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This book offers a detailed account of the legal issues concerning the British Indian Ocean Territory (Chagos Islands) by leading experts in the field. It examines the broader significance of the ongoing Bancoult litigation in the UK Courts, the Chagos Islanders' petition to the European Court of Human Rights and Mauritius' successful challenge, under the UN Convention of the Law of the Sea, to the UK government's creation of a Marine Protected Area around the Chagos Archipelago. This book, produced in response to the 50th anniversary of the BIOT's founding, also assesses the impact of the decisions taken in respect of the Territory against a wider background of decolonization while addressing important questions about the lawfulness of maintaining Overseas Territories in the post-colonial era.The chapter ‘Anachronistic As Colonial Remnants May Be...’ - Locating the Rights of the Chagos Islanders As A Case Study of the Operation of Human Rights Law in Colonial Territories is open access under a CC BY 4.0 license via link.springer.com.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction

Abstract
The British Indian Ocean Territory (‘BIOT’) or Chagos Islands, is situated in the Indian Ocean. It is located immediately below the Maldives and is flanked by Africa to the West and the South East Asia to the East. The BIOT was created on 8 November 1965 by the 1965 BIOT Order in Council, a piece of UK primary legislation which excised the inhabited Chagos Archipelago from the British colony of Mauritius along with three uninhabited atolls from the colony of the Seychelles. The partitioning of Mauritius on the eve of independence; the involuntary displacement of the Chagos Islanders (pursuant to the construction of a US naval facility on Diego Garcia); and their subsequent chronic impoverishment in Mauritius have all remained highly controversial in the intervening years. It seems inconceivable that almost 20 years after the end of the Second World War, and the creation of the United Nations, that the UK government would, in effect, exile the population of the entire Chagos Archipelago and then deny to the United Nations that the Islands had ever had a permanent population. However, as the government records quoted in a number of Bancoult judgments show, this is precisely what happened. Since the early 1970s, the UK government has fought hard to prevent the Chagos Islanders from returning to their ancestral homeland by rejecting their right of abode in the BIOT/Chagos Islands and by refusing the demands for adequate compensation for all those affected.
Stephen Allen, Chris Monaghan

Chapter 2. Justifying Bancoult (No 2): Why Justice Hercules Must Sometimes Disappoint Us

Abstract
This essay considers how Justice Hercules, the personification of Ronald Dworkin’s anti-positivist, interpretative theory of law, might assess the judicial reasoning in Bancoult (No 2). If, as Hercules contends, legal reasoning is a subset of moral reasoning, rooted in the legal and constitutional traditions of the United Kingdom, then I suggest that he may have reason to favour the majority judgments. The underlying moral scheme of these judgments arguably captures the historical settlement between the Crown and the courts in relation to prerogative powers. Whether or not that conclusion is correct, an interpretative reading of the judgments places the judicial disagreements in Bancoult (No 2) in a fresh light. It answers many of the positivist-inspired objections to the majority reasoning. And it reveals the differences between the judges to be, not an uncompromising ‘clash of legal cultures’ between executive authority and individual liberty, but a common attempt by the judges to contribute to what Kyritsis calls a ‘joint project of governing’: a collaborative effort on the part of each branch of government to fashion, through law, a shared vision of justice and institutional responsibility. That shared vision may fall short of what judges, and we, think justice ideally requires; but I contend that we can legitimately expect no more of legality and adjudication.
Stuart Lakin

Chapter 3. Environmental Protection v the Right of Abode: A Case-Study in the Misuse of Power

Abstract
The Chagossian people were illegally exiled from their homeland in the 1960s and 1970s. This paper argues that the decision of the UK Government in 2010 to establish a no-take marine protected area covering most of the Chagos archipelago was taken, at least in part, to ensure that the islands remained de-populated, and that, despite court rulings to the contrary, on a proper analysis this decision was likewise unlawful.
Adam Tomkins

Chapter 4. How Public Law Has Not Been Able to Provide the Chagossians with a Remedy

Abstract
The deportation of the population of the Chagos Islands between 1965 and 1973 and their exile into poverty and despair is among the worst acts of colonial misgovernance committed by the United Kingdom in the twentieth century. A succession of legal actions and public pressure has since forced the UK Government to acknowledge and publicly ‘regret’ what it did, but it has nonetheless resisted any real effort to find a resolution.
This chapter examines the attempts, over a period of four decades, to find a legal solution. It traces the extraordinary tactics adopted by UK Government officials from the outset and which continue to this day to cheat this impoverished and vulnerable community of their birthright. This has included deceiving the United Nations, the Public and Chagossians; and recently included withholding information from the courts. It also critically examines judicial decisions and exposes the illogical reasoning of some judges which has led to a failure to give effect to the rights long-enshrined in the Common Law, the clear protections of Magna Carta, and the ‘omna erges’ character of International Law. It highlights the fact that despite frequent criticism and upholding the theoretical illegality of the Exile, the judiciary has failed to create or recognise any remedy for the plight of Chagossians, and has both denied them compensation, and upheld an Order-in-Council which was covertly used in 2004 to in effect overturn an earlier judicial decision and abolish their right of abode.
Richard Gifford

Chapter 5. The Subject as a Civic Ghost: Law, Dominion, and Empire in the Chagos Litigation

Abstract
This essay examines the judicial dismissals of the Chagossians’ attempts to challenge their forced exile on constitutional principles and on human rights grounds. Although the decisions present a formalist justification, the law did not require the decision that the courts reached. The decisions represent, instead, another step in an ongoing shift in the way relations between individuals and states are conceptualised. At the heart of this shift lies the representation of the state as pursuing irreducibly complex purposes and, hence, of being infinitely vulnerable to disruption by the actions of individuals. The common good of the polity, in such a conception, is understood as requiring and justifying the subordination of individuals and groups to those systemic interests. The conferral of rights accordingly becomes a privilege of citizenship, to be withheld at the state’s discretion from particular classes of its subjects. In the Chagos litigation, these trends operated in a particularly extreme way, transforming the Chagossians into ‘civic ghosts’: subjects of the law deprived of key ingredients of civic personality. The result of the judicial acceptance of such a status, I argue, is the banalisation of both constitutional law and human rights law, and their withdrawal from a central component of the role they claim to occupy in the post-war constitutional state.
T. T. Arvind

Chapter 6. An Imperfect Legacy: The Significance of the Bancoult Litigation on the Development of Domestic Constitutional Jurisprudence

Abstract
This essay will explore the constitutional significance of the decisions in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Office (No. 1) [2001] Q.B. 1067, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008] UKHL 61, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2016] UKSC 35 and R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 3) [2014] EWCA Civ 708. The imperfect legacy of the Bancoult litigation deserves a special place within the constitutional jurisprudence of the United Kingdom. At the very core of the decisions in Bancoult (No. 1) and Bancoult (No. 2) was the relationship between the common law and the prerogative, a relationship which, as this essay will argue, ought to have imposed limitations upon the Crown. It will be argued that the decision of the House of Lords in Bancoult (No. 2) demonstrates how a failure of the common law’s role to ‘admeasure’ the prerogative amounts to ‘bad law’, especially where, as was in the case of colonial legislation in Bancoult (No. 2), there is arguably ineffective parliamentary oversight. Furthermore, the Bancoult litigation raises issues of the normative purpose of accountability of the prerogative and the competing interests of constitutionalism, national interest and public opinion. In terms as to whether the decision to remove the right of abode could be reviewed by the courts, the national interest of the United Kingdom was an important consideration. The Bancoult litigation highlights the uneasy legacy of colonialism, namely, the treatment of British colonial subjects, the attempts to deny or fetter the rights of these subjects to return home or to engage in economic enterprise, and the limitations on seeking redress before the domestic courts and at the European Court of Human Rights (see Bancoult (No. 2), Bancoult (No. 3) and Chagos Islanders v United Kingdom (Admissibility) (2013) 56 E.H.R.R. SE15).
Chris Monaghan

Chapter 7. The Chagossians’ Struggle and the Last Bastions of Imperial Constitutionalism

Abstract
The scale of the injustice inflicted upon the Chagossians by the United Kingdom is self-evident, but their legal route to redress has proven opaque and fraught with difficulty, as illustrated by the House of Lords’ majority decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453. This disconnect is, nonetheless, inherent in the UK’s constitutional order. Constitutions outline the operation of governance orders, with constitutionalism injecting substantive principles into this picture, developing the relationship between the holders of power and those subject to its exercise. But not all constitutionalising projects are devoted to the same ends. The legal saga of the Chagossians throws into sharp relief the disparity between the imperial constitutionalism which was constructed to organise the governance of the United Kingdom’s colonial possessions in the mid-nineteenth century and the principles which supposedly underpin its liberal democracy in the twenty-first. The denial of substantive protections for a colonised community against unchecked and oppressive exercises of executive power sits uneasily with the prevailing understandings of the United Kingdom’s constitutional arrangements, even though the constitutional architecture of the British Empire was designed to achieve this very end. Drawing upon archival material which highlights how differently the Chagossians were treated from ‘settler’ communities such as the Falklanders, our paper reassesses the Chagossians’ legal struggle in light of the hurdles that this bifurcated constitutional order places in their path, and the significant impacts of their efforts to navigate these barriers to justice.
C. R. G. Murray, Tom Frost

Open Access

Chapter 8. ‘Anachronistic As Colonial Remnants May Be…’ Locating the Rights of the Chagos Islanders As a Case Study of the Operation of Human Rights Law in Colonial Territories

Abstract
In the colonial era, it was commonplace for treaties binding on the metropolitan state to be applicable in that state’s colonies if the state made a declaration to this effect, via the operation of a ‘colonial clause’ in the treaty. This reflects concepts of trusteeship-over-people and civilizational difference which legitimized colonial rule in general and the role of the colonial authority in determining what standards were appropriate in colonial territories in particular. The colonial-clause model for applicability was adopted in the European Convention on Human Rights of 1950 and certain of its Protocols, but not other subsequent human rights treaties. The standard jurisprudential view is that in the absence of a colonial clause declaration, the Convention cannot be applicable on the alternative basis on which it operates in a state’s territory and to its extraterritorial activities. Such a declaration of applicability was not made in relation to the Chagos Islands, a UK colony, where human rights questions have been raised by the forced displacement by the UK of the indigenous population between 1968 and 1973, the continued denial of this people of their right to return, and more recent allegations concerning the US military base on one of the islands, Diego Garcia. However, in a 2012 decision, the European Court of Human Rights suggested that the standard position on the exclusive determinacy of declarations under the colonial clause may no longer be sustainable. The present piece takes this suggestion and explores its potential, taking into account the significance of the self-determination entitlement in having delegitimized the underlying concepts of trusteeship and civilizational difference on which the standard position is based.
Ralph Wilde

Chapter 9. The Once and Future King: Sovereignty Over Territory and the Annex VII Tribunal’s Award in Mauritius v United Kingdom

Abstract
The question of sovereignty over the territory of the Chagos Archipelago loomed large in the arbitration between the Republic of Mauritius and the United Kingdom in respect of the Chagos Marine Protected Area (MPA) (Award adopted 18 March 2015). Yet the majority of the UNCLOS Annex VII Tribunal, after considering the scope and object of Mauritius’ claims, concluded that it lacked jurisdiction to say anything about those claims that it understood to concern the question of sovereignty over territory. What then, did the Tribunal’s decision have to say about the future of the BIOT? And did the Tribunal really remain silent about sovereignty?
Thomas D. Grant

Chapter 10. The Operation of Estoppel in International Law and the Function of the Lancaster House Undertakings in the Chagos Arbitration Award

Abstract
This essay will focus on the way in which the Lancaster House Undertakings were harnessed in support of the Chagos Tribunal’s finding that the BIOT Marine Protection Area was created in violation of international law. In particular, it will examine the way that the Tribunal applied the principle of estoppel as a means of upholding the Undertakings as though, together, they amounted to something akin to a binding international agreement. The essay will argue that such an approach fails to take into account the extent to which this principle is grounded in the recognition afforded to informal modes of behaviour. To this end, it will assert that estoppel is established by recourse to the way in which the parties to a dispute respond to a representation made by, or attributed to, the Respondent State: its operation is determined by interpreting their subsequent conduct, when viewed from the Applicant State’s perspective (subject to the test of reasonableness) rather than by relying on the parties’ shared understandings, or the Respondent State’s subjective intentions. Against this background, the essay will use the Chagos Award to demonstrate the extent to which estoppel’s normative authority is derived from an independent source of international legal obligation and the degree to which the principle’s essential character continues to be misunderstood by international courts and tribunals, notwithstanding the contribution that the Chagos Award has made to the slow evolution of this under-appreciated international legal principle.
Stephen Allen

Chapter 11. Implications of the Chagos Marine Protected Area Arbitral Tribunal Award for the Balance Between Natural Environmental Protection and Traditional Maritime Freedoms

Abstract
This paper will examine the implications of the Chagos Marine Protected Area (MPA) Arbitral Tribunal Award in terms of its contribution to international environmental law in general, before considering its specific implications for the future designation of marine protected areas (MPAs). The outline of this paper is as follows: First, the Chagos MPA Award will be assessed in terms of its implications for the designation of the dispute between Mauritius and the UK as ‘environmental’ for the purpose of triggering the compulsory and binding dispute settlement provisions of the 1982 UNCLOS; and second, the Tribunal’s interpretation and application of relevant UNCLOS provisions prescribing consultations between interested States over any MPA designation will be considered specifically in light of other proposed MPA designations, for example, around the Pitcairn islands in the South Pacific.
David M. Ong

Chapter 12. Learning from Chagos, Lessons for Pitcairn?

Abstract
While not an exact ‘mirror reflection’ Chagos and Pitcairn share a number of similarities. Both are small isolated collections of islands over which the United Kingdom exercises sovereignty. They are also prime locations for marine protection areas, in the case of BIOT this was established some time ago, in the case of Pitcairn this has only recently been declared. The motivations behind these MPAs are not those of the islanders, who, in the case of the Chagossians have been removed, and now, it seems, are unlikely to be permitted to return, while in the case of Pitcairn the islanders remain but in reducing and ageing numbers, but reflect wider agendas informed by international and bi-lateral treaties, the lobbying of influential public charities and NGOs, and appeals to ‘world habitat’, the ‘global commons’ and the ‘responsibilities of mankind’. The legal governance of Pitcairn was considered as a possible model for a re-inhabited Chagos, while the implementation and regulation of the BIOT MPA provides a model for that proposed for Pitcairn. At the same time the issues of cost and viability, which have been raised against resettlement of BIOT, raises questions about the sustainable future of Pitcairn. Drawing on the experience of BIOT this paper considers the legal similarities and differences between these two island groups and interrogates the processes and consequences of establishing Marine Protected Areas around remote British Overseas Territories.
Sue Farran

Chapter 13. International Law and Indigenous Peoples’ Rights: What Next for the Chagossians

Abstract
This chapter reviews key concepts concerning indigenous peoples’ rights, particularly with respect to land, under international law and their relevance to the experience of the Chagossians in their struggle to secure a right of return to the Chagos Islands. Major developments in indigenous peoples’ rights under international law at the regional and international level are considered including the United Nations Declaration on the Rights of Indigenous Peoples, significant cases before regional human rights mechanisms, and the requirement of free, prior and informed consent. The relevant international law is applied to the situation of the Chagossians demonstrating that the Chagossians have a right to an effective remedy and reparation for the violations of their human rights under international law.
Amy Schwebel

Chapter 14. The Politics of Chagos: Part Played by Parliament and the Courts Towards Resolving the Chagos Tragedy

Abstract
The British Indian Ocean Territory (BIOT) was created for political reasons. Only a political solution based on compromise and negotiation can bring about a resolution of this maelstrom of issues which have dogged the UK for over 50 years. A combination of political and legal pressure is the only way to persuade HMG that an overall settlement is possible and in the national interest. Chagos history abounds with policy failures, myth and deception. Litigation and the courts help redress the political deficit. While proclaiming the sanctity of international law the Foreign and Commonwealth Office ignores, cherry picks and splits hairs where it conflicts with entrenched policies. The Chagos Islands (BIOT) All-Party Parliamentary Group has helped focus parliamentary, media and public attention on the issues, otherwise the preserve of the legal system and academia. William Hague said in 2010 “It is not in our character as a nation to have a foreign policy without a conscience; neither is it in our interests.” Parliamentary, public and international pressure will continue until the Chagossians are allowed to return.
David Snoxell
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