Chagossians: Wikileaks cables not admissible in court

28 April 2013 by David Hart KC

Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 16-24 April 2013, judgment awaited, but see 25 July 2012, Stanley Burnton LJ for an earlier judgment   UPDATED

A quick update at the end of the recent judicial review on 24 April by Mr Bancoult on behalf of the Chagossian islanders, but before judgment. The challenge was to the designation of the waters around their islands as a “no take” Marine Protected Area, i.e. one which could not be fished.

I have posted on this saga before, which started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, here, here, and, in Strasbourg, here. After a judgment 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.

In 2002-4, the FCO decided that it was not feasible to carry out this resettlement. Litigation resumed, including this judicial review of a Proclamation declaring a Marine Protected Area around the disputed islands. The Chagossians say, amongst other challenges to this Proclamation, that there was an improper motive for the making of the MPA, namely a desire, once and for all, to see the end of their claims for resettlement. About the only thing the Chagossians could do if they were to be allowed to return is commercial fishing, and the effect of this MPA is to ban commercial fishing.

Stanley Burnton LJ’s preliminary judgment allowed them to cross-examine FCO officials in this judicial review – a rare but by no means unprecedented step for these challenges where most cases are argued on the documents alone. The officials included Mr Roberts, the HM Commissioner for the islands who made the Proclamation, who was to be asked about a Wikileak-ed cable concerning a May 2009 meeting which said

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

So, Mr Bancoult argued, this was strong support for their case about improper motive.

Stanley Burnton LJ agreed that the officials should attend for cross-examination.

At this previous hearing, as the judge noted, there had been no claim to the effect that the documents should not be considered by the Court on the grounds of public interest immunity or the like.

When the case returned to the Court this month, the question arose during the evidence of Mr Roberts as to whether the FCO and its witnesses could rely upon the policy it was adopting in respect of the leaked cables when its witnesses gave evidence – namely NCND – the FCO Neither Confirms Nor Denies their authenticity.  NCND is normally used where matters of national security arise – here, NCND was being used in relation to diplomatic correspondence, and this, the barrister for the islanders said, was not in the interests of justice.

After the point was raised by the Court, the FCO’s barrister argued that s.6 of the Official Secrets Act 1989 prohibited the court from disallowing NCND. s.6 prohibits a “damaging disclosure” of confidential information. The cables contain confidential information. If the court disallowed the FCO’s witnesses from relying on the NCND policy, the court would be in breach of s.6 because there would be repercussions for the future use of Wikileaks cables, foreign relations, and the safety of citizens abroad, and that this would constitute a damaging effect.

The FCO’s barrister then made a further submission – not raised at any previous stage of the litigation. Article 24 of the 1961 Vienna Convention on Diplomatic Relations states that

The archives and documents of the mission shall be inviolable at any time and wherever they may be.

This Convention was given the force of law domestically by the Diplomatic Privileges Act 1964.

Hence, the FCO said, the cable could not be used in court.

A written judgment is awaited on all issues,  but it is clear that the judges decided during the hearing that the cables were subject to immunity under the 1961 Convention and therefore could not be used in evidence, with their full reasons to follow.

Comment

This is a highly significant ruling about what can and cannot be deployed about the workings of foreign policy when documents are leaked, but detailed comment must await the written reasons of the Court.

Plainly Article 24 of the 1961 Convention applies to stop a host nation hacking into its guest nation’s archive and then using its contents outside the embassy to embarrass the host nation, whether in or out of court. But does it stop use of documents (once the “violation” has been carried out, in this case by Assange) by a third party who has nothing to do with the original violation? Or does it do no more than regulate the conduct of one state as regards the mission of another state? In this context, there was some debate in court as to the applicability or otherwise of Shearson Inc v. Maclaine Ltd (No.2) [1988] 1 WLR 16 to the Wikileaked cable

The latter point is itself of wider interest because the UK faces an international law challenge from Mauritius before the Permanent Arbitral Tribunal in the Hague under the 1982 UN Convention on the Law of the Sea. Mauritius is asserting that the MPA breaches its fishing rights under this Convention.

Afterword

Irony of ironies. Assange himself, as leaker of these cables, is doubtless well-versed in the terms of the 1961 Convention, this time as a recipient of its protection, because it is only because of another of its provisions that he can remain in the Ecuadorian embassy in London with impunity, namely the inviolability of mission premises under Article 22. I do not suppose this point has been lost on any of those participating in this challenge.

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