Looking beyond the Bancoult cases: International law and the prospect of resettling the Chagos islands

Human Rights Law Review

Volumn 7, Issue 3, 2007, Pages 441-482

  Allen, Stephen ^a  

^a BRUNEL UNIVERSITY   (United Kingdom)

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EID: 34547978648     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngm014     Document Type: Article

References (252)

1. The Chagos Archipelago consists of 56 islands spread over a total area of approximately 47.5 miles in the middle of the Indian Ocean. Diego Garcia is approximately 130 miles from the other Chagos Island groups of Peros Banhos and the Salomon Islands (the 'outer islands'). The island is situated 1200 miles north east of Mauritius and 1000 miles north of the island of Mahé in the Seychelles.
2. Exchange of Notes between the UK and US Governments concerning the Availability for Defence Purposes of the islands of Diego Garcia and the remainder of the Chagos Archipelago, and the islands of Aldabra, Farquhar and Desroches constituting the British Indian Ocean Territory, 1 December 1966.
3. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] 1 QB 1067 ('Bancoult 1');
4. and R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 1038 ('Bancoult 2').
5. See infra Section 3.
6. International Covenant on Civil and Political Rights 1966, 999 UNTS 171 (ICCPR);
7. and International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3 (ICESCR).
8. See infra Section 4(B).
9. See infra n. 73.
10. See infra Section 4(B).
11. See infra Section 5.
12. In the Bancoult litigation, it was not claimed that the Chagossian people possess an immediate right of abode in respect of Diego Garcia. Bancoult 2 at para. 1.
13. See infra Section 3(C).
14. For example, see the General Assembly resolutions cited infra n. 73.
15. See infra Section 4(B).
16. In 1776, two settlers were granted a fishing concession on Diego Garcia on the condition that they accept sufferers of leprosy from the then French colony of Mauritius, see Madeley, Diego Garcia: A Contrast to The Falklands (London: Minority Rights Group, Report No. 54, 1982) at 3.
17. In or around 1783, a French plantation owner brought 22 slaves to Diego Garcia to establish a coconut plantation on the island. The other major Chagos groups of Peros Banhos and the Salomon Islands were first inhabited in 1813. See Vine, Wojciech Sokolowiski and Harvey, Derasine: The Expulsion and Impoverishment of the Chagossian People, draft report, 11 April 2005 (Derasine Repor) at 89 [on file with the author].
18. Its main findings are published in Vine, 'The Impoverishment of Displacement: Models for Documenting Human Rights Abuses and the People of Diego Garcia', (2006) 13 Human Rights Brief 21.
19. The term Ilois is French Creole for 'islanders'. It was used from the 19th century onwards to describe the permanent inhabitants of the Chagos Islands. See Madeley, supra n. 14 at 12.
20. However, in recent years, the term has taken on a pejorative meaning. This societal group now self-identify as the Chagossian people, Chagos Islanders v Attorney General & HM BIOT Commissioner [2003] EWHC QB 2222 ('Ouseley judgment') at para. 10.
21. S.I. 1965/1920. The Order also excised the islands of Aldabra, Desroches and Farquhar from the British colony of Seychelles and included them within the new colonial unit. BIOT came into existence on 8 November 1965.
22. Supra n. 2.
23. The United Kingdom retained formal sovereignty over BIOT. In effect, this arrangement was similar to a lease and the UK government received a $14 million discount on purchase of Polaris nuclear missiles in lieu of 'rent'. See Aldrich and Connell, The Last Colonies (Cambridge: Cambridge University Press, 1998) at 179.
24. Bancoult 2 at para. 36.
25. Para. 2(a), US-UK Exchange of Notes, supra n. 2; see Bancoult 2, ibid.
26. Ousley judgment at para. 41. Although figures are disputed, the available evidence suggests that the Ilois population stood between 1,500 and 1,800 individuals immediately prior to their expulsion.
27. See infra Section 6.
28. Article 73, UN Charter provides: Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and to this end: (a) to ensure, with due respect for the culture of the peoples concerned, their political, economic, social and educational advancement, their just treatment, and their protection against abuses; (b) to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;... (e) to transmit regularly to the Secretary-General for information purposes, subject to such limitations as security and constitutional considerations may require, statistical and other information of a technical nature relation to the economic, social, and educational conditions in the territories for which they are respectively responsible....
29. Bancoult 2 at para. 32.
30. See also infra Section 4(B).
31. Immigration Ordinance 1971, No. 1, enacted by the BIOT Commissioner; see Bancoult 2 at para. 57.
32. For accounts of how they were removed see Derasine Report, at 97-109;
33. Ouseley judgment at paras 26-50;
34. and Madeley, supra n. 14 at 4-5.
35. In 1972, the UK government agreed to pay the Mauritian government £650,000 in order to cover the costs of resettling the displaced Chagossians. This sum was paid to the Mauritian government in 1972. It was distributed to 595 Chagossian families in 1978. See Financial and Other Aspects of the 'Sale' of the Chagos Islands and the Resettlement of the Displaced Ilois, Special Report of the Public Accounts Committee for the 1980 (Fourth) Session, Mauritius Legislative Assembly (Port Louis: Mauritian Government, 1981).
36. The UK government contributed £4 million to the fund while the Mauritian government pledged £1 million worth of land. The compensation was offered on the condition that the Vencatessen proceedings were stayed; see Ouseley judgment at para. 75.
37. Ouseley judgment at para. 80.
38. The 1982 Agreement between the UK and Mauritian governments provided that compensation in full and final settlement would be paid for 'all acts, matters and things done by or pursuant to the BIOT Order 1965, including the closure of the plantations in the Chagos Archipelago, the departure and removal of those living or working there, the termination of their contracts, their transfer to and their resettlement in Mauritius..., Madeley, supra n. 14 at 10.
39. Richard Gifford of Sheridans Solicitors discovered this status. See Gifford, 'The Chagos Islands - The Land Where Human Rights Hardly Ever Happen', (2004) 7 Law, Social Justice and Global Development Journal available at: www2.warwick.ac.uk/fac/soc/law/elj/lgd. At the time of their exile, such persons were citizens of the United Kingdom and its Colonies under the British Nationality Act 1948, 1948 Ch 56.
40. By virtue of the British Nationality Act 1981, 1981 Ch 61, they became British Dependent Territories Citizens. Further, pursuant to the British Overseas Territories Act 2002, 2002 Ch 8, they became British Dependent Territories Citizens and entitled to full British citizenship. Since 1968 the Chagossians could also claim Mauritian citizenship, see Bancoult 2 at paras 43-5.
41. See Tomkins, 'Magna Carta, Crown and Colonies', [2001]Public Law 571.
42. Bancoult 2 at para. 84.
43. The British Indian Ocean Territory (Constitution) Order 2004; and The British Indian Ocean Territory (Immigration) Order 2004 were approved on 10 June 2004.
44. Bancoult 2 at para. 94.
45. These arguments were set out in a letter from the US Assistant Secretary of State for Political-Military Affairs dated 16 November 2004 that was produced in evidence in Bancoult 2 (at para. 96).
46. [1985] AC 374.
47. Ibid. at 410,
48. as quoted in Bancoult 2 at para. 103.
49. [2005] 3 WLR 837. See Bancoult 2 at paras 113-8.
50. Quark, ibid. at 856.
51. Bancoult 2 at para. 118.
52. Section 9 provides: (1) Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory (2) Accordingly, no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the time being in force in the Territory.
53. The Court noted that, under the 1966 US-UK Exchange of Notes, the United States had initially required the use of only Diego Garcia for defence purposes. Although the parties agreed that other Chagos Islands would remain available to meet future defence requirements, the United States has thus far only required the use of Diego Garcia for such purposes. See Bancoult 2 at para. 38. Consequently, the Court was of the view that the UK government was under no treaty obligation to enact the 2004 Orders to prevent resettlement to the outer islands.
54. Bancoult 2 at para. 122.
55. Ibid. at paras 145-63.
56. Ibid. at para. 163.
57. Ibid. at para. 81.
58. [2004] EWCA Civ. 997 at para. 6,
59. as quoted in Bancoult 2 at para. 28.
60. Bancoult 2 at para. 61.
61. Ibid. at para. 119.
62. Ibid. at para. 102.
63. Ibid. at para. 84.
64. Ibid. at para. 93.
65. Ibid. at para. 102. The Foreign Secretary appealed against the Divisional Court's decision in Bancoult 2. The appeal was heard in February 2007.
66. This was not an issue raised when considerable sums of money were spent by the UK government in the Falklands; see Aldrich and Connell, supra n. 19 at 200-12.
67. 6 out of these 14 territories are not self-sufficient. See Derasine Report at 44.
68. On the issue of economic development for the remaining colonies see Aldrich and Connell, ibid. chapter 3.
69. Derasine Report at 45.
70. Ibid. at 44.
71. 72 territories were included in the list annexed to GA Res. 66(1), 14 December 1946. The number of non-self-governing territories was subsequently increased by reference to the criteria established in the Principles which should guide Members in deciding whether or not an obligation exists to transmit the information called for under Article 73(e) of the Charter, GA Res. 1541(XV), 15 December 1960. Principle IV defined a 'non-self-governing territory' as one that was geographically separate, and ethnically/culturally distinct from the metropolitan State administering it.
72. This Committee was established in the aftermath of the Colonial Declaration by GA Res. 1654 (XVI), 27 November 1961. It succeeded the Special Committee on Information from Non-Self-Governing Territories (established by GA Res. 146(II), 3 November 1947 and renamed by GA Res. 569(VI), 18 January 1952).
73. Bancoult 2 at para. 29.
74. See the Mauritius Legislative Assembly Special Report, supra n. 27. In return for the detachment of the islands of Aldabra, Desroches and Farquhar, the UK government undertook to build an airport for the Seychellois government on the island of Mahée;
75. see Ouseley judgment at para. 74. These islands were never evacuated, and they reverted to the Seychelles on its accession to independence on 29 June 1976. The territory was admitted to UN membership via GA Res. 31/1,21 September 1976, A/RES/31/1. Also see GA Res. 3287 (XXIX), 13 December 1974.
76. The Prime Minister of Mauritius and chief negotiator of the 1965 agreement, Seewoosagur Ramgoolan, made this allegation in 1976. See Aldrich and Connell, supra n. 19 at 180;
77. and, generally, Simmons, Modern Mauritius: The Politics of Decolonization (Bloomington: Indiana University Press, 1982).
78. Lynch, 'Diego Garcia: Competing Claims to a Strategic Isle', (1984) 16 Case Western Reserve Journal of International Law 101 at 113.
79. The other party, the Movement Militant Mauricien, withdrew from the government because it considered that the Chagos Islands were sold at an undervalue rather than because the transfer was wrong in principle; see Lynch, ibid. at 112.
80. If it could be established that Mauritian independence was contingent on the agreement to transfer the Chagos Islands, this would amount to improper pressure and be contrary to the Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties, adopted by the UN Conference on the Law of Treaties (1968-1969), see Official Records of the UN Conference on the Law of Treaties, First and Second Sessions, Documents of the Conference (UN pub. Sales No. 70.V.5. A/CONF. 39/26).
81. Although the transfer was not effected by treaty, the Declaration represents customary international law on the operation of consensual international agreements. See Lynch, ibid. at 114.
82. GA Res. 2066(XX), 16 December 1965. The Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), 14 December 1960, ('Colonial Declaration') provides, inter alia: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2. All people have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.... 6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
83. Crawford, The Creation of States in International Law, 2nd edn (Oxford: Oxford University Press, 2006) at 645.
84. The principle of uti possidetis juris also has resonance in this context, see Castellino and Allen, Title to Territory in International Law: A Temporal Analysis (Aldershot: Ashgate, 2003).
85. This remains the position of the UK government; see HC Deb.,Vol. 390, c.WA 527 (15 October 2002).
86. The UK government, therefore, argues that the transfer is consistent with the meaning of the Colonial Declaration; see Lynch, supra n. 64 at 110.
87. Lynch, ibid. at 109-11.
88. Although Mauritius still presses its claim to the Chagos Islands, Crawford, supra n. 68 at 337, believes that it has accepted the validity of BIOT, at least as a temporary measure.
89. The General Assembly maintained its critical stance on this issue in the aftermath of BIOT's creation, see GA Res. 2232(XXI), 20 December 1966; and GA Res. 2357(XXII), 19 December 1967.
90. See GA Res. 2430(XXIII), 18 December 1968; GA Res. 2592(XXIV), 16 December 1969; GA Res. 2869(XXVI), 20 December 1971; and GA Res. 2984(XXVII), 14 December 1972.
91. In 1970, India and Sri Lanka protested against the initial construction of the defensive communications centre while Australia, Malaysia and Indonesia criticised the decision to develop the base in the mid-1970s - Diego Garcia became a full military base in 1976 - on the ground that it represented a threat to regional security; see Aldrich and Connell, supra n. 19 at 180.
92. Organisation of African Unity Assembly of Heads of State Resolution on Diego Garcia, 4 July 1980, AHG/Res. 99 (XVII). The African Union, the OAU's successor organisation, has resolved to maintain all OAU resolutions. Also see African Union Assembly of Heads of State Decision on Chagos Archipelago, AHG/Dec. 159 (XXXVI), 12 July 2000. The NAM adopted its resolution on the Chagos Islands at its Seventh Summit Conference in Delhi on 12 May 1983.
93. See Aldrich and Connell, ibid.
94. See, for example, the Letter dated 15 August 2001 from the Permanent Mission of Mauritius to the Chairperson of the Sub-Commission on the Promotion and Protection of Human Rights, 17 August 2001, E/CN.4/Sub.2/ 2001/39, which states: Ever since [the creation of BIOT] the Government of Mauritius has consistently pressed the United Kingdom Government both bilaterally and internationally for the early and unconditional return of the Chagos Archipelago to Mauritius. Mauritius has never acquiesced in the creation of the so-called British Indian Ocean Territory, which it does not recognize or accept.
95. Also see Comments by the Government of Mauritius to the Concluding Observations of the UN Human Rights Committee on the United Kingdom and Overseas Territories, 28 May 2002, CCPR/CO/73/UK/Add.1 and CCPR/CO/73/ UKOT/Add.1,
96. Written Answer of the Foreign Office Minister, supra n. 69.
97. Cited in Bancoult 2 at para. 29.
98. Ibid. at para. 32.
99. Crawford, supra n. 68 at 613-5.
100. Principle II, GA Res. 1541(XV), supra n. 59.
101. Article 1, ICCPR and Article 1, ICESCR provide (1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. (3) The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. See also the UN Human Rights Committee's interpretation of the application of the right in General Comment No. 12: Article 1 ('Right to self-determination'), 13 March 1984, HRI/GEN/1/Rev.7 at 134:1-2 IHRR 10 (1994).
102. Simma (ed), The Charter of the United Nations: A Commentary. Volume II. 2nd edn (Oxford: Oxford University Press, 2002) at 1094.
103. Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, GA Res. 2625(XXV), 24 October 1970;
104. discussed in Crawford, supra n.68 at 617-8.
105. Principle VI, GA Res. 1541 (XV), supra n. 59. Compliance with the democratic process has not always been a prerequisite for the achievement of independence in the colonial context, see Western Sahara, Advisory Opinion, ICJ Reports 1975, 12 at 33.
106. However, it is mandatory in relation to a people's decision to associate or integrate with an independent State, see Principles VII and IX, GA Res. 1541(XV), ibid.
107. Indicators of the attainment of self-government were first developed in GA Res. 742(VIII), 27 November 1953. On the issue of association see Crawford, ibid. at 625-33.
108. Crawford, ibid. at 622-33.
109. Blay, 'Self-Determination Versus Territorial Integrity in Decolonization', (1985-1986) 16 New York University Journal of International Law and Politics 441 at 465-6.
110. Also see Franck and Hoffman, 'The Right of Self-Determination in Very Small Places', (1975-1976) 8 New York University Journal of International Law and Politics 331.
111. However, statements made at the 987th and 988th meetings of the UN Security Council (XVI), 18 December 1961 indicate that such claims are controversial. See Harris, Cases and Materials on International Law 6th edn (London: Sweet and Maxwell, 2004) at 220-3;
112. and Wright, 'The Goa Incident', (1962) 56 American Journal of International Law 617.
113. Mauritius was terra nullius until it was colonised by the Dutch in 1598. The island was abandoned in 1707 only to be acquired by France in 1721.
114. Blay, supra n. 88 at 447-8.
115. 'Minorities' must rely on more limited cultural rights, see Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University Press, 2002) at 151-81.
116. International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, 1989, SHS-89/CONF.602/7, quoted in Thornberry, 'The Democratic or Internal Aspect of Self-determination with Some Remarks on Federalism, in Tomuschat (ed), Modern Law of Self Determination (The Hague: Martinus Nijhoff, 1994) 101 at 103.
117. Koskenniemi, 'National Self-Determination Today: Problems of Legal Theory and Practice', (1994) 43 International and Comparative Law Quarterly 241 at 260-3.
118. Thornberry, supra n. 93 at 126.
119. See Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995) at 59-62.
120. See Castellino and Allen, supra n. 68.
121. The position of the Mauritian government is that the Chagossian community constitute a Mauritian minority group. See the statement made by the Mauritian observer at the 17th session of the UN Working Group on Indigenous Populations (WGIP) in 1999 in Report of the WGIP on its seventeenth session, 12 August 1999, E/CN4/Sub.2/1999/19 at para. 63.
122. This position was reiterated at the 20th session in 2002: See International Service for Human Rights, Working Group on Indigenous Populations, 20th Session (Geneva, 22-26 July 2002) at 2, available at: http://www.ishr.ch/hrm/reports.and.analysis/SubWG/WGIP/ WGIP-20thSession.pdf.
123. Chronic impoverishment extends 'beyond economic impoverishment to include material, physical, psychological, social, and cultural impoverishment, Vine, supra n. 15 at 23. The notion of Chagossian peoplehood is developed further infra Section 6.
124. The term 'settler population' is used to denote a process of societal plantation rather than the means by which the territory has been acquired. The Falkland Islands were acquired by occupation (in the opinion of the UK government), while Gibraltar was acquired by cession via the Treaty of Utrecht 1713.
125. It has been argued that these aberrant cases cannot be resolved by reference to the principle of self-determination, Cassese, supra n. 96 at 207.
126. This issue is explored infra Section 6.
127. Castellino and Allen, supra n. 68.
128. Crawford, supra n. 68 at 336, believes that partition may be appropriate in order to give effect to the wishes of the people concerned or to ensure international peace and security. Although partition has occurred in small territories such as the Gilbert and Ellice Islands, this strategy has been less attractive to interested parties where the territory in issue is deemed a 'colonial enclave'.
129. In any event, the difficulties evident in achieving partition were well illustrated in the West Irian case, see Cassese, supra n. 96 at 82-6.
130. Established States are concerned about the re-emergence of the 'Belgian Thesis, which asserted that the concept 'non-self-governing territories' should not be restricted to the colonial context.
131. The other islands are Grand Comoro, Anjouan and Moheli.
132. This status is a hybrid one between départements d'outre-mer ('DOMS') and territoires d'outremer (TOMS). On the phenomenon of departmentalisation see Aldrich and Connell, supra n. 19 at 24-9.
133. Full integration should not be confused with the self-government option of integration contained in GA Res. 1541(XV), supra n. 59.
134. GA Res. 31/4, 21 October 1976, A/RES/31/4. For the OAU position see Council of Ministers Resolution on the Comorian Island of Mayotte, 3 July 1076, CM/Res. 496(XXVII),
135. as cited in Crawford, supra n. 68 at 645.
136. See Aldrich and Connell, supra n. 19 at 228-32.
137. GA Res. 49/151, 23 December 1994, A/RES/49/151.
138. The resolution noted the contacts between the French and Comorian governments pursuant to 'a search for a just solution to the problems of the integration of the Comorian island of Mayotte into the Comoros..., GA Res. 49/151, ibid. at para. 5.
139. Crawford, supra n. 68 at 645.
140. See Aldrich and Connell, supra n. 19 at 230-2.
141. The Statut de Mayotte 2001 conferred DOM status on the island bringing it within the purview of the French Constitution; see Crawford, supra n. 68 at 645.
142. See Aldrich and Connell, supra n. 19 at 231.
143. Anjouan separatists have sought to use Mayotte as a precedent; see Crawford, supra n. 68 at 646.
144. Crawford, ibid. at 645-6, appears to accept Mayotte and BIOT represent exceptional cases to the orthodox relationship between the principles of territorial integrity and self-determination in the colonial context.
145. A list of non-self-governing territories, as of 2002, recognised by the United Nations is available at: http://www.un.org/Depts/dpi/ decolonization/trust3.htm.
146. New Caledonia was added to the list by GA Res. 41/41A, 2 December 1986, A/RES/41/41 [A]. See Aldrich and Connell, supra n. 19 at 131-7.
147. The instruments of ratification, dated 20 May 1976, were accompanied by a declaration stating that the Covenants were ratified in respect of the following territories: The United Kingdom, Guernsey, Jersey, the Isle of Man, Belize, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands and Dependencies, Gibraltar, Gilbert Islands, Hong Kong, Montserrat, the Pitcairn Group, St Helena and Dependencies, Solomon Islands, Turks and Caicos Islands and Tuvalu. See Letter of the Director of General Legal Division, Office of Legal Affairs, 29 June 1976, C.N.193.1976. Treaties-6.
148. I am indebted to Professor Anthony Bradley for this insight. The UK government was not alone in adopting this approach-the Netherlands and Portugual both made declarations concerning the territorial application of the Covenants to certain colonial units. Article 56 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (Protocol No.11, ETS No. 155) provides: (1) Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.
149. Article 2(1), ICCPR provides: 'Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant....'
150. Under Article 40, ICCPR, State Parties have a duty to report to the Committee regarding measures taken in order to realise the rights conferred by the Covenant.
151. Summary Record of the First Part of the 1963rd Meeting: United Kingdom, 23 October 2001, CCPR/C/SR.1963 at paras 12-4.
152. It may be significant that the UK government's territorial application 'declaration' is not included in the list of declarations and reservations to the Covenants listed by the Office of the UN High Commissioner for Human Rights, available at: www.ohchr.org/english/ countries/ratification/4-1.htm.
153. On the ICESCR in general see Steiner and Alston, International Human Rights in Context: Law, Politics and Morals, 2nd edn (Oxford, Oxford University Press, 2000) at Chapter 4.
154. Aldrich and Connell, supra n. 19 at 161. The authors assert that the listing of New Caledonia in 1986 has had little impact in the territory and thus cannot be interpreted as a symbol of renewed vigour on the part of the international community to eradicate colonialism.
155. Ibid.
156. See the First International Decade for the Eradication of Colonialism (1990-2000), GA Res. 43/47, 22 November 1988, A/RES/43/47;
157. and the Second International Decade for the Eradication of Colonialism (2001-2010), GA Res. 55/146,8 December 2001, A/RES/55/146.
158. In the longer term, it may be that the choice of independence for the Chagos Archipelago would be unrealistic. The option of associate statehood may be more appropriate. This status typically involves association with the former metropolitan State; the resource implications would inevitably prompt the Chagossian people to choose to associate with the United Kingdom.
159. The US litigation quickly stalled. The action was dismissed on appeal because it was decided that it concerned non-justiciable political questions. See Bancoult et al. v McNamara 445E3d. 427 [2006].
160. The English Court of Appeal, in Chagos Islanders v Attorney General and HM BIOT Commissioner [2004] EWCA Civ. 997, at para. 20, observed that in a civil law system the judgment given in Bancoult 1 regarding the public law right of abode would attract an entitlement to damages against the State for the claimants but that this was not the position in English law.
161. Promulgated as The Mauritius (Constitution) Order 1964. In addition, it was argued that the claimants were afforded constitutional protection against the deprivation of property without compensation and inhuman or degrading treatment.
162. Ouseley J did not accept that the Mauritian Constitution had been incorporated into BIOT law; see Ouseley judgment at paras 416-7.
163. However, the Court of Appeal, ibid. at paras 41-2, disagreed with this view.
164. Nonetheless, it concluded that the present case was unanswerable on the ground that the proceedings were time-barred, ibid. at para. 49.
165. This was a reference to the compensation package established under the Mauritian Ilois Trust Fund Act 1982; see Ouseley judgment at para. 594.
166. The Court of Appeal, supra n. 130 at para. 16, upheld his decision on this point.
167. Acting under this Ordinance, the Crown purchased all the Company's lands in the Chagos Islands for the sum of $660,000. The BIOT Commissioner then granted a lease of these lands to the Company, which was taken over by Moulinie & Co. (Seychelles) Ltd. in 1968; see Ouseley judgment at para. 22.
168. Ibid. at para. 119.
169. Ibid. at para. 385.
170. Ibid. at para. 386.
171. The critical date for property claims in this action was fixed at 1967.
172. Ouseley judgment at para. 386.
173. Ibid.
174. However, it has been suggested that historically Chagossians chose to build their own houses using company land and resources and that the company only started to build houses in the 1960s. See the Derasine Report at 93-4. The construction of new houses does not mean that families did not occupy the same plots of lands for generations; but this is a question of evidence.
175. Any prescriptive claim would need to satisfy the test of nec vi, nec clam, nec precario.
176. Ouseley judgment at para. 397.
177. Ibid. Section 3, Private Treaty Ordinance 1967, allowed the Crown to purchase lands if the 'owner or apparent owner agrees to sell such land'. Further, Sections 5 and 6 provided that any such sale would overreach the rights of any owners including lessees and beneficiaries. The Court, therefore, held that any property rights Chagossians may have had were extinguished by this Ordinance. The Acquisition of Land for Public Purposes (Repeal) Ordinance 1983 confirmed that the Crown owns all the land in 1310T,
178. see Ouseley judgment at paras 389-400.
179. Derasine Report at 176.
180. It also states that the team is in the process of calculating this loss and will publish a further report on this issue in due course. But for an indication of their approach see Vine, Wojciech Sokolowiski and Harvey, 'Exile in the Indian Ocean: Documenting the Injuries of Involuntary Displacement; 7 January 2004 ('2004 Report'), Inter-University Consortium on Security and Humanitarian Affairs, available at: http://web.gc.cuny.edu/RalphBuncheInstitute/IUCSHA/ fellows/dv/DV-link2.pdf.
181. The Derasine Report, at 176, bases the figure on the average area of land owned by Chagossian households.
182. 2004 Report at 22-5. See also Vine, supra n. 15 at 23-4.
183. Vine, ibid. at 23.
184. Ibid.
185. The precedent for this model is the compensation package offered by the US government to the inhabitants of the Kwajalein Atoll in the Marshall Islands who were removed in order to make way for the Kwajalein Missile Range, ibid. However, it is submitted that there is a vital difference between the indigenous peoples of the Marshall Islands and the Chagossian people in that the former could satisfy the indigenousness criterion of historical precedence, see Section 6 subsequently.
186. The Derasine Report was produced in connection with the private law claims for compensation made on behalf of the Chagossian people in the English and US courts.
187. Kingsbury, 'Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy', (1998) 92 American Journal of International Law 414 at 426.
188. Martinez-Cobo, Study of the Problem of Discrimination Against Indigenous Populations, E/CN.4/Sub.2/1986/7/Add.4 at para. 379.
189. Another important definition is included in Article 1 (1), Convention No. 169 on Indigenous and Tribal Peoples 1989, 1650 UNTS 383. The concept of indigenousness is not defined in the draft UN Declaration on the Rights of Indigenous Peoples, adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities Res. 1994/45, 26 August 1994, E/CN4/Sub.2/1994/56 at 105.
190. He also recognised the criterion of self-identification, supra n. 92 at 37-40.
191. Kingsbury, supra n. 154 at 453-5.
192. Paper by Erica Irene Daes, as reproduced in Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples, 19 July 2000, E/CN.4/Sub.2/ 2000/10.
193. Madeley, supra n. 14 at 4.
194. Vine, supra n. 15 at 21.
195. Madeley, supra n. 14 at 4.
196. Madeley, ibid. at 5, states that, by 1965, the population of the Chagos Islands stood at around 1,800 people. Although the Foreign Office contended that only 830 people inhabited the islands in 1971, Madeley argues that 251 Ilois families (900-1,000 individuals) had already left the archipelago for Mauritius between 1965 and 1970. This figure is supported by the Mauritian authorities;
197. see Ouseley judgment at para. 41.
198. Madeley, ibid. at 7. The Foreign Office alleged that in 1968 only 128 individuals on Diego Garcia were second-generation inhabitants of the island. It claimed that this figure accounted for 34% of the island's population at the time;
199. see Ouseley judgment at para. 28.
200. Gifford, supra n. 31 at 4.
201. Derasine Report at 48-9.
202. Ibid.
203. Ibid. at 178-83.
204. Ibid. at 169-71 and 230-1.
205. Ibid. at 168-9.
206. Draebel, 'Evaluation des besoins sociaux de la communauté déplacée de l'Archipel de Chago's December 1997, Report produced for the World Health Organization, qouted ibid. at 221.
207. Ibid. at 222.
208. Ibid. at 201-24.
209. Ibid. at 95.
210. Ibid. at 238.
211. Ibid. at 232-3.
212. Ibid. at 233-5.
213. Madeley, supra n. 14 at 4.
214. By the end of the 18th century the 'colony' comprised 300 individuals; see Madeley, ibid. at 3.
215. Ibid. at 4.
216. Chagossians occasionally made trips to Mauritius in order to purchase goods, visit relatives or for medical purposes.
217. For accounts of how they were removed see the references cited supra n. 26.
218. Derasine Report at 111-4.
219. Ibid. at 119-23.
220. Madeley, supra n. 14 at 6.
221. The fund was distributed between 595 families in 1978. However, the Sylva Report (1981) stated that there were 942 Ilois families in Mauritius in 1981 (2867 individuals). There were 4,959 Chagossian claimants cited in the English private law action in 2003;
222. see Ouseley judgment at para. 99.
223. Madeley, supra n. 14 at 8.
224. Although the concrete houses built on plots of land provided by the Mauritian government between 1982 and 1985 improved housing conditions for some Chagossians, Draebel found that Chagossians continued to live in overcrowded conditions in the poorest and most disadvantaged neighbourhoods. Their housing was typically dilapidated, structurally deficient and lacking in basic sanitary facilities; see Derasine Report at 152-5.
225. These statistics from the Derasine Report are included in Vine, supra n. 15 at 23.
226. Derasine Report at 267.
227. Ibid. at 138.
228. Ibid. at 236-8.
229. It provided that: 'self-identification as indigenous... shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply'. Article 8 of the original text of the draft UN Declaration sought to strengthen and extend its significance by providing: 'Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such.'
230. In particular, the Chagos Refugee Group, the Chagos Social Committee, the UK Chagos Support Association and the Comité Suisse de Soutien aux Chagossiens. These NGOs have participated in the WGIP's annual sessions.
231. See Burman and Verghese (eds), Aspiring to Be: The Tribal/Indigenous Condition (New Delhi: Konarck PVT, 1998).
232. See Ouseley judgment at paras 60-72.
233. The Chagos Refugee Group represents Chagossians in Mauritius. The Chagos Social Committee, founded in 1997, represents Chagossians in the Seychelles.
234. The Chagos Social Committee co-sponsored this litigation.
235. Nevertheless, the twin experiences of exile and chronic impoverishment have inevitably led to a degree of socio-cultural fragmentation; see Derasine Report at 226-39.
236. Martinez-Cobo Report, supra n. 155 at para. 380.
237. Report of the WGIP on its seventeenth session, supra n. 98.
238. ISHR Report of the 20th session of the WGIP, ibid.
239. Gray, 'The Indigenous Movement in Asia', in Barnes, Gray and Kingsbury (eds), Indigenous Peoples of Asia (Ann Arbor: Association for Asian Studies, 1995) 35 at 36-8.
240. On the complex relationship between indigenous peoples and modernity see Allen, 'The Consequences of Modernity for Indigenous Peoples: An International Appraisal', (2006) 13 International Journal on Minority and Group Rights 315.
241. Only 18 States have ratified the convention (neither the UK nor Mauritius are parties). Nevertheless, it has been argued that the convention represents customary international law on indigenous rights; see Anaya, Indigenous Peoples in International Law, 2nd edn (New York: Oxford University Press, 2004) at 61-72.
242. Also see the way the Convention was applied by the Inter-American Court of Human Rights in Awas Tingni Indigenous Community of Mayagna v Nicaragua IACtHR Series C 79 (2001), despite Nicaragua not being a party to it.
243. Article 14(2), ILO Convention No. 169. See also Thornberry, supra n. 92 at 355-6;
244. and Daes, supra n. 159 at paras 49-54.
245. It has been suggested by Thornberry, ibid. at 353-4, that the phrase'traditionally occupy'in Article 14 does not strictly require present day occupation of traditional lands as it extends to relatively recent instances of dispossession.
246. Thornberry, ibid.
247. Council Res. 2006/2, 29 June 2006, A/HRC/1/L/3. The Human Rights Council succeeded the Commission on Human Rights in 2006. However, at the 61st session, the General Assembly's Third Committee decided to defer adoption of the draft Declaration in order to 'allow time for further consultations, A/C.3/L.57/rev.1, 28 November 2006. GA Res. 61/178, 20 December 2006, A/RES/61/178, subsequently endorsed this position.
248. In light of the above, this argument may be losing its force: nevertheless, the draft Declaration presently represents an important normative framework for indigenous rights. Arguably, it still constitutes lex ferenda and it is suggested that the UK government should observe its provisions given its mistreatment of the Chagossian people.
249. The draft Declaration also connects the cultural impact of involuntary displacement with the issue of land rights. To this end, Article 7 of the approved version provides: 1 Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. 2 States shall provide effective mechanisms for prevention of, and redress for... (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights.
250. However, the temporal scope of indigenous land rights was a major obstacle during the process of scrutinising the draft. In particular, settler States, such as Australia, Canada, New Zealand and the United States became increasingly intransigent on this issue. See the Reports of the Commission on Human Rights' inter-sessional Working Group: Office of the UN High Commissioner for Human Rights, available at: http://www.unhchr.ch/indigenous/groups-02.htm; and http://www.ohchr.org/english/issues/indigenous/groups/groups-02.htm.
251. This is apparent from preambular para. 12 of the approved draft Declaration, which provides: 'Recognizing also that indigenous peoples have the right freely to determine their relationships with States in a spirit of coexistence, mutual benefit and full respect.' Consequently, many indigenous rights only make sense in this context.
252. For example, the original text of Article 3 of the draft Declaration simply transposed the provisions of joint Article 1(1) of the International Covenants into the indigenous context. Article 3bis of the approved version diluted the original text by emphasising the internal dimension of this right and its connection to the notion of autonomy.