International law and the resettlement of the (outer) Chagos Islands

Human Rights Law Review

Volumn 8, Issue 4, 2008, Pages 683-702

  Allen, Stephen ^a  

^a BRUNEL UNIVERSITY   (United Kingdom)

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[No Author keywords available]

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EID: 56849092645     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngn024     Document Type: Article

References (101)

1. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs and Another [2001] QB 1067 (Bancoult 1)
2. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 1038 (Achnin)
3. and Secretary of State for Foreign and Commonwealth Affairs v R (Bancoult) [2007] EWCA Civ. 498 (Bancoult 2). See Allen, 'Looking Beyond the Bancoult Cases: International Law and the Prospect of Resettling the Chagos Islands', (2007) 7 Human Rights Law Review 441.
4. S.I. 1965/1920.
5. 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.
6. The compensation was offered on the condition that the Vencatessen legal proceedings were stayed.
7. The scheme was administered under the Mauritian Ilois Trust Fund Act 1982. The UK government contributed £4 million to the fund while the Mauritian government pledged land to the value of £1 million. About 500 displaced Chagossians were transported to the Seychelles; they have never received any compensation. 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. However, this societal group now self-identifies as Chagossian.
8. Vine, 'The Impoverishment of Displacement: Models for Documenting Human Rights Abuses and the People of Diego Garcia', (2006) 13 Human Rights Brief 21.
9. 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. 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, Ch. 8, they became British Overseas Territories Citizens and entitled to full British citizenship.
10. This observation was made by Sedley L.J. in the Court of Appeal in Chagos Islanders v Attorney General & HM BIOT Commissioner [2004] EWCA Civ. 997 (Chagos Islanders' Appeal) at para. 20.
11. The main causes of action were (i) misfeasance in public office; (ii) unlawful exile; (iii) deceit; and (iv) interference with property rights acquired by prescription and/or succession.
12. Chagos Islanders v Attorney General [2003] EWHC 2222 (QB) ( Ouseley judgment).
13. This was a reference to the compensation package established under the Mauritian Ilois Trust Fund Act 1982, and ibid. at para. 594.
14. Chagossian representatives argue that the process of effecting renunciation was flawed and the consent of affected Chagossians was vitiated as a result. Further, they claim that the UK government was not a party to the agreement made between those Chagossians who received compensation and the Ilois Trust Fund Board, nor was the Board acting as the UK's agent in this regard. Accordingly, in the pending Strasbourg litigation - Chagos Islander v UK (App. No. 35662/04) - the petitioners claim that this compensation cannot be taken as satisfying the UK's responsibility for its mistreatment of the exiled Chagossians, at paras 135-139 (on file with the author).
15. The Court of Appeal upheld his decision on this point, supra n. 8 at para. 16. For an account of the evidential difficulties confronting Chagossian witnesses in the case, see Jeffery, 'Historical Narrative and Legal Evidence: Judging Chagossians' High Court Testimonies', (2006) 29 Political and Legal Anthropology Review 228.
16. Chagos Islanders' Appeal, supra n. 8 at para. 53.
17. The petition alleges breaches of Article 3 (in human and degrading treatment); Article 6 (absence of fair trial), Article 8 (respect for family and private life); Article 13 (lack of an effective national law remedy); and Article I of Protocol No. 1 (violation of property rights).
18. The litigation will need to overcome certain established jurisdictional arguments, see Moor and Simpson, 'Ghosts of Colonialism in the European Convention on Human Rights', (2005) 76 British Year Book of International Law 121 and Quark Fishing Ltd. v UK (2007) 44 EHRR SE4.
19. This quotation was contained in a letter written by Richard Gifford, Bancoult's solicitor, addressed to the Chairperson of UN Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, 12 April 2007 (on file with the author).
20. Quoted by Sedley L.J. in Bancoult 2, supra n. 1 at para. 12.
21. There is some controversy regarding the content of the 2002 report. The government has not disclosed the full contents of the draft report; it subsequently claimed that all copies were destroyed. See the transcript of the evidence of Richard Gifford to the Parliamentary Foreign Affairs Committee Inquiry into Good Governance in British Overseas Territories, 23 January 2008, available at: http://www.publications.parliament.uk/pa/ cm200708/cmselect/cmfaff/c147-ii/c14702.htm [last accessed 16 August 2008].
22. Supra n. 1 at para. 102.
23. Ibid. at para. 97.
24. Ibid. at para. 71.
25. Chagos Islanders' Appeal, supra n. 8 at para. 54.
26. Returning Home: A Proposal for the Resettlement of the Chagos Islands (London: Chagos Refugees Group/UK Chagos Support Association, 2008) (2008 Report). The Report was released on 8 April 2008 in connection with the 'Let Them Return' Campaign, see: http://www.letthemreturn.com/ [last accessed 26 August 2008]. It was written without the advan- tage of site visits but it benefited from relevant professional advice and also consultation with the Chagossian people (unlike the earlier studies). It does not claim to be an exhaustive study; rather it aims to demonstrate that resettlement is feasible and it recommends that the UK government undertake a fully comprehensive study of its own. A critical evaluation of the Howell Report was produced injune 2008 by the Chagos Conservation Trust, an environ- mental group, see: http://www.bangor.ac.uk/-OSS005/evaluation-howelijuneO8.pdf [last accessed 28 August 2008].
27. Report, ibid. at 34. The earlier feasibility studies expressed concerns about the lack of potable water in the outer Chagos Islands and, especially, the impact that climate change would have on the archipelago given they are less than two meters above sea level.
28. See Vine, Wojciech Sokolowiski and Harvey, Dérasiné: The Expulsion and Impoverishment of the Chagossian People (draft report) 11 April 2005, at 44-5 (on file with the author). Also see: http://www.fco.gov.uk/en/about-the-fco/country-profiles/ [last accessed 26 August 2008].
29. Report, supra n. 23 at 8 and 18-24.
30. See the Overseas Association Decision, 27 November 2001, 2001/822/EC, Official Journal of the European Communities, L 314, Vol. 44, 30 November 2001. The Commission confirmed that if the UK government indicated that the BIOT had been resettled the Council could consider modifying the Decision in order to allocate funds to this overseas territory. Written Answer P-3189/06ENS, 5 September 2006 by Commissioner Michel in response to Written Question P-3189/06 by Glenys Kinnock (PSE) (on file with the author).
31. The UK government's statement to the Committee on 16 November 1965 was included in the Divisional Court's judgment in Bancoult 2, supra n. 1 at para. 29. The background to the statement is set out at paras 27-33.
32. Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), 14 December 1960, A/4494 at para. 2, provides: All peoples 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.'
33. The Declaration on the Principles of International Law concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625(XXV), 24 October 1970, A/ 8082, maintains that a 'people' of a non-self-governing territory retain a separate and distinct legal status from its administering State and this status remains until the people have exercised their right of self-determination.
34. International Covenant on Civil and Political Rights 1966, 999 UNTS 171, and International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3.
35. Letter of the Director of General Legal Division, Office of Legal Affairs, 29 June 1976, C.N.193.1976. Treaties-6 (on file with the author).
36. Article 2(1) 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, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Further, General Comment No. 31, 26 May 2004, CCPR/C/21/rev.1/Add.13 11 IHRR 905 (2004) at para. 10 provides: State Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights of all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State Party must respect and ensure the rights laid down in the Covenant to anyone [in their] power or effective control....
37. Article 40, ICCPR.
38. General Comment No. 24,4 November 1994, CCPR/C/21/Rev.1/Add.6;2 IHRR 10 (1994). As the UK has not acceded to the First Optional Protocol to the ICCPR, it is not open for the Chagossian people to bring an individual complaint alleging breaches of the Covenant by the UK.
39. Ibid. at paras 17-8.
40. Ibid. at para. 9.
41. The Human Rights Committee stated that a State party must show 'the constitutional and political processes which in practice allow the exercise of [the] right [of self-determination]' in its periodic reports. See General Comment No. 12, 13 March 1984, HRI/GEN/1/Rev.7 at 134; 1-2 IHRR 10 (1994). The content of Article 1 is discussed in the next subsection.
42. Summary Record of the First Part of the 1963rd Meeting: United Kingdom, 23 October 2001, CCPR/C/SR.1963 at paras 12-4.
43. The inter-temporal principle holds that actions carried out in one period cannot be judged by the legal standards of another where they have been effectively maintained. See Article 13 of the Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission, 10 August 2001, 53rd session, A/56/10, and Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002) at 131-4.
44. This observation was made by Patrick Capps in 'Responsibility for Acts in Violation of International Law in the British Indian Ocean Territory', at para. 12, in a Paper presented at the colloquium on 'The Common Law, the Royal Prerogative and Executive Legislation', Centre for Public Law, University of Cambridge, 19 January 2008, available at: http://www.cpl.law.cam.ac.uk/Capps.P.Paper.pdf [last accessed 26 August 2008].
45. Article 14 provides inter alia: (2) The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation. (3) The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation. See Crawford, supra n. 39 at 135-6.
46. This connection was made by Capps, supra n. 40. Further, according to the Commentary, at 138, this interpretation would be consistent with the Human Rights Committee's jurisprudence, see Lovelace v Canada (24/ 1977), CCPR/C/OP/1 (1984) at 172.
47. Alternatively, Capps suggests such measures could be deemed elements of a composite wrongful act under Article 15, supra n. 40.
48. See Crawford, supra n. 39 at 141-4.
49. Concluding Observations of the Human Rights Committee regarding United Kingdom, 6 December 2001, CCPR/CO/73/UK at para. 38.
50. May 2007, CCPR/C/GBR/6.
51. Concluding Observations of the Human Rights Committee regarding the United Kingdom of Great Britain and Northern Ireland, 30 July 2008, CCPR/ C/GBR/CO/6 at para. 22. The Committee drew attention to the relevance of Article 12, ICCPR in this regard. Article 12 provides: (1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. (2) Everyone shall be free to leave any country, including his own. (3) The above mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health, or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. (4) No one shall be arbitrarily deprived of the right to enter his own territory.
52. Ibid. stating that: 'The State party should ensure that the Chagos islanders can exercise their right to return to their territory and should indicate what measures have been taken in this regard. It should consider compensation for the denial of this right over an extended period. It should also include the Territory in its next periodic report'.
53. Ouseley judgment, supra n. 10 at para. 397.
54. Also see Allen, supra n. 1 at 464-8.
55. This observation was made by Sedley L.J. in Bancoult 2, supra n. 1 at para. 71.
56. (XVII) (1962), 14 December 1962.
57. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005) at 218.
58. Ibid.
59. See Anglue, '"The Heart of My Home": Colonialism, Environmental Damage and the Nauru Case', (1993) 34 Harvard International Law Journal 445, at 472-80.
60. Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia Preliminary Objections, Judgment, ICJ Reports 1992, 240.
61. For an overview of the settlement, see ibid. at 506.
62. In particular, the reefs surrounding the island were extensively excavated to provide deep-water anchorage for US navy vessels.
63. CESCR, General Comment No. 3, 14 December 1990, E/1991/23:1-2 IHRR 2 (1994) at para. 10. See Articles 11-13, ICESCR. Article 1 provides for the right of self-determination in the same terms as Article 1, ICCPR.
64. See General Comment No. 3, ibid.
65. at paras 4-8. CESCR, General Comment No. 9, 3 December 1998, E/C.12/1998/ 24; 6 IHRR 289 (1999) at paras 1-3. Article 2(1), ICESCR provides: Each State Party to the present Covenant undertakes to take steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means...
66. For an account of the UK government's approach to this Covenant, see Bates, 'The United Kingdom and the International Covenant on Economic, Social and Cultural Rights', in McCorquodale and Baderin (eds), Economic, Social and Cultural Rights in Action (Oxford: Oxford University Press, 2007) 257.
67. Ibid. at 278.
68. More generally, see Steiner, Alston and Goodman (eds), International Human Rights in Context: Law, Politics, Morals, 3rd edn (Oxford: Oxford University Press, 2007) at 275-7 and 313-5.
69. See Article 2(3), ICCPR.
70. General Comment No. 9, supra n. 56 at para. 2.
71. UNTS 195.
72. See Lerner, Group Rights and Discrimination in International Law, 2nd edn (The Hague: Martinus Nijhoff Publishers, 2003) at 52-4.
73. Article 5(d)(i)-(ii). It is unclear why a distinction has been drawn between 'State' and 'country' in this context. It could be argued that, as a non-self-governing territory, the BIOT counts as a country for this purpose.
74. In this respect, State parties guarantee such rights to everyone, without distinction as to race, colour or national or ethnic origin.
75. However, it would be wrong to suppose that there is no historical precedent for such processes of deracination. In the Chagos Islanders' Appeal, supra n. 8 at para. 6, Sedley L.J. drew a parallel with the clearances of the Scottish Highlands in the latter part of the 19th century.
76. Concluding Observations of the Committee on the Elimination of Racial Discrimination regarding United Kingdom, 10 December 2003, CERD/C/63/CO/ 11 at para. 26. The requirement to submit periodic reports is contained in Article 9, ICERD.
77. Article 2(2), ICERD provides: State parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms...
78. See CERD General Recommendation 23, 18 August 1997, A/52/18 Annex V;
79. Thornberry, 'The Convention on The Elimination of Racial Discrimination, Indigenous Peoples and Caste/Descent-based Discrimination, in Castellino and Walsh (eds), Indigenous Peoples and International Law (The Hague: Martinus Nijhoff Publishers, 2005) 17
80. and Thornberry, 'Confronting Racial Discrimination: A CERD Perspective', (2005) 5 Human Rights Law Review 239.
81. The Chagossian people can be classified as indigenous. However, as their ancestors were first brought to the Chagos Archipelago as slaves and indentured labourers, they cannot establish the pre-colonial territorial base on which to found claims for land rights by reference to international standards concerning indigenous rights, see Allen, supra n. 1 at 474-5. Nevertheless, the CERD's jurisprudence also manifests a significant cultural dimension and a commitment to sustainable economic and social development.
82. Although Article 14, ICERD allows CERD to adjudicate complaints lodged by individuals and groups, the UK government has not yet granted CERD jurisdiction to perform this function.
83. Cm 4264 (1999).
84. These principles were identified in the foreword written by then Foreign Secretary, Robin Cook, ibid. at 4-5.
85. In 2005, Moor and Simpson, supra n. 16, doubted whether these principles could be applied to the RIOT as matters stood.
86. They characterised the territory as a British Non-Autonomous Overseas Territory, at 163-4. Nevertheless, they identified the possible solution of re-organising the BIOT's boundaries to allow the outer Islands a degree of autonomy in the event of resettlement, at 184-5, n. 363.
87. Cm 6762 (2006). The White Paper identified the security and good government of British Overseas Territories as one of its strategic priorities.
88. Ibid. at 39.
89. Ibid. at 4-5.
90. However, David Miliband, the current Foreign Secretary, has recently issued a new set of Departmental Strategic Objectives for the period 2008-2011, in which the relationship between the UK and its Overseas Territories does not feature expressly, see, http://www.fco.gov.uk/ resources/en/pdf/pdfl/CSR-07 [last accessed 26 August 2008]. Further, it should noted that the government's proposals concerning the reform of the royal prerogative contained in the Green Paper, The Governance of Britain, Cm 7170, July 2007, at para. 49, n. 13, do not extend to the 'uses of the royal prerogative in countries and British Overseas Territories other than the UK of which the Queen is Monarch.'
91. See, for example, Reus-Smit (ed), The Politics of International Law (Cambridge: Cambridge University Press, 2004).
92. Ibid. at 3-5 and 21-3.
93. House of Commons Foreign Affairs Committee, Overseas Territories, Seventh Report of Session 2007-08, HC 147-1, 6 July 2008. The Inquiry was announced on 5 July 2007. The deadline for written submission was 31 January 2008. Oral evidence was taken between December 2007 and March 2008.
94. Ibid. at 138.
95. Ibid. at paras 42-73.
96. Ibid. at para. 69.
97. Nevertheless, the Committee was mindful of such legal obligations, see supra n. 77 at para. 66.
98. This Committee is responsible for monitoring the progress of the remaining non-self-governing territories towards decolonisation. It was established after the adoption of the Colonial Declaration by GA Res. 1654 (XVI), 27 November 1961.
99. For further analysis of this issue, see Allen, supra n. 1.
100. [2008] UKHL 61.
101. Chagos Islander v UK, supra n. 12.