal action is set to take place. Certain actions, such asintelligence activities, disaster and emergency relief actions, and actions that occur in the course ofan armed conflict, are exempt from this order. Such exemptions do not apply to major federal actionsthat significantly affect an environment that is not within any nation’s jurisdiction, unless permitted bylaw. The purpose of the order is to force federal agencies to consider the effects their actions have oninternational environments.


>>>ORIGINAL MESSAGES:
Message: 1
Date: Fri, 20 Mar 2015 16:48:40 +0000
From: Richard Dunne <RichardPDunne at aol.com>
Subject: [Coral-List] Chagos MPA contravened UN Convention of the Law
    of the    Sea
To: Coral List <coral-list at coral.aoml.noaa.gov>
Message-ID: <550C4F68.5080903 at aol.com>
Content-Type: text/plain; charset=utf-8; format=flowed

MAURITIUS V UNITED KINGDOM: THE CHAGOS MARINE PROTECTED AREA ARBITRATION

An International Tribunal delivered its verdict on the Chagos MPA on 
Wednesday this week. In a judgment which is binding on the United 
Kingdom it decided that the Chagos MPA was unlawful because it violates 
the rights of Mauritius.

The Tribunal found unanimously that, as a result of undertakings given 
by the United Kingdom in 1965 and repeated thereafter, Mauritius holds 
legally binding rights to fish in the waters surrounding the Chagos 
Archipelago, to the eventual return of the islands to Mauritius when no 
longer needed for defence purposes, and to the preservation of the 
benefit of any minerals or oil discovered in or near the islands pending 
its eventual return.

The Tribunal held that in declaring the MPA, the UK failed to give due 
regard to these rights and declared that it had breached its obligations 
under the UN Convention of the Law of the Sea, the international 
agreement that determines what States are permitted to do in the ocean.

To date there has been just one report of this in the British Press - 
see: 
http://www.theguardian.com/world/2015/mar/19/un-ruling-raises-hope-of-return-for-exiled-chagos-islanders

For full details of the Tribunal's decision see: 
http://www.pca-cpa.org/shownews.asp?nws_id=484&pag_id=1261&ac=view

Far from being a set-back to marine conservation we should regard the 
decision as a victory for common sense. The UK came in for extensive 
criticism with the way it had implemented the MPA. Conservation in the 
Chagos is not at an end, indeed it is at a beginning, but one where the 
UK will now have to take account of the rights of Mauritius (and 
Chagossians) and learn to discuss future implementation with the key 
stakeholders rather than just with conservation organisations like Pew 
and the Chagos Conservation Trust.

UK SUPREME COURT

Meanwhile the Chagos saga continues in the UK Courts. This summer the UK 
Supreme Court will hear two challenges, one to the right of abode for 
Chagossians and the second a continuation of the challenge to the MPA. 
The first involves a horde of documents that the British Foreign Office 
secretly hid from Chagossian lawyers over a period of 7 years - denying 
that they existed.


Richard Dunne