|
Submission from Mr Richard David Gifford, Chagos Refugees Group, 12 October 2007
MEMORANDUM CONCERNING BRITISH INDIAN OCEAN TERRITORY
TO 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 of Herga House, London Road, Harrow Middlesex, HA1 3JJ, 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 1960's and early 1970's 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 2001-2004
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 U. N. 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).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 (e.g. 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 L.J. 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 L.J. 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:
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 O.T'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 Dec. 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.
|