Submission from Mr Richard David Gifford,
Chagos Refugees Group
MEMORANDUM CONCERNING BRITISH INDIAN OCEAN
TERRITORYTO ASSIST THE
FOREIGN AFFAIRS SELECT COMMITTEE OF THE HOUSE
OF COMMONS IN ITS
ENQUIRY INTO THE GOVERNANCE OF THE OVERSEAS
TERRITORIES
1. I am Richard David Gifford, a solicitor
of 35 year's standing, with experience in immigration, nationality,
human rights and public law.
THE PROBLEM
OF THE
DISPLACED POPULATION
OF BIOT
2. In 1997, as chairman of the Anglo-Mauritian
Association (a London based charity) I visited Mauritius and became
aware of protests outside the British High Commission by the displaced
inhabitants of the Chagos Islands. They were protesting that they
had been removed from their homeland in the late 1960s and early
1970s to Mauritius and Seychelles, and felt that their treatment
was unlawful and inhumane. It transpired that the entire Archipelago
of 65 islands (spanning an area of approximately 200 miles in
width) had been swept of its permanent population to give just
one island to the USA for an airbase.
DISCOVERY OF
GUILTY KNOWLEDGE
OF THE
UK GOVERNMENT
3. I was instructed as a solicitor to investigate
the legality of the deportation of the population, for which purpose
I caused enquiries to be made in the Public Records Office during
January 1998. My researchers discovered correspondence from the
files of the FCO which underlay the policy of de-populating the
island of its permanent inhabitants. These documents demonstrated
two principal facts:
(a) The Colonial Office and the Foreign Office
were aware of the permanence of the population of the Chagos islands
which was settled there since before the islands were ceded to
Britain in 1814. However officials were prepared to describe them
as merely "contract workers". As the permanence of the
population legally prevented the islands from being depopulated.
(b) It was therefore apparently decided that
the UK Representative at the UN should mislead the UN Committee
on Decolonisation by concealing the fact that the Islands had
a permanent population who were to be removed without any consultation.
This limited glimpse into official policy-making
appeared to show the adoption of proposals which were known to
be a breach of the UN Charter's "Sacred Trust" (Under
Article 73) for a Colonial Power to promote economic and social
advancement of a non-self-governing territory. It also seemed
to be a breach of fundamental rights of the population and the
starkest possible example of Abuse of Power in the Administration
of a Colony of British subjects.
BIOT REFUSES TO
ENTERTAIN THE
COMPLAINT OF
UNLAWFUL EXILE
4. In 1998 I commenced correspondence with
the Commissioner for BIOT, a civil servant based in London who
was appointed by the FCO (and who thus lacked any democratic credentials)
and in whom were vested powers of legislation for the territory.
On behalf of the population I complained at the widespread breach
of human rights involved in removing the entire population from
their homeland between 1968 and 1973. The new colony of BIOT had
been established in November 1965 as a separate colony of the
Crown and was detached from the territory of Mauritius (which
was due to become independent, and did so in 1968). I complained
that to remove the whole population and to dump them without homes
or jobs in a foreign country amounted to inhuman and degrading
treatment, a serious interference with the right to family life
and with enjoyment of property, all of which rights are guaranteed
by the European Convention on Human Rights.
5. The Commissioner replied seeking to justify
removal of the population, and the prohibition on its return,
by stating that the BIOT Immigration Ordinance 1971 made it a
criminal offence for anyone to be on the island without a permit.
He later supplied a statement of policy that Chagos Islanders,
following an appeal decision, were permitted to visit the outer
islands (excluding Diego Garcia where the American base is situate)
provided that they did not spend a night on any island. I complained
that in view of the geographical remoteness of the Archipelago
(over 1,000 miles from Mauritius and in the absence of public
transport), it was impossible for any islander to have access
to his homeland. Before this decision on an administrative appeal,
BIOT policy had been to deny permits outright to any native Chagossian.
The limited success on appeal (decided by "A person"
appointed by the Commissioner to give an independent decision—he
was in fact the Commissioner's predecessor in office) indicated
to me that somewhere in official thinking was a recognition that
you cannot separate a person from his homeland, but also there
was a refusal to give effect to this right in any meaningful way.
It was clear that both the BIOT Immigration Ordinance and the
Policy adopted in its implementation were open to serious objection
THE FIRST
JUDGMENT THAT
DEPOPULATION WAS
UNLAWFUL: 3 NOVEMBER
2000
6. In September 1998 I instituted proceedings
for a judicial review on behalf of Olivier Bancoult, the leader
of the Chagos Islanders in Exile, for a declaration that the BIOT
Immigration Ordinance 1971 was ultra vires and unlawful, and the
Policy of virtual exclusion of the population was disproportionate
and unlawful. On 3rd November 2000 the Divisional Court quashed
the offending section of the Ordinance declaring it to be beyond
the power of "peace, order and good government" of the
territory. The Court stated that the people were to be "governed
not removed".
ROBIN COOK
ACCEPTS THE
JUDGMENT
7. On the same day, the Foreign Secretary
Robin Cook MP made an important announcement:
"I have decided to accept the Court's
ruling and the Government will not be appealing.
The work we are doing on the feasibility of
resettling the Ilois now takes on a new importance. We started
the feasibility work a year ago and are now well under way with
phase 2 of the study.
Furthermore, we will put in place a new Immigration
Ordinance which will allow the Ilois to return to the outer island
while observing our Treaty obligations.
This Government has not defended what was
done or said 30 years. As Lord Justice Laws recognised, we made
no attempt to conceal the gravity of what happened. I am pleased
that he has commended the wholly admirable conduct in disclosing
material to the Court and praised the openness of today's foreign
office".
THE LAW
IS CHANGED
8. A new Immigration Ordinance was then
passed by the Commissioner (The BIOT Immigration Ordinance 2000)
enabling the displaced citizens of BIOT and their families to
travel to the outer islands, but not to Deigo Garcia where a permit
was still required. Of course, this did not of itself enable resettlement
to take place, since the economy of the islands had been allowed
to collapse when the Plantation Managers, Moulinie & Co. had
been excluded from Diego Garcia 30 years before and there was
no civilian infrastructure for the population. Nor was there any
transport to take them the thousand miles which separate the Chagos
Archipelago from Mauritius
A FEASIBILITY STUDY
IS SET
UP, BUT
IT IS
NOT INDEPENDENT
AND LACKS
OBJECTIVITY
9. The study to which the Foreign Secretary
referred was a preliminary feasibility study following investigations
in the Chagos Archipelago by consultants appointed by the BIOT
administration. The consultants submitted to the Commissioner
in May 2000 a favourable preliminary report stating that there
was no reason why at least 1,000 islanders could not resume immediate
occupation of the islands, and prescribed a number of steps necessary
to achieve this. It was later discovered that there had been interference
with this positive conclusion so as to make it a heavily qualified
one. Moreover, following the Cook announcement, BIOT proceeded
with further stages of the "Feasibility Study", but
the islanders were never consulted, editorial control was retained
by the Government (by clause 17 of the terms of reference), and
it is evident that the next stage of the study published in July
2002 lacked objectivity and suffered from probable further interference
from officials (see below). Finally it was aborted before it had
even completed Stage II by an about-turn which reversed Robin
Cook's policy: on 10 June 2004, again without any consultation
with Chagossians or their representatives.
THE ISLANDERS
SEEK REDRESS
2001-04
10. Following the decision of November 2000,
that their removal had been unlawful, the islanders waited for
the FCO to make proposals for compensation and resettlement. None
such was forthcoming despite numerous meetings between the islander's
leader, myself and Ministers of State and BIOT Commissioners.
11. The Chagossian Community which numbers
approximately 5,000, mostly resident in Mauritius, gradually lost
faith in the FCO making the anticipated proposals in pursuance
of the Constitutional convention that the Government would adopt
a lawful policy. Thus, by December 2001 I had received written
instructions from 4,287 Chagos Islanders authorising me to introduce
claims for compensation and a declaration of their right to return
to any part of the Archipelago. The claims were based largely
in tort and alleged various civil wrongs such as misfeasance in
public office, deceit, negligence, breach of rights under the
Mauritian constitution and interference with property rights.
These claims were wholly dismissed by Mr Justice Ouseley in October
2003. However, Ouseley J stated:
JUDICIAL CRITICISM
OF FCO—OCTOBER
2003
"It does appear that, in the absence
of unexpected compelling evidence to the contrary, at least some
claimant Chagossians could show that they were treated shamefully
by successive UK Governments. Whatever view might be taken of
the importance of the strategic defense aims underlying the creation
of BIOT, the evacuation of the islands and the establishment of
the base on Diego Garcia, some who had lived there for generations
were uprooted from the only way of life that they knew and were
taken to Mauritius and the Seychelles where little or no provision
for their reception, accommodation, future employment and well-being
had been made. Ill-suited to their surroundings, poverty and misery
became their common lot fro years. The Chaggosians alone were
made to pay a personal price for the defence establishment on
Diego Garcia, which was regarded by the UK and US Governments
as necessary for the defence of the West and its values. Many
were given nothing for years but a callous separation from their
homes, belongings and way of life and terrible journey to privation
and hardship".
COURT OF
APPEAL ALSO
CRITICISES FCO—JULY
2004
12. The Court of Appeal, in July 2004, upheld
the dismissal largely on the ground of the passage of time, but
made this observation on the treatment of the Chagossian population:
"The political history of the removals
and of the endeavours to secure redress can be found in compelling
detail, first in the judgment of Laws LJ in Bancoult (below) and
secondly in the judgment of Ouseley J in the present proceedings.
In the light of it, it would be wrong of us to move on to the
legal issues without acknowledging, as Ouseley J went out of his
way to do in a judgment to the comprehensiveness of which we pay
tribute, the shameful treatment to which the islanders were apparently
subjected. The deliberate misrepresentations of the Ilois' history
and status, designed to deflect any investigation by the United
Nations; the use of legal powers designed for the governance of
the islands for the illicit purpose of depopulating them; the
uprooting of scores of families from the only way of life and
means of subsistence that they knew; the want of anything like
adequate provision for their resettlement: all of this and more
is now part of the historical record. It is difficult to ignore
the parallel with the Highland clearances of the second quarter
of the nineteenth century. Defence may have replaced agricultural
improvement as the reason, but the pauperisation and expulsion
of the weak in the interests of the powerful still gives little
to be proud of."
WHY DOES
FCO DEPOPULATE WHEN
NOT REQUIRED
BY UK/US TREATY?
13. The policy of depopulation of BIOT,
although desired by theUnited States, was not required by any
Treaty or agreement between the US and UK. These were silent as
to clearance of the Archipelago, and a secret attached Memorandum
provided only that once an island was required by the USA, the
UK was to remove the population from that island. In fact the
USA has never required more than one out of 65 islands (namely
Diego Garcia alone). Despite this the UK passed legislation (the
BIOT Immigration Ordinance 1971) making it a criminal offence
for any Chagossian to remain on any island. In the Judgment of
3 November 2000, this policy was held to be illegal, being described
by Laws as "an abject legal failure".
FCO DEFIES NOVEMBER
2000 JUDGMENT AND
SHIFTS THE
GOALPOST ONCE
MORE: PREROGATIVE
ORDERS 10 JUNE
2004
14. It is not known whether the Untied States
Government forced the UK Government to change the policy announced
by Robin Cook, or whether the FCO simply misinterpreted its Treaty
obligations to the United States with an excessive zeal. However,
the result was that on 10 June 2004 the Royal Prerogative was
used by Ministers to pass two Orders in Council, the BIOT Constitutional
Order and the BIOT Immigration Order, whereby all right of abode
in the Chagos Islands was purportedly abolished. This was intended
to reverse the decision of the High Court in November 2000 which
the Government had accepted and against which it had decided not
to appeal. It was done abruptly and without consultation with
the Chagos Islanders or their representatives. Five days later
I was summoned to a meeting at the Foreign Office by Minister,
Bill Rammell. He shocked me by handing copies of the Orders in
general which he said had already been passed. He claimed to base
the decision largely on the ground of the cost of resuming habitation.
I was surprised by this. I pointed out to him that the consultants
had been expressly prohibited by their terms of reference from
considering both costs or benefits of resettlement and he admitted
that his own department had made a rough estimate of costs at
£5 million. He had sought funding neither from DFID nor from
the European Development Fund (of which BIOT is listed as a potential
beneficiary and where the available funds stood at around
17 billion).
FCO TRIES TO
JUSTIFY PREROGATIVE
ORDERS
15. He also referred to the supposed conclusion
of the Consultants in their Phase 2B report, that life for a returned
population would be "precarious". I pointed out that
the USA had recently invested millions of dollars in special shelters
for Stealth bombers at Diego Garcia, and there was no sign that
the Military was planning to leave the Archipelago. It seemed
to me that these measures were a betrayal of the promise made
to the islanders by Robin Cook, and I left the meeting in disgust
explaining that I had not expected this Government to behave in
such a shabby and inhumane way.
16. Proceedings were again instituted by
me in September 2004 on behalf of Mr Bancoult challenging the
Orders in Council as being contrary to the decision of 3 November
2000, unlawful on the ground of ultra vires, and a breach of Human
Rights Law and International Law of self determination.
17. The Government's evidence sought to
justify the claim of abolition of the right of abode largely on
the ground that it was necessary to maintain the effective use
of the defence base on Diego Garcia (which is over 100 miles away
from the outer islands were Robin Cook restored the right of abode),
and upon the supposed cost and precariousness of resettlement.
It was claimed that the decision was made hastily because Mr Bancoult
had appeared at a political meeting in Bombay sharing a platform
with a Mauritian group called Lalit whose policy (which in fact
is not shared by Mr Bancoult or his group) was to get rid of the
US air base and send a "peace flotilla" to the Archipelago.
In a Westminster Hall debate in the House of Commons on 7 July
2004, Minister Rammell misdescribed this supposed plan as "the
imminence of resettlement". It is notable that existing legal
powers would have been quite sufficient to exclude any third party
from Diego Garcia, and any non-BIOT national from the outer islands
without seeking to abolish the Islanders' cherished right of abode
in their homeland.
THE EVIDENCE
OF MIS-GOVERNANCE
1964-2004
18. To meet this misleading historical account
and its attempt to obfuscate fundamental issues, I prepared a
statement in rebuttal dated 30 March 2005 which gave a detailed
and documented account of the misgoverneance of the islands from
the date of their establishment so as to demonstrate the continuing
victimization of this population and the reckless disregard of
International and Constitutional Laws.
19. It referred to:
(a) the FCO's misdescription of the true
character of the population and its way of life (para 6.)
(b) The misleading account given to the Decolonisation
Committee of the UN on 16 November 1965 by the UK representative
(para 7).
(c) The achievement of the Policy of deporting
the population (para 9-10).
(d) the misery suffered by Chagossians following
removal (para 11).
(e) It contained a detailed section on the
mishandling of the so called Feasibility Study which failed to
consult the Islanders, lacked objectivity and was subject to political
interference (para 14).
(d) It detailed work which I undertook at
the request of the Commissioner, relating to the numbers of Chagossians
wishing to return home, and to the level of commercial interest
in investing in the renewed economy of the Islands. In a letter
dated 29 October 1999 (p 463 of documents attached) I set out
the results of a fact-finding mission which I then conducted in
Mauritius and Seychelles. This report demonstrated considerable
commercial interest in BIOT, and a population aching to return
there.
(e) A report by a resettlement consultant
instructed by the islanders Jonathan Jenness (p 394 of attached
documents).[9]
Mr Jenness reported that the islands were benign, had a promising
economic future and could easily be the subject of beneficial
resettlement.
Unfortunately, neither of the last two items
had at any stage been considered by the Commissioner, nor were
their contents even referred to by BIOT or the official consultants.
CONCERN AT
THE QUALITY
OF THE
FEASIBILITY REPORTS
EMERGES
20. I was dissatisfied with the lack of
consistency in the work of the phase 2B feasibility reports, and
worried by the apparent lack of support in the scientific annexes
for the so-called "General Conclusion" in the body of
the report itself. This stated that:
"To, conclude, 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"
21. Strangely the next paragraph of the
summary went on to recommend further stages: an economic analysis
to determine financial viability, an assessment of resettlement
needs, determination of the "optimal carrying capacity of
the islands", and consultation with those wishing to resettle"
since it was "essential to incorporate their needs and aspirations
into the resettlement debate". It was as if these recommendations
were written prior to the "General Conclusion", since
they were clearly irrelevant to the General Conclusion which supposedly
preceded them.
EVIDENCE OF
INTERFERENCE EMERGES:
THE PRELIMINARY
STUDY MAY/JUNE
2000
22. Moreover, this negative summary was
in contrast to the generally favourable findings in respect of
the re-establishment of the islands' economy (eg fisheries, mariculture,
tourism and agriculture). So worried was I as to the authenticity
of parts of this report, that in December 2006 I asked for draft
copies of the preliminary Feasibility Study and of the Phase 2B
Study. The FCO's legal representative then supplied me with a
copy of the draft feasibility study. For the first time I was
able to see the conclusion delivered in May 2000 to BIOT by the
preliminary consultants which clearly presented their unqualified
acceptance of resettlement by "up to 1,000 Islanders",
without any stated difficulty. However, this report had been suppressed.
Instead the Conclusion had been altered in the published version
dated June 2000 so as to present a qualified conclusion.
23. The draft report by consultants dated
May 2000 contained the following unqualified conclusion:
"The conclusion of this Preliminary Study
is that there is no obvious physical reason why one or both of
the two atolls should not be repopulated, by the sort of numbers
(up to or around one thousand) of Ilois who are said to have expressed
an interest in resettlement."
But above the text of the original draft there
appears a handwritten phrase: "qualify—"If...""
This addition explains the alteration to the
text then made, since the published version dated June 2000 is
in the following terms:
"The conclusion of this Preliminary Study
is that resettlement of one or both of the two atolls is physically
possible, but only if a number of conditions are met. These include
confirmation that:
1. "a sustainable and affordable water
resource can be developed" (I observe that these are among
the wettest atolls in the world and historically the population
used the abundant rainwater which they captured at no cost).
2. "The nature and scale of resettlement
will not damage the environment" (surely an attempt to put
the cart before the horse).
3. "Public money is available to finance
infrastructure and basic services" (I had already provided
the Commissioner in my letter of 29 October 1999 considerable
evidence of private commercial interest, and the Commissioner
had already mentioned to me the funding available to BIOT from
the European Development Fund).
4. "one or more private investors are
willing to develop viable enterprises which can generate sufficient
incomes to pay for the investment and recurrent costs of resettlement"(See
comment at point 3 above).
EDITORIAL CONTROL
OF THE
FEASABILITY STUDY
RETAINED BY
FCO
It now became quite clear that considerable
interference with the substance of the Preliminary Study had been
practised in pursuance of the editorial control stipulated by
BIOT and provided by clause 17 of the terms of reference of this
study:
"17. A draft report will be produced
for the FCO and the Government of BIOT. On receiving comments
on the draft report from the FCO and the Government of BIOT, the
consultant will finalise the report and provide the text in both
paper and electronic form to the Government of the BIOT and the
FCO"
ALL DRAFTS
OF THE
FINAL (PHASE
2B) STUDY HAVE
BEEN DESTROYED:
JULY 2002
24. I also asked for drafts of the Phase
2B Study (the supposed "General Conclusion" of which
was used by ministers to justify the Reversal of Robin Cook's
policy and the abrogation of my clients' right of abode). However,
neither Government nor its consultants have been able to supply
it either in hard copy or electronic format. (both of which are
stipulated at clause 17 TOR supra). Apart from the requirement
to keep orderly records this was doubly surprising in view of
the pendency of the Group Litigation which might have required
all such copies and their respective drafts to be produced in
pursuance of the Duty of Disclosure to the Court. A request by
the UK Chagos Support Association for the information contained
in the draft Phase 2B Study is the subject of a request under
the Freedom of Information Act. This request is still unanswered.
A SERIOUS ACT
OF MISGOVERNANCE
25. So there is grave doubt that any objective
study has been allowed to see the light of day, and instead the
Chagossians are being cheated out of their homeland by a doctored
conclusion that is at variance with the facts and unsustainable
with reference to the true conclusions of consultants. Alternatively
it must be assumed that the consultants were never truly "Independent"
(as claimed by Minister Rammell in the House on 7 July 2004) and
are susceptible to the Government's drafting control. Either way
I suggest that to base a harsh policy on a suspect dossier is
a serious act of misgovernance.
The High Court again criticises BIOT policy and
strikes down the Prerogative Orders: 23 May 2006
26. On 11 May 2006 the Divisional Court
quashed the two Orders in Council of June 2004, holding that they
were "repugnant" and ultra vires. The FCO appealed,
and on 23 May 2007 the appeal was unanimously dismissed both on
the ground of ultra vires and on the ground that Robin
Cook's statement had created a legitimate expectation of resettlement.
Sedly LJ said at paragraph 58.
THE COURT
OF APPEAL
AGREES AND
FURTHER CRITICISES
THE POLICY
OF DEPORTATION
"few things are more important to a social
group then its sense of belonging, not only to each other but
to a place. What has sustained people in exile, from Babylon onwards,
has been the possibility of returning home. The barring of that
door, however remote or inaccessible it may be for the present,
is an act requiring overwhelming justification".
27. The Government was refused leave to
appeal but has now petitioned the House of Lords, apparently determined
to continue its victimisation of these impoverished and distressed
subjects.
PROPORTIONALITY OF
DEPOPULATING THE
ENTIRE BIOT ARCHIPELAGO
28. Moreover the policy of depopulation
appears to be entirely disproportionate to the aim of "maintaining
the effective use of the Defence facility". Diego Garcia
is approximately 135 miles distant from the remaining habitable
Atolls of Peros Banhos and Salomon, and indeed the Eastern half
of Diego Garcia is not occupied by the military. It is described
on Admiralty Charts as "Nature Conservation Area", and
is almost entirely given over to Coconut Forests and the preserved
former capital township of East Point. The case for keeping the
entire Archipelago swept of population, when the issue comes to
be argued in the various Court hearings, is invariably put forward
by the FCO, not in the form of serious military evidence from
a senior military strategist or Civil Servant, but in the form
of a letter from the US Dept. of State. I attach the latest of
these which was produced during the hearing in the Divisional
Court on 19 January 2006. The argument that a returned population
would in some way facilitate the installation of electronic jamming
devices was dismissed by Hooper LJ during the course of argument,
when he pointed out that any vessel exercising its right of innocent
passage could pass within three miles of Diego Garcia, a far closer
distance than the Outer islands which are over 100 miles distant
and where the Chagossians' right of Abode was restored by Robin
Cook.
FCO REFUSES TO
ACCEPT ITS
RESPONSIBILITY: FURTHER
JUDICIAL CRITICISM
29. Another criticism of FCO Policy was
made by Hooper LJ in his judgment dated 23 May 2006. In answer
to the judge's question to the FCO's Counsel "What does the
FCO say was the true reason that the Population was removed?",
the answer was given after consultation in court between Counsel
and Officials, that the reason was that "The plantations
became uneconomic and closed down". This was crticised by
the Judge as follows:
61. In the course of argument Mr Howell
QC, when asked why the families left Diego Garcia, replied (on
instructions) that they did so because of the closure of the plantations.
In our view the answer should have been: they left because they
were required to leave in fulfillment of the 1966 confidential
Minute which required the United Kingdom to take those "administrative
measures" "necessary for modifying or terminating any
economic activity then being pursued in the islands, resettling
any inhabitants". We confess to being considerably disappointed
by this attempt to obfuscate the history. It runs counter to what
Mr Robin Cook said in 2000: "This Government has not defended
what was done or said thirty years ago."
I would only add to that corrected explanation
that the prescribed steps in the memorandum were only to apply
when "an island" was required by the USA.
POLICY DEPENDS
ON CONSISTENTLY
ASSERTING FALSE
FACTS
30. Minister Bill Rammell attempted in the
Westminster Hall debate in July 2004, to disavow the actions taken
in the 1960's and 70's of deporting the population, whilst claiming
to face the reality of "today" by maintaining the self-same
policy. But, as the above attempt to "obfuscate the history"
shows, neither the policy of "then", nor of "now"
is remotely sustainable without falsifying the facts and arguments.
Indeed, if there has been one consistent thread which underlies
the conception, implementation and maintenance of a policy which
has now been declared illegal (by no less than three Separate
Courts and seven Senior judges), it is that only by closing departmental
eyes to the truth can the policy be pursued, and this has taken
the following forms:
(a) misleading the United nations (on 16
November 1966),
(b) passing a law in 1971 which was described
by the FCO lawyer as "maintaining the fiction" (that
the islands lacked a permanent population),
(c) pretending that it was not the FCO but
the Plantation owners who removed the population (as criticized
by Hooper LJ), and
(d) conducting a so-called Feasibility Study
of which the conclusions were modified by FCO in an attempt to
suggest that resettlement was not feasible, and aborting it in
breach of the promise made to the islanders by Robin Cook (supra)
FCO CLAIMS THAT
HUMAN RIGHTS
APPLY IN
ALL OT'S
SAVE BIOT
31. It is, I suggest, instructive to examine
the FCO's attitude to the Human Rights of the Chagossian People,
after reminding ourselves what the FCO set out as their policy
with regard to Human Rights in the Overseas territories:
Human Rights in the Overseas Territories
The UK Government regards the establishment and
maintenance of high standards of observance of human rights as
an important aspect of the partnership with the Overseas Territories.
Our objective is that those territories, which choose to remain
British, should abide by the same basic standards of human rights,
openness and good government that people in Britain expect of
their Government. This means that Overseas Territory legislation
should comply with the international rights, which have been extended
to them.
BUT FCO EXTENDED
ECHR TO CHAGOSSIAN
PEOPLE
32. It is notable that the protection of
the ECHR was indeed extended to the People of the Chagos Islands
in 1953, when by notification to the Council of Europe under Art
56, the UK extended the Covenant to, inter alia Mauritius, of
which the Chagos Archipelago then formed part. This "territorial
Extension" was a voluntary act of the FCO which remained
with the people of BIOT when their islands were detached from
Mauritius and remained a "Territory for whose International
relations the UK remained Responsible", in the words of Art
56(now 62). There has been no denunciation of the Covenant in
respect of the Chagos islands, but the FCO claims that Chagossians
enjoy no Human Rights protection at all, simply because this territory
has been missed off an informal list maintained by FCO, where
they claim the Covenant still applies under Art 62 (formerly Art
56). By such self-serving acts, do they claim that Fundamental
Rights and Freedoms, once solemnly conferred, can be simply airbrushed
away.
A FAIR AND
HONEST POLICY
33. I respectfully suggest that any principled
and humane policy would recognize the right of the population
to return to their homeland, and would accept the repeated decisions
of the English courts (without appeals or fresh legislation to
set aside the Court's decisions) and the "paramountcy"
of the islanders rights to live in peace under the British flag
would be respected as the "Sacred trust" to which the
UK is pledged by Art 73 of the UN Charter.
34. Moreover, such a policy would require
the most modest co-operation of the USA who, as already pointed
out by Hooper LJ, have no right under the US/UK treaties to any
more than the single Island which they have needed for military
purposes, the remainder remaining unused and derelict for 40 years.
THE INTERNATIONAL
LAW DIMENSION:
ANOTHER DENIAL
OF RESPONSIBILITY
35. As to the International Framework for
these egregious violations perpetrated by the FCO on its British
citizens from BIOT, it is pertinent to point out that the ICCPR
is, just like the ECHR regarded by FCO as "having no application
to a territory without a population". This shameless claim
is maintained despite the unlawful exile of the population, and
despite the obvious Universality of the Covenant's application.
Unlike the ECHR, there is no "Territorial Application"
clause in the ICCPR, but still the FCO claims that it does not
apply to a Territory where they wish to maintain breaches of Fundamental
rights.
BUT THE
UN HUMAN RIGHTS
COUNCIL DISAGREES
WITH THE
FCO AND SUGGESTS
A PROPER
POLICY
36. The ICCPR is monitored by the Human
rights Council of the UN. After the first High Court decision,
the HRC made some stinging observations on the UK's failure to
implement the implications of the domestic ruling. In its "Concluding
Observations" on the UK's report, the HRC on 6 December 2001
observed that:
"The State Party should, to the extent still
possible, seek to make exercise of the Ilois' right to return
to their Territory practicable. It should consider compensation
for the denial of this right over an extended period. It should
include the territory in its next periodic report".
No such steps have been adopted, leaving the
Islanders to fight yet again to recover their birthright by whatever
legal or political means may be available to them.
CONCLUSION
37. The treatment of the Chagos islanders
is a source of embarrassment and ridicule in the international
arena, and undermines any hope that the UK can provide an example
of good governance in regard to its own citizens. The advice of
the HRC (para 34 supra) is the self-evident policy to adopt if
the FCO wishes to comply with the minimum standards. To adopt
a policy of resettlement and compensation, with access to the
major sources of International funding which are available for
returning the displaced population, is no less than what these
long-suffering subjects, are entitled to receive.
12 October 2007
9 Not printed. Back
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