Chagos Islands

Further to the last post, I would wish to highlight the case of R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61. The discussion on the law is fascinating and relates to the powers and prerogatives of the King to legislate in his conquered or ceded colonies. I do not intend to look at the legal issues, but rather to quote some interesting comments from the judgement.

This is an unusual case which concerns a set of islands thousands of miles from our shores. The islands are known to us as the British Indian Ocean Territory (BIOT for short). To the people who once inhabited the islands, they are known as the Chagos Islands. In terms of where the islands are, Lord Hoffman at para 3 of his decision describes them as:

"situated south of the equator, about 2200 miles east of the coast of Africa and 1000 miles south-west of the southern tip of India. It consists of a group of coral atolls known as the Chagos Archipelago of which the largest, Diego Garcia, has a land area of about 30 km2. Some distance to the north lie Peros Banhos (13 km2) and the Salomon Islands (5 km2)."

Now we all know where we are, let us look to what the issue is. The tale of these islands is horrific. It is a sad tale that is not spoken about. Lord Rodger (at para 75) talks about "the unhappy - indeed, in many respects, disgraceful - events of forty years ago..."

Allow me to set the background by quoting directly from Lord Hoffman (paras 4 & 5):

"4. The islands were a dependency of Mauritius when it was ceded to the United Kingdom by France in 1814 and until 1965 were administered as part of that colony. Their main economic activity was gathering coconuts and extracting and selling the copra or kernels. In 1962, when the plantations were acquired by a Seychelles company called Chagos Agalega Company Ltd (“the company”) the settled population was a very small community (less than 1,000 on the three islands) who called themselves Ilois (Creoles des Iles) and whose families had in some cases lived in the islands for generations. With the assistance of contract labour from the Seychelles and Mauritius, the Ilois were mainly employed in tending the coconut trees and producing the copra.

5. The evidence suggests that the Ilois, who now prefer to be called Chagossians, lived an extremely simple life. The company, whose managers acted as justices of the peace, ran the islands in feudal style. Each family had a house with a garden and some land to provide vegetables, poultry and pigs to supplement the imported provisions supplied by the company. They also did some fishing. There was work in the copra industry as well as some construction, boat building and domestic service for the women. No one was involuntarily unemployed. Most of the Chagossians were illiterate and their skills were confined to those needed for the activities on the islands. But they had a rich community life, the Roman Catholic religion and their own distinctive dialect derived (like those of Mauritius and the Seychelles) from the French. "


Well, I do not know about everyone else, but it sounds like quite a paradise to me. So what is it that could possibly have happened to such a scenic little place that could have resulted in the House of Lords discussing it. Well, in a nut shell, real politik hit them:

"6. Into this innocent world there intruded, in the 1960s, the brutal realities of global politics. In the aftermath of the Cuban missile crisis and the early stages of the Vietnam War, the United States felt vulnerable without a land based military presence in the Indian Ocean. A survey of available sites suggested that Diego Garcia would be the most suitable. In 1964 it entered into discussions with Her Majesty’s Government which agreed to provide the island for use as a base. At that time the independence of Mauritius and the Seychelles was foreseeable and the United States was unwilling that sovereignty over Diego Garcia should pass into the hands of an independent “non-aligned” government. The United Kingdom therefore made the British Indian Ocean Territories Order 1965 SI No 1920 (“the BIOT order”) which, under powers contained in the Colonial Boundaries Act 1895, detached the Chagos Archipelago (and some other islands) from the colony of Mauritius and constituted them a separate colony known as BIOT. The order created the office of Commissioner of BIOT and conferred upon him 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. When Mauritius became independent in 1968 they acquired Mauritian citizenship but, by an exception in the Mauritius Independence Act 1968, did not lose their UK citizenship.

7. At the end of 1966 there was an exchange of notes between Her Majesty’s Government and the Government of the United States by which the United Kingdom agreed in principle to make BIOT available to the United States for defence purposes for an indefinitely long period of at least 50 years. It subsequently agreed to the establishment of the base on Diego Garcia and to allow the United States to occupy the other islands of the Archipelago if they should wish to do so.”

What happened? Well the USA required a base in the middle of the Indian Ocean, so we emptied the islands of the inhabitants and sent them all to Mauritius. On top of this, we created what is politely termed a "legal fiction". This was when we legislated to enure that we arrived in a position where, in law, it appeared that there had never been any indigenous population on those islands to which the United Kingdom owed any obligations to. The judgement describes at paras 10 and 11 how the community fared in their new home:

"For the most part, the community was left to fend for itself in the slums of Port Louis"

and

"When the Chagossians arrived in Mauritius they found themselves in a country with high unemployment and considerable poverty. Their conditions were miserable."

Legal battles for compensation have been going on quietly for a number of years. The UK Government did accept that the "removal and resettlement of the Chagossians was accomplished with a callous disregard of their interests" (para 10). However, the UK Government are still preventing resettlement of the islands.

One reason for this is that resettlement would not be viable. In order to resettle the population in their ancient homelands, massive economic investment would require to me made. Also, there is the small fact that the largest of the islands, Diego Garcia, houses a US military base. This particular island entered public consciousness earlier this year. Lord Hoffman has the details at para 35:

"On 21 February 2008 the Foreign Secretary told the House of Commons that, contrary to previous assurances, Diego Garcia had been used as a base for two extraordinary rendition flights in 2002 (Hansard (HC Debates), cols 547-548). There are allegations, which the US authorities have denied, that Diego Garcia or a ship in the waters around it have been used as a prison in which suspects have been tortured. The idea that such conduct on British territory, touching the honour of the United Kingdom, could be legitimated by executive fiat, is not something which I would find acceptable"

Presumably now everything becomes clear. I suppose that the argument goes that the islands are of strategic importance to "our" security interests and therefore our actions are legitimate. Surely this cannot be correct. The Law Lords in this case are divided, but in the end decide to do nothing to assist the islanders. In terms of security interests, Lord Hoffman has the following to say at para 57:

"In addition, as Mr Rammell told the House of Commons, the government had to give due weight to security interests. The United States had expressed concern that any settlement on the outer islands would compromise the security of its base on Diego Garcia. A representative of the State Department wrote a letter for use in these proceedings, giving details of the ways in which it was feared that the islands might be useful to terrorists. Some of these scenarios might be regarded as fanciful speculations but, in the current state of uncertainty, the government is entitled to take the concerns of its ally into account." [emphasis added]

Lord Bingham at para 72 also has something to say regarding the US' security assessment:

"Despite highly imaginative letters written by American officials to strengthen the Secretary of State’s hand in this litigation, there was no credible reason to apprehend that the security situation had changed. It was not said that the criminal conspiracy headed by Osama bin Laden was, or was planning to be, active in the middle of the Indian Ocean. In 1968 and 1969 American officials had expressly said that they had no objection to occupation of the outer islands for the time being" [emphasis added]

So what are we to take from this case? Well one must wonder whether the UK can ever achieve an ethical foreign policy. One must wonder how the UK can be seen as the protectors of human rights when we engage in such actions as described here. One is also left to ponder the wider issue of how much weight we give "security" considerations when dealing with the rights of individuals or communities.