Clock is ticking for the UK over Chagos

By Sean Carey

Three weeks ago representatives from the UK Chagos Support Association, including bestselling novelist Philippa Gregory, TV adventurer Ben Fogle, and Chagossian exile Roch Evenor, met UK Foreign Secretary, William Hague, to discuss the highly contentious issue of the Chagos Islanders continuing exile. The delegation was led by Andrew Rosindell MP, vice chair of the Chagos All Party Parliamentary Group. The member for Romford, East London, famous for campaigning with his Staffordshire Bull Terrier Spike dressed in a Union Jack waistcoat, asked the Foreign Secretary, a fellow Conservative, whether the long-running legal battle to allow the Chagos Islanders to return to their homeland could be laid to rest by an out-of-court settlement. Hague was quick to reply that the case concerning the Islanders’ right of return, currently before the European Court of Human Rights, was a test case of the court’s power to rule on issues relating to the UK’s remaining 14 overseas territories.

Needless to say the Strasbourg court’s recent judgement on the Al-Jedda and Al-Skeini cases concerning the internment and extrajudicial killing of Iraqi civilians by British troops stated that the European Convention on Human Rights applies wherever the UK exercises “effective control” over a territory or its people will have disappointed the British Foreign Secretary and his advisers. The UK would much prefer some legal wriggle room when its personnel are operating in – how to put it? – unusually demanding circumstances overseas. Judge Bonello of Malta was certainly in no mood to pull punches about the UK’s attempt to defend the behaviour of its wayward military personnel by recourse to geographically parochial legal arguments:

“I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy.”

Make no mistake the implications of the latest judgements from the European Court of Human Rights are hugely significant for the UK government’s attempt to keep the Chagos Islanders and their descendants from returning to their homeland from which they were forcibly removed between 1968 and 1973 and dumped at the docksides in Mauritius and the Seychelles to make way for the strategically important US military base on Diego Garcia.

The former Labour Government won a narrow and largely unexpected 3-2 victory in the House of Lords in 2008. Making law on the hoof, Lord Hoffman decided that the rights of the Islanders, who had enjoyed the protection of the European Convention on Human Rights since its extension to the British colonies in 1953, had evaporated when Mauritius gained its independence in 1968. This almost Damascene legal insight meant that the highest court in the land, going against the unanimous decisions of the lower courts, provided the UK with an excuse for its deportation of an entire population of its colonial citizens. No wonder legal experts from around the world were dumbfounded by the decision.

But it is the relegation of fundamental human rights to the level of “implied evaporation” as Richard Gifford, solicitor for the Chagos Refugees Group, has called it that will now be judged by the Court in Strasbourg, which has dismissed the UK’s defence in the Iraqi killings case as the weasel words of warmongers. For his part, the former President of the House of Lords, Lord Bingham, widely acclaimed as the greatest British judge since the Second World War, who along with Lord Mance found for the Chagos Islanders’ right of return in 2008, has stated that the Convention forms the bedrock of human rights in the modern era. As he says in his 2010 book The Rule of Law: who in their right mind would want to live in a country in which human rights are not legally protected? There can be little doubt that the judges in Strasbourg will give due weight to the late Lord Bingham’s view.

All things considered, the writing must be on the wall for that small group of Foreign & Commonwealth Office officials, who blindly defending the actions of their predecessors, have used every trick in the book, including persuading Jack Straw to pass the Order in Council in 2004, which forbids anyone having the “right of abode” in the British Indian Ocean Territory, and then in 2010 getting David Miliband to unilaterally declare the Chagos Archipelago the world’s largest marine protected area (MPA) to make it even more difficult for the Chagossians to return.

Last December Mauritius, which claims that Chagos was illegally excised from its territory in 1965, advised by Philippe Sands QC, professor of international law at UCL, initiated proceedings against the UK under the UN Convention on the Law of the Sea (UNCLOS). Now, the Assembly of the African Union has stated that it supports fully “the action of the Government of the Republic of Mauritius at the United Nations General Assembly with a view to enable Mauritius to exercise its sovereignty over the Chagos Archipelago”. Suddenly, the UK looks very isolated indeed.

The lesson? It is surely that it is never a good idea to allow undoubtedly clever civil servants to pursue their own policies, and then bamboozle often inexperienced ministers about the wisdom of their views and practices (including the current tactic of exploiting divisions between different Chagossian groups). The proper place for democratic debate and judgement about the UK’s interests overseas — including the future of the Chagos Islanders and the sovereignty of the Archipelago — is in the Palace of Westminster not offices in Whitehall. 

Dr Sean Carey is research fellow in the Centre for Research on Nationalism, Ethnicity and Multiculturalism (Cronem), Roehampton University

* Published in print edition on 22 July 2011