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Full-text: March 4 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Mar 4 2002 Nancy Mayer Whittington, Clerk U.S. District Court

 




 

No. 1:01-CV-02629 (RMU)

 )
Olivier Bancoult, et al.,)
Plaintiffs,)
)
v.)
)
Robert S. Mcnamara, et al.,)
Defendants.)
 )

Plaintiffs’ Request for Permission to Supplement Plaintiffs’ Reply to Defendant United States’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

Plaintiffs hereby request leave to supplement Plaintiffs’ Reply to Defendant United States’ Opposition to Plaintiffs’ Motion for Preliminary Injunction (“Reply”) {withheld by the court clerk from public inspection} with responsive attachments, appended hereto, per Local Rule 65.1(c). Plaintiffs request leave to include additional information because Plaintiffs respond to new matter discussed and cited in Defendant United States’ Opposition to Plaintiffs’ Motion for Preliminary Injunction.


Respectfully submitted,

Signature: Michael E. Tigar

 

{Signature}

Michael E. Tigar
Professor of Law
American University
Washington College of Law
4801 Massachusetts Avenue, N.W.
Washington, D.C. 20016

Bar Identification # 103762

Dated: March 4, 2002

 

{Full-text, Attachment-1}:

{UK PRO}  FCO 58/354 s.1184

Filed Mar 4 2002 Nancy Mayer Whittington, Clerk U.S. District Court

Confidential

Prime Minister
{Harold Wilson}
PM/68/68

Diego Garcia

On instructions from Washington, the United States Embassy recently informed the Foreign Office that the United States Department of Defence has decided, subject to congressional approval, to proceed with the development of a facility on Diego Garcia, one of the islands of the British Indian Ocean Territory, in accordance with the 1966 Exchange of Notes about these islands.

2.  The development would comprise an austere communications facility, fuel storage, and 8,000 foot runway and a dredged anchorage. It would cost about $26 million, and would take 36 months to become operational and 48 months to complete. The Americans have told us that they recognise that there is little likelihood of British financial participation in the development; that the facility would be under a British flag; and hope that a British Liaison Officer would be stationed on the island. The Americans would wish to use naval construction battalions or United States civilian contractors. They recognise their obligation under the Exchange of Notes to use local labour but doubt whether most of it will possess the necessary skills. They are also concerned about the balance of payments aspect and hope that we will view this sympathetically. {p.2}

3.  The U.S. Embassy was particularly instructed to emphasise:–

(a)  that there would be no construction beyond the $26 million package;

(b)  that great importance was attached to the limited United Kingdom participation described above;

(c)  that implementation was subject to final approval and release of funds by the United States Government.

Congressional approval for this scheme has not yet been received but it was hoped to obtain it for the financial year 1970 (which begins on 1 July, 1969). Previous experience has shown that there is no hope of such approval without prior British agreement to the scheme. The State Department therefore hope that Her Majesty’s Government can give their Agreement in principle by 1 September, in time for preparation of the 1970 appropriations. I therefore seek the agreement of my colleagues to our informing the United States Government of our agreement in principle, subject to certain conditions set out below.

4.  I attach as an Annex a full account of the background to this proposal. From this you will see that the American desire to develop Diego Garcia in the manner indicated is no secret to us. Indeed it was one of the reasons why the island was included in the British Indian Ocean Territory. Nor is their wish to have us associated with the project anything of a surprise: it was first mooted by Mr. Kitchen, at that time Deputy Assistant Secretary in the State Department, in a letter to our Embassy in Washington on 10 August, 1966. {p.3}

5.  We have all along made it clear to the Americans that we could not envisage any expenditure from British funds on the project: British strategic needs in the Indian Ocean in the 1970s were not likely to be such as to justify a capital outlay of this sort. However, in May 1967 the Ministry of Defence, with the agreement of the Foreign Office (at Ministerial level), welcomed a suggestion from the U.S. Navy’s Chief of Naval Operations that the British association so much desired by the Defense Department might take a form very similar to that now put forward by the American Embassy.

6.  The project as now defined falls fairly and squarely within the terms of the Exchange of Notes of 30 December, 1966, making the islands of the British Indian Ocean Territory available for the defence purposes of the United Kingdom and the United States of America. Although we interpret paragraph 2(a) of the Exchange of Notes as allowing us a right of veto on any individual project, it would be extremely difficult to justify any such decision in the present case.

7.  I consider that it will be to our advantage to agree to the American proposal that Diego Garcia should be used for an austere defence facility. Since Diego Garcia remains under British sovereignty it would probably be necessary for us in any case to ensure that the Union Jack flew over it alongside the American flag, and I therefore see no reason why we should not agree with this American proposal. Similarly we shall probably require a British Liaison Officer living on the island for administrative reasons. We would have the {p.4} right under service level arrangements to use the naval facility and the air strip at any time. We may not in fact need to make much use of the American facilities but the position of Diego Garcia in the Indian Ocean suggests that ships of the Royal Navy may well find it a convenient harbour and bunkering point from time to time. The facility will give us an extra option, both for the Royal Navy and for military aircraft, and thus will give us added flexibility in meeting our remaining commitments East of Suez (e.g. to Hong Kong) in the mid-1970s. We shall obtain this added flexibility at no capital cost, and with no recurrent cost above the small sum incurred in providing a Liaison Officer on the island.

8.  The establishment of a defence facility on Diego Garcia may cause the Indian Government to express concern; it is also likely to provoke the hostility of the U.N. majority. So far as India is concerned there is likely in any case to be a public outcry when the proposal becomes known. This will focus largely on distorted accusations about “military bases”. It is clearly important that, before the news becomes public, we should take the Indian Government into our confidence in an attempt to secure their help in explaining the decision, or at least in not exacerbating feelings in Delhi. It must be expected that the argument will be put forward in the General Assembly that the interests of the local population are being ignored and this may receive appreciable support; but we have been able to resist such arguments by pointing out that the inhabitants consist mostly of migrant workers from Mauritius and Seychelles. We have not yet completed arrangements for resettlement of the inhabitants of Diego Garcia or for showing {p.5} that they remain Mauritian or Seychellois, nor have we consulted the Mauritius Government. Resettlement will involve some small expenses but it is not expected that there will be any financial difficulty in this. When the arrangements are complete, and they may be complicated by a recently completed survey which found that 128 individuals (about 34% of the total population of 389) are now second generation inhabitants of Diego Garcia, we would propose, as agreed at the time of the creation of the British Indian Ocean Territory, to deny, if necessary, the competence of the United Nations to concern itself with a territory which has no indigenous population. The island now has no ties with Mauritius, from which it was detached in 1965. It was, however, previously administered, for reasons of convenience, as a dependency of Mauritius before Mauritius became independent, but the Government of Mauritius acquiesced in the detachment, for which financial compensation was paid.

9.  If we incur criticism at the United Nations over the development of the island for defence purposes, I think that we should be prepared to stand by the argument that the British Indian Ocean Territory is British sovereign territory, and that we have a right to use it for any purposes which we consider to be in our national interests. We should of course ensure that the Americans will assist us in dealing with attacks at the United Nations. Since our friends and allies {p.6} in the Far East, including Australia, New Zealand, Malaysia and Singapore might stand to benefit from our right to use the facility, we would hope to gain some measure of support from them also. The matter will be easier to handle at the United Nations if the proposal to develop the island does not become publicly known (e.g. through discussions in Congress) until after the end of the next session of the General Assembly. We should seek assurances from the Americans that they will do their best to prevent publicity or Congressional discussion of the requisite financial appropriations until a moment which is propitious in the United Nations context.

10.  In public presentation of our agreement to a United States facility we shall need to emphasise firmly that it implies no change in our decisions to withdraw our forces from East of Suez by 1971 and to adopt a Europe-based defence policy.

11.  There are two further minor aspects which must not be overlooked. Despite the consideration in paragraph 2, if we were to agree to the Americans developing a facility on the lines proposed we should nevertheless want to include in our agreement a proviso on the requirement to use local labour so far as possible. The need for this stems from the fact that such a provision formed part of the conditions on which the Mauritius Government agreed to the inclusion of the Chagos Group (of which Diego Garcia is a part) in the British Indian Ocean Territory. A similar provision was subsequently included in the 1966 Exchange of Notes with the Americans. We may also need to preserve some flexibility in phasing any evacuation of {p.7} the local inhabitants. This and other questions connected with the administration of the facility in general, both during and after construction, would obviously have to be settled in detailed negotiations with the Americans when financial approval for the project seemed more certain.

12.  There is, so far as I am aware, no scientific interest in Diego Garcia similar to that in Aldabra. (There have been no representations on this subject from the scientific bodies which sent scientists on the 1967 survey of the island.)

13.  I therefore propose, subject to your views and those of the Defence Secretary, the Chancellor of the Exchequer and the Commonwealth Secretary, to whom I am sending copies of this minute, to authorise a reply to the State Department saying that Her Majesty’s Government agree in principle to the proposal now put forward concerning Diego Garcia, on the understanding:–

(a)  that British participation will be restricted to the provision of a Liaison Officer and the flying of the British flag over the facility;

(b)  that British naval ships and military aircraft shall have full right of access to the facility at all times under arrangements to be mutually agreed;

(c)  that the administrative details of the project, particularly as regards the use of local labour, shall be the subject of separate negotiation nearer the time when construction of the facility is due to begin; {p.8}

(d)  that the Americans should be urged to agree with us in advance any action, such as submission of details of the project to Congress, which would make the proposal public knowledge, and that we should make it clear to them that we shall expect their diplomatic support in dealing with criticisms from individual governments and in the United Nations.

{No signature on this retained filed copy}

(Michael Stewart)
{Foreign Secretary}

25 July, 1968

Foreign Office, S.W.1. {p.8}

______________________

ANNEX

Background Notes on the Proposal to Develop

Diego Garcia as a Defence Facility

Under the terms of the Anglo-American Exchange of Notes signed on 30 December, 1966, the islands of the British Indian Ocean Territory were made available for the defence purposes of the United Kingdom and the United States of America.

2.  The Americans have for some time been interested in developing “an austere naval facility” at Diego Garcia and it was partly as a result of this that the Chagos Group (of which Diego Garcia is a part) was included in the Territory at its establishment, However, the Department of Defense have always emphasised that it would be difficult for them to obtain Congressional approval for the necessary expenditure unless Her Majesty’s Government were seen to be associated with the scheme in some way.

3.  During the discussions which led up to the 1966 Exchange of Notes, it became clear that the Americans were hoping for active British participation in any development of Diego Garcia. It was made clear to them that this was most unlikely. At about the same time (in December, 1966) Admiral Thatch, the Commander-in-Chief, U.S. Navy, Europe, approached Admiral Sir Varyl Begg, the British Chief of Naval Staff, on similar lines. As a result of this approach, the Naval and Air Staffs in the Ministry of Defence carried out a study of British defence requirements in the Indian Ocean in the 1970s. {p.9} They came to the conclusion that, while the facilities which the American development of Diego Garcia would make available to us would obviously be a useful augmentation of our defence posture for operations in the Indian Ocean in the 1970s, they did not add up to a substantial military requirement. Consequently, in March 1967 Admiral Begg, with the approval of the Defence Secretary, told Admiral Thatch that we could not express a firm British interest at that time in the American proposal for an austere naval facility at Diego Garcia, though we would be prepared to look again at our position after the island had been surveyed.

4.  As a result of Admiral Begg’s reply, the U.S. Navy seemed to have modified their view of the minimum degree of British participation in the development of Diego Garcia which would be required to gain Congressional approval for the project. On 19 April, 1967, the American Chief of Naval Operations approached the Head of the British Defence Staff in Washington and put to him the following proposal: the Americans would build, man and run the facility but the British and United States flags would at all times be flown at the facility and there would be at least one British Liaison Officer stationed on the facility. British ships and aircraft would have full right of access to the facility at all times, to be paid for on an “as-used” basis. Storage facilities might also be made available to us. The Chief of Naval Operations wished to explore what might be the reaction of Her Majesty’s Government to such a proposal if it were put to them formally. {p.10}

5.  The Ministry of Defence welcomed the idea and secured Foreign Office approval at Ministerial level for the Head of the British Defence Staff to give the U.S. Chief of Naval Operations a reply to that effect. This reply was given in May, 1967.

6.  During August, 1967, a joint survey team (14 Americans and two British scientists) visited Diego Garcia on the survey ship H.M.S. Vidal. The Americans made a copy of the survey report available to the Foreign Office in January, 1968. The survey report does not specifically cover the scientific aspect but scientists from the Smithsonian Institute, The Royal Society and the British Museum accompanied the survey team: neither at that time nor since has any of these bodies made any representations about the scientific value of Diego Garcia, which is apparently indistinguishable in this respect from many other isolated atolls. There was no firm indication of what the Americans were proposing for Diego Garcia until 2 May, 1968, when Mr. Stoddart, a member of the staff of the United States Embassy, called on Mr. Sykes, Head of Defence Department in the Foreign Office and discussed informally with him, and with officials from the Commonwealth Office and the Ministry of Defence, the probable attitude of Her Majesty’s Government towards the development of the island. He was left in no doubt that, in the light of the decisions on defence policy announced on 16 January, the British requirement for a facility on the island was certainly no greater than it had been when Admiral Begg replied to Admiral Thatch in March, 1967. There was no likelihood of a British financial contribution. {p.11} Mr. Stoddart was also told that Her Majesty’s Government would need to look very closely at the details of any project to see how it affected such things as the requirement to use local labour to the maximum extent practicable which was one of the provisions (paragraph 7(a)) of the 1966 Exchange of Notes regulating the use of the island for defence purposes by the United States and British Governments.

7.  Mr. Stoddart’s approach was probably intended to gain confirmation of the British position prior to the Americans making a firm proposal which has now been received.

Confidential

 

{Attachment-2:
A 2-page print-out of this web-page}:

Commanding Officer, U.S. Navy Support Facility, Diego Garcia, British Indian Ocean Territory, “Welcome Aboard!” http:// www.dg.navy.mil/ welcome/welcome.htm {12 kb}

 

{Attachment-3:
A 2-page print-out of this web-page}:

Bill Van Wyck, Suzie Kondi, Alex Ercklentz, Jeff Johnson, Out of Bounds: http:// www.outofbounds.com/ html/ chagos_photos.html {286 kb}

 

{Attachment-4:
A 6-page print-out of these 3 web-pages}:

Al and Beth Liggett, Sunflower:

“Ashore at Chagos, July 21 2000”: http:// www.setsail.com/ s_logs/liggett/ sunflower31.html {66 kb}

“Whaddaya Do All Day, August 7 2000”: http:// www.setsail.com/ s_logs/liggett/ sunflower32.html {50 kb}

“Special Events at Chagos, September 11 2000”: http:// www.setsail.com/ s_logs/liggett/ sunflower37.html {39 kb}

 

{Attachment-5:
An 8-page photocopy of this article, containing this statement:}:

“In 2000, as many as 80 to 100 cruising boats were scattered among the remote atolls of the Chagos Archipelago, a highlight and turnaround point for many boats in the southern Indian Ocean fleet.”

Jimmy Cornell “Crossroads of the New Millennium” Cruising World, February 2002, pp.58-66, at 64.

 

{Attachment-6:
A 34+3-page affidavit of plaintiff Olivier Bancoult filed as well in the High Court of England & Wales, Queen’s Bench Division, Divisional Court; I’ll add it as a separate page on this website}

 

{Attachment-7:
A 1-page print-out of this map}:

“British Indian Ocean Territory (Chagos Archipelago)” (Dec. 1980): http:// homepage.ntlworld.com/ jksonc/docs/ dgchagos1.html {188 kb}

 

Certificate of Service

I hereby certify that on March 4, 2002, I served a true copy of the foregoing Request by facsimile and by first class mail, postage pre-paid, addressed to defendant’s counsel as follows:

Richard Montague
Department of Justice
Civil Division
1425 New York Ave., N.W.
Suite 8122
Washington, DC 20005

Signature: Caeb Golravy

 

{Signature}

Caeb Colravy

 

Source: Photocopy of a duplicate original (the Court’s file copy).

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting, boldface added.

This case: Bancoult v. McNamara, complaint filed, Dec. 20 2001, refused to adjudicate, 370 F.Supp.2d 1 (D.D.C., No. 01-CV-2629, Dec. 21 2004), appeal docketed, Feb. 22 2005, affirmed refusal to adjudicate, 445 F.3d 427 {justia, altlaw, 147kb.pdf, copy} (D.C. Cir., No. 05-5049, April 21 2006), petitions to rehear and en banc filed, June 5 2006, denied, July 11 2006, petition for certiorari docketed, Oct. 11 2006, refused to review refusal to adjudicate, certiorari denied, 549 U.S. — (U.S., No. 06-502, Jan. 16 2007).

Commentary: Diego Garcia: The Criminal Question Doctrine and Bancoult v. McNamara.

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Dec. 13 2002. Updated May 16 2008.

http://homepage.ntlworld.com/jksonc/docs/bancoult-d12.html

Visitors (all pages, from Feb. 10 2008):