Another blow to the Chagos Campaign

It is high time for Mr Bancoult to come to terms with the fact that the route to resettlement is through Mauritius exercising its sovereignty over the Chagos! — By R.V.

“The air of England is too pure for any slave to breathe…”, the English Judge Lord Mansfield wrote in 1771, as he issued an order for the immediate release of an African slave who was brought to England on his way to Jamaica to be sold for labour. The sentiments expressed by the English judge to uphold the dignity of humankind are certainly not a preoccupation of present-day judges of the UK Supreme Court. A few weeks ago in the case of R (on the application of Bancoult No 3) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent) [2018] UKSC, they turned down the appeal of Olivier Bancoult who had challenged the decision of the UK government which had established a marine reserve around the Chagos to prevent resettlement on the islands.

Before I come to the essence of the decision in Bancoult (No 3) on appeal before the UK Supreme Court, it would be important to briefly recall the fight of the Chagossians in their quest for justice and the assertion of their right of return to the Chagos Islands.

In the early 1960s the United States as part of its cold war efforts had identified Chagos Islands as the ideal location for a military base in the Indian Ocean. An agreement was soon reached with Britain, the then colonial power, behind the back of the Mauritian leaders then negotiating independence. Diego Garcia, the largest island, was identified to be used as the military base subject to the condition that the Chagos Islands be depopulated – in other words, its native population which had resided on the islands for several generations, be removed.

It was the beginning of a shameful campaign by the British government to meet that objective, and they did so by first denying that there ever was a native population on the Chagos islands and choosing instead to describe them as a mere transitory population picking copra on the islands. One official went as far as treating them as “Man Fridays”. The British government then proceeded to forcefully remove the islanders and dump them in their then colonies of Mauritius and Seychelles. Since the 1966 agreement with the US, Britain in fact showed no signs of remorse or mitigation. On the contrary, it took measures to deny any resettlement. Britain decreed arbitrarily, through an Order in Council, the Immigration Order 1971 which expressly prohibited resettlement on the islands. This order was quashed by the High Court of England and Wales and the decision offered some hope to the islanders, but no sooner did they manifest their urge of resettlement that the British government came up with another pretext that resettlement was not practical as concluded by a feasibility study.

On the basis of that feasibility study, which has been criticized as being riddled with inconsistencies, Britain resorted once again to another Order in Council, the Constitution and Immigration Orders 2004, once more prohibiting Chagossians to return to the Chagos Islands. The Chagossians entered another case before the High Court of England and Wales to challenge the British prohibition order. It was yet another severe blow when in 2008 the UK Supreme Court declared the 2004 order lawful. On the basis of that judgment, the British government then proceeded to establish a marine reserve around the Chagos with the same objective in mind. The documents obtained from WikiLeaks have now shown that the main motivation for a marine reserve was not to protect the marine environment but to prevent resettlement.

It is regretful that the shameful conduct of Britain which continues to behave as an imperial power, denying the islanders the right to resettle on their homeland, is overlooked by British justice. Bancoult (No 3) is yet another illustration of the court being bogged down in ancillary legal issues whilst overlooking the real humanitarian issues.

The Appellant in the case is none other than Olivier Bancoult, the leader of the Chagos Refugees Group. The primary basis for his challenge rests on evidence obtained from WikiLeaks that the actual motivation of the UK government to establish a marine reserve known as the Marine Protected Area (MPA) around the Chagos islands was actuated on an improper ulterior motive, to render practically impossible any future resettlement of the Chagos islanders thereby denying them their legal rights.

The item of evidence released by WikiLeaks on the matter was a cable which was sent on 15 May 2009 by the United States Embassy in London to departments of the US Federal Government in Washington. That cable contained a record of what was said at a meeting on 12 May 2009 between US and UK officials where the Chagossians were described as “man Fridays” and “Tarzans” and it was argued that a marine reserve would put to rest any attempt of resettlement by the islanders.

When the case was initially heard before the Administrative Court (specialist court within the Queen’s Bench Division of the High Court), the British government took exception to any of its officials being cross-examined and moreover argued that the cable was inviolable since it formed part of documents belonging to US diplomatic mission in the UK. Article 24 of the Vienna Convention on Diplomatic Relations (1961) provides that “the archives and documents of the diplomatic mission shall be inviolable at any time and wherever they may be”. The same protection is afforded under the Diplomatic Privileges Act of 1964. The Judge of the Administrative Court endorsed this argument and declared the cable as being inviolable. That ruling, as expected, affected adversely the case for the islanders denying them the right to cross-examine the British officials on the contents of the cable.

On appeal before the Supreme Court, the Law Lords disagreed with the ruling of the Administrative Court and considered that the cable should have been admitted into evidence. They pointed out that documents belonging to diplomatic missions are inviolable but this rule is subject to some exceptions. The document had to be part of the mission archives and secondly it cannot be so widely available to the public to such an extent that there is no reasonable level of confidentiality that can be attached to the document. In the Bancoult (No 3) case, both exceptions applied given that the cable was passed to several departments of the US Government and the more so since it was already in the public domain it was no longer confidential and as such had lost its status of inviolability.

The question that arose then was whether the cable, if admitted before the Administrative Court, would have made a difference to the case of the appellant. The Law Lords could not agree and ended up splitting 5 to 2 on the issue. The majority however decided that the Administrative Court had carefully considered that with regard to the decision to establish the marine reserve the admissibility of the cable would not have led to a different result. The majority pointed out that the decision to establish the marine reserve was that of the Secretary of State and further cross-examination of the officials on that issue would not have made any difference. This approach is arguably flawed.

It does not take into account the fact that if the cable was placed before the Administrative Court it would have enabled the Judge to consider contradictorily the evidence before him in the light of the evidence adduced by the British government. Secondly, the cross-examination of the British Officials would not have been limited as it happened in the absence of the cable before the tribunal. Finally the assumption that civil servants would not have placed on record the improper motives behind the policy decision was mere guesswork on the part of the Appellate court.

Mr Bancoult also raised an ancillary issue in that the decision to establish an MPA was flawed by a failure to disclose the inshore fishing rights (within the 12 mile limit from the shore) of Mauritius when the decision was about to be taken. This argument was dismissed on the ground that it was up to Mauritius, if it felt that its rights were adversely affected, to raise an objection.

In a previous article, I mentioned that the right to resettlement and the sovereignty of Mauritius over the Chagos are inextricably linked. It is high time for Mr Bancoult, the British citizen, to come to terms with the fact that the route to resettlement is through Mauritius exercising its sovereignty over the Chagos!

* Published in print edition on 2 March 2018