The Court of Appeal has today rejected the Chagossians' challenge to the Government's decision to ban fishing around the Chagos islands and to establish a Marine Protection Area (MPA).
Olivier Bancoult, one of the Chagossians expelled from the islands in the 1960s to make way for a US airbase at Diego Garcia, challenged the MPA on grounds of improper purpose, based on a Wikileaks cable which the Divisional Court had ruled inadmissible under the Vienna Convention on Diplomatic Relations 1961. Amongst other grounds, he argued that the UK had infringed its EU law obligation to "associate" the islands with the European Union for the benefit of their inhabitants.
The Court of Appeal has importantly upheld Mr Bancoult’s argument that the Wikileaks cable is admissible in evidence, because admitting a cable in evidence could not be said to “violate the archive and documents of the US mission” in circumstances where it had already been disclosed to the world by a third party. However, the Court found that admitting that document in evidence would not have made any difference to the outcome of the case.
The Court of Appeal dismissed Mr Bancoult’s other grounds of appeal, concluding that the MPA did not infringe the UK’s obligation to “associate” the islands with the EU because the Chagossians are not, at present, permitted to return home, and because, if they are ever permitted to return home in the future, the MPA could be repealed at that time.
The judgment is here.
Professor Robert McCorquodale acted for Mr Bancoult in relation to the admissibility of the Wikileaks cable. Maya Lester and Daniel Piccinin acted for Mr Bancoult in relation to the EU law issues, all instructed by Clifford Chance LLP.