Diego Garcia: British-American legal black hole in the Indian ocean?

Journal of Environmental Law

Volumn 21, Issue 1, 2009, Pages 113-137

  Sand, Peter H ^a  

^a UNIVERSITY OF MUNICH   (Germany)

Author keywords

Bio diversity; Climate change; Environment protection zones; Human rights; Law of the sea; Marine environment military impacts

Indexed keywords

ACCOUNTABILITY; ACIDIFICATION; BIODIVERSITY; CLIMATE CHANGE; ENVIRONMENTAL IMPACT; ENVIRONMENTAL JUSTICE; ENVIRONMENTAL PROTECTION; ENVIRONMENTAL RISK; INVASIVE SPECIES; LAW OF THE SEA; MILITARY LAND; MINING INDUSTRY; NATURE-SOCIETY RELATIONS; OIL SPILL;

BRITISH INDIAN OCEAN TERRITORY; CHAGOS ARCHIPELAGO; DIEGO GARCIA; EURASIA; EUROPE; INDIAN OCEAN; INDIAN OCEAN ISLANDS; NORTH AMERICA; UNITED KINGDOM; UNITED STATES; WESTERN EUROPE;

ANTHOZOA;

EID: 62549096758     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqn034     Document Type: Article

References (176)

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 byAct 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 2004W) (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 Ǐlois 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.gif4 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 58WS. 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 GulfWar, 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' NewYorker (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 Guantańamo/Cuba; cf J Steyn, 'Guantá namo 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;
31. 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).
32. '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.
33. 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.
34. On the political context of the FCO veto, see F Pearce, 'Britain's Abandoned Empire' 142 New Scientist no 1922 (23 April 1994) 26.
35. 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).
36. Convention onWetlands of International Importance Especially asWaterfowl Habitat, adopted at Ramsar/Iran on 2 February 1971 (in force 21 December 1975; 996 UNTS 245), currently 158 Member States; ratified by the UKwith effect from 5 May 1976 (with a declaration of geographical extension to some British overseas territories, not including BIOT), by the USA with effect from18 April 1987 and by Mauritius with effect from 30 September 2001.
37. 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.
38. 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).
39. 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.
40. D Proctor and V Fleming (eds.), Biodiversity: The UK Overseas Territories (Joint Nature Conservation Committee, London 1999) 38 (emphasis added).
41. Declarations of 25 March 1997 (rebutted by the UK on 30 July 1997) and 8 February 2002.
42. 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).
43. 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 MauritianWaters, [1989] OJ L159/2 (preamble, and Arts 1, 10).
44. 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.'
45. 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.
46. 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.
47. 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).
48. Bandjunis (n 13) 49; Menzie and others (n 61 below) 1.
49. Edis (n 10) 86.
50. 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), accessed 26 December 2008
51. see also T Grenier, 'Blowing Holes in the Reef for Fun and Profit' (ibid, posted 17 April 2004)
52. and Y Levi (an Israeli frogman from Oceaneering International), 'Blowing Open the Ship Channel' (ibid, updated 30 April 2007).
53. 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 consultantsW.S. Atkins plc hold a 24.5% share. See also (n 127 below).
54. 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.
55. 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.
56. See Tucker and Doughty (n 51) 202-7.
57. INRMP Diego Garcia 2005 (n 75 below) 3-4.
58. Tucker and Doughty (n 51) 213.
59. 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).
60. Edis (n 10) 3.
61. 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).
62. 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.
63. 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).
64. 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).
65. Ibid, 90-92.
66. Menzie and others (n 61) 89.
67. C Sheppard, 'The Coral Fauna of Diego Garcia Lagoon, Following Harbour Construction' (1980) 11 Mar Pollut Bull 228.
68. Ibid, Sheppard and Spalding (n 108 below) 30.
69. Concluded in London by exchange of notes on 25 February 1976;1018 UNTS 372, [1976] UKTS 19 (Cm 6413).
70. Ibid, SupplementaryArrangements 1976 for Diego Garcia Facility, Related Note 5 #1.
71. See (nn 50-52) above.
72. 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 1999W): '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.'
73. See (n 22) above.
74. (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.
75. 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).
76. 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.
77. 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).
78. 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.
79. 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).
80. 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).
81. 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 coralblasting 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).
82. NRMP Diego Garcia 1997 (n 75) B-15.
83. Ibid, A-22.
84. 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.
85. 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, despiteWhistler'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)
86. cf S Lowe and others (eds), 100 of theWorld'sWorst Invasive Alien Species: A Selection from the Global Invasive Species Database (IUCN/ ISSG, Auckland 2004) 6.
87. 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).
88. 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.
89. As announced by Pentagon spokesman BryanWhitman (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.
90. For example see Bhatt (n 1) 39.
91. See (n 66), Art 3.
92. 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.
93. See (nn 75, 108).
94. 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).
95. 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).
96. See M Bezboruah, U.S. Strategy in the Indian Ocean: The International Response (Praeger, NewYork 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 aVital US Base' (1982) 10 Strategic Rev 44.
97. 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.
98. African Nuclear-Weapon-Free-Zone Treaty (Cairo, 11 April 1996), 35 ILM 698; named 'Pelindaba'after the former South African nuclear reactor.
99. 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).
100. 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.
101. 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).
102. Edis (n 10) 90.
103. See J Paquin, '2004 API Awards for Excellence in Fuels Management' Navy Supply Corps Newsletter (November-December 2004).
104. 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, Amsterdam1997) 909.
105. For a first-hand description see Morris (n 49 above), 'General Ecology of Diego Garcia: Human Use and IndustrialWaste' (last updated 31 March 2008).
106. 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)
107. 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).
108. 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
109. 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).
110. On a 109,000 gallon (465,000 litres) JP-5 fuel spill at the US Navy's Arraijá n 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
111. 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.
112. 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.
113. 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'.
114. 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'.
115. 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).
116. Proctor and Fleming (n 39) 42.
117. 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'.
118. Written answer, Baroness Symons (n 69 above).
119. Baroness Symons, Hansard HC vol 423 col 963 (12 July 2004W)
120. (2004) 75 British Ybk Intl L 951.
121. Baroness Symons, Hansard HC vol 424 col 62 (19 July 2004W)
122. (2004) 75 British Ybk Intl L 671.
123. 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.
124. Ramsar Convention Secretariat 'Information Sheet on RamsarWetlands (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'.
125. 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).
126. 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.
127. 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.htm4 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).
128. 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.
129. C Sheppard, 'A Marine Nutcracker' (2008) 56 Mar Pollut Bull 799.
130. See C Sheppard, 'Island Elevations, Reef Condition and Sea Level Rise in Atolls of Chagos, British Indian Ocean Territory' in O Lindé n 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 Preconference DocumentVol. 3 (IUCN, Saint-Denis/Réunion, 7-11 July 2008) 90-93.
131. 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
132. and W Pfeffer and others, 'Kinematic Constraints on Glacier Contributions to 21st-Century Sea-Level Rise' 321 Science no 584 (5 September 2008) 1340.
133. 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.
134. 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)
135. also summarized in (2004) 75 British Ybk Intl L 663-4, 672
136. and (2006) 77 British Ybk Intl L 638.
137. 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).
138. S Goodman (ed), National Security and theThreat of Climate Change (Center for Naval Analyses, Alexandria/Virginia 2007) 48
139. see also C Abbott, An Uncertain Future: Law Enforcement, National Security and Climate Change (Oxford Research Group, London 2008) 10.
140. 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 NewAmerican Secuirity,Washington/DC 2008).
141. 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
142. 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'
143. see Comment on Government's Energy Review: A Place for OTEC in the UK Energy Portfolio (OTECS Ltd, Orpington/Kent 12 April 2006).
144. 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.
145. Goodman (n 125 above) 47, recommendation 2.
146. For ecological variations on the footprint metaphor (n 12); see S Dalby, 'Empire's Ecological Tyreprints' (2006) 15 Environmental Politics 1.
147. 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.
148. Rammell (n 4 above); (2004) 75 British Ybk Intl L 669.
149. See (n 41 above).
150. 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.
151. 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).
152. See (n 41above) and text in (n132 above); cf MO'Shea, 'Serious Questions Over Sea Boundaries Between Maldives and British Indian Ocean Territory', (editorial posted online 20 December 2007).
153. 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 FCOcommissioned 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).
154. 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).
155. 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 BritishYbk 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.
156. See (nn 21-27 above).
157. 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].
158. See (nn 32-34 above).
159. See (nn 35-36 and 114-116).
160. See (nn 37-38 and 117 above).
161. 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.'
162. See text in (nn 44 and 96 above).
163. As quoted by Pearce (n 33) 26.
164. 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, NewYork 1972) 143, 152.
165. 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.
166. 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 underArticle 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').
167. See Lord Hoffmann's opinion for the majority (n 7) [55].
168. Labelled an 'anachronistic survival' in Lord Bingham's dissent (n 7) [69].
169. Lord Hoffmann (n 7) [49], interpreting the Colonial Laws Validity Act of 1865, 28 & 29 Vict (1865) Ch 63
170. Lord Rodger [114] and Lord Carswell [126] concurring.
171. For background see P Allen, Self-Determination in the Western Indian Ocean (International Conciliation no 560) (Carnegie Endowment for International Peace, Washington/DC 1966)
172. A Rigo Sureda, The Evolution of the Right of Self-Determination: A Case Study of U.N. Practice (Sijthoff, Leiden 1973).
173. As one of his famous 'fourteen points' which found its way into Art 22 of the League of Nations Covenant, 225 CTS 195, 203
174. 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
175. M Mazower, 'An International Civilization? Empire, Internationalism and the Crisis of the Mid-Twentieth Century' (2006) 82 Intl Affairs 553, 560.
176. M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (CUP, Cambridge 2002) 171.