House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Written Evidence

Submission from the Minority Rights Group International

INTRODUCTION

1. This submission is submitted by Minority Rights Group International (MRG), with a view to assist the Foreign Affairs Committee of the House of Commons in its enquiry into the Governance of the Overseas Territories.

2. MRG is a non-governmental organisation working since the 1960s to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples worldwide. Our activities are focused on international advocacy, training, publishing and litigation. MRG first began its advocacy on behalf of the Chagos Islanders in 1982 through the publication of one of the first reports on the issue. MRG has since supported litigation efforts on the issue of Diego Garcia before the English Courts and the European Court of Human Rights, as well as advocacy efforts before the UN Human Rights Committee.

3. This submission will outline the UK government's obligations towards the Chagos Islanders under international law. We submit that the UK government's policies towards the Chagossians currently fall short of these international obligations.

KEY FACTS

4. During the 1960s, the US government entered into an agreement with the UK government to construct a military facility in the Chagos Archipelago. The UK government excised the Archipelago from the colony of Mauritius and created the British Indian Ocean Territory (BIOT). Diego Garcia was transferred to the United States and the population of the entire Archipelago was banished.[23]

5. Correspondence from the files of the FCO at the material time confirm that 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. Records also confirm that the permanence of the population was deliberately concealed from the UN Decolonisation Committee in an effort to avoid criticism for the UK's breach of the UN Charter's "Sacred Trust" provision under Article 73, which requires a Colonial Power to promote economic and social advancement of a non-self-governing territory.[24]

6. The forced deportation of the Chagos Islanders between 1965-1973, without prior consultation, consent or adequate compensation has led to their chronic impoverishment. English courts have held the exile to be unlawful and that the Chagossian people possess a public law right of abode in the Chagos Islands.

7. The UK's initial response to the 3 November 2000 Divisional Court decision in which the Court found that the people were to be "governed not removed", was to accept the Court's ruling. The Foreign Secretary of the day (Robin Cook) made a public announcement that the Government would not be appealing, underscoring also the fact that "[the government] made no attempt to conceal the gravity of what happened". Despite this acknowledgment and assurances of compliance with the judgment, the UK government did eventually appeal both this and all further English court victories.

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) IS APPLICABLE TO BIOT AND TO UK ACTS AFFECTING THE CHAGOSSIAN PEOPLE

The ICCPR is applicable to the UK overseas territory

8. The UN Human Rights Committee (HRC) and the government of the UK have had a longstanding disagreement over the applicability of the ICCPR to the BIOT. In its written response to the concluding observations of this Committee, the UK government explained that "when, in 1976, the United Kingdom ratified the Covenant in respect of itself and certain of its Overseas Territories, it did not ratify it in respect of BIOT. It is for this reason . . . that the Covenant does not apply, and never has applied, to BIOT."[25] This Committee, however, has indicated that it considers the ICCPR to apply to the BIOT, and has urged the UK to "include the territory in its next periodic report."[26]

9. It appears that in this respect the UK was acting as though the UN Covenants contained a "territorial application" clause similar to that included in the European Convention on Human Rights.[27] However, the Covenants contain no such clause and their provisions are applicable to all individuals subject to the ratifying State's jurisdiction, as per article 2(1).[28] In this regard, a reservation would not only be incompatible with this article, but also incompatible with the "object and purpose" of the entire treaty. By virtue of article 2(1) and the HRC's General Comment 24 (on reservations), the universal applicability to all within a state party's jurisdiction is a central feature of this Covenant. To negate such a feature by reserving the right of selective application cannot but be "incompatible with the object and purpose of the treaty."

10. It is presumably in view of the above that, when questioned on its report to the UN Human Rights Committee in 2001, the UK government did not seek to invoke the declaration so as to avoid Committee scrutiny; instead, it claimed that as the Chagossian people were not in occupation of the archipelago when the ICCPR came into force, it was inapplicable to BIOT.[29]

11. Finally, it is worth stressing that the policy considerations behind the UK government's erstwhile "quiet disregard" for BIOT's precise status further diminish the integrity of its claim of inapplicability. It is, therefore, suggested that the UK government's declaration is without legal effect and that the ICCPR applies to BIOT despite the current absence of its permanent population.[30]

The ICCPR is applicable to UK acts affecting its citizens outside of UK territory

12. Although the UK government justifies its exclusion of the BIOT from its reports to the Committee on the grounds of territorial inapplicability, the UK government also argues that the ICCPR is practically inapplicable to the BIOT, and therefore inapplicable to the situation of the Chagossians, because the Chagossians no longer live there.[31] The authors of this submission maintain that the ICCPR does in fact apply to the BIOT, but in the event that the Foreign Affairs Committee shares the government's argument of selective applicability, this submission will also discuss why that would still not relinquish the UK from its obligations to the Chagos Islanders under the ICCPR.

13. In explaining why it did not need to address the situation of the Chagos Islanders in its periodic reports to this Committee, the UK government noted "the fact that there was no resident population in BIOT meant, in the opinion of the United Kingdom, that the Covenant could have no practical relevance to the Territory."[32] This argument presupposes that the ICCPR applies to territory alone, and fails to consider the UK's obligations to the Chagossian people, most of whom are British citizens, as individuals. In doing so, it ignores a fundamental strand of ICCPR jurisprudence. The HRC has repeatedly held that "the beneficiaries of the rights recognized by the Covenant are individuals."[33] Although article 2(1) mentions state obligations to "individuals within its territory and subject to its jurisdiction,"[34] the Committee has made clear that this phrase does not absolve states from responsibility for violations committed outside of its territory. In General Comment 31, the HRC explains that:

14. In other words, the ICCPR does not apply only to individuals who are within the territory of a state party and subject to its jurisdiction, but rather to anyone within the territory of a state party or subject to its jurisdiction, including those outside of the state's borders.

15. HRC jurisprudence expands further on the individual extraterritorial application of the ICCPR in a series of cases regarding the extraterritorial kidnappings of Uruguayan citizens by agents of the Uruguayan government. In the case of Casariego v. Uruguay, the HRC explained that:

16. Similarly, "[a]rticle 2(1) . . . does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State."[37] In a separate case, the HRC noted that "it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory."[38] The HRC has thus clearly established that state acts perpetrated outside of the territory of a state party to the ICCPR against someone within the jurisdiction of that state are subject to scrutiny under the ICCPR.

17. "The relationship between the individual and the state" is the same in the case of the Chagos Islanders and the UK as it was in the Uruguayan kidnapping cases: both involve citizens subject to extraterritorial acts taken against them by their respective states. As citizens of the UK, the Chagossians are therefore within its jurisdiction, regardless of where they reside and regardless of whether the ICCPR applies to the BIOT itself. The ICCPR is therefore not irrelevant to the situation of the Chagos Islanders simply because most of them live outside of British territory.

18. Although the act of barring the Chagossians from returning to their homeland is distinct from the extraterritorial abductions at issue in the cases cited above, the Committee's holdings in those cases were not limited to kidnappings alone, but referred more broadly to extraterritorial state violations of the Covenant. The executive orders barring the Chagossians from returning home are, moreover, compatible with this Committee's definition of an act engaging the responsibility of a state. In General Comment 31, the Committee noted that "all branches of government . . . and other public or governmental authorities, at whatever level . . . are in a position to engage the responsibility of the State Party."[39] Although the orders "engage the responsibility of the State Party" in a form different from that of a kidnapping, their effect is the same: to subject an extra-territorial citizen to the coercive power of the state in a manner that would constitute a violation of the ICCPR if exercised within the territory of the state.

19. As UK citizens, the Chagossians fall within the jurisdiction of the UK—therefore, the ICCPR applies to the UK government's behaviour towards them, even if they are living outside of UK territory. The FCO's claim that the ICCPR has no application to a territory without a population is not only null and void in view of the above arguments. As the principle author behind the forced deportation of the Chagos Islanders, the fact that the BIOT territory is "without a population" does not absolve the UK government from its legal responsibilities towards the Chagossians. Instead, this submission argues that the UK's acts—resulting in the absence of a population on BIOT—amounts to a crime against humanity; a fundamental violation of international law which, at a minimum, warrants a full, independent and transparent investigation into the action of the British government to remove the islanders and their subsequent treatment.

CRIMES AGAINST HUMANITY

20. The prohibition of crimes against humanity is well established under international customary law, and this customary rule can be said to date from the Nuremberg Tribunal.

Definition

21. The concept of crimes against humanity consists of a number of practices, including "murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape, persecution, and other inhuman acts directed against any civilian population when committed on a widespread or systematic basis".[40] Crimes against humanity can be committed in times of war or in times of peace. While crimes against humanity were originally linked to war crimes, developments since Nuremberg have made it clear that no connection with an armed conflict is required.[41] Given this, the question is whether the forcible transfer of the Chagos islanders to Mauritius and the Seychelles by the United Kingdom which took place in the 1960s and 1970s constitutes a crime against humanity.

Deportation and persecution

22. According to Article 7 paragraph 2 (d) of the Rome Statute of the International Criminal Court the crime of "deportation or forcible transfer of population" means: "forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law". Paragraph 2(g) states that "persecution" means "the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity". Deportation and "persecution on political, racial or religious grounds" were both specifically mentioned in the Charter of the Nuremberg Tribunal as examples of crimes against humanity.

23. It is extensively documented that the Chagos Islanders did not leave the Archipelago by their own free will, raising a violation in light of the above provisions.

Attack against civilian population

24. The Rome Statute of the International Criminal Court imposes a higher standard than found elsewhere in international law, by requiring that a crime against humanity involves an attack against the civilian population, involving a course of conduct (such as deportation) carried out pursuant to a policy.[42] The ICTR has nonetheless addressed the concept of "attack" in the landmark Akayesu judgment, which stated that:

The concept of "attack" may be defined as an unlawful act of the kind enumerated in Article 3(a) to (I) of the Statute, like murder, extermination, enslavement etc. An attack may also be non violent in nature, like imposing a system of apartheid, which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, may come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner. (Paragraph 581, emphasis added)

25. Even according to this quite stringent definition of crimes against humanity, the planned deportation of the Chagos islanders for the purposes of leasing the island to the Americans can be qualified as an attack. It was systematically planned, the documents have shown the attempts to conceal the illegality and it affected the entire population.

26. It is well established that crimes against humanity must be directed against a civilian population (as opposed to war crimes). It is clear that this would include the Chagos islanders.

Widespread or systematic

27. One of the distinguishing requirements of crimes against humanity is that they should be widespread or systematic. While this requirement has not always been considered necessary,[43] developments have confirmed that under current international law crimes must take place on a widespread or systematic basis.[44] There is no source that identifies a precise definition of the terms widespread or systematic under customary international law. However, these terms have been considered and applied in a numerous cases, particularly by the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia. According to this jurisprudence a widespread attack requires a large number of victims, whereas a systematic attack suggests a common or methodical plan.[45] The ICTR has stated:

28. By deporting the whole civilian population of the Chagos islands, the crime emerges as "widespread". It was also clearly "systematic" as the detailed planning shows. Therefore the forcible transfer of the Chagos islanders to Mauritius or the Seychelles pursuant to the Immigration Ordinance of 1971 can be qualified as a crime against humanity under international customary law.

THE RIGHTS OF INDIGENOUS PEOPLES UNDER INTERNATIONAL LAW

29. On September 13, 2007, The UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples, after 143 Member States (including the UK) voted in favour. This landmark declaration outlines the rights of the world's estimated 370 million indigenous peoples. The adoption marks an important turning point in the general acceptance of indigenous peoples rights under international law.

30. The most comprehensive attempt at a definition was made in the Martinez-Cobo Report. It provided that:

31. Numerous other definitions have since been advanced.[48] At least seven criteria of "indigenousness" can be distilled from these additional formulations:

(ii) historical precedence;

(iii) experience of severe disruption, dislocation and exploitation;

(iv) "historical continuity";

(vi) distinct ethnic/cultural groups; and

(vii) self-identification as indigenous peoples.[49]

32. It is commonly understood that most communities will not be able to satisfy all criteria; but such approaches create a sliding scale of indigenousness for the purposes of assessment. If a given societal group can establish its status as an indigenous people it will be able to access the evolving canon of indigenous rights in international law.

The concept of indigenousness in the Chagossian context

33. The Chagossian people manifest a strong communal attachment to their ancestral homelands.

34. First, it is important to establish the historical extent of their ancestral connection to the islands. By 1900 there were some 426 families residing in the archipelago. About 60% were of African-Malagasy origin—descendants of the original slave population—while the remaining 40% heralded from the Indian sub-continent—descendants of indentured labourers brought to the islands after emancipation. At that time, more than 75% regarded themselves as permanent inhabitants of the islands.[50]

35. Second, the extent of their communal attachment to the Chagos Islands must also be assessed. The Kreol word the Chagossian people most often use to describe their removal from the archipelago is "derasine" which derives from deraciner in French and is related to "deracinate" in English. The Derasine Report suggests that the choice of this word has two facets for the Chagossian people. It is capable of meaning "to uproot" or "to tear away from one's native land" evidencing the Chagossian people's deep psychological attachment to the Chagos Islands.[51] Further, the word can also be defined as "to eradicate", a reference to the threat that expulsion poses to their communal survival.[52]

36. Exile deprived the Chagossian people of their ancestral lands and access to communal territorial resources. However, its impact goes far beyond material losses. Expulsion produced experiences of "profound cultural and landscape bereavement" that have been transmitted down the generations so that they have become ingrained in the Chagossian psyche.

37. Based on its 40 years of working with indigenous communities worldwide, MRG is of the view that the Chagossians do indeed constitute an indigenous people. The UK's duty towards the Chagossians must therefore be upheld in line with the rights of indigenous peoples rights under international law.

Indigenous land rights in the Chagossian context

38. Article 26 of the UN Declaration on the Rights to Indigenous Peoples establishes the indigenous right to land in the following terms:

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

39. It is commonly understood under international law that indigenous peoples' ownership of land is guaranteed irrespective of title deed. Indeed, in one of the leading international cases on this issue, The Mayagna (Sumo) Awas Tingni v Nicaragua, [53]the Inter-American Court of Human Rights stated that possession of the land should suffice for indigenous communities lacking real title to obtain official recognition of that property.[54]

40. Courts have addressed violations of indigenous property rights stemming from colonial seizure of land, such as when modern states rely on domestic legal title inherited from colonial authorities. There has been widespread condemnation of the acquisition of indigenous title by the colonial authorities.[55] National courts have recognised that the historic indigenous association with particular lands should be considered a "property" right continued long after the seizure of their lands. Such decisions have been made by the United Kingdom Privy Council as far back as 1921,[56] the Canadian Supreme Court[57] and the High Court of Australia.[58] In the Richtersveld case, the South African Constitutional Court held that the rights of a particular community survived the annexation of the land by the British Crown and could be held against the current occupiers of their land.[59]

41. The protection afforded to indigenous peoples under international law extends in particular to the protection of ancestral land in view of how closely their ownership of the resources on those lands is associated with the most fundamental human rights, such as the right to food, shelter, the right to exist as a people, as well as the right to life itself.[60] The recognition of indigenous property rights introduce a set of obligations upon States in terms of restitution and compensation, particularly when prior informed consultation was not sought from the evicted communities.

International human rights standards relating to compensation, return and restitution

42. The requirements of general principles of public international law and human rights standards state that if property is illegally taken by the state it must be restored, or that if property is legally taken in the public interest at least compensation must be paid. Numerous instruments confirm the right to return, restitution and compensation, including article 28 of the UN Declaration on the Rights of Indigenous Peoples, which states that:

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

43. The UN Committee on the Elimination of Racial Discrimination has adopted a similar approach, stressing indigenous peoples' rights to have any lands and territories which they were deprived from, restored to them.[61] Following from the earlier section on crimes against humanity, it must also be noted that restitution constitutes a key element of remedial measures envisaged under international criminal law.[62]

44. The UK authorities have systematically failed to provide adequate remedies to the Chagos Islanders. Compensation afforded has been grossly inadequate, and hopes of restitution have been frustrated by a deeply flawed feasibility study, carried out without consultation with any former residents of the Chagos Islands—therefore ignoring the ICCPR's emphasis on participatory self-determination. The government also put limitations on the feasibility study's terms of reference which gave editorial control to the government. This lack of transparency must be substituted with an intent to negotiate in good faith with the Chagos Islanders, with a view to arriving at suitable long-term solution.

Self-Determination

45. Self-determination is the most basic of all human rights, the foundation upon which all other human rights depend. The United Nations system is built on the concept of self-determination as expressed in the U.N. Charter.[63]

46. The inalienable right of self-determination stands as the very first article in the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both adopted in 1976.[64]

47. The prominence of this legal principle is extremely significant. It is placed at the very beginning of both UN Covenants to underscore that all human rights—civil, political, economic, social and cultural—depend upon the effective exercise of self-determination.[65] The widespread international consensus regarding this right was remarkable given Cold War political and ideological divisions at the time.

The former inhabitants of the Chagos Islands and their descendants constitute "a people" entitled to self-determination under article 1.

48. Although a peoples' right to self-determination is central to the enjoyment of rights guaranteed by the ICCPR, the term "peoples" is not defined in the ICCPR, nor in the UN Charter. Yet while the definition of "peoples" is not clear, the United Nations Educational, Social and Cultural Organization ("UNESCO") has described some characteristics common to groups of individuals constituting a people. According to these standards, the Chagos Islanders do possess the characteristics typically associated with a peoples entitled to self-determination.

49. In 1989 UNESCO convened a meeting of jurists and scholars to clarify the concept of peoples' rights. In its final report and recommendations the group noted that it adopted the following description of a people:

50. The Chagos Islanders satisfy all four of the above conditions. As to the first condition, several scholars have noted that the Chagos Islanders possess common cultural and linguistic characteristics distinct from that of other peoples in Mauritius and the Seychelles.[67] Numbering in the thousands, and all originating from the same territory, they satisfy the requirements of characteristic two. The Chagossians, even in exile, generally self-identify as members of a distinct group, in compliance with the third characteristic. Finally, through the medium of oral history, songs, and advocacy organizations like the Chagos Refugee Group, the Chagossian people have established "institutions [and] other means for expressing its common characteristics and will for identity."

51. The Chagossians have also been recognized as a people by the Committee on the Elimination of Racial Discrimination (CERD). On this basis, in its 2001 Concluding Observations on the United Kingdom of Great Britain and Northern Ireland, this Committee urged "the State Party . . . to the extent still possible" to "seek to make exercise of the Ilois' right to return to their territory practicable."[68]

52. Taken together, the above facts serve to confirm the Chagos Islanders as having the characteristics typically associated with a peoples, shedding any doubt as to their status as peoples, possessing the right to self-determination.

The UK government's treatment of the Chagossian people violates their right to self-determination

53. The continued exile of the Chagos Islanders by the UK government constitutes a violation of their right to self-determination. We underscore that the accepted right to which we refer is that of internal self-determination. Internal self-determination encompasses "the rights of all peoples to pursue freely their economic, social and cultural development without outside interference", as well as "to freely determine their political status". It does not conjure the right to session or to pose threat to the territorial integrity of a State.

54. Participation is central to the effective exercise of the right to internal self-determination. Both the text of article 1 and its accompanying General Comment emphasize that the components of self-determination, designation of political status and the pursuit of economic, social, and cultural development, must be exercised freely by a people itself.[69] General Comment 12 also notes that state reports to the Committee that "confine themselves to a reference to election laws" alone have not sufficiently addressed their peoples' rights under article 1.[70] This suggests active participation of a people in deciding how to freely pursue such development within the bounds of state power, as opposed to choosing between a limited set of options its government has proposed to it, or some other more passive form of resistance.

55. In the case of minority and/ or indigenous peoples, active participation is especially crucial to the enjoyment of self-determination. In its 2002 Concluding Observations on Sweden, this Committee noted its concern:

56. The Committee similarly recommended the active participation of the Sami minority in managing its internal affairs in its 2004 Concluding Observations on Finland, in a paragraph that addressed both article 1 and 27: "The State party should, in conjunction with the Sami people, swiftly take decisive action to arrive at an appropriate solution of the land dispute."[72] These comments on the right to internal self-determination thus include a special emphasis on state consultation as form of participation, at least in the case of minority and/ or indigenous peoples.

57. This emphasis on minority participation also appears in the CERD General Recommendation on self-determination, which emphasizes that:

58. CERD's general recommendation on indigenous peoples as calls upon States to "ensure that members of indigenous peoples have rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent."[74]

59. As an indigenous, or at the very least a minority, people, the Chagossians are thus legally entitled to not only choose how to order their economic, social, and cultural affairs, but to do so freely and actively, and in consultation with the government in the case of state action affecting their internal self-determination. In practice, they are denied the ability to meaningfully, much less freely and actively, order their affairs.

60. Decisions regarding their fate have frequently been made without public debate, and have always been made without consulting the Chagossians themselves. The Chagos Islanders are currently barred from returning home by the British Indian Ocean Territory (Constitution) Order 2004 ("the Order"). The Order declares that:

61. The Order takes the form of an Order in Council, a rarely used vestige of royal prerogative that gives the Queen the power to unilaterally pass laws relating to the peace, order and good governance of an overseas territory. The 2004 Order was therefore passed without any sort of public debate, and, although probably drafted by the Secretary of State for Foreign and Commonwealth Affairs,[76] derived its asserted legal authority exclusively from approval by an un-elected head of state, the Queen.

62. The Order has been rejected repeatedly as unlawful by UK courts; although the Government has requested permission to appeal the latest decision. The UK government has offered two arguments in support of the Order, but neither satisfies the active participation requirement for the enjoyment of self-determination.

63. The first argument is that "anything other than short-term resettlement on a purely subsistence basis would be highly precarious and would involve expensive underwriting by the UK government . . . it would be impossible for the Government to promote or even permit resettlement to take place."[77] This argument is insufficient to release the government from its obligations under the ICCPR and international customary law. The determination that islands should not be resettled was made after the government conducted a deeply flawed feasibility study, as previously detailed in paragraph 47

64. The second argument is that national security interests prevent the return of the Chagossians, fails on similar grounds. Like the feasibility argument, the security determination was made without any consultation with the Chagossian people, and without considering their interests. This unilateral action runs contrary to the emphasis on participation found in ICCPR and CERD jurisprudence. The UK courts found this unilateral action problematic as well, noting that the security decision was made exclusively from the point of view of the United Kingdom and the United States, with regard for the interests of the Chagossians.[78] For this reason, the decision was found to be "irrational."[79]

65. The lack of consideration of Chagossian interests is further demonstrated by the fact that the Order in Council banned them not only from Diego Garcia, home of the U.S. military base, but from the outlying islands located over one hundred miles away as well. Moreover, argued counsel for the Chagos Islanders in R. v. Secretary of State, the Chagossians are prohibited from returning home on grounds of national security, yet private yachters are permitted to sail into the territorial waters (ie within three miles) of Diego Garcia.[80]

66. In addition to being restricted from participating, actively or otherwise, in the decisions regarding their ability to return home, the Chagos Islanders are also prevented from freely pursuing their economic, social and cultural development. The Chagossians live today in forced exile, mostly in Mauritius, with small communities in the Seychelles and the UK as well. Because they are completely barred from living on, or even visiting, any of their ancestral homeland, they are unable to organize their economic, social, and cultural affairs the way they were before their exile. Their poverty and marginalisation in Mauritius, a result of insufficient relocation assistance and compensation from the UK government,[81] also limits the autonomy of their life in exile. The UK courts themselves have recognized that that this situation constitutes a violation of their right to self-determination.[82]

67. The Chagos Islanders are, on the orders of the UK government, currently exiled from their homeland and unable to freely determine their political status and freely pursue their economic, social and cultural development. This is a violation of their right to self-determination under the UN Covenants and wider customary international law.

68. Given the UK's unique position as the state that displaced the Chagossians, as well as the only state that can help them to fully realize their right to self-determination, the positive obligations created by article 1 of the ICCPR compel at the very least that it allows the Chagossians to return home.

CONCLUSION

69. From the outset, the UK's dealings with the Chagos Islanders have been tainted with lack of consultation that has severely undermined the Chagossians' past and present right to self-determination. Furthermore, repeated appeals to successful English Court victories, along with lack of transparency and good faith in the conduct of the feasibility study for the Islanders' return, fall short of the UK's positive obligations to secure the return of the Islanders.

70. At the root of the Chagossians' epic struggle is the UK's the persistent failure to abide by the rules of international law that underpin the principles of peace, order and good government. Though the "sacred trust" principle enshrined in Article 73 of the UN Charter may have been irrevocably breached for the Islanders, viable remedies sought by the UK government to restore and remedy some of the damage caused by the acts and omissions of the UK is not only morally imperative, but legally necessary.

71. The UK has spent immense resources in the last decade on military campaigns dedicated to the principles of democracy, freedom and human dignity. Let this be a marked opportunity for the Foreign Affairs Committee to show its counterparts on the world stage that the UK not only champions these principles abroad, but also at home.

12 October 2007