CHAGOS ISLANDERS v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
1. The applicants are natives of, or descendants of natives of the Chagos Islands, sometimes referred to as “Ilois” or “Chagossians”. They are resident largely in Mauritius, the Seychelles and the United Kingdom. Letters of authority have been received from 1,786 applicants and are contained in the file. They were represented before the Court by Mr Gifford, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The Chagos Islands are in the middle of the Indian Ocean, comprising three main island groups (Diego Garcia the largest with a land area of about 30 km², Peros of about 13 km² and Salomon of about 5km²) and consisting of 65 islands in total. Since the nineteenth century they have been part of a colony of the United Kingdom. Until 8 November 1965 they were administered as part of the Colony of Mauritius, which is some 1,200 miles to the south-south-west. 4. According to materials in the file, the first visitors to the islands were Malaysians, Arabs and Portugese in 1743. There were at that time no human inhabitants. The first settlers, probably French, began coconut (copra) plantations, which were to be the basis of the islands’ economy for the future. The islands passed to British rule from 1814. At the beginning of the twentieth century there was a floating population of some 426 families of African, Malagasy and Indian origin, although most regarded themselves as permanent residents. The copra production company provided living quarters but the Ilois people as they were known generally preferred to build their own thatched cottages. There was no electricity, sanitation or other infrastructure. The men and women who worked on the plantations received a monetary wage but the chief payment was barter. Copra workers also fished and most families had small kitchen gardens and reared chickens and ducks. During the decades which followed there was movement of workers between the islands and Mauritius and the Seychelles under contract to the plantation company, while there were other inhabitants who had been born on the island and whose families went back several generations. By the early 1960s the islands’ population was in decline, due to low wages, monotonous work, the lack of facilities and the great distance from Mauritius and the Seychelles, while the plantations were suffering from a lack of investment. In 1962, when the Chagos Agalega Company Ltd acquired the plantations, the settlement population was a very small community of less than a thousand, settled on the three main islands. No one had lived on the outer islands for years. 5. In 1964 discussions started between the Governments of the United States of America and the United Kingdom over the establishment of American defence facilities in the region. It was envisaged from the beginning that any inhabitants would be transferred or resettled. 6. On 8 November 1965, the British Indian Ocean Territory (BIOT) Order in Council (SI 1965/120) established a new colony, which included the Chagos Islands and other islands formerly part of the Colony of Mauritius and of the Seychelles. The order created the office of the Commissioner of BIOT and bestowed on him the power to “make laws for the peace, order and good government of the Territory”. Those inhabitants of BIOT who had been citizens of the United Kingdom and Colonies by virtue of their birth or connection with the islands when they were part of Mauritius retained their citizenship. 7. On 20 December 1966, the United Kingdom and United States Governments agreed that the latter should have use of the islands of BIOT for defence purposes for an indefinite period with provision for a review in 2016. The United Kingdom Government acquired the land and interests held by the plantation company that owned most of the property on the islands. Internal documents indicated that it was considered expedient to treat the islands as having no "permanent population" with a view to avoiding difficulties with the United Nations as regards, inter alia, obligations under the United Nations Charter to protect the population and foster independence. The company continued to run the plantations under a lease until the United States needed vacant possession. After obtaining congressional approval, the US Defence Department gave notice that Diego Garcia would be required in July 1971. 8. The evacuation of the islands was effected between 1967 and 1973. Some islanders were prevented from returning after visits elsewhere, others were transferred either to Mauritius or to the Seychelles. For a while some islanders were given alternative accommodation on outlying islands. In 1971, the US construction teams arrived on Diego Garcia. Houses were demolished. No force was used but the islanders were told that the company was closing down its activities and that unless they accepted transportation elsewhere, they would be left without supplies. 9. In the various bodies of the United Nations where the matter was discussed, the United Kingdom Government claimed that the population had consisted of migrant workers, that their position had been fully protected and that they had been consulted in the process. 10. On 16 April 1971, the BIOT Commissioner enacted the Immigration Ordinance 1971, No. 1 of 1971 which made it unlawful, and a criminal offence, for anyone to enter or remain in the territory without a permit. 11. The islanders suffered miserable conditions on being uprooted, having lost their homes and livelihoods. In 1973, the United Kingdom paid 650,000 pounds sterling (GBP) to the newly independent Government of Mauritius to assist with the costs of resettlement. This sum was distributed, with interest, by the Mauritius authorities in 1977 after discussions on how best to use the money. The islanders rejected a proposed resettlement plan in favour of a cash distribution to 595 families. No compensation was paid to the evacuees on the Seychelles. 12. In February 1975, Michel Ventacassen, a Chagossian, brought a case in the High Court in London concerning the expulsions (“the Ventacassen case”). In February 1978, the Government made an open offer to settle the claims of all the islanders. In March 1982, a settlement was reached in which the Government agreed to pay GBP 4,000,000 to the Mauritian Government, which in turn agreed to put in land to the value of GBP 1,000,000. A trust fund (“the Fund”) was set up by the Mauritius Government and between 1982 and 1984 payment was made to 1,344 Chagossians in Mauritius of GBP 2,976 each. The Mauritius Government provided some low cost housing. Nothing was paid to the Chagossians on the Seychelles, who numbered around 500 and who apparently played no part in the negotiations. The applicants later claimed that they were unaware that the settlement involved any renunciation of their rights to return to their homeland. On the receipt of the last tranche of money, all but 12 of the identified islanders or the descendants who refused, had signed or thumbprinted renunciation forms in English. 13. In August 1998, Olivier Bancoult, a Chagos Islander, brought an action in London, challenging the validity of the 1971 Immigration Ordinance which had the effect of excluding the islanders from BIOT (“Bancoult 1 case”). 14. On 3 November 2000, the Divisional Court in its judgment noted inter alia that none of the islanders owned any land or held any right to permanent use of the land, which was held by the Crown. It went on however to find that the Ordinance was ultra vires the 1965 Order, since the power to make legislation for "peace, order and good government" did not permit legislation to exclude the population from the territory. It issued a declaration that the Ordinance was invalid. There was no appeal. 15. On 3 November 2000, the Foreign Secretary announced that they were examining the feasibility of resettlement of the islanders and that they intended to issue a new immigration ordinance which would allow them to return to the outer islands while observing their treaty obligations with the United States. 16. On the same date, the Commissioner of BIOT revoked the 1971 Immigration Ordinance and made the BIOT Immigration Ordinance 2000, which largely repeated the provisions of the previous ordinance but contained a new section 4(3) which provided that restrictions on entry or residence should (with the exception of Diego Garcia) not apply to anyone who was a British Dependent Territories Citizens by virtue of connection with BIOT. Entry to Diego Garcia remained subject to permit. 17. Despite the lifting of the immigration bar, none of the islanders went to live in the islands. A few made visits to outer islands to tend family graves or see their former homes, such visits being funded by BIOT. 18. In April 2002, islanders (a total of 4,466 claimants) commenced group litigation against the Attorney-General, to secure compensation for past and continuing wrongs and to seek a declaration of their right to return to Diego Garcia (“the Chagos Islanders case”). 19. On 9 October 2003, Mr Justice Ouseley struck out the action on the grounds that the claim to more compensation after the settlement in the Ventacassen case was an abuse of process, that the facts did not give rise to any arguable causes of action in private law and in any event all the claims were statute-barred. He rejected arguments that the Limitation Act 1980 did not apply as the applicants had been subject to a disability (for instance, impoverishment or being outside the jurisdiction) and considered that there had been no deliberate concealment of facts relevant to the individual causes of action which could affect the calculation of the time-limit. He also accepted the defendant’s arguments that the islanders who had accepted money from the Fund and signed a form renouncing further claims would be in abuse if they continued the proceedings. He held that it was generally known in Mauritius at the time that the 1982 Agreement was final and did not consider that they had reasonable prospects of showing that the Government had acted in a morally culpable manner leading to an oppressive transaction from which the claimants should be relieved. The islanders had had at the time legal representation or access to legal representation. He also found that the Seychelles Chagossians knew the same relevant facts at the same time as their counterparts in Mauritius. The islanders had owned no immovable property nor owned their houses. Even if any property rights had existed, he noted that these would have been extinguished twelve years after events by operation of section 17 of the Limitation Act. 20. On 22 July 2004, the Court of Appeal refused permission to appeal. While it was accepted that there were arguments of disability and unconscionability, nonetheless from 1983 onwards those circumstances no longer applied. Nor had the applicants succeeded in showing any deliberate concealment since that time. It rejected the arguments of the islanders that the renunciation forms could not be relied on by the Government as they were unable to compromise or renounce their fundamental rights. It concluded: "This judgment brings to an end the quest of the displaced inhabitants of the Chagos Islands and their descendants for legal redress against the state directly responsible for expelling them from their homeland. They have not gone without compensation, but what they have received has done little to repair the wrecking of families and communities, to restore their self-respect or to make amends for the underhand official conduct now publicly revealed by the documentary record. Their claim in this action has been not only for damages but for declarations seeking their right to return. The causes of action, however, are geared to the recovery of damages and no separate claims to declaratory relief have been developed before us. It may not be too late to make return possible, but such an outcome is a function of economic resources and political will, not adjudication. " 21. Newspaper articles appeared in Mauritius suggesting that the Chagossians and their supporters were planning some form of direct action by landings on the island. As later described in domestic court judgments, the participants had varying aims; for one group known as LALIT it was part of an anti-American campaign to close the base at Diego Garcia. Others did not want the base closed as it might offer employment but since permanent resettlement on the islands was not practicable without substantial investment, the landings, even if they led to temporary camps, would largely be gestures in furtherance of respective political aims, designed to attract publicity and embarrass the Governments of the United Kingdom and the United States. Contacts with the United States authorities made it clear that their view was that any attempt to resettle any of the islands would severely compromise Diego Garcia’s security, and have a deleterious impact on military operations. To them Diego Garcia was a vital and indispensable platform for global U.S. military operations, as demonstrated by its important role in Operations Enduring Freedom and Iraqi Freedom as well as its continuing role in the Global War on Terrorism; in particular it had unique and exceptional security from armed attack, intelligence collection, surveillance and monitoring and electronic jamming. 22. On 10 June 2004, the BIOT (Constitution) Order 2004 was issued. It declared that no person had the right of abode in the territory or the right to enter it except as authorised. The same day there passed into law the BIOT (Immigration) Order 2004, repealing the 2000 Ordinance. This prohibited anyone from entering the territory without a permit from the immigration officer (members of the armed forces, public officers and contractors working on the American base were exempt or deemed to hold a permit). 23. On 15 June 2004, the Government issued a statement announcing the abandonment of the feasibility study into resettlement. It stated that the report by independent experts had concluded that: "whilst it may be feasible to resettle the islands in the short-term, the costs of maintaining long-term inhabitation are likely to be prohibitive. Even in the short-term, natural events such as periodic flooding from storms and seismic activity are likely to make life difficult for a resettled population ... Human interference within the atolls, however well managed, is likely to exacerbate stress on the marine and terrestrial environment and will accelerate the effects of global warming. Thus resettlement is likely to become less feasible over time. " 24. With reference to climate change the report was quoted as stating that "the main issue facing a resettled population on the low-lying islands will be flooding events, which are likely to increase in periodicity and intensity and will not only threaten infrastructure, but also the freshwater aquifers and agricultural production. Severe events may even threaten life." It also highlighted the implications on such low-lying islands of the predicted increase in global sea levels. 25. The statement concluded that anything other than short-term resettlement on a purely subsistence basis would be highly precarious and involve expensive underwriting by the Government for an open-ended period, probably permanently. Accordingly, the Government considered that there was no further purpose in pursuing the study and it would be impossible to promote or even permit resettlement to take place. It was for this reason that the Orders in Council were issued to restore full immigration control over all the islands in BIOT, making it clear that no person had the right of abode in the territory or unrestricted access to it. 26. Much of the area had meanwhile apparently been declared an Environmental Zone, with Special Conservation Areas and Strict Nature Reserves. 27. One of the applicants, Mr Bancoult, instituted judicial review proceedings seeking to challenge the 2004 Orders barring their return to the islands as unlawful ( the “Bancoult 2 case”). 28. In its judgment of 11 May 2006, the Administrative Court upheld his claims, finding that the provisions of the Orders were invalid as not being in the interests of the Chagossians. The Secretary of State for Foreign and Commonwealth Affairs appealed, claiming that legislation precluded any attack on the validity of colonial orders in council and that the orders as a sovereign act of the Crown were only challengeable on ground of incompatibility with imperial legislation. 29. On 23 May 2007, the Court of Appeal dismissed the appeal, finding that the prerogative power of colonial governance enjoyed no generic immunity from judicial review and that the permanent exclusion of an entire population from its homeland for reasons unconnected with their collective well-being could not have the character of a valid act of governance. Lord Justice Sedley considered that while resettlement would be difficult if not impossible without capital expenditure, it had not been suggested on either side that the United Kingdom was under any obligation to fund it. It was the bolting of the door to the Chagossians’ home, not the failure to provide transport there or to refurbish it which was in issue. Indeed the Crown had rights as a landowner which were capable of answering any attempt to resettle there. 30. The Secretary of State obtained leave to appeal to the House of Lords. In its judgment of 22 October 2008, the House of Lords upheld the appeal by three votes to two. The majority considered that there had been no legitimate expectation that the islanders would be allowed to resettle on the islands. The Human Rights Act had no application to BIOT, as the declaration made in respect of Mauritius lapsed when it became independent. There was no basis for holding that the prerogative power of the Crown was limited to acts in the interests of the inhabitants and there was nothing irrational about the orders. Seen in the context of the present day, rather than 1968, any right of abode of the islanders was purely symbolic. None had gone to live on the islands in the four years when the 2000 ordinance had been in force. The islanders’ way of life had been irreparably destroyed and the practicalities were such that they would be unable to exercise any right to live on the outer islands without financial support which the Government were not willing to provide. Any attempt to exercise the right of abode by setting up some camp on the islands would be a symbol or gesture aimed at putting pressure on the Government. Thus, when considering the rights in issue in the case, which had to be weighed against the defence and diplomatic interests of the state, it was essentially about the right to protest in a particular way and it was not unreasonable of the Government to seek to avoid an unauthorised settlement on the islands which could be used as a means of exerting pressure to compel it to fund a resettlement. Funding had been the subtext of the case. 31. Lord Bingham, in the minority, considered that legal precedent negated the existence of a prerogative power to exile an indigenous population from its homeland. The orders were also irrational in the sense that there was no good reason for making them, the security arguments being weak and vague. The argument that the islanders were deprived of a right of little practical value provided no justification, since the right was of intangible value and the smaller its practical value the less reason to take it away. Additionally, in his view, the orders contradicted a clear representation by the Secretary of State in his statement of 3 November 2000, from which the Government could not resile without compelling reason, which had not been shown.