Chagos Islands: In Pursuit of Due Process

ADETOKUNBO HUSSAIN**

INTRODUCTION

 

‘So forcible within my heart I feel
The bond of nature draw me to my own,
My own in thee, for what thou art is mine;
Our [S]tate cannot be severed, we are one,
One flesh; to lose thee were to lose myself
.’

John Milton, Paradise Lost

To the familiar minds and discerning spirits, there is a certain pathos imbued in the story of the Chagos Islands and its original inhabitants. Much like how Milton’s epic poem eulogises the fall of man and the severance from their paradise whilst its sequel Paradise Regained is about restoration to the original state of affairs; one cannot but to draw parallels to the contemporary story of the Chagos Islands in their quest to regain their home or paradise.

Questions relating to the right of self-determination have been asked in relation to the Chagos Islanders/Chagossians. However, this article frames an argument in terms of a violation of due process rights and the right to an effective remedy.

BRIEF HISTORY

In 1964, negotiations between the US and the UK commenced concerning the possibility of establishing a military base in Diego Garcia, Chagos Islands. The UK enacted the British Indian Ocean Territory (“BIOT”) Order 1965[1]. In 1971, section 4 of the BIOT Immigration Ordinance authorised the exodus of the Chagossians from BIOT. [2]

Grandison[3] elaborates:

‘Following their violent removal, the Chagossians have made several unsuccessful attempts to regain control of their homeland…in 1975 a Chagossian named Michel Ventacassen brought a case in the High Court in London concerning the expulsions. The Ventacassen case settled in 1982, and over the next two years, 1,344 Chagossians in Mauritius, only a part of the exiled Chagossian population, received GBP 2,976 each in compensation, a derisory amount in light of the magnitude of their loss….’[4]

 

In 2001, the denial of the right to abode in BIOT was challenged in Bancoult[5], a case initiated by yet another Chagossian.  In 2004, in Bancoult (2)[6] the court held that the orders, removing the Chagossians from their land, were ultra vires.

In 2012, the ECtHR[7] determined that it lacked the necessary jurisdiction to consider the Chagossian case against the UK. The ECtHR essentially paid a lip service by agreeing that the Chagossians had suffered ‘callous and shameful treatment’[8]. Notwithstanding this, they opined that, because the Chagossians had previously accepted compensation, the Chagossians had ‘effectively renounced bringing any further claims to determine whether the expulsion and exclusion from their homes had been unlawful’[9]. Essentially leaving the Chagossians in what Professor Philippe Sands described as a “curious position”.[10]

In the third Bancoult[11] case, Bancoult argued the Divisional Court of the Court of Appeal should have included as evidence a leaked US Embassy cable[12]  that buttressed his case and consequently deprived him of the opportunity of cross-examining witnesses on this evidence.

In R (on the application of Bancoult No 3) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent) [2018] UKSC 3, the Chair of the Chagos Refugees Group brought a challenge before the UK Supreme Court, challenging the decision of the Secretary of State to establish a marine protected area in which there would also be no fishing in April 2010 in BIOT, leading to an end of commercial fishing carried on by Chagossians in the waters surrounding BIOT.

The challenge was two-fold: (i) the Respondent’s decision was motivated by the improper ulterior motive of making future resettlement by the Chagossians impracticable, and (ii) the consultation which preceded the decision was flawed by a failure to disclose the arguable existence, on the part of Mauritius, of inshore fishing rights (i.e. within a 12-mile limit from the BIOT shore). The Supreme Court unanimously held that the cable should have been admitted into evidence before the Administrative Court.

In R (Hoareau and Bancoult (No.5) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), concerned two conjoined claims for judicial review of previous decisions not to support or permit resettlement of the BIOT and to provide a support package of approximately £40m over ten years for Chagossians in the communities in which they now live. The relevant grounds included inter alia, irrationality, incompatibility with the European Convention on Human Rights and procedural unfairness. The Divisional Court dismissed all the claimants’ claims.

The Court said[13]:

“Judicial review is an important mechanism for the maintenance of the rule of law. It serves to correct unlawful conduct on the part of public authorities. However, judicial review is not an appeal against governmental decisions on their merits. The wisdom of governmental policy is not a matter for the courts and, in a democratic society, must be a matter for the elected government alone…. Judicial review is not, and should not be regarded as, politics by another means.”

As such, it is submitted the litigation history of the Chagos Islanders, in totality, demonstrates a continual and flagrant violation of the right of effective remedy. 

EFFECTIVE REMEDY IN INTERNATIONAL LAW

Central to the notion of right of effective remedy is State Responsibility. States have a responsibility to afford remedies to victims. This responsibility is enshrined in the Basic Principles and Guidelines[14].

The first Principle obliges states to combat impunity and that states have an obligation:

to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.

With regard to the Chagos Islanders, some of the injuries suffered are the violation to their home and property life, and as submitted, also a violation of their due process.

A cardinal case that reinforced the nexus between the right of an effective remedy and state responsibility was the Factory at Chorzow[15] case (1928). The term ‘restitution’ was used in the case; the principle was resounded in the Gabˇcíkovo-Nagymaros[16] case. In other words, there is a duty of restitution to the injured party. Furthermore, the ICCPR provides for compensation in Article 14 (fair trial) and Article 2 provides for effective remedies. So there appears to be poignant authority establishing the nexus between the right to an effective remedy and State Responsibility.

Furthermore, Theo van Boven, Former Special Rapporteur for the Sub-Commission on Prevention of Discrimination and Protection of Minorities argues the right to an effective remedy for human rights violations may now may ‘be regarded as forming part of customary international law.’[17] Christine Evans similarly argues that the right to reparation ‘has acquired a degree of recognition as forming part of international law’.[18]

Moreover, the Principles and Guidelines contain a non-derogation clause[19]. Protecting human rights constitute jus cogens. As Judge Padilla Nervo said in the North Sea Continental Shelf Cases: ‘Customary rules belonging to the categories of jus cogens cannot be subjected to unilateral reservations.’[20]

It is certainly not implied that in the Chagos Islanders case that the UK – being the offending state – does not recognise or reject these abiding principles. Rather, there has been a breach of an international obligation.

THE SHADES OF GREY

Thus far, the case for the Chagos Islanders seems relatively straightforward namely, their rights to due process were violated and the ample provisions in international law justify the claim that they are entitled to a right of effective remedy.

However, the Strasbourg Court highlighted some complexities or shades of grey, if you will; mainly that the Chagos Islanders in the case of the Chagos Islanders v U.K[21] lacked locus standi.

The ECtHR has certain criteria[22] for bringing in a claim. Firstly, domestic remedies must have been exhausted.[23] Secondly, the applicant must establish they were directly affected.[24] Or at least they were indirectly related (through marriage[25] or family ties[26]) if the immediate victims are dead for instance. Lastly, the claim should be brought within the last six months of the decision by the domestic court and must reflect a convention right.[27]

The real contention is that doubt lingers as to whether the entire judicial process has truly been fair or unbiased.

For example, one of the authorities the court relied upon was Caraher v. The United Kingdom[28] in which undue reliance was placed on the supposed waiver of their right to pursue further claims against the UK after the settlement; bearing in mind many of the signatories did not understand English and arguably lacked ‘capacity’.  The entire judicial process seemed manifestly unjust.

CONCLUSION

The preamble of the UN begins with the resounding sentence “WE THE PEOPLES…” At the heart of the matter, is the matter of securing justice for a people, not ‘migrant workers’, but a people. Even migrant workers are subject to the rule of law and are afforded inalienable rights such as life, liberty and property[29].

For the Chagos Islanders, these rights have been grossly violated as well as their due process. On Monday 25 February 2019, the International Court of Justice will deliver its Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. It is hoped that the response will be favourable to the Chagos Islanders.

Affording them effective legal remedies is not only the right thing to do because there are legal provisions that say so; it is also the right thing to do in the interests of justice.

For, while the past cannot be rewritten, the future can certainly be rerouted. Perhaps one day, like Milton’s epic poem, their paradise will be regained.

** Adetokunbo ‘Toks’ Hussain obtained his LLB from the University of Oxford Brookes (serving as the Law Society President), and will be called to the Bar of England & Wales. He is an alumnus of the Harvard University Justice Course as well as the Sir Geoffrey Nice QC Foundation Master Class in Political Expediency Behind International Criminal Courts at the Inter-University Centre, Dubrovnik. Toks is also an international mediator and formerly worked as a Legal Editor at Thomson Reuters. He is passionate about international law and his experience includes working on the legal team of the China Tribunal and the United Nations International Residual Mechanism for Criminal Tribunals (President’s Office). He also has an interest in data rights has recently begun hosting webinars/podcasts on data protection laws in EMEA.

[1]British Indian Ocean Territory Order (SI 1965/1920)

[2] Stephen Allen, Reviewing the Prerogative of Colonial Governance [2009] JR 119

[3] Claire Grandison, Seema Niki Kadaba, and Andy Woo, Stealing the Islands of Chagos: Another Forgotten Story of Colonial Injustice [2013] Human Rights Brief 20, no. 3, 38 – 39

[4] ibid 38 – 39

[5] R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] 1 QB 1067

[6] R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 1038 (Admin)

[7] Chagos Islanders v. the United Kingdom, (2012) App no 35622/04

[8] Para 81

[9] ibid.

[10] Professor Philippe Sands in Matrix Chamber/ London School of Economics lecture: The Chagos Islands Award: A Case of Marine Protection or Population Resettlement (2015)

[11] R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 3) [2014] EWCA Civ 708 [2014] 1 WLR 2921

[12] The wiki leaks cable, Public Library of US Diplomacy 15/05/09<https://wikileaks.org/cable/2009/05/09LONDON1156.html&gt; accessed 26/01/16

[13] R (Hoareau and Bancoult (No.5) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), 326

[14] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005).

[15] Factory at Chorzow (F.R.G. v. Pol.), 1928 P.C.I.J (ser. A) No 13

[16] Gabˇcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997 para 88

[17] Theo van Boven, ‘Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines’, in Carla Ferstman, Mariana Goetz and Alan Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making 21(Martunus Nijhoff 2009) 26

[18] Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict ( Cambridge University Press 2012) 39

[19] Principle 12

[20] North Sea Continental Shelf Cases, Separate Opinion of Judge Padilla Nervo, 1969 I.C.J. Rep. 85, 97

[21]Chagos Islanders v United Kingdom [2012]Application no. 35622/04

[22] European Court of Human Rights, Practical Guide on Admissibility Criteria (Council of Europe, 2014)

[23] ibid 16

[24] See also Tănase v. Moldova [2010] Application no. 7/08; Burden v. The United Kingdom [2008]Application no. 13378/05

[25] McCann and others v. The United Kingdom [1995] Application no. 18984/91

[26] Van Colle v. The United Kingdom [2012] Application no. 7678/09

[27] Article 35 ss 1, European Court of Human Rights, Practical Guide on Admissibility Criteria (Council of Europe, 2014)

[28] Caraher v. The United Kingdom [2000] Application no. 24520/94

[29] John Locke, Two Treatises of Government (1689)

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