20 February 2009
by the CHAGOS ISLANDERS
against the United Kingdom
lodged on 20 September 2004
STATEMENT OF FACTS
The applicants are natives of, or are descendants of natives of the Chagos Islands. Their details are contained in the file. They are represented by Mr R. Gifford, a solicitor practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The Chagos Islands are in the middle of the Indian Ocean, comprising of three main island groups (Diego Garcia, Peros and Salomon) 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.
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 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 company provided living quarters but the Ilois people as they were known generally preferred to build their own thatched cottages. 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 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.
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. At the date of the events, the population was approximately 2,000. The adults were on the whole poorly educated largely illiterate Creole speakers, working on the copra plantations and living a simple life with few modern facilities and no independent means of existence. They were citizens of the United Kingdom and Colonies by birth. Many also had dual citizenship, becoming citizens of Mauritius on its independence.
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 Charter to protect the population and foster independence.
The evacuation of the islands was effected between 1967 and 1973. Some were prevented from returning after visits elsewhere, others were deported either to Mauritius or to the Seychelles. In 1971, the US construction teams arrived on Diego Garcia, the largest island, and bulldozed the villages. Domestic animals and pets were killed. The request of the islanders to remain on a part of the island was refused.
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.
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.
The islanders suffered dreadful conditions on being uprooted, having lost their homes and livelihoods. There were no resettlement schemes on either Mauritius or the Seychelles. A cash payment of GBP 650,000 was made by the United Kingdom Government to the newly independent Government of Mauritius to assist with the costs of resettlement. By the time it was distributed in 1978 rampant inflation in Mauritius had substantially reduced its value. No compensation was paid to the evacuees on the Seychelles.
In February 1975, Michel Ventacassen, a Chagossian, brought a case in the High Court in London concerning the expulsions. 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 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. 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.1 The applicants stated 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.
In October 1997, an association was set up to represent the Seychelles Ilois, some 200. The British High Commissioner refused them compensation, apparently as they had been mainly contract workers and the view was taken that the conditions and economic problems, to which the compensation was addressed in Mauritius, did not exist in the Seychelles.
In August 1998, Olivier Bancoult, a Chagos Islander, brought an action in London, challenging the validity of the BIOT Immigration Ordinance which had the effect of excluding the islanders from BIOT.
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. 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.
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.
On 3 November 2000, the BIOT Immigration Ordinance 2000 issued, providing for the return of islanders to Peros Banhos and Salomon, while stipulating that Diego Garcia could only be accessed by those holding a permit. The islanders however were excluded from obtaining such permits. None of the islanders appears to have taken the opportunity at that time to return to Peros Banhos or the Salomon Islands.
In April 2002, the 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.
On 9 October 2003, Mr Justice Ouseley struck out part of the claims and gave summary judgment to the defendants for the whole of the case. He held that on the face of it 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 (namely, impoverished, outside the jurisdiction etc) 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 removed. 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. As regarded any property rights, he noted that these would have been extinguished twelve years after events by operation of section 17 of the Limitation Act.
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.
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 embarass 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.
On 10 June 2004, the Government passed into law the BIOT (Constitution) Order 2004. 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 it passed into law the BIOT (Immigration) Order 2004, repealing the 2000 Ordinance. It 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).
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 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. ..
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.
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 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 and restoring the legal position that had been understood to exist before the High Court decision of 3 November 2000.
Much of the area has apparently been declared an Environmental Zone, with Special Conservation Areas and Strict Nature Reserves.
One of the applicants, Mr Bancoult, instituted judicial review proceedings seeking to challenge the 2004 Orders barring their return to the islands as unlawful.
In its judgment of 11 May 2006, the Administrative Court upheld his claims, finding that the provisions of the Orders were invalid. 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.
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. The point was that the Orders in Council negated one of the most fundamental liberties known to human beings, the freedom to return to one’s homeland, however poor and barren the conditions of life and contingent though entry might be on the property rights of others and that they did this for reasons unconnected with the well-being of the people affected.
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 become 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, the right of abode of the islanders was purely symbolic. None had gone to visit in the four years when the 2000 ordinance had been in force. It was essentially about the right to protect 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.
Lord Bingham, in the minority, considered that authority 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.
The applicants complain under Article 3 about the decision-making process leading to the removal, the removal and the manner in which it was carried out, the reception conditions on their arrival in Mauritius and the Seychelles, the prohibition on their return, the refusal to facilitate return once the prohibition had been declared unlawful and the refusal to compensate them for the violations which occurred.
The applicants complain under Article 8 about the above matters as disclosing violations of their right to respect for private life and home. The original removal was not “in accordance with the law” and the subsequent interferences either not lawful in that they failed to comply with the Bancoult judgment or to the extent that they were lawful were disproportionate in that they prohibited return. They also allege that these acts and omissions disclose continuing unjustifiable interferences with their right to respect for their home.
The applicants allege that these matters also violated their rights under Article 1 of Protocol No. 1, by both depriving them of their possessions and/or controlling their use and that these interferences were unlawful both as a matter of English and international law.
The applicants complain under Article 6 that the administrative authorities’ unilateral and extrajudicial annulment of the effect of the Bancoult judgment has frustrated their right to a final judgment and that the courts’ refusal to grant a hearing on their civil right to damages has denied them access to court.
Finally, they complain under Article 13 of the Convention that they have no effective remedy because of the extra-judicial annulment of the Bancoult judgment and the United Kingdom’s reliance on the limitation defence – after concealing facts relevant to the applicants’ claims – to deprive them of an adjudication of their claim to compensation.
QUESTIONS TO THE PARTIES TO THE PARTIES
i. the actions of the executive in seeking to prohibit their return to their islands sought to annul the effect of the judgment of Divisional Court of 3 November 2000;
ii. the domestic court struck out part of their claims for compensation and gave summary judgment on the case as a whole?
1 The Divisional Court in its judgment of 3 November 1999 noted that the Seychelles workers, Ilois and Government were not involved in the discussions. The Seychelles islands within BIOT had never been evacuated and they were returned to the Seychelles on its independence in 1976. The Seychelles Government saw the Ilois not as a special group but as Seychellois.