“We want to use this consultation to help us assess whether a marine protected area is the right option for the future environmental protection of the British Indian Ocean Territory”
“1. Do you believe we should create a marine protected area in the British Indian Ocean Territory? If yes, from consultations with scientific/environmental and fishery experts, there appear to us to be 3 broad options for a possible framework: (i) Declare a full no-take marine reserve for the whole of the territorial waters and Environmental Preservation and Protection Zone (EPPZ)/Fisheries Conservation and Management Zone (FCMZ); or (ii) Declare a no-take marine reserve for the whole of the territorial waters and EPPZ/FCMZ with exceptions for certain forms of pelagic fishery (e.g. tuna) in certain zones at certain times of the year. (iii) Declare a no-take marine reserve for the vulnerable reef systems only. 2. Which do you consider the best way ahead? Can you identify other options? 3. Do you have any views on the benefits listed at page 11? What importance do you attach to them? 4. Finally, beyond marine protection, should other measures be taken to protect the environment in BIOT?”
“Any decision to establish a marine protected area would be taken in the context of the Government’s current policy on the Territory, following the decision of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs[2008] UKHL 61 that theBritish Indian Ocean Territory (Constitution) Order 2004 and theBritish Indian Ocean Territory (Immigration) Order 2004 are lawful; i.e., there is no right of abode in the Territory and all visitors need a permit before entering the Territory. Access to a part of the Territory is also restricted under our Treaty obligations with the US. It is the Government’s provisional view, therefore, that we would not establish a permanent research facility in any part of the Territory. Any decision to establish a marine protected area would not affect the UK Government’s commitment to cede the Territory to Mauritius when it is no longer needed for defence purposes. This consultation and any decision that may follow for the establishment of a marine protected area are, of course, without prejudice to the outcome of the current, pending proceedings before the European Court of Human Rights (ECtHR). This means that should circumstances change, all the options for a marine protected area may need to be reconsidered.”
“As well as the international fishing community, there are some groups who will be directly or indirectly affected by the establishment of a marine protected area and any resulting restrictions or a ban on fishing.”
“Following the decision of the House of Lords in [Bancoult (No.2)], the current position under the law of BIOT is that there is no right of abode in the Territory and all visitors need a permit. Under these current circumstances, the creation of a marine protected area would have no direct immediate impact on the Chagossian community. However, we recognise that these circumstances may change following any ruling that might be given in the proceedings currently pending before the European Court of Human Rights in Strasbourg in the case of Chagos Islanders v UK. Circumstances may also change when the Territory is ceded to Mauritius. In the meantime, the environment will be protected and preserved.”
“The British delegation proposed that consideration be given to preserving the marine biodiversity in the waters surrounding the Chagos Archipelago/British Indian Ocean Territory by establishing a marine protected area in the region. The Mauritian side welcomed, in principle, the proposal for environmental protection and agreed that a team of officials and marine scientists from both sides meet to examine the implications of the concept with a view to informing the next round of talks. The UK delegation made clear that any proposal for the establishment of the marine protected area would be without prejudice to the outcome of the proceedings in the European Court of Human Rights. The Mauritian side reiterated the proposal it made in the first round of the talks for the setting up of a mechanism to look into the joint issuing of fishing licences in the region of the Chagos Archipelago/British Indian Ocean Territory. The UK delegation agreed to examine this proposal and stated that such examination would also include consideration of the implications of the proposed marine protected area. … Both Governments agreed that nothing in the conduct or content of the present meeting shall be interpreted as: (a) a change in the position of Mauritius with regard to sovereignty over the Chagos Islands/British Indian Ocean Territory; (b) a change in the position of the United Kingdom with regard to sovereignty over the Chagos Islands/British Indian Ocean Territory ….”
“However, the documents in question have been leaked, and indeed widely published. No claim has been made to the effect that the documents should not be considered by the court on the grounds of public interest immunity or the like. They are before the court. The court will have to decide whether or not they are genuine documents, that they are copies of what they purport to be. The memorandum of the meeting of12 May 2009 , in particular, appears to be a detailed record, which could fairly be the basis of cross-examination.”
“62. Under the Government’s 1979 Bill it would not have been an offence to disclose without authority information in certain categories if the defendant could show that the information had been made available to the public before his disclosure. The rationale for this defence was that, if the information in these categories was publicly available, a second disclosure could not be harmful. It seems to the Government that this rationale is flawed. There are circumstances in which the disclosure of information in any of the categories which the Government proposes to cover in new legislation may be harmful even though it has been previously disclosed. Indeed, in certain circumstances a second or subsequent disclosure may be more harmful. For example, a newspaper story about a certain matter may carry little weight in the absence of firm evidence of its validity. But confirmation of that story by, say, a senior official of the relevant government department would be very much more damaging. In such circumstances, the Government considers that the official should still be subject to criminal sanctions …. 63. The Government does not, therefore, propose that there should be an absolute defence of prior publication for any category of information. But in cases in which the prosecution would under the Government’s proposals have to show that disclosure was likely to result in harm, the offence would not be made out if no further harm is likely to arise from a second disclosure. The prior publication of the information would be relevant evidence for the court to consider in determining whether harm was likely to result from a second disclosure, but it would not be – and, in the Government’s view, should not be – conclusive.”
“Article 24 The archives and documents of the mission shall be inviolable at any time and wherever they may be. Article 27 … 2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.”
“the inviolability of the official correspondence of a mission has two aspects – it makes it unlawful for the correspondence to be opened by the authorities of the receiving state and it precludes the correspondence being used as evidence in the courts of the receiving state. As regards use of correspondence as evidence, Article 27.2 is probably unnecessary in view of the fact thatArticle 24 of the Convention gives inviolability to the archives and documents of the mission ‘wherever they may be’.”
“Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.”
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
“It would seem to me perfectly natural to interpret the phrase “the archives and documents of the mission” in Article 24 of the Vienna Convention as referring to the archives and documents belonging to or held by the mission.”
“When A writes the confidential letter, it belongs to A. When B receives it, it belongs to B.”
“I prefer therefore to speak not of the confidentiality, but of the privacy of documents which Article 24 of the Vienna Convention and Article 7(1) of Order of 1972 are designed to protect.”
“The information submitted may be received in evidence if, in the view of the trial chamber, it is relevant for the purpose for which it is submitted and if its reliability is susceptible of confirmation.”
“Their plans for resettlement are based on the establishment of an economy based on fishing and tourism. In the specific context of BIOT this would be incompatible with a marine reserve. They are therefore hostile to the proposal, unless the right of return comes with it. They have expressed unrealistic hopes that the reserve would create permanent resident employment based on the outer islands for Chagossians. Assuming we win in Strasbourg (contingency for losing the cases dealt with in earlier submissions), we should be aiming to calm down the resettlement debate. Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement. This could include: - presenting new evidence about the precariousness of any settlement (climate change, rising sea levels, known coastal defence costs on Diego Garcia) - activating the environmental lobby - contributing to the establishment of community institutions in the UK and possibly elsewhere - committing to an annual visit for representatives of the communities to the outer islands on All Saints Day - inclusion of a Chagossian representative in the reserve governance - [redacted]”
“Absolutely not. Mr Roberts did not say this. If he had said it, I would have been shocked. I would probably have gone out of the room at the end of the meeting saying ‘I can’t believe what Mr Roberts has just said’.”
“The pressure being mounted by the APPG and Bancoult, Gifford etc. to try to get HMG to change its policy on resettlement is gaining in intensity. They are also trying to engage the US separately. Jeremy Corbyn and Oliver Bancoult have written to President Obama … and three officials from the US Embassy were invited and attended the fourth APPG meeting. The focus of questions was on defence/security with the APPG questioning the need to keep islands 150 miles away from Diego Garcia clear for defence purposes. Is this keenness to get a political solution sorted out an indication of their concern about their prospects at the ECHR? If they do lose then any legal means of resettlement, other than a complete change of policy by HMG, is at an end.”
“Nothing in the MPA proposal affects the UK government’s policy to prevent resettlement. We envisage no resident presence on the outer islands. However, any MPA proposal will be without prejudice to the current proceedings at the ECtHR.”
“They may claim that we are establishing a Marine Protected Area in order to ensure that they can never return to BIOT. This is not the case. By going out to public consultation we hope to counter this claim and any potential claims that a decision on establishing an MPA has already taken place and to that extent, public consultation is part of the risk strategy. However, there is a risk that the Chagossians may well seek a judicial review of the consultation process.”
“Under these current circumstances, the creation of a Marine Protected Area would have no direct immediate impact on the Chagossian community. However, we recognise that these circumstances may change following any ruling that might be given in the proceedings currently pending before the European Court of Human Rights in Strasbourg in case of Chagos Islanders v. UK. Circumstances may also change when the territory is ceded to Mauritius. In the meantime, the environment will be protected and preserved.”
“The Minister is grateful for your submission. His inclination is to be bolder in our statement. He does not think that it is likely that we will be able to persuade the Mauritians or those fighting the Chagossian cause otherwise, but since the proposed MPA does not conflict with either our position on Mauritius or Chagossian rights, that we should actually decide to go ahead.”
“The Private Office have just telephoned. The Foreign Secretary is minded to ask Colin to declare an MPA and go for option 1 (full – no take zone). BUT FINAL DECISION NOT YET TAKEN. The FS has said that in an ideal world, he would like to go for declaring an MPA and spend the next three months reaching some sort of agreement with the Mauritian Government on the governance (management) of the area but making it clear that we will have three months to consult them. But if they won’t come to any agreement, we will go ahead anyway. He has asked for ideas, whether the above is feasible, what are the implications? His objective is to find a way to mitigate the Mauritian reaction. We need to get something to him this afternoon…”
“I think we need to give a clearer steer to the FS ….”
“I think this approach risks deciding (and being seen to decide) policy on the hoof for political timetabling reasons rather than on the basis of expert advice and public consultation. That’s a very different approach to the one we recommended yesterday and which the FS is still considering …. I continue to think we have a better chance of getting a better result if we give ourselves a chance to work the many risks through. Some will never go away. But there are a lot we ought to be able to manage down if we don’t get pushed by an election timetable. If the FS chooses to push faster, then so be it. But I don’t think we should be encouraging him to think it the best option; and I do think we should be flagging up risks – which will be with us for months/years to come.”
“The Foreign Secretary was grateful for your submission and the copy of the report on consultations. He has carefully considered the arguments in the submission and the views expressed during the consultation. He was grateful for your further note today. He has considered the submission in the light of the High Commissioner’s views and has given serious thought to the different possible options for announcing an MPA. The Foreign Secretary has decided to instruct Colin Roberts to declare the full MPA (option 1) on 1 April. There will then need to be an announcement to this effect. I would be grateful if you could take forward both. The Foreign Secretary will then inform the House of Commons at FCO oral questions on Tuesday 6 April. I would be grateful for a brief (50 words) statement.”
“I am today instructing the Commissioner of the British Indian Ocean Territory to declare a Marine Protected Area. The MPA will cover some quarter of a million square miles and its establishment will double the global coverage of the world’s oceans under protection. Its creation is a major step forward for protecting the oceans, not just around BIOT itself, but also throughout the world. This measure is a further demonstration of how the UK takes its international environmental responsibilities seriously. The territory offers great scope for research in all fields of oceanography, biodiversity and many aspects of climate change, which are core research issues for UK science. I have taken the decision to create this Marine Reserve following a full consultation, and careful consideration of the many issues and interests involved. The response to the consultation was impressive both in terms of quality and quantity. We intend to continue to work closely with all interested stakeholders, both in the UK and internationally, in implementing the MPA. I would like to emphasise that the creation of the MPA will not change the UK’s commitment to cede the territory to Mauritius when it is no longer needed for defence purposes and it is, of course, without prejudice to the outcome of the current, pending proceedings before the European Court of Human Rights.”
“To conclude, whilst it may be feasible to resettle the islands in the short-term, the costs of maintaining long-term inhabitation are likely to be prohibitive. Even in the short-term, natural events such as periodic flooding from storms and seismic activity are likely to make life difficult for a resettled population.”
“… I also recognise that the House of Lords has upheld the legality of the policy of exiling the population from its homeland. On reading the consultation document, I noted that the government did not intend to change that policy, unless there were in some unspecified way, a change of circumstances. Since, however, there was no indication as to the way in which the MPA could be redesigned to accommodate such a change, it seemed fairly clear that this was a mere distant contingency which was unlikely to affect the government’s policy. Hence the options presented in the Consultation Document were clearly within the current policy context and this is how I considered them. … [He then referred to evidence that had since emerged about the feasibility of resettlement, including the advice of the consultant Mr Akester, referred to above.] By contrasting this advice with the claimed conclusions of the Feasibility Study, and the absence of any review of the policy of exile described in the Consultation Document, I believe that my support for option one is undermined, and the calculation of optimum benefit is thrown into question. I believe that if the Consultation Document had frankly disclosed the advice of independent experts that resettlement was feasible, then the balance of advantage would have shifted markedly to designing a MPA which integrated the resettlement of the population with the interests of marine conservation. To that extent, I believe that the Consultation process failed to inform the outside world of material facts and this failure has cast doubt on the legitimacy of the consultation process.”
“7. As I have said before, it is in my view preferable for the MPA to have the advantage of a resident population, on purely environmental grounds and without it, the MPA is unlikely to be equally successful. 8. … The balance to be struck between population and environment is a matter that deserves the closest and most careful study …. 9. Consideration of some form of resettlement could not validly be excluded from the design of a serious Marine Protected Area, with the benefits to be provided from a resettled population or a permitted return of an optimum number of former inhabitants put before the consulting public for their views. 10. For these reasons I reject the suggestion that resettlement and the feasibility of resettlement is unrelated to the matters raised in the consultation.”
“Any decision to establish a marine protected area would be taken in the context of the Government’s current policy on the Territory, following the decision of the House of Lords in [Bancoult (No.2)]; i.e. there is no right of abode in the Territory and all visitors need a permit before entering the Territory” (see the full passage at [15] above). The only proviso, again made clear in the consultation paper, was that the consultation and any decision for the establishment of an MPA were without prejudice to the outcome of the pending proceedings before the ECtHR and that all options might need to be reconsidered if the outcome of those proceedings led to a change of circumstances. Similar terms were used in a letter dated19 March 2010 from the British High Commissioner in Mauritius to the Office of the Mauritian Prime Minister, in which the point was underlined by the addition of the words: “The British Government does not intend to resettle the Chagossians in the Territory”
“48. … The documents that were sought in the course of the MPA Consultation were highly relevant to the feasibility of resettlement such that their omission prevented the actual or possible consultees from giving intelligent consideration and making informed responses to the question of whether an MPA was warranted, and if so, what form it should take. 49. As a matter of fact, the information that was disclosed for the purposes of the MPA Consultation … did not include any information concerning the feasibility of resettlement of the exiled Chagossian population …. … 52. … The documents sought described, inter alia, the extent of climate change impact on the outlying islands in the Chagos archipelago and how this might affect resettlement …. … 59. The effect of the Defendant’s omission was to exclude any consideration of how the feasibility of resettlement might be relevant to consultees ….”
“22. Summing up the discussion, the SECRETARY OF STATE asked whether he could inform his colleagues that Dr Ramgoolam, Mr Bissoondoyal and Mr Mohamed were prepared to agree to the detachment of the Chagos Archipelago on the understanding that he would recommend to his colleagues the following:- … (vi) the British Government would use their good offices with the US Government to ensure that the following facilities in the Chagos Archipelago would remain available to the Mauritius Government as far as practicable: … (b) Fishing Rights ….”
“I am not clear what the Hon Member means by the word ‘safeguarded’. So far as I am aware the only fishing that now takes place in the territorial waters of Diego Garcia is casual fishing by those employed there and as the Hon Member is aware, they will be resettled elsewhere.”
“It would thus be convenient to be able to base any undertaking to Mauritius on habitual or traditional fishing arrangements, provided that no other countries can claim similar use in the past. It is essential that, in helping to meet a special plea on the part of Mauritius, we can still keep other fishing fleets at a safe distance”
“… the Government of the United Kingdom will not permit commercial fishing or oil or mineral exploration or exploitation in or under those areas of the waters, continental shelf and sea-bed around Diego Garcia over which the United Kingdom has sovereignty or exercises sovereign rights, unless it is agreed that such activities would not harm or be inimical to the defence use of the island.”
“For the purpose of enabling fishing traditionally carried on in any area within the contiguous zone by foreign fishing boats to be continued, the Commissioner may by order designate any country outside the Territory and the area in which and descriptions of fish or marine product for which fishing boats registered in that country may fish.”
“… the Commissioner of BIOT will use his powers under Section 4 of the BIOT Ordinance No 2/1971, to enable Mauritian fishing boats to continue fishing in the 9-mile contiguous zone in the waters of the Chagos Archipelago. This exemption stems from the understanding on fishing rights reached between HMG and the Mauritius Government, at the time of the Lancaster House Conference in 1965 ….”
“As a result of the excision, Diego Garcia became part of what is known as the British Indian Ocean Territories, and Great Britain has sovereignty over it, although we, by arrangement with Great Britain, have preserved our mineral rights, fishing rights. And the day Great Britain doesn’t need Diego Garcia, Diego Garcia will be returned to us without compensation.”
“In view of the traditional fishing interests of Mauritius in the waters surrounding British Indian Ocean Territory, a limited number of licences free of charge have been offered to artisanal fishing companies for inshore fishing. We shall continue to offer a limited number of licences free of charge on this basis.”
“The Ministry wishes to remind the High Commission that the Government of Mauritius considers that the Chagos Archipelago, referred to as the British Indian Ocean Territory in the note under reference, is an integral part of Mauritius, and that the Government of Mauritius has reaffirmed its sovereignty over the Chagos Archipelago and its maritime rights in respect of the Chagos Archipelago …. The Ministry furthermore wishes to point out that, in the light of the above, the Government of Mauritius does not ipso facto accept the validity of the offer of free licences for inshore fishing.”
“… HMG takes seriously its obligations to ensure the conservation of the resources of the Archipelago and declared a 200 mile exclusive fishing zone on1 October 1991 as its contribution to safeguarding the tuna and other fish stocks of the Indian Ocean. The British Government has honoured the commitments entered into in 1965 to use its good offices with the United States Government to ensure that fishing rights would remain available to Mauritius as far as practicable. It has issued free licences for Mauritius fishing vessels to enter both the original 12 mile fishing zone of the territory and now the wider waters of the exclusive fishing zone. It will continue to do so, provided that the Mauritian vessels respect the licence conditions laid down to ensure proper conservation of local fishing resources.”
“The Government of Mauritius considers that an MPA project in the Chagos Archipelago should not be incompatible with the sovereignty of the Republic of Mauritius over the Chagos Archipelago and should address the issues of resettlement, access to the fisheries resources, and the economic development of the islands in a manner which would not prejudice an eventual enjoyment of sovereignty. A total ban on fisheries exploitation and omission of those issues from any MPA project would not be compatible with the long-term resolution of, or progress in the talks, on the sovereignty issue.”
“I further wish to inform you that the Government of Mauritius insists that any proposal for the protection of the marine environment in the Chagos Archipelago needs to be compatible with and meaningfully take on board the position of Mauritius on the sovereignty over the Chagos Archipelago and address the issues of resettlement and access by Mauritians to fisheries resources in that area.”
“19. In the run up to the second round of bilateral talks with Mauritius [July 2009], my firm understanding as a result of the enquiries undertaken as part of the MPA scoping process and advice received from legal advisers, was that Mauritius did not have legal rights to fish in BIOT waters, whether as a result of the 1965 undertakings or otherwise, which prevented HMG from establishing an MPA, including a complete no-take MPA. If there was a ‘fishing right’, it was no more than for Mauritius flagged vessels which applied to BIOTA [BIOT Administration] for licences to be issued them free of charge, but only insofar as BIOT chose to issue licences. HMG reserved the right to decide whether or not to issue a licence. In the case of a regime where no licences were issued, the question of a free licence simply would not arise.”
“30. … Mauritian ‘fishing rights’ or the possibility of Mauritian ‘fishing rights’ were not included in the consultation document because, as far as we were concerned, Mauritius did not have any.”
“39. To conclude, there was no reference to any historical or traditional ‘fishing rights’ of Mauritius or the Chagossians which might stem from the 1965 understandings in the public consultation document, or the possibility that any rights might exist, because, after considering the question and receiving legal advice, we did not believe that Mauritius or the Chagossians had, or might have had, any such rights.”
“4. Legal and historical obligations may pose a constraint on declaring the whole FCMZ as a closed area. UNCLOS requires that coast states make provision for access to its EEZ by foreign fishers; Mauritius has historical agreements to fish inside the BIOT FCMZ. a. United Nations Conventions on the Law of the Sea … b. Mauritian historical fishing rights In addition to UNCLOS article 62 which refers to States whose nationals have habitually fished in the zone, the right of Mauritians to fish in BIOT waters was enshrined in the agreements made between UK and Mauritius in 1965. The 1971 ordinance on fishing also left an exception for certain foreign vessels to fish. This ‘right to fish’ has been put into practice since the declaration of the FCMZ in 1991 as ‘free licences’ although the BIOT Administration reserves the right to limit the number of licences issued relative to the surplus allowable catch. For the banks (inshore) fishery a limit of six eighty-day licences has been applied. There is documentary evidence of Mauritian fishing in the Chagos archipelago since at least 1977.”
“15. Mr Pleming QC sought to meet those arguments by saying that the claimant does not contend in these proceedings that the traditional or historical fishing rights relied on are legally enforceable, so that the question whether there are enforceable rights under international law would not arise for decision. The point made by the claimant is simply that there is credible evidence that HMG gave an undertaking to the Government of Mauritius which has subsequently been evidenced by preferential treatment for Mauritius registered fishing vessels, and that this was an important part of the background yet was not put before consultees, who were in consequence misled.”
“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”
“The Member States agree to associate with the Union the non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom. These countries and territories (hereinafter called ‘the countries and territories’) are listed in Annex II. The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union as a whole. In accordance with the principles set out in the preamble to the Treaty, association shall serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire.”
“The Council, acting unanimously on a proposal from the Commission, shall, on the basis of the experience acquired under the association of the countries and territories with the Union and of the principles set out in the Treaties, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Union ….”
“… Articles 182 and 183 of the EC Treaty [i.e. articles 198 and 199 TFEU] do not impose a series of absolute and unconditional obligations upon the Community. In the same vein, the overseas association decision does not entail an obligation for the Community to undertake specific actions in every area of cooperation mentioned in that decision with a view to each OCT’s economic and social development. … Moreover, the association of the OCTs with the Community does not give rise to a positive obligation for the Member States to which the OCTs are linked to actively promote, at their level, the economic and social development of their own territories. For example, the fact that several OCTs no longer receive individual financial assistance from the related Member State does not constitute a violation of Article 182 of the EC Treaty. On the other hand, the Member States must abstain from any measure which could jeopardise the attainment of the objectives of the Treaty. However, the relevant Commission services are of the opinion that the UK’s Orders in Council stating that no person has the right of abode in BIOT does not constitute such a measure, bearing in mind that the archipelago has not had a permanent indigenous population since the accession of the UK to the European Community.”
“The effect of this is permanently to frustrate the primary economic resource of BIOT namely its fisheries potential, which even its own consultants have identified as the most available resource for the economic development of the archipelago. If unchallenged, this decision would provide a permanent obstacle of the realisation of Community objectives in regard to this OCT of the EU.”
“According to your note, it may be argued that, by clearing the Chagos Islands of their population, the UK has made it impossible for Articles 198 and 199 TFEU to produce any effect. This would be, according to your analysis, contrary to Article 4(3) TEU. However, the UK measure at stake was taken prior to UK’s accession to the EU. According to the documentation submitted by the complainant, compulsory removal of the population of the Chagos Islands was effected under the Immigration Ordinance 1971. As a consequence, the measure would not be covered by Article 4(3). As highlighted by the complainant, the execution of the removal decision was completed only after accession. However, the remaining inhabitants, even if EU citizens, could not claim a right to return on the basis of Article 20 TFEU and Article 45 of the Charter of Fundamental Rights. These provisions do not cover movement of persons between the Member States and the OCTs.”
“The competent Commission services have come to the conclusion that neither the outcome of the feasibility study on the resettlement of the Chagossians in their islands nor the creation of a Marine Protected Area can have a bearing on our previous assessment. You drew my attention on the fact that the Chagos Islands were still inhabited when the UK joined the European Communities on1 January 1973 , as the exile procedure was not accomplished until26 May 1973 . The competent Commission services would wish to clarify that, in any event, the expulsion was decided and entered into effect before the accession of the UK to the European Union. The expulsion at the beginning of the year 1973 of the remaining population in Peros Banhos and the Salomon Islands constituted the end of execution of a decision taken before the accession of the UK to the EU.”
“50. Under the fourth paragraph of Article 189 of the Treaty, a decision adopted by the Commission implementing Articles 85(1), 85(3) or 86 of the Treaty is to be binding in its entirety upon those to whom it is addressed. 51. The Court has held … that in order not to breach the general principle of legal certainty, national courts must, when ruling on agreements or practices which may subsequently be the subject of a decision by the Commission, avoid giving decisions which would conflict with a decision contemplated by the Commission in the implementation of Articles 85(1) and 86 and Article 85(3) of the Treaty. 52. It is even more important that when national courts rule on agreements or practices which are already the subject of a Commission decision they cannot take decisions running counter to that of the Commission, even if the latter’s decision conflicts with a decision given by a national court of first instance.”
“If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.”