Chagos Islanders v The United Kingdom, Application No. 35622/04, 20 December 2012
By Dr Noelle Quenivet, ILHRU, UWE
The inhabitants of the Chagos Islands – situated in the middle of the Indian Ocean – were evacuated between 1967 and 1973 as one of them, Diego Garcia, was being leased by the United Kingdom to serve as US military base in 1966. At the time the UK claimed that the inhabitants were migrant workers and were not settled on the islands. Those who found refuge in Mauritius received some compensation whilst those evacuated to the Seychelles did not. In 1978 the UK made an open offer to settle the claims of all islanders; thereupon, Mauritius received another lump sum to distribute to the Chagossians. Yet, nothing was paid to those in the Seychelles. A legal battle between the Chagossians and the Foreign Secretary (Ventacassen case) ensued as the Chagossians claimed the right to return to the islands. In 2000 the restrictions on entry or residence were lifted for all islands with the exception of Diego Garcia so as to ensure compliance with the UK-US agreement. However, none of the islanders returned and, instead, they pursued their claim for compensation and for return to Diego Garcia. As the US made it clear that resettlement would compromise the security of the military base the UK issued in 2004 an order prohibiting anyone from entering or living on the islands. The order was challenged in court (Bancoult 2 case) and in 2008 the House of Lords held that any right of abode on the outer islands was purely symbolic. In 2010 the British government designated the Chagos Islands as a Marine Protected Area.
Before the European Court of Human Rights the applicants challenged their removal from the islands, the reception conditions, the prohibition on their return, the refusal to facilitate return and the refusal to compensate them, claiming that Articles 3, 6, 8, 13 ECHR and Article 1 of Protocol No. 1 had been violated. The application was declared inadmissible.
First, the Court examined whether events taking place in the Chagos islands fell within its ratione loci jurisdiction. Article 56 ECHR stipulates that the rights enshrined in the Convention can be extended to other territories if an appropriate declaration is made (“extend to all or any of the territories for whose international relations it is responsible.”) This was not the case in relation to the administrative entity to which the Chagos islands belonged and therefore no individual right to petition can be derived. The Court also quickly dismissed the argument that because some of the islanders now live in metropolitan UK they have a right of individual petition. Likewise, based on the Quark case (Quark Fishing Ltd v The United Kingdom, 12 March 1990), the Court denied such a right from the claim that the ultimate power in deciding upon the fate of the islands was in the hands of politicians or officials within the UK. Finally the Court was asked to review its Quark decision in the sense that the effective test control derived from Article 1 ECHR (see Al-Skeini and Others v The United Kingdom, Application No 55721/07, 7 July 2011) should prevail over the application of Article 56 ECHR, the argument being that Article 56 is a remnant of colonial times. After reasserting that extraterritorial jurisdiction only applies in exceptional cases (para. 71) the Court, whilst acknowledging the “anachronistic” Article 56 stated in very clear terms that it “remains a provision of the Convention which is in force and cannot be abrogated at will by the Court in order to reach a purportedly desirable result” (para. 21). Indeed whilst the Convention might be a “living instrument” in the words of the Court, it cannot be so interpreted as to deny the application of Article 56. As the Court noted, Article 56 is still in force; the best proof being that in November 2010 the British government reiterated that it extended the application of the Convention to a number of territories for whose international relations it is responsible. What is more, the Court could have in its judgment advanced the argument of the intertemporal rule that obliges it to read Article 56 in its 1967-1973 context (critical date). What this approach however reveals is that Article 56 is the lex specialis when deciding on the territorial application of the Convention.
Second, despite the Court being able to dismiss the application on the basis of the lack of jurisdiction ratione loci, it examined the applicants’ victim status. The Court reiterated that, in accordance with Article 34, where applicants have accepted compensation they cannot be deemed victims of a violation (see Donnelly et al v The United Kingdom, Application Nos. 5577-5583/72, 15 December 1975). Compensation in civil proceedings is usually deemed to “constitute an adequate and sufficient remedy” (para. 81). Moreover, as the Chagossians accepted the sum and renounced further use of local remedies, they are no longer victims. The Court specified that the system of exhaustion of use of local remedies would be useless if individuals could “dispens[e] with the available and effective domestic mechanism of redress” (para. 81) and petition the ECtHR. Moreover, it is not the role of the Court to ascertain the facts (para. 81). The Court also accepted the High Court ruling dismissing the claim that individuals who had refused to sign the waiver forms in the settlement were unable to claim compensation as they had failed to bring their claims before the relevant domestic courts (para. 81). This part of the ruling is subject to criticism. Whilst there is no doubt that the UK publicly offered compensation in 1978 and a “final” settlement was made in 1982, this does not mean that all Chagossians were aware of it. In particular, at the said time the Seychelles were under a coup d’état that led to a one-party rule for the following 13 years. Whereas the UK can certainly not be held liable for these events the Court could have at least acknowledged that it was extremely difficult for the Chagossians to access justice under such circumstances. Moreover, it is questionable whether individuals who live so far off from the UK, some of whom were illiterate and lived in extreme poverty, were in a position to pursue their claims in court. The Court did not take into account the economic and social factors relating to access to justice and adopted a strict legal approach to the issue. In fact this reveals a broader disinterest of the Court in the fate of the Chagossians who emigrated to the Seychelles whilst at the same time admitting that they were never compensated.
Whilst recognising in strong terms the “callous and shameful treatment which [the Chagossians] and their antecedents suffered from 1967 to 1973, when being expelled from, or barred from return to their homes on the islands and the hardships which immediately flowed from that” (para. 83) the Court toed the British government’s and courts’ line arguing that the claim was of a political nature. Foreign Secretary, William Hague, stated “We have made clear our regret for the wrongs done to the Chagossian people over forty years ago.” In fact, the Chagossians did not seem to have any practical prospect of being able to enter or settle on the islands. Their campaign is one of establishing their, unfortunately, theoretical right to return to the islands.