[Coral-List] The Chagos - A new and rosy future.

Douglas Fenner douglasfennertassi at gmail.com
Mon May 4 07:16:48 EDT 2015

    I think I know what you mean when you say that the "Tribunal's decision
is about law and not politics."  You meant that the judges were basing
their decision on the law, not on politics.  That is as it should be,
    However, there is a second sense that most of us may not think of.  And
that is, laws are written in a political process.  Whether the country is a
democracy or a dictatorship or something in between, laws are written based
on politics, by politicians, who have political motives.  That's true in
international law as well.  ALL laws are written based on politics, not
necessarily in the bad sense of politics.  In a democracy they can, and
hopefully often do, reflect the will of the people and benefit the people.
    Further, not all laws are good laws, and not all legal outcomes are
good outcomes.  It is not only the right, but the responsibility, of
ordinary people to decide whether they think laws are good or not.
Further, a law can be good in some ways, but have bad effects in others.
Laws, and actions of governments, can be changed.  Often not an easy process.
But some laws and legal judgments, even of the highest courts, are bad.
Bad for individual citizens, bad for whole countries, etc.  I'm a US
citizen, and a famous US case long in the past was the "Dred Scott
decision" by the US Supreme Court.  It held that a runaway slave that
reached a state that did not have slavery, was still the property of the
owner, and had to be captured and returned to the owner as a slave.  It is
widely believed, including by legal scholars I believe, to have been a bad
decision.  That brings up the US Constitution, which did not guarantee the
right of all people to be free of slavery (and of course there were lots of
slaves).  I hope everyone will agree with me that aspect of the US
Constitution (which has been changed by an amendment), was wrong, dead
wrong, as was the Dred Scott decision.  Laws can be immoral, that's
actually not as rare as one might think.  The morality of a law, of course,
is in the eye of the beholder, and opinions always differ.
    I am NOT advocating disrespect for laws.  The rule of law (instead of
the whim of rulers) is a bedrock for democracy.  But as to what the laws
should be, and what their effects will be, that is for ordinary people to
consider, and fully open to debate, and debate is healthy.  And debate over
whether a law's effects are good or not, is not bullying, it is freedom of
    Cheers,  Doug

On Mon, Mar 23, 2015 at 5:31 AM, Richard Dunne <RichardPDunne at aol.com>

> Anne Sheppard ["Bad news for coral reefs"], a Trustee of the Chagos
> Conservation Trust, thinks that the Tribunal's decision is a "tragedy"
> and presents an alarmist view. But is she right to do so?
> Firstly, the Tribunal's decision is about law and not politics. The only
> "politics" were in the motives of the British Foreign Secretary, David
> Miliband, in 2010 and his hasty decision to create the MPA. Indeed, the
> Tribunal noted: "The absence of any justifiable rationale for the United
> Kingdom’s haste ... ".
> Nor was this some ad hoc result. This was the unanimous judgment of 5
> highly regarded international lawyers which included the UK's own
> appointee, Sir Christopher Greenwood QC. The judgment runs to 227 pages
> and has been nearly a year in the making. As one commentator has already
> noted "[The judgment] is encyclopaedic in its breadth and depth and
> addresses many difficult questions under the law of the sea; I predict
> it will become required reading for students of the field and of
> international law in general”.
> Two of the judges commented that in respect of the 1965 excision of the
> islands from Mauritius: "British and American defence interests were put
> above Mauritius’s rights. Fast forward to 2010 and one finds a similar
> disregard of Mauritius’s rights, such as the total ban on fishing in the
> MPA. These are not accidental happenings". Such was the the disregard,
> that the Government of Mauritius only found out about the MPA proposal
> from a newspaper article.
> So any blame firmly attaches to the British Foreign Office and the poor
> advice of their advisers. This culminated in the Public Consultation
> which contained grossly misleading information. Lawyers who contributed
> to that consultation warned as to problems of legality.
> The Mauritian inshore fishery in the Chagos is not and has never been an
> "artisanal" fishery. It was pursued by very few vessels, Chagossian
> owned and part crewed. It was licensed and well-managed by the BIOT
> Government. Nor is there any evidence that it has depleted the resources
> of the reefs of the Chagos, unlike the US military's recreational
> fishing which has impacted the reefs of Diego Garcia. The full and
> accurate story can be found in Dunne, Polunin, Sand & Johnson [2014] The
> Creation of the Chagos MPA: a fisheries perspective. Advances in Marine
> Biology 69:79-127.
> A proper reading of the Tribunal's judgment shows that there is no
> question of States other than Mauritius gaining access to the Fishery
> Conservation and Management Zone (FCMZ). To suggest so is simply alarmist...
> Chagos was and continues to be well protected whether or not we call it
> an MPA. Since 1998, 1,374 sq km of the reefs and islands have been
> Strict Nature Reserves.  Since 1991, 640,000 sq km (the same area as the
> MPA) was controlled as a fishery conservation zone (FCMZ) and in 2003 an
> Environment (Protection and Preservation) Zone was created to protect
> the reefs of the Great Chagos Bank which are outside the Chagos
> territorial sea. The cessation of the tuna fishing on 1 November 2010
> was a result of these zones, and not because there was an MPA. It
> remains a legal right of the UK to restrict this now and in the future.
> To suggest that Mauritius will now somehow degrade the Chagos reefs is
> neither supported by the facts, nor by their past conduct in Chagos. It
> also ignores the public commitment by Chagossians (many of whom are also
> Mauritians) to protect their homeland and its environment pending their
> forthcoming resettlement.
> Certainly one thing we should be doing right now is stopping the
> destructive and totally unnecessary recreational fishing on Diego Garcia
> if we are serious about conserving the reefs of the Chagos. This
> requires only political will. Thankfully it will no longer simply be a
> decision of the UK alone, which has so far failed to address this. As a
> result of this judgment, Mauritius may now insist that better
> environmental practices are followed throughout the territory.  It also
> has a right to be consulted about resettlement and the future of the US
> base.
> This decision marks a landmark for the transition of the Chagos from a
> territory which has been governed by the UK in secrecy and with a
> colonial arrogance to one where the rule of law, international and
> national, must now be respected by all concerned. The Government of
> Mauritius is to be commended for achieving this in a struggle that has
> been likened to David and Goliath.
> So there is little need for the negativism of Anne Sheppard - the future
> for the Chagos is once again rosy.
> Richard P Dunne
> On 22/03/2015 16:24, Anne Sheppard wrote:
> > It is a tragedy that the UN court has judged the creation of the British
> Indian Ocean Territory Marine Protected Area to have been illegal.
> >
> > The tragedy is for all of us, who will lose the benefits of this rich
> and protected place and especially for the people of the Indian Ocean rim..
> >
> > The only change that this ruling will have is that it will allow
> Mauritius, which has an appalling marine environmental record and has
> seriously degraded its own reef fishery, to come into the territory and
> carry out so called 'artisanal' fishing.  This involves little boats and
> line certainly, but feeds a large nearby mother ship as it has in the
> past.  It may also allow the international industrial fishery into the
> territory to plunder this rich and now no longer fully protected area.  Any
> who might crow about this being a success story must be anti conservation
> and pro the pillage of some of the best reefs in the Indian Ocean.
> >
> > So politics wins over common sense and the needs of the ocean.
> >
> > A sad day for coral reefs.
> >
> > best wishes
> >
> > Anne Sheppard
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Douglas Fenner
Contractor with Ocean Associates, Inc.
PO Box 7390
Pago Pago, American Samoa 96799  USA

phone 1 684 622-7084

"belief in climate change is optional, participation is not."

Politics, science, and public attitudes: What we're learning, and why it
matters.  Science Insider, open access.


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website:  http://independent.academia.edu/DouglasFenner

blog: http://ocean.si.edu/blog/reefs-american-samoa-story-hope

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