… but joining up with Mauritius could still redeem the situation
It is the end of the judicial road for Olivier Bancoult, Leader of the Chagos Refugee Group and a former inhabitant of the BIOT. A binding judicial decision against the UK Government to force a resettlement of the islanders on the Chagos is now beyond reach.
After the October 2008 decision, when the House of Lords (Supreme Court) held that the Chagossians had no legitimate expectation of a right of return to the Chagos, the European Court in Strasbourg was their last legal hope for a binding decision against UK. The decision of the Strasbourg Court, last week, turned out to be a fatal blow to the Chagossians. The Court ruled that the territory was not available for a resettlement and that the Chagossians had agreed to give up their damages claims in 1982 when Britain paid them 4 million pounds in damages.
We will recall that the 4 million pounds was signed by the 1982 MMM Government “in full and final settlement of all claims whatsoever referred to in Article 2 of this Agreement”. Article 2 refers to “all acts, matters and things done by or pursuant to British Indian Ocean Territory Order 1965… including their preclusion from returning to the Chagos”.
If Bancoult does not realise the implications of that judgment, William Hague, the UK Foreign Secretary, does. Hours after the Chagossians lost their claim before the Strasbourg Court, he issued a carefully crafted statement to the former inhabitants of BIOT, which read, “Now that this litigation is concluded, the Government will take stock of our policy towards the resettlement of the British Indian Ocean Territory, as we always said we would… There are fundamental difficulties with resettlement but we will be as positive as possible in our engagement with the Chagossian groups and all interested parties.”
The Hague statement was followed soon after by a White House communiqué issuing a timely response to the “Petition on Redressing Wrongs against the Chagossians”. The US Government, as expected fell in line with what UK had advocated, recognized the so-called BIOT including the Chagos Archipelagos as the sovereign territory of the United Kingdom and highlighted the fact that UK had taken numerous steps to compensate the former inhabitants of BIOT for the hardships endured, including “cash payments and eligibility for British citizenships… accepted by approximately 1,000 individuals now living in the United Kingdom”.
Notice the concurrence of approach between UK and USA. The US conveniently pretends that they have no say in the matter but in the 2008 case before the House of Lords, they intervened in the litigation by putting in before the Law Lords two letters suggesting that resettlement of the Chagossians on Solomon or Peros Banhos would create security issues.
It is now time to reflect on the Mauritian position and its demand for the exercise of its sovereignty. But first, the stark reality is that UK is now in a position of strength and the Chagossians in a desperate situation. These respective positions will have an inevitable bearing on the Mauritian position.
The Chagossians have no leverage to dictate an agenda: on the contrary, the olive branch that Hague is now waving means that any settlement will be on the terms and conditions of the UK Government. They will surely place reliance on the pronouncement made by a respected court of human rights (at least in the eyes of the UN) that the Chagossians no longer enjoy the “victim status”. The court has quite alarmingly concluded that the “islanders have agreed to give up their claims” arising out of their expulsion and exclusion from the islands”.
The Court went on to wash the shameful colonial past of the UK when it held that the compensation obtained after the Vencatessen case and the 4 million pounds SUBSEQUENTLY paid, constitutes an adequate and sufficient remedy where claimants accept a sum in settlement of civil claims and RENOUNCE further use of remedies.
The leader of the MMM who has never lost an opportunity in the past to blame Sir Seewoosagur for giving away Chagos, should give some serious thoughts to the agreement entered into with the UK by the MMM Government in 1982.
Mauritius will argue as expected that the question of compensation is separate and independent of the sovereignty issue. The gamble of Bancoult may not have paid off but the question of sovereignty relates to the unlawful dismemberment of our territory at the time of independence when Mauritius was not yet sovereign.
It is high time for Bancoult and the Chagos Refugee Group to drop the BIOT garb and join hands with the Mauritian Government and press on with the Mauritian claim to exercise its sovereignty. Ferdinand Madarin and his friends will probably feel vindicated but now, more than ever, the Chagossians must realise that they are Mauritians and it will make better sense for the whole Mauritian nation to speak with one voice on the Chagos issue.
Now, more than ever, we should seek an advisory opinion from the International Court of Justice, as advised by Ian Brownie and former Chief Justice Soomer Lallah. Our UN campaign should be more focused and securing the commitment of our foreign friends, Argentina for example, is a good starting point. Mauritius should make it clear that it is prepared to fund the resettlement of the Chagossians over Solomon and Peros Banhos.
As part of its strategy, it has always argued that it does not put into question the base at Diego Garcia. Since Hague is now talking of a possible resettlement, it clearly implies that the islands of Solomon and Peros Banhos may no longer be required for “defence purposes and should revert back to their lawful owner”. Mauritius may in turn consider abandoning its challenge of the marine park declaration around the islands if only to keep focused on the main point.
In the communiqué issued by Hague, there is no mention of Mauritius at all and the Government should read in between the lines that they count little for Britain save probably as a mere source of nuisance. Now that the Chagossains and the Mauritian Government find themselves in a tight corner, the earlier they agree on a joint strategy the better. Some Chagossians have always pandered to the highest bidder. Not anymore.
In an article published in Le Mauricien by late Sir Satcam under the caption ‘The fall out of the Bancoult case’, he adverted to the danger of a referendum by the UK government to give legal credence to its occupation of the Chagos. He may well be vindicated unless the case of Mauritius is joined up swiftly with the cause of the Chagossians. Mauritius can no longer afford to remain content with the usual empty litany that Chagos will be returned when no longer required for defence purposes. Time is running out.
* Published in print edition on 28 December 2012
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