Sean Carey

Chagos

David Snoxell: “A year from now the right of return will have been restored”

* “The US for the present would want Diego Garcia to remain British because of its strategic importance for the Middle East, Afghanistan and international terrorism”

* David Snoxell was British High Commissioner in Mauritius between 2000 and 2004. He joined the Foreign & Commonwealth Office in 1969 and was later Deputy Commissioner of the British Indian Ocean Territory, 1995 – 1997. He is currently Coordinator of the UK Chagos Islands All Party Parliamentary Group and Chairman of the Marine Education Trust. Here he talks to Sean Carey about Chagos. …” * In recent years you have taken a very keen interest in the Chagos issue. What prompted this?

 

“While the British government has been one of the great drafters of international law, it tends to be selective about the international law that it applies to itself. And Chagos is a case in point

My interest began in 1995 when I became Deputy Commissioner of the British Indian Ocean Territory. The subject was politically quiescent at that time — it was before the legal proceedings started by Olivier Bancoult. Then when I was appointed High Commissioner to Mauritius in September 2000 I found I was dealing with the issue on a daily basis. But from the start I personally felt that UK policy towards the Chagossians and towards Mauritius was wrong though of course my job was to represent the views of the British government.

* But no other former British High Commissioners to Mauritius has spoken out so why did you feel that you could not endorse British government policy on Chagos?

My time in Mauritius spanned both the High Court judgement in November 2000 and the Orders in Council which overturned that judgement in June 2004. Before the Orders were enacted I expressed my serious reservations about setting aside a High Court judgement and bypassing Parliament using the Royal Prerogative. It was also my strong impression at the time that I was supported by the senior legal advisers in the Foreign Office who felt that this was a political rather than a legal matter. After my retirement in November 2004 I did not take up the cause so as not to embarrass my successor. It was in February 2007, having sat through the second High Court proceedings in which I felt that the case set out by the FCO lawyers was misleading and economical with the truth, that I decided to go public in a letter to The Times. I commented that it was time that the British government brought together, the US, Mauritius and Chagossian leaders to sort out this relic of the Cold War and one of the worst violations of human rights perpetrated by the UK in the 20th century. No one has since disagreed with that statement.

* Perhaps here you could clarify why the excision of the Chagos Archipelago from the colony of Mauritius in 1965 to form the British Indian Ocean Territory (BIOT) which predated the exile and forced removal of the Islanders is legal according to English law but not according to international law which explicitly states that colonial powers are obliged to maintain the territorial integrity of countries prior to the granting of independence.

The answer is that English law provided for the UK to run its colonies through the Privy Council. There are two important acts from the 19th century that are relevant here – the 1865 Colonial Laws Validity Act and the 1895 Colonial Boundaries Act. These effectively gave the British government the power to administer its colonies, to set the boundaries, and divide them up as it saw fit. All of this comes before the development of international law in the twentieth century. While the British government has been one of the great drafters of international law – maritime law, human rights law, law of armed conflict and so on – it tends to be selective about the international law that it applies to itself. And Chagos is a case in point.

* Current British Foreign & Commonwealth Office ministers no longer try and defend what happened to the islanders, but on the other hand their expressions of regret seem to be little more than empty rhetoric in the absence of any commitment to allow the Chagossians to make a permanent return to their homeland, don’t you think?

Well, in the debate in Parliament on 10 March it was clear that Ivan Lewis, the Minister of State at the FCO, had considerable moral and ethical qualms about what he was obliged to say. He stated that the Government had no choice but to defend its position in the courts while admitting that Britain was morally culpable for what happened to the Chagossians. Now the view of the UK Chagos Islands All Party Parliamentary Group (APPG), of which I am Coordinator, is that although it would take political guts, the case currently before the European Court of Human Rights in Strasbourg should be withdrawn in order to reach an out-of-court settlement, as already suggested by the Court.

* Isn’t the UK government then a victim of its own legalism then by not agreeing to a settlement?

Yes and they deploy defence and security, cost and feasibility of resettlement arguments to prolong a settlement in the case. A reason for this is a worry over the compensation that might be awarded. This could be very substantial. The FCO is operating under tight economic constraints because its budget has been starved over the years. But most observers — even I suspect many in the FCO — think that the Government was lucky to win the case in the House of Lords on a 3:2 majority verdict. If there had been more law lords hearing the case, as there would now be in the new Supreme Court, the result would have been different.

* One obvious way around the problem of the cost of resettlement would be for all parties – Mauritius, UK and the US – to provide funding.

Indeed and also the European Union which has indicated that under its development budget, should resettlement take place, the UK could apply for funding. So the cost to the UK taxpayer would probably be quite modest. Let’s not forget that the UK is one of the wealthiest countries in the world. And if we can spend billions on wars in Iraq and Afghanistan then we can afford to spend a few million on resettlement. It’s simply a question of priorities. Once the issue of the Chagossians is seen by the electorate to be vital to Britain’s human rights record, for example, then we will be able to find the money fast enough.

* Which brings us neatly to last week’s announcement by British Foreign Secretary, David Miliband, who committed the FCO to champion human rights “around the world, and to assert their applicability to every man, woman and child”. Do you think it is now possible for Britain to try and hold the high moral ground on human rights without also inviting accusations of gross hypocrisy from other countries because of the treatment of the Chagos islanders?

Yes it is hypocritical. We preach about human rights from the roof tops but remain silent about our own blemishes. What happened is widely acknowledged by the public, media and Parliament as a stain on Britain’s human rights record.

* Both the British Prime Minister, Gordon Brown, in a reply to an e-petition in 2009 and the current British High Commissioner to Mauritius, Dr John Murton, in an interview last week maintain that the Chagos islanders have been adequately and fairly compensated for the loss of their homeland. Do you think that this claim stands up?

This is simply not the case although it has become part of FCO mythology that the islanders have received fair compensation. The courts ruled that full and final compensation had been paid but no judge said that it was fair. Mr Justice Ousely in 2003 and Lord Justice Sedley in 2007 were both explicit about this. In fact, all the judgements in the courts have said that what happened to the Chagossians was disgraceful—the terms used included “abuse of power”, “deplorable”, “repugnant” and “shameful” — but that further compensation in the British courts was time-barred.

What we also have to remember is that when compensation was paid to the islanders in 1977 and 1982 no assistance or advice was given to a people who had no proper understanding of a money economy, and there was rampant inflation. In effect, the UK washed its hands of the Chagossians once the money was handed over to the Ilois Trust Fund. But for the vast majority of the islanders the compensation was quickly dissipated. Receiving such sums of money meant that inevitably they became the targets of the sharks circling round them.

The worst aspect was that Chagossians were obliged to renounce the right to return to their homeland. Very few realised that they were signing away their birthright. Even Lord Luce, who was Minister of State at the time, and now a member of the APPG, was unaware that they were being asked to renounce the right of return. It seems that this part of the deal was added very late on in the negotiations. But this takes us into the realm of fundamental human rights: nobody should ever be required to give up the right or the aspiration to return to his or her homeland. Britain is a nation founded on the rights granted by Magna Carta (1215), one of which outlaws permanent exile.

* A substantial amount of the territory of Diego Garcia remains unused by the US military. Now I can think of lots of symbolic reasons why the islanders would not be wanted but given the fact that any number of US military bases are located near civilian populations in mainland areas without any problems are there really any practical reasons why those who wish to return to the island to live should not be allowed to do so?

In all the years I have been dealing with Chagos I have never seen a convincing argument that the security of the US base would somehow be jeopardised by resettlement. In theory, this should also apply to Diego Garcia. Indeed in 1999, a senior official at the Ministry of Defence provided an affidavit to the High Court which stated that not only would it be possible to resettle Chagossians on Diego Garcia but he also provided a plan of the island to show which parts could be used. There’s no reason why that should not still apply. However, in the short term it is obviously more practical to resettle the outer islands than Diego Garcia.

There are differing opinions about the desirability of resettlement amongst different Chagossian groups. But the common ground around which they can all rally is that the right of return should be restored and resettlement made possible thereafter. The Chagossians living in Mauritius support Mauritian sovereignty over the archipelago and the Government of Mauritius supports resettlement. But some of those from Diego Garcia, who now live in the UK, prefer British to Mauritian sovereignty. This is hardly surprising since they live here. But it is clear from what they have said that they have no intention of permanently returning to Chagos though they all want the right to visit. The way to look at it is this: if the UK had not excised the Chagos Islands from Mauritius they would, today, be part of Mauritius in the same way that Rodrigues and Agalega are and Chagossians are Mauritian under the 1968 Constitution. In any case, the British government has committed itself over many years to retro-cede the islands to Mauritius when no longer required for defence purposes.

* What more can be done for the members of those communities in both Mauritius and the Seychelles who do not wish to return on a permanent basis to Chagos but whose lives nevertheless have been blighted by exile? In other words, do you think that the British and US governments still have a moral responsibility to sort out the mess that they have created for this particular group of people?

In regard to the Seychelles, the Chagossians who live there are quite well integrated into Seychellois society. But in Mauritius Chagossians have been, still are the poorest group within the wider Creole community. Over the last few years, there have been efforts both from the UK and from Mauritius to provide social centres but this has all come very late in the day on the part of Britain. In 2001, I asked the FCO for about £50,000 a year to provide skills training and education for Chagossians which would have gone quite a long way but I never received a reply. It’s only relatively recently that the FCO thinks it ought to be doing more for Chagossians in Mauritius. And if we take education as an example it’s revealing that I know of only one Chagossian, Arianne Navarre-Marie, and former Minister of Women’s Rights in Mauritius, who is a university graduate. So there is much to do.

* We now have the proposed Marine Protected Area (MPA) in the British Indian Ocean Territory adding to the political complexity of Chagos. Do you think that this is just about conservation, or have other objectives been smuggled into the project?

The British government claims that it acted in good faith and with transparency but it is not surprising that in view of the history many suspect that there must be an ulterior motive behind the proposal. It was set in motion by the Chagos Environment Network though I don’t think it was their intention to stop the islanders returning to their homeland. In fact, until a year ago, there was talk that the marine reserve would provide jobs for Chagossians. But to provide a lasting legacy for the Prime Minister, Gordon Brown, and to get it settled before the general election, it was all done with unseemly haste. It was only on 10 November that the public consultation was announced. Although conservation had been discussed in the Anglo-Mauritian talks, Mauritius was treated simply as a ‘stakeholder’, the consultation launched without discussion. But it is not possible to treat a sovereign state, to which the islands will one day be handed back, in this way. Mauritius is much more than a mere ‘stakeholder’.

Excluding the Chagossians from fishing in the MPA would clearly be an additional barrier to resettlement although the FCO has said it would be “without prejudice” to the Chagossian case in Strasbourg. But clearly it would be highly prejudicial because it would erect an economic, psychological and legal barrier and convey the message that Chagossians are not welcome in their own homeland. And it does look like an attempt to influence the Court before it considers the case. However, there is a simple solution which was proposed by the Marine Education Trust and supported by scientists across the world — conservation and human rights go hand in hand. Mauritius and the Chagossians should be involved in the planning process itself. Their interests must be safeguarded within the MPA. Also it is doubtful whether in international law the British government could unilaterally declare an MPA. It will be for the next UK government to take the project forward in consultation with Mauritius and the Chagossians.

* The Cold War is over and Bush, Rumsfeld et al are no more in the picture and people in Mauritius including the Chagos Islanders have been under the impression that things would be different under Obama and Brown. There seems to be little evidence of any significant policy shift, however. So what options are now open to Mauritius in pursuing its claim over the territory of the Chagos Archipelago?

The obvious option at the moment is to increase international pressure on the UK to negotiate. Now Mauritius is doing this. But it also has a couple of other options – it can go to the United Nations General Assembly in September and try to get a resolution which refers the matter to the International Court of Justice. It can also make more use of the Commonwealth. Both South Africa and India are sympathetic to Mauritius over Chagos.

* And what about Diego Garcia?

The US for the present would want Diego Garcia to remain British because of its strategic importance for the Middle East, Afghanistan and international terrorism but transfer of sovereignty of the outer islands to Mauritius or co-management, as Mauritius and France have recently agreed in respect of Tromelin, is likely before 2016. This would provide a precedent for what could happen over Diego Garcia.

* We have touched on it but perhaps you could say a little more about the past and current role of the UK Parliament.

In the 1970s and 80s, the Chagos issue was taken up by a small number of MPs like Robin Cook, Jeremy Corbyn and Tam Dalyell. In 1980 Margaret Thatcher made a statement to Parliament that the Chagos Islands would revert to Mauritius when no longer needed for defence purposes which was a clear acceptance of the legitimacy of Mauritius’ sovereignty claims. The issues surfaced again in 1999, the start of a decade of litigation. The use of a mediaeval device, to deny the Chagossians their right to return, (the 2004 Orders in Council), provoked widespread parliamentary, legal and public consternation. It is interesting to note that Jack Straw, the then Foreign Secretary, now Justice Minister, himself questioned their legitimacy in a BBC radio interview last year. With the end of the legal process in October 2008 the question of the future of the Chagos Islanders reverted to Parliament where it properly belonged. This led to the establishment of the Chagos APPG in December 2008. Members of both Houses of Parliament (44) including three former FCO ministers and the future Speaker, John Bercow, joined.

In the 15 months since its inception the Chagos APPG has had 12 meetings and is widely regarded as one of the most active of all APPGs. It has had meetings with FCO ministers, officials at Number Ten, the US Embassy, the Mauritian High Commissioner and the Chagossian community including Olivier Bancoult, Roch Evenor, Hengride Permal, and Allen Vincatassin. The Chairman, Jeremy Corbyn, wrote to President Obama and the EU has been approached. The APPG has raised awareness in Parliament and in the general public and thus increased media coverage. So we now have a situation where parliamentarians agree that the right of return should be restored but the FCO does not. In the recent parliamentary debate Ivan Lewis made it clear that Parliament would be consulted in the future on issues concerning Chagos including the proposed MPA. It is clear that even FCO has come quite a long way since the intransigent positions of 2004.

* So where will the issue be a year from now?

The case of the Chagossians is before the European Court of Human Rights and we await its verdict. Whether the islanders get a favourable verdict or not is not really the point, though I fear that the FCO evidence is based on a distorted view of history, because at the heart of this is a political, moral and ethical issue, not a legal one. But certainly a favourable verdict from the Court will accelerate matters. The next UK government is bound to review the policy towards the Chagos Islands including the proposed MPA. The Conservatives have already said this and it is worth noting that, if they play a role in a hung Parliament, the Liberal Democratic Party fully supports the Chagos Islanders and Mauritius. So a year from now I would expect the right of return to have been restored and discussions under way on resettlement and future management and sovereignty.  

Dr Sean Carey is Research Fellow at the Centre for Research on Nationalism, Ethnicity and Multiculturalism (CRONEM) at Roehampton University