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R (on the application of Bancoult No 3) v. Secretary of State for Foreign and Commonwealth Affairs (U.K. Sup. Ct.)

Published online by Cambridge University Press:  25 September 2018

Stephen Allen
Stephen Allen*
Affiliation:
Department of Law, Queen Mary, University of London. Barrister, 5 Essex Court Chambers, London.
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Extract

On February 8, 2018, the U.K. Supreme Court delivered its judgment in R (Bancoult No 3) v. Secretary of State for Foreign and Commonwealth Affairs. The case concerned a challenge to the validity of a Marine Protected Area (MPA) extending 250,000 square miles around the British Indian Ocean Territory (BIOT or Chagos Archipelago). Declared in 2010, the MPA was justified on the ground of environmental protection and resulted in a ban on all commercial fishing in this zone. The appellant alleged that the MPA had been established for an improper purpose—to prevent the Chagos Islanders from resettling the Archipelago. He claimed that this was evidenced by a diplomatic cable sent from the U.S. embassy in London. It recorded a 2009 meeting in which U.S. and British officials discussed the reasons behind the MPA. The cable was subsequently leaked via the WikiLeaks website and published in two national newspapers. Accordingly, as Lady Hale rightly observed, “[t]he crucial legal issue in this case is therefore the admissibility of the cable.”

Type
International Legal Documents
Information
International Legal Materials , Volume 57 , Issue 4 , August 2018 , pp. 671 - 707
Copyright
Copyright © 2018 by The American Society of International Law 

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References

ENDNOTES

1 R (Bancoult No 3) v. Secretary of State for Foreign and Commonwealth Affairs, [2018] UKSC 3, §123 [hereinafter Bancoult No 3].

2 See Stephen Allen, The Chagos Islanders and International Law (2014); Fifty Years of the British Indian Ocean Territory: Legal Perspectives (Stephen Allen & Chris Monaghan eds., 2018).

3 R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, [2000] EWHC Admin 413, [2001] 1 QB 1067.

4 R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, [2008] UKHL 61, [2008] 3 WLR 955.

5 See Chagos Islanders v. U.K., App. 35622/04, Eur. Ct. H.R. (Dec. 11, 2012).

6 See Vienna Convention on Diplomatic Relations arts. 24, 27(2), Apr. 18, 1961, 500 UNTS 95.

7 Bancoult No 3, supra note 1, §12 (referring to Eileen Denza, Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations (4th ed. 2016)).

8 Shearson Lehman Bros Inc v. Maclaine, Watson & Co Ltd and International Tin Council (Intervener) (No. 2), [1989] Ch 286, [1988] 1 WLR 16 [hereinafter Tin Council Case].

9 Bancoult No 3, supra note 1, §13 (referring to F.A. Mann, Further Studies in International Law (1990)).

10 Bancoult No 3, supra note 1, §15 (referring to Tin Council Case, supra note 8, §27F).

11 See R (Bancoult (No 3)) v. Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708, §34 and §58; and Bancoult No 3, supra note 1, §15–16.

12 Rose v. The King (1947), 3 D.L.R. 618 (Can.).

13 Bancoult No 3, supra note 1, Lord Sumption §73.

14 Bancoult No 3, supra note 11, §93.

15 Chagos Marine Protected Area (Mauritius v. U.K.), Award (Perm. Ct. Arb. 2015).

16 G.A. Res. 71/292 (June 22, 2017).