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A Chagossian double bill: an environmental information contest, and a touch of Wikileaks

September 20, 2012 by David Hart QC



The Chagos Refugees Group in Mauritius v. Foreign and Commonwealth Office, First Tier Tribunal, 4 September 2012, read judgment

and Bancoult v. FCO, 25 July 2012, Stanley Burnton LJ, read judgment

The manoevres by which the Chagossians were evicted from their islands in the Indian Ocean, the late 1960s and early 1970s, so to enable the US to operate an air base on Diego Garcia, do not show the UK Foreign Office in its best light. Indeed, after a severe rebuke from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

The first of these new cases concerns environmental information appeal concerns the next phase of the story – how the FCO decided that it was not feasible to resettle the islanders in 2002-2004.

This decision was taken in the modern way – backed by a feasibility study prepared by consultants supporting the stance which the FCO ultimately were to take. And this case concerns the islanders’ attempts to get documents lying behind and around the taking of this decision.

From the islanders’ point of view, this decision by the FCO was more of the same. Unfeasible and uneconomic resettlement suited the FCO nicely. Yes, we moved you unlawfully 30 years ago, but you have to stay where you are because we now say it is impractical to move you back. The FCO countered – it is unfeasible, the islands need significant investment in infrastructure and employment (which the Chagossians could not provide from their own resources), and our consultants who carried out the review agree with us.

Hence this appeal about more documentation. The parts of general interest are applications for (a) earlier drafts of the feasibility study in the possession of the consultants and (b) disclosure of a note from the FCO to an FCO Minister (the Hamilton/Amos note.)

The Chagossians failed to get disclosure of the earlier drafts of the feasibility study from the consultants. The consultants had replied to the application by inviting the FCO to give permission for their release, but the FCO said no. In those circumstances, the question arose whether the information which the FCO “holds” includes these documents in the possession of the consultants.”Holds” is defined by reg. 3 of the Environmental Information Regulations as being in the FCO’s possession or “is held by another person on behalf of the authority.” The First Tier Tribunal held the FCO did not hold the drafts. The consultants held the old documents for their own purposes, as most professionals do, to ward off complaints or litigation in years to come – in this case the request for the documents came some 8 years after completion of the work. This conclusion may be technically right, but is unreal. The consultants would have had no hesitation in releasing the documents to the Chagossians had the FCO agreed; but the FCO did not agree, so the non-disclosure of the documents in the consultants files was in accordance with the wishes of the FCO. It is also odd that the consultants did not retain the drafts in part to help the client in years to come, not simply to ward off complaints or litigation by the client. Virtually a green light for government to park embarrassing drafts with consultants in circumstances where contractually government cannot call for them?

The Chagossians did rather better on the high-level FCO internal note. Yes, this qualified potentially as something which the FCO could refuse to disclose, but only if, after balancing public interests, the interest in retention prevailed over the interest in disclosure. As for the latter, the FTT readily accepted that there was a strong public interest in support of transparency of environmental information and the public understanding of foreign policy decisions, which supported disclosure [110]. The real question lay with the former element of the balancing exercise – whether the document needed to be retained to give government a “safe space” to develop policy decisions. The “safe space” concept was well described in OGC v. IC by Stanley Burnton J:

    Section 35 of the Act reflects the public interest in confidential information held by a government department relating to the formulation of government policy remaining confidential. The Tribunal accepted, in paragraph 85, that Government needs to operate in a “safe space” “to protect information in the early stages of policy formulation and development”. In doing so, it followed the statement at paragraph 75(iv) of the decision of the Tribunal in the DFES case:

    “The timing of a request is of paramount importance to the decision. We fully accept the DFES argument, supported by a wealth of evidence, that disclosure of discussions of policy options, whilst policy is in the process of formulation, is highly unlikely to be in the public interest, unless, for example, it would expose wrongdoing within government. Ministers and officials are entitled to time and space, in some instances to considerable time and space, to hammer out policy by exploring safe and radical options alike, without the threat of lurid headlines depicting that which has been merely broached as agreed policy. We note that many of the most emphatic pronouncements on the need for confidentiality to which we were referred, are predicated on the risk of premature publicity. In this case it was a highly relevant factor in June 2003 but of little, if any, weight in January 2005.”

The FTT was pretty robust about this on the facts. Whatever issues remained outstanding (including some further litigation), the public interest in not disclosing the document was “particularly weak” [121]. The policy of preventing settlement was not live at the date of the request or at the time of the FCO’s internal review of disclosure. The FTT came to this conclusion after seeing and reviewing the document in closed session, and without the appellants being present, in accordance with its usual practice. Secret justice, in one sense, but a pragmatic way of making sure that the FTT could really test what government was saying about a document without disclosing it to the party who wanted disclosure.

Both these parts of the ruling are of considerable interest, and the case may go further.

The Wider Picture

Those interested in the fate of the Chagossians will find in  [79] – [108] of this judgment a fascinating account of the story so far, including reference to two further unfinished pieces of litigation.

The first is in Strasbourg concerning the re-imposition of the ban on settlement in 2004, taken after the feasibility study – ruling awaited on admissibility, let alone merits.

Wikileaks

The second is a domestic judicial review of an Order in Council declaring a Marine Protected Area around the disputed islands. The Chagossians think that this is another wheeze by the FCO to prevent any possibility of re-settlement – they say that there was an improper motive for the making of the MPA. About the only thing the Chagossians could do if they were to be allowed to return is commercial fishing, and, hey presto, the MPA bans commercial fishing. The case is due to come to court later this year, and has already been to the High Court on the way.

This initial judgment allows them to cross-examine FCO officials (including Mr Roberts, the HM Commissioner for the islands), not least about a Wikileaked note of a May 2009 meeting which says

    “7. …Roberts … asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents …”

It is unusual to have cross-examination in judicial review, but this rather does call for some explanation, given that the FCO denies that this is the motive – as opposed to the nature conservation interests which run deep and true through that department. The FCO’s rather despairing attempt to keep Our Man out of the box was based upon the unlawfulness of the Wikileaks process.

Stanley Burnton LJ was having nothing of this:

    16. 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 of 12 May 2009, in particular, appears to be a detailed record, which could fairly be the basis of cross examination.

    17. I do not see how the present claim can be fairly or justly determined without resolving the allegation made by the Claimant, based on the Wikileaks documents, as to what transpired at the meeting of 12 May 2009, and more widely whether at least one of the motives for the creation of the MPA was the desire to prevent resettlement. Given the conflicting evidence, in my judgment, in order to resolve the dispute, oral evidence will be necessary, including cross examination of Mr Roberts and Ms Yeadon.

I hear the sounds of advocates’ swords being sharpened for the trial – at last count, due in October 2012.

http://ukhumanrightsblog.com/2012/09/20/a-chagossian-double-bill-an-environmental-information-contest-and-a-touch-of-wikileaks/

enrica

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Developments:

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Chagossians: the latest

November 21, 2012 by David Hart QC



R (Bancoult) v. Foreign & Commonwealth Office, Divisional Court, 21 November 2012  read judgment

I posted recently (here) on two decisions concerning Chagossian refugees in their long-running campaign to be re-settled in the islands from which they were evicted by the UK in the 1960s. The first was a claim for further documentation, the second an application for cross-examination of key Foreign Office witnesses on the basis of a Wikileaks document (read judgment and read judgment). [see original link: http://ukhumanrightsblog.com/2012/11/21/chagossians-the-latest/ ]

And here is another skirmish in the same battle.

In the first of the previous cases, in front of the First Tier Tribunal, the Chagossians failed to get some of what they were asking for, namely earlier drafts of a feasibility study in the possession of the consultants. The disclosed version of the study claimed that re-settlement of the Chagossians was uneconomic and impracticable. As explained before, this supported the FCO’s contentions that, though the evictions were unlawful, it was not practicable to remedy it now. Before the FTT, the consultants were content to release the documents to the Chagossians had the FCO agreed; but the FCO did not agree. On technical grounds, the FTT ruled that the FCO did not hold these documents, and therefore could not be compelled to produce them under the Environmental Information Regulations.

One element of today’s decision of the Divisional Court concerned the Chagossians applying for disclosure of the same documents, not from the FCO, but from the consultants direct. A court in limited circumstances can order disclosure of documents from third parties who are not otherwise involved in the litigation, where (put shortly) it is necessary for the fair disposal of the claim between the main parties: CPR 31.17. Here, the Chagossians got such an order from the Court, without opposition from the FCO. A rather long way round to achieve what would have occurred if  the FCO had agreed to the release of the consultants’ drafts in the first place at or before the FTT.

As I pointed out in my earlier post, the Divisional Court was due to hear the Chagossians’ challenge to the designation of the waters around the islands as a Marine Protected Area, which prohibited all fishing. They said that this designation was motivated by a decision to stymie any remaining economic viability which the islands may have – the Chagossians’ traditional livelihood arose out of fishing.

The main hearing of this challenge was due this week. The Court has now adjourned it, to be heard sometime in the New Year.

In so doing, the Court gave permission to the Chagossians to add two arguments to those already deployed against the making of the MPA:

(i) Article 198 of the Treaty on the Functioning of the European Union is said to require the UK to promote the economic and social development of the British Indian Ocean Territory and the interests and prosperity of the Chagos Islands (which form part of the BIOT); the making of the MPA was in breach of this duty; it is plain that this is legally controversial, not least because the FCO say that such a breach, even if proven, confers no individual rights, and, because a similar claim has been dismissed by the European Commission, and can only be determined by the General Court (part of the European Court of Justice);

(ii) a further claim that the consultation on the MPA was flawed because the FCO did not reveal that it had undertaken to grant fishing rights to all Mauritians in BIOT waters as long ago as 1965; the Chagossians were now Mauritian citizens and could therefore exercise those rights; the consultation should have revealed this undertaking and the consequent fishing rights which the Chagossians derived from it. The FCO said again that this was an international law claim which the domestic courts could not rule upon. Indeed, Mauritius has brought arbitral proceedings against the UK in respect of the MPA, asserting that the MPA breaches those self-same fishing rights; in this case the tribunal is that set up under the UN Convention on the Law of the Sea, and the proceedings are still going through the written documents stage.

The Divisional Court ruled on the merits of neither of these arguments, other than to say that they are at least arguable – though in the Article 198 instance, it reached that conclusion, despite not finding the Claimants’ argument “immediately persuasive” on an initial view.

Roll on the spring, when this fascinating challenge comes to be heard. In the meanwhile, we need to keep an eye on the Chagossians’ application to Strasbourg, as well as the UNCLOS proceedings in respect of the MPA. So I suspect that this will not be the last of these posts.

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Read more in the original link: http://ukhumanrightsblog.com/2012/11/21/chagossians-the-latest/

enrica

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The full ruling in Chagos Islands case is available here:

"England and Wales High Court (Administrative Court) Decisions"

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2012/2115.html&query=bancoult&method=boolean

enrica

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WLPress - Wikileaks documents used in courts: The case of Chagos islanders

Posted by Irien   / In Impact, Latest news, Leaks, The Embassy Cables   / December 18, 2012   - published by the Guardian on Wednesday 25 July 2012 under the title:

Judge orders cross-examination of officials over WikiLeaks documents

A top judge has taken the unprecedented step of ordering two senior government officials to face cross-examination in court over a classified US document leaked by WikiLeaks. It is thought to be the first time that one of the WikiLeaks cables has featured in a UK court case.

Despite strong objections from lawyers acting for the foreign secretary, William Hague, the high court judge ruled the move was necessary to resolve “fairly and justly” a claim launched against the government by exiled residents of the Chagos Islands.

The judge declared the leaked US cable – alleged to relate to a private US-UK diplomatic meeting – could be investigated in court even though it must have been obtained unlawfully by “the notorious internet organisation”.(…)

The British expelled the Chagos islanders between 1965 and 1973 in order to allow the US to establish an airbase on Diego Garcia, the largest island in the Chagos archipelago in the British Indian Ocean Territory (BIOT).

The expulsion has been described by critics as one of the most shameful episodes of modern colonial history.

The islanders have been fighting a long campaign, which has included a string of court cases, for the right to return to at least some of the islands.(…)

 

Read more here:  http://www.guardian.co.uk/media/2012/jul/25/judge-wikileaks-document

The judicial case of Chagos people is still ongoing:  http://ukhumanrightsblog.com/2012/11/21/chagossians-the-latest/

 
www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0CE0QFjAD&url=http%3A%2F%2Fwikileaks-press.org%2Fwikileaks-documents-used-in-courts-the-case-of-chagos-islanders%2F&ei=kljQUO7iEoek4gT56oHICw&usg=AFQjCNENME0nuDwx-DtJFgk3DWP7ECLZfA&bvm=bv.1355534169,d.bGE

enrica

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Updates via This Day in WikiLeaks 28 jan. 2012:

Britain is facing a UN tribunal over the Chagos Islands. WikiLeaks cables have been used in the legal procedures leading up to the tribunal, and it is cited as the first time WikiLeaks cables were used in a UK court case.

Source: http://www.thisdayinwikileaks.org/2013/01/28-january-2013.html

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Mentioned articles:

Britain faces UN tribunal over Chagos Islands marine reserve

Ruling by permanent court of arbitration in The Hague may challenge UK's unilateral declaration of marine protected area


Owen Bowcott and John Vidal    - The Guardian, Monday 28 January 2013 16.33 GMT   

Britain's colonial-era decision to sever an Indian Ocean archipelago from Mauritius and turn it into a US military base will have to be justified before an international tribunal – a process that could lead to the return of the islands' exiled inhabitants.

The unexpected ruling this month by the permanent court of arbitration in The Hague that it can hear the case is a challenge to the UK's unilateral declaration in 2009 of a marine protected area around the Chagos Islands.

Decisions by the tribunal, which arbitrates in disputes over the United Nations law of the sea, are binding on the UK. At the preliminary hearing the UK's attempt to challenge the court's jurisdiction was defeated. Britain is now obliged to explain highly sensitive political decisions dating back to 1965.

The legal battle, begun more than two years ago, raises fundamental questions about who has sovereignty over the Indian Ocean territory. Mauritian government officials believe it could lead to the unravelling of Britain's disputed claim and the eventual return of the islanders.

The Mauritian prime minister, Navinchandra Ramgoolam, has also alleged that the decision to establish a 545,000 sq mile marine reserve was carried out in defiance of assurances given to him at the time by the then UK prime minister, Gordon Brown.

Talking to the Guardian in London, Ramgoolam said: "We welcome the fact that the UN tribunal will have the whole case before it when it next meets. Never before have [the UK] had to explain why they detached the Chagos Islands from Mauritius."

In 1965, three years before Mauritius was given its independence, the UK decided to separate the Chagos Islands from the rest of its then Indian Ocean colony. The Mauritian government claims this was in breach of UN general assembly resolution 1514, passed in 1960, which specifically banned the breakup of colonies prior to independence.

The Chagos archipelago was subsequently declared to be part of the British Indian Ocean Territory (Biot) from which, in 1971, most of the 1,500 islanders were deported. The largest island, Diego Garcia, was then leased to the US as a strategic airbase. The lease is due to be renegotiated by December 2014.

"I was taken completely by surprise when the UK high commissioner came to see me [in 2009 to announce creation of the marine reserve]," the Mauritian leader explained.

"I said I was about to go and meet the [British] prime minister in Trinidad. I was on very good terms with Gordon Brown. I told [Brown] you must put a halt to the marine protected area.

"Gordon Brown said he would put a hold on the whole thing. He gave formal instructions to David Miliband [then foreign secretary] not to go ahead with it. But David Miliband ignored it. He wanted to show he was doing something for the environment."

A spokesman for David Miliband denied there had been any internal differences within the UK government. The spokesman said: "The marine protected area has been a great step forward and went through all proper government processes."

Mauritius does not recognise the 545,000 sq mile marine protection area (MPA) that Miliband set up around the islands before Labour lost power in 2009. According to Ramgoolam, the government was not properly consulted and Mauritians were denied the right to exploit waters they have fished for decades.

His government has said it fears that the marine zone effectively prevents any future resettlement by Chagossians because it does not allow any fishing in the zone. Fishing on around the island would be the only realistic means of living there.

"By creating the protected marine area, Britain did not take into account Mauritius's rights and those of the Chagossians it evicted from Chagos," said Ramgoolam.

Concern is also growing in Mauritius that the MPA, which is a biodiversity hotspot of global importance, is a "sham". It is patrolled for around six months of the year by a 35-year-old ocean-going tug which takes two days to cross the protected area.

However, an exemption in the MPA allows people from the US nuclear base on Diego Garcia to continue fishing. In 2010, more than 28 tonnes of fish was caught for use by personnel on the base.

"Mauritius is not opposed to a marine protected area. On the contrary, we support conservation. We are very happy to work against illegal fishing," said Ramgoolam.Further doubts about the real intentions of the Foreign office were raised by a 2010 WikiLeaks cable in which Colin Roberts, the FCO's director of overseas territories, told the US state department that there would be no "Man Fridays" left on the islands following the establishment of the MPA and that establishing the park would, "in effect, put paid to resettlement claims of the archipelago's former residents". He added: "We do not regret the removal of the population." Some conservationists claim they were misled by the UK government. "I now regret my support of the marine sanctuary", said TV conservationist Ben Fogle.

The US-based Pew conservation group was instrumental in setting up the marine protected area, convincing many other British international conservation groups to support its "no take policy". Since then, many have supported the principle of the native Chagossians being given the right to return but most still support the MPA as it stands.

The European court of human right's decision last December that it had no jurisdiction to examine the Chagossians' claims that they been deprived of their right to return to the islands was widely seen as blocking off the main legal avenue for redress. The court ruled that because the islanders had received compensation in the 1980s, they had effectively renounced their rights.

But the legal confrontation at the permanent court of arbitration raises more fundamental issues of national sovereignty and transforms the issue into an inter-state dispute that resembles Anglo-Argentinian rows over the Falklands.

It is being fought within the arcane legal territory of the United Nations Convention on the Law of the Sea (Uunclos), an area where the UK could be at disadvantage.

While Mauritius and the Seychelles have put in mutually agreed claims for large tracts of the nearby seabed, the UK does not appear to have put in any counter proposals to the UN commission on the limits of the continental shelf.

The Foreign Office said it was "disappointed" with the tribunal's decision. "It seems out of sync with other, similar cases and may slow the process down," it said. "However, this is only a procedural decision. It does not address the substance of the issues at hand – neither the arbitral tribunal's jurisdiction nor Mauritius's claim. We have no doubt about our sovereignty of Biot, and are confident that Mauritius' claims are without merit."

On the question of the marine reserve, the Foreign Office added: "The no-take MPA around the British Indian Ocean Territory (Biot) is the largest no-take MPA in the world. The MPA provides refuge and breeding sites for migratory and reef fish, marine mammals, birds, turtles, corals and other marine life. The MPA will help reduce regional loss of biodiversity and, it is hoped, in replenishing fish stocks in the Indian Ocean.

"The decision to create the MPA followed a full international consultation process, and careful consideration of the many issues involved."

http://www.guardian.co.uk/world/2013/jan/28/britain-tribunal-chagos-islands-marine-area

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Judge orders cross-examination of officials over WikiLeaks documents

Unprecedented step in Chagos Islands case is first time one of the WikiLeaks cables has featured in a UK court case


Press Association - guardian.co.uk, Wednesday 25 July 2012 19.24 BST   
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Full article: http://www.guardian.co.uk/media/2012/jul/25/judge-wikileaks-document

enrica

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Updates on the Chagos Islands case:

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Chagossians suffer blow in fight to go home as court rejects WikiLeaks cable

US embassy cables allegedly detailing UK plan to stop return to Indian Ocean islands used by US military is ruled inadmissible


Owen Bowcott, Legal affairs correspondent
The Guardian, Thursday 18 April 2013 17.52 BST   


Chagos islanders demonstrating outside parliament at an earlier hearing of their case at the House of Lords. The British territory was leased to the US in the 1960s to build an airbase on Diego Garcia. Photograph: Martin Godwin for the Guardian



Classified American embassy cables obtained by WikiLeaks cannot be used as evidence in English and Welsh courts because they breach diplomatic privilege, judges have ruled.

The decision by Lord Justice Richards and Mr Justice Mitting in the high court will have far-reaching consequences and is a severe setback for the use of material obtained from leaks or whistleblowers.

Lawyers representing exiled islanders from the Chagos archipelago had planned to exploit revealing official documents, obtained by WikiLeaks and published in the Guardian, to question a Foreign Office official, Colin Roberts. He was commissioner for the British Indian Ocean Territory (BIOT), which covers the Chagos Islands, in 2009 when the cable was written by the US embassy in London.

The US cable quoted Roberts, who is due to become the next governor of the Falkland Islands, telling the Americans that as a result of imposing a marine protected area (MPA) on the territory, there would no longer be "human footprints" or "Man Fridays" on the islands. The US rents a military base on the largest island, Diego Garcia, and the Chagossians have been in a long-running dispute with the Foreign Office about their right to return home.

The case is the first one resulting from the leak of classified US cables in which UK officials had been ordered to appear. WikiLeaks material has been deemed admissible in other cases, notably the UN-backed special court for Sierra Leone in The Hague.

To avoid confirming the WikiLeaks cable's authenticity, Steven Kovats QC, counsel for the Foreign Office, said the government would stick to a policy of "neither confirm nor deny" anything about the documents. The policy is known in Whitehall as NCND.

But the judges warned that Roberts could not avoid answering questions by relying on the NCND policy. Kovats then argued that the Diplomatic Privileges Act 1964, which incorporates the 1961 Vienna Convention on Diplomatic Relations into domestic law, meant the alleged cable, or copies of it held by newspapers, were inadmissible in evidence.

In their ruling, the judges agreed and said that the 1964 Act prevented them from considering whether the cable contained an accurate record of the May 2009 meeting. Article 24 of the Vienna Convention states: "The archives and documents of the mission shall be inviolable at any time and wherever they may be."

Outside the court, Sam Brown of law firm Clifford Chance, which is representing the Chagossians, said: "We are extremely disappointed that the court has decided not only to reverse the ruling it made on whether the policy of NCND prevented Foreign Office officials being asked questions about the accuracy of US cables, but also to exclude the cables from evidence in their entirety.

"This decision, that has potentially global ramifications, means that the real reason the MPA was created in the Chagos archipelago may never be known. The foreign secretary [William Hague] has opposed the use of WikiLeaks cables in court so as to deprive the Chagossians of the opportunity to cross-examine the BIOT commissioner as to his motives for the MPA, which were recorded by the US officials as being the best way to defeat the resettlement of the islands by their rightful inhabitants, with no human footprints or Man Fridays."

Earlier in the hearing, Roberts denied he had said the MPA was a plan with an "ulterior motive" – namely, to prevent the islanders from returning.

Asked by Nigel Pleming QC, counsel for the islanders, about the alleged "Man Fridays" comment, Roberts, talking generally, said he "absolutely" agreed and would never have used the phrase in such circumstances. He refused to answer questions about the authenticity and accuracy of the cable's contents.

The case has been brought by Louis Olivier Bancoult, chairman of the Chagos Refugees Group, who has seized on the leaked cable to argue in the high court that the decision to impose an MPA by the then foreign secretary, David Miliband, in 2010, should be declared unlawful. The leaked US cable was seen as a key element in their claim.

The inhabitants of the archipelago were removed in the 1960s and 1970s when the UK agreed that the US could build its base on Diego Garcia.

Their removal and the imposition of a marine reserve is also being contested at the permanent court of arbitration in The Hague. Earlier this year Britain was told it would have to justify its decision before a full hearing of the tribunal.

The Mauritian prime minister, Navinchandra Ramgoolam, has said the decision to establish a 1,400,000 sq km (540,000 sq mile) marine reserve was carried out in defiance of assurances given to him at the time by the then prime minister, Gordon Brown.

The Diego Garcia agreement signed by the US and UK in 1966 expires in 2016. Both parties must agree to extend, modify or end it by December 2014. Ramgoolam told the Guardian last year that the objective of Mauritius was to "reassert sovereignty" over the Chagos islands. The case continues.

http://www.guardian.co.uk/world/2013/apr/18/chagos-islanders-court-rejects-wikileaks-cable