Introduction
Mauritius had been successfully colonized by the Dutch, the French and the English before gaining its independence in 1968. However, the present territory of Mauritius is smaller than what it was inherently. The Chagos Archipelago is a group of islands situated in the Indian Ocean. The following blog gives a brief description of their formation, various resolutions passed in the same regard, the current stand of its stakeholders, and the bigger problems their history throws light upon.
Look Into The Past
In February 1964, the United Kingdom (UK) had begun negotiating with the Premier of the colony of Mauritius about detaching the Chagos Archipelago from Mauritius. In 1965, and the Chagos Islands were separated from Mauritius for the establishment of a United States (US) military facility on Diego Garcia, the largest island of the archipelago on its southeast, as the result of an agreement (1965 Lancester House Agreement) between the representatives of the colony of Mauritius and the UK Government. However, it was understood that the archipelago could be returned to Mauritius at a later date (when “no longer needed for our (UK’s) defence purposes” as well as other benefits including fishing and mineral rights).[1]
On 8th November 1965, the British Indian Ocean Territory Order 1965 was passed and a new colony known as the British Indian Ocean Territory (BIOT) was established. It consisted of the Chagos Archipelago, detached from Mauritius, and the Aldabra, Farquhar, and Desroches islands, detached from Seychelles.[2]
In March 1968, Mauritius became independent from the UK. Between 1966 and 1972, the population of the Chagos Islands was exiled from its territory to make it available to be used as a military base for the US military. In 2004, Chagossians were denied the right of abode in the BIOT as a consequence of the BIOT (Constitution) Order 2004 and BIOT (Immigration) Order 2004, according to which no person could enter the BIOT without a permit from the British Crown. In 2016, according to a feasibility study and consultation, the Secretary of State of Britain issued a ministerial statement that the Government would not support the resettlement of the Chagossians in the BIOT, but would provide a support package of 40 million pounds over 10 years for Chagossians living outside the BIOT.
Two claimants (born in the BIOT) sought a judicial review of this decision. However, the Court of the Queen’s Bench Division held that the Convention for the Protection of Human Rights and Fundamental Rights did not apply to the BIOT as the United Kingdom (UK) had not included BIOT in any declaration under Article 56 of the Convention. So, the BIOT will not be considered a territory for whose international relations the UK is responsible. Therefore, the Court dismissed the claim.
On 25th February 2019, after a request from the United Nations General Assembly (UNGA), the International Court of Justice (ICJ) gave an Advisory Opinion on the “Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965”, according to which:
- The decolonization of Mauritius had not been lawfully completed when it had gotten independence in 1968,
- The resettlement of Mauritian nationals (including those of Chagossian origin) in the Chagos Islands was related to their protection of human rights and was a matter for the UNGA to resolve during the decolonization process. Thus, the power to resettle Chagossians was vested in the UNGA through this Advisory Opinion.
This was followed by the UNGA adopting a resolution urging the UK to complete resettlement in the Chagos Islands within 6 months and not delay the decolonization process in May 2019.[3]
The 2 claimants then appealed against the Divisional Court’s decision that:
- As per the ICJ’s advisory opinion and UNGA’s resolution, the legal position concerning the applicability of the Convention for the Protection of Human Rights and Fundamental Freedoms had changed, and
- The Divisional Court had failed to subject the claimants’ fundamental right, to live in the Archipelago, to “anxious scrutiny”.
This appeal was dismissed by the Divisional Court, giving the following justifications:
- On proper interpretation, both the advisory opinion and the resolution failed to make an actual decision about the substance of the claimants’ case, i.e., the right to resettlement under the Convention. Rather, they focused on the completion of the decolonization process as a part of Mauritius’ right of self-determination (the ability of a nation to decide its international relations) which was conferred on it as a state and as a government, and as per which the decision of the Mauritius Government to permit resettlement in the Chagos Islands would be an internal matter governed by Mauritian law and not international law.
- No relief, under the Convention, could be granted by the UK Government, or its domestic courts to enforce. The fact that the UK had not made a declaration under Article 56 of the Convention (which made the UK responsible for the BIOT’s international relations) was a bar to the Convention applying to the BIOT.
- Further, any presumption that the customary international law molded the English Common Law, to give rise to a right of settlement under the latter, faced the hurdle of the BIOT (Constitution) Order 2004 and BIOT (Immigration) Order 2004 which served as a statutory block on the right of resettlement, prohibited the right of abode in the BIOT and entry in it without a permit.
- The opinion and resolution did not serve to engage the Convention and did not enlarge the common law’s right of abode.
- Since there had been no interference with human rights, the case did not need “anxious scrutiny”. The Divisional Court had looked hard enough at the opinion and the resolution. Its “anxious scrutiny” would not have made any difference in its decision.[4]
Different Sides of the Coin
While the 2019 resolution was being voted upon, several arguments had come from both sides. Anerood Jugnauth, Mauritius’ then Minister Mentor and Minister for Defence – also a former Prime Minister and President – emphasized that his country had never accepted the UK’s occupation of the Chagos Islands, and had not been in a position to consent before being declared a state, even though the UK claimed that 3 million pounds worth of compensation had been given for the consent. The Archipelago had been a part of Mauritius since the 18th century, and its entire territory had been ceded to the UK in 1810 and kept intact until the Archipelago’s unlawful excision in 1965. This statement by Anerood Jugnauth throws light upon the fact that the government of Mauritius was not an elected one in 1965. It was still under the control of the British colonialists. However, we do not witness any significant actions taken by its government, after independence, to join the Archipelago’s territory back to Mauritius. There are also no official records of the UK’s deal with Mauritius.
The UK representative had called for the withdrawal of the draft resolution on its introduction, emphasizing that his country would not consent to have a bilateral dispute submitted for judicial settlement. He also recalled that UK’s offers have acknowledged Mauritius’s long-term interests in the Chagos Islands when they offered joint management of all the islands in the archipelago, except Diego Garcia (the US military base). He said that the focus of Mauritius has not been on the Chagossians but on the transfer of sovereignty, but since the territory had been created for defense purposes in a joint agreement with the US, Mauritius will get sovereignty only when the territory is no longer required for that purpose. Other speakers who did not support the resolution pointed out that the ICJ did not have mandatory jurisdiction in such issues. The US representative said that the UNGA’s action evaded normal proceedings to get a “back door ticket” into the ICJ’s dockets. India’s representative, mentioning his country’s security concerns in the Indian Ocean, said that it was a matter of principle for India to uphold the decolonization process and respect nations’ sovereignty. The Resolution also recalled that the UNGA had prohibited the dismemberment of territories by administering Powers in its 1965 resolution [2066 (XX)].[5]
The Way Ahead
Several questions arise in our minds when we think about the fate of Chagossian residents. Since the UNGA’s resolutions are not binding on countries that do not sign them, Britain did not hesitate to violate resolution 2066 (XX) of 1965 and freely dismembered the Archipelago from its territory. It went ahead another step by leasing it to the US for constructing a military base. This brings our attention to the greater issue of decolonization. Even after 77 years of existence, the United Nations Organisation has failed to eradicate colonization. There are still 17 Non-Self-Governing Territories on the planet whose people have not yet attained “a full measure of self-government”. How far has the UN Declaration on the Granting of Independence to Colonial Countries and Peoples been implemented?
Another point to be noted is Britain’s audacity to publicly clarify that the unlawfully occupied territory of the Chagos Islands would continue to remain under use by the US and UK for military purposes for as long as needed. It also brings into light the limited jurisdiction of the International Court of Justice and the inability of the Mauritius government, aling with it, to resettle Chagossians on their native land.
Most recently, a statement was made by James Cleverly, the Foreign Secretary in the House of Commons on 3rd November 2022, after the meeting between the then British Prime Minister Elizabeth Truss, the Mauritian Prime Minister Pravind Jugnauth, the UK, and Mauritius, where it was decided to start negotiations on the exercise of sovereignty over the British Indian Ocean Territory (BIOT). There has been no direction taken in this direction so far. It is not even clear if Mauritius is going to consent to this joint agreement.
Conclusion
One thing that is obvious is that Chagossians were forcefully exiled from their homes, and action needs to be taken to bring them back to it. Whether it is done by the UK, or US, or the United Nations Organisation, or the Mauritius Government, does not matter as long justice is served to the Chagossians.
Author(s) Name: Paridhi Sharma (Symbiosis International University)
References:
[1] Journal fo Territorial and Mritime Studies, https://www.journalofterritorialandmaritimestudies.net/post/2018/02/13/islands-sovereignty-and-the-right-to-return-an-analysis-of-the-chagos-islands-icj-advisor, (Nov. 22, 2022).
[2] Meetings Coverage and Press Releases, https://press.un.org/en/2017/ga11924.doc.htm, (Nov. 22, 2022).
[3] R (Hoareau) v. Foreign Secretary (CA), [2021] 1 WLR 472.
[4] R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, (2009) AC 453.
[5] Meetings Coverage and Press Releases, https://press.un.org/en/2017/ga11924.doc.htm, (Nov. 22, 2022).
