01 March 2010
Rt. Hon David Miliband MP
Secretary of State for Foreign and Commonwealth Affairs
Foreign and Commonwealth Office
King Charles Street
London
SW1A 2AH
MARINE PROTECTED AREA IN
THE BRITISH INDIAN OCEAN TERRITORY
Dear David,
You are currently consulting on whether to establish a marine reserve in the British
Indian Ocean Territory (known as BIOT, and including Diego Garcia etc.). Reprieve
welcomes the opportunity to respond to this consultation.
I am sure that many responses to the consultation have focused on a wide range of
purely marine species; Reprieve’s interest is a narrow one, identified more with a
mammal that has, through the evolutionary process, learned to spend more of its time
on dry land, or just off shore. Reprieve’s concern is for members of the species Homo
sapiens in BIOT or the surrounding waters.
More than 30 years ago, the entire population of the Chagos Islands was removed to
Mauritius against their will, to make way for an American military base. It seems
unlikely that conservation law would have allowed for the wholesale destruction of the
natural habitat of, say, Dendrodoris tuberculosa (the warty sea slug), in order to build
such a base – but this was perhaps the first example of the warty sea slug having
greater rights than the lowly homo sapiens in the region.
The current legal position in BIOT is bizarre. Almost uniquely amongst states, the
territorial waters of the BIOT only extend out to 3 nautical miles, rather than the 12
miles allowed by international law. Inside the 3 mile limit, in theory, the species Homo
sapiens has reasonable legal protection. BIOT’s laws roughly mirror those of England
and Wales. There should be no detention without trial, no kidnapping and no rendition.
Torture is a crime. The Geneva Conventions have the force of law. A court system
exists to enforce the basic rights of members of this life form. It is true that the Chief
Justice of the Supreme Court of BIOT is not terribly overworked, given that BIOT is
the only state in the world that no longer has a single permanent citizen. But he exists
nonetheless and has a police force to support him in upholding the rule of law.
However, beyond 3 miles, these legal protections for Homo sapiens have no
application. The BIOT courts and BIOT police have no jurisdiction to prevent the
capture, torture or even the killing of members of the species if, for example, they are
dragged onto a prison ship against their will by some people in American uniforms.
Indeed, we are currently representing a member of our species, Mohammed Saad Iqbal
Madni, in his claim against the FCO. As you know, Mr Madni was subjected to
‘extraordinary’ rendition (i.e. kidnapping for torture) via Diego Garcia.
Your proposals for a marine reserve in BIOT are laudable. Reprieve fully supports
them, subject of course to the rights of the Chagossians who were dispossessed to
make way for the US base on Diego Garcia.
However, the effect of your proposals would be peculiar. All other animal and fish life
will enjoy protection up to 200 miles out from Diego Garcia. In addition to the worthy
warty sea slug, every polyp of Gardineroseris planulata (honeycomb coral), and every
Chaetodon trifascialis (chevron butterflyfish) will enjoy strict protection from being
captured, killed or mistreated many miles from land. It seems that the only exception
will be for our own taxonomic group, who will not be included in this wide-ranging
and sensible proposal.
The slogan “Equal Rights with Warty Sea Slugs” has a distinctly odd ring to it, yet
under your proposed regime this would be an improvement upon the legal protection
for homo sapiens.
Reprieve is therefore making the modest proposal that any protections granted to
marine life should apply at least equally to people. It would also be sensible to take the
opportunity to extend the territorial waters of BIOT out to 12 nautical miles, since the
current 3 mile limit might prompt suspicious minds to wonder whether the Americans
place their ships 5,281 yards from shore when they hold prisoners who they choose to
abuse.
We do not think there would be any significant bureaucratic consequences. Your draft
regulatory impact assessment proposes retaining the BIOT Patrol Vessel, the Pacific
Marlin. I am confident that the marines on the vessel will be able to enforce the
extension of basic rights to humans as well as to fishes.
To assist, we have prepared draft wording for legislation. Our draft is modelled on the
Offshore Marine Conservation (Natural Habitats & c.) Regulations 2007 that recently
extended protection for various “European Protected Species” out to 200 miles from
the UK. This UK legislation makes it unlawful to "deliberately capture, injure or kill" a
wild animal of a European Protected Species. Reprieve considers that similar
protection should extend to human beings (wild or otherwise) in BIOT.
Yours faithfully,
Clive A Stafford Smith
Annex – Draft legislation
1. (1) A person is guilty of an offence if he deliberately captures, injures, or kills any
animal of the species Homo sapiens;
(2) A person is guilty of an offence if he(a) keeps or transports,
(b) sells or exchanges, or
(c) offers for sale or exchange,
anything to which this paragraph applies.
(3) Paragraph (2) applies to(a) any live or dead animal of the species Homo sapiens; and
(b) any part of, or anything derived from, such an animal or any such
part of such an animal.
(4) Paragraphs (1) and (2) apply regardless of the stage of the life of
the animal in question.
(5) In any proceedings for an offence under paragraph (1), where this paragraph
applies the defendant shall not be taken deliberately to have done anything mentioned
in sub-paragraph (a), (b) or (c) of that paragraph merely because(a) his actions had the result that he did the thing in question; and
(b) he intended those actions and knew that they might have that result.
(6) Paragraph (5) applies where the defendant shows that(a) the actions in question were for the purpose, and in the course, of
sea fishing; and
(b) he did not intend those actions to have the result in question;
(7) In any proceedings for an offence under paragraphs (1) or (2), it shall be a defence
to show that the relevant act was carried out with:
(a) the consent of the animal in question; or
(b) lawful authority.