Cablegate: Foreign Office "Cautiously Optimistic" That Hmg


DE RUEHLO #1842/01 1931636
P 111636Z JUL 08

C O N F I D E N T I A L LONDON 001842



E.O. 12958: DECL: 07/11/2018
WILL PREVAIL IN CHAGOSSIAN TRIAL REF: 07 LONDON 1996 Classified By: Political Counselor Richard M. Mills Jr. for reasons 1.4 (b) and (d)

1. (C/NF) Summary. The Foreign and Commonwealth Office (FCO) is "cautiously optimistic" that the Law Lords will grant HMG's final appeal and block the court-ordered resettlement of Chagossian islanders seeking to return to their ancestral home. Though the Lords' decision is not expected before late September or October, their questions during arguments suggested they may be more sympathetic to HMG than were the lower courts, all of which ruled for the Chagossians and ordered the British government to pay for their resettlement. In a discussion with emboff after the hearing, a contact in the FCO's Overseas Territories Directorate said the FCO's Legal Advisor is "not pessimistic" about the chances the Lords will rule in favor of HMG, though this contact stressed the outcome is far from certain. According to the FCO, the three possible outcomes of the appeal are:

--The Chagossians are granted the "right to abode," which would legally allow them to resettle on the islands;

--The Chagossians are granted only the "right of return," which would allow them to visit the islands but not establish a permanent settlement; or

--The Chagossians are granted neither right, and are not allowed to visit or settle on the islands. End summary.

The Trial ---------

2. (SBU) The Law Lords heard arguments in the case, Bancoult v. Secretary of State for Foreign and Commonwealth Affairs, from June 30 through July 3, to decide whether the Chagossian people, displaced by the British from the Chagos Islands in the 1960s and 70s, can return to the Islands (excluding Diego Garcia). Many Chagossians flew to London for the event, and the Let Them Return Campaign (LTRC) staged a rally for the Chagossians outside Parliament on the first day of the trial. Throughout the four days of argument, the panel of five Law Lords was at times critical of both sides' arguments, but the tone of questioning suggested some slight sympathy for HMG. One, Lord Hoffman, seemed at times sympathetic to HMG, while the other four were more evenhanded.

3. (SBU) HMG,s grounds for overturning the lower court's ruling was predicated on three arguments:

-- "Practical Justice;" the cost of relocating the Chagossians and constructing habitation and infrastructure on the outer Chagos islands is prohibitive, and "would entail expensive underwriting by the British taxpayer for an open-ended time;"

-- The security requirements of the military installations on Diego Garcia became more restrictive after 9/11, and maintaining security for the installation would be difficult and threatened if the Chagossians were allowed to return to the outer islands; and

-- The Chagossians, return would undermine issues of UK constitutional law pertaining to all British Overseas Territories, which would subsequently lead to "potential conflicts between local and English courts."

4. (C) The principal argument put forth by the Chagossians' lawyer was that HMG has a moral responsibility to the Chagossians and that "natural justice" supported their claim. The Chagossian lawyer sought to rebut HMG,s arguments, claiming, for example, that the costs to relocate on the islands were not as large as argued by HMG and that the Chagossians would be able to derive additional revenue from fishing and tourism, making a return self-sustainable. FCO

"Cautiously Optimistic" ---------------------------

5. (C/NF) Contacts in the FCO Overseas Directorate told emboff after the hearing that they were "cautiously optimistic" HMG would prevail, but that they could not accurately predict the Lords, decision, likely to be announced in late September or October. They agreed that the Lords gave both sides a fair hearing, and appeared to challenge some of the Chagosian arguments more than lower courts had done, but are not at all able to rule out that they might rule in favor of the Chagossians.

FCO Has No Plan B -----------------

6. (C/NF) Though they have no evidence that the Chagossians will attempt to illegally return to the Chagos Islands if they lose the case, HMG has developed a contingency plan to prevent them from illegally settling on the outer islands. The FCO does not seem to have a "Plan B," however, to handle a Chagossian court victory that grants them the right of permanent settlement.

7. (C/NF) The FCO has not yet determined how many Chagossians would actually want to return to the islands if the Law Lords grant a right of abode. FCO officers dismiss the LTRC's claim that 150 families want to return, and estimate the number to be no more than several dozen. They said that most Chagossians would not want to sacrifice the standard of living to which they have become accustomed on Mauritius, and that many Chagossians do not completely understand the sacrifices they would have to make in moving back to the unoccupied and abandoned islands.

8. (C/NF) The FCO officer in charge of the Chagos Islands also faults the LTRC for failing to study the costs and hardships of resettling the islands. She explained that a recent estimate by the Department for International Development (DfID) projected the costs of resettlement to be upwards of GBP 40M (approx. USD 80M). Moreover, an early 2008 feasibility study by UK engineers concluded that construction on the larger outer islands would be prohibitively expensive, in part because the extremely shallow drafts around the islands require all supplies to be off-loaded by hand. In addition, none of the islands are large enough to support a proper airport. Other problems with resettlement, according to the FCO, include a shortage of potable water; the susceptibility of the low-lying islands to climate change and a rising sea level; little room for agriculture and a lack of natural resources.

Comment -------

9. (C/NF) FCO contacts have stressed to emboffs in previous discussions that a return to the islands by the Chagossians is economically unsustainable and will require long-term HMG financial subsidies. Some in the FCO argue that the Chagossians themselves understand this and that their ultimate goal is actually a cash settlement in lieu of exercising any court-granted right of return. Although spokespersons for the Chagossians deny this is the aim, we share the view that actual large-scale resettlement is unlikely and the islanders, if they win, will negotiate for some cash settlement.

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