Chagos Islanders v United Kingdom

• Jurisdiction: Derecho Internacional
• Judge: Bratza,Nicolaou,Björgvinsson,Bianku,Hirvelä,Garlicki,Vučinić,
• Docket Number: (Application No 35622/04)
• Date: 11 December 2012
• Court: Arbitration Tribunal (International)

European Court of Human Rights

(Bjrgvinsson, President; Garlicki, Bratza, Hirvel, Nicolaou, Bianku and Vuini,Judges)

(Application No 35622/04)

Chagos Islanders

and

United Kingdom

Human rights Scope of application European Convention on Human Rights,1950 Territorial scope Colonies and dependent territories Whether Convention extended to dependent territory Whether right of individual petition extended Article 56 of Convention Relationship between Article 1 and Article 56 Mauritius Declaration by United Kingdom extending Convention to Mauritius when Mauritius a colony

Subsequent detachment from Mauritius of Chagos Islands

Human rights Right of abode Chagos Islands Removal of islanders to Mauritius Litigation concerning removal Settlement

Whether islanders capable of being regarded as victims of violation in view of settlement

Territory Colonies and dependent territories Chagos Islands

Dependency of Colony of Mauritius Separation from Mauritius Effect on treaty application

Treaties Application Extension of treaties by State to colony

Dependency of colony Subsequent detachment of dependency to form separate territory Whether affecting extension of treaty

Summary: The facts:Prior to 1965 the Chagos Islands, an archipelago in the Indian Ocean of which the largest island was Diego Garcia, were a dependency of Mauritius, which was a British colony until it became independent in 1968. In 1965 the Chagos Islands were detached from Mauritius

and constituted as a separate British colony known as the British Indian Ocean Territory (BIOT). A United States military base was constructed on Diego Garcia in accordance with an agreement between the United Kingdom and the United States. All of the inhabitants were removed from the Islands and legislation was adopted prohibiting their return. The inhabitants were resettled in Mauritius or the Seychelles and the United Kingdom paid Mauritius compensation to assist with the costs of resettlement. That money was distributed to the islanders who had resettled in Mauritius. A further sum of compensation was paid to the islanders through a trust fund in settlement of litigation in 1982. In 2002 a group of former inhabitants and their families brought proceedings in the English courts for further compensation and a declaration that they had a right to return to the Islands. That action was struck out as an abuse of process and leave to appeal was refused. In 2004 the United Kingdom adopted the BIOT Constitution Order in Council which declared that no person had a right of abode in the Islands. The BIOT administration then passed the BIOT (Immigration) Order 2004 repealing earlier provisions on entry to the Islands and prohibiting anyone from entering the territory without a permit. A challenge to these Orders in the English courts was dismissed. The Applicants brought proceedings against the United Kingdom maintaining that their rights under the European Convention on Human Rights had been violated. The United Kingdom contended that the Application should be declared inadmissible on the grounds that the application had been made too late, that the Convention and its Protocols had not been extended to BIOT under Article 56(1) of the Convention,2 that the Applicants could not claim to be victims and that there had been a failure to exhaust domestic remedies

Held (by a majority3):The Application was inadmissible.

(1) The Government's objection that there had been a delay in bringing proceedings was rejected. Provided that the substance of a complaint was put before the Court by way of an introductory letter within six months, it did not matter that the application form was not received until a later date (paras. 589).

(2) Until 6 November 1965 the Chagos Islands had formed part of the Colony of Mauritius, to which the United Kingdom had extended the Convention in accordance with the forerunner of Article 56. However, the United Kingdom only ratified the right of individual petition with effect from 14 January 1966. Accordingly, even if the extension of the Convention to Mauritius could be deemed to have continued in the case of BIOT after its separation from Mauritius, the right of individual petition had never been extended to BIOT (paras. 602).

(3) Neither the fact that many of the applicants were now resident in the United Kingdom nor the fact that the United Kingdom controlled BIOT brought the case within the Court's jurisdiction. The place of residence of the applicants was irrelevant and the separate status of BIOT was enshrined in law (paras. 634).

(4) The fact that ultimate decision-making power in respect of BIOT rested with ministers in London was not a sufficient consideration on which to base competence under the Convention for an area otherwise outside the Convention space. Insofar as the complaints under Article 6 concerned decisions of the English courts, they fell within the Court's jurisdiction but only in respect of procedural rights (paras. 656).

(5) The recent decisions of the Court on the application of the Convention, by virtue of Article 1, to territories over which a State exercised effective control did not mean that earlier decisions that the Convention was not applicable to colonial territories in the absence of an Article 56 declaration had to be regarded as wrongly decided. It was, however, unnecessary to reach a final decision on the relationship between Articles 1 and 56, because the applicants case failed for other reasons (paras. 6776).

(6) The heart of the complaints concerned the removal of the inhabitants from the Islands. In respect of those applicants who had been party to the litigation on this subject in the English courts which had culminated in the settlement in 1982, the settlement meant that they could not be regarded as victims of a Convention breach. In the case of those applicants who had not been party to that litigation, the claim failed for non-exhaustion of domestic remedies (paras. 7783).

(7) There had been no breach of Article 6 of the Convention in the way in which the English courts had dealt with the proceedings (paras. 847).

The following is the text of the judgment of the Court:

THE FACTS

1. The applicants are natives of, or descendants of natives of the Chagos Islands, sometimes referred to as Ilois or Chagossians. They are resident largely in Mauritius, the Seychelles and the United Kingdom. Letters of authority have been received from 1,786 applicants and are contained in the file. They were represented before the Court by Mr Gifford, a lawyer practising in London. The United Kingdom Government (the Government) were represented by their Agent.

The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. The Chagos Islands are in the middle of the Indian Ocean, comprising three main island groups (Diego Garcia the largest with a land area of about 30km², Peros of about 13km² and Salomon of about 5km²) and consisting of 65 islands in total. Since the nineteenth century they have been part of a colony of the United Kingdom. Until 8 November 1965 they were administered as part of the Colony of Mauritius, which is some 1,200 miles to the south-south-west.

4. According to materials in the file, the first visitors to the islands were Malaysians, Arabs and Portuguese in 1743. There were at that time no human inhabitants. The first settlers, probably French, began coconut (copra) plantations, which were to be the basis of the islands economy for the future. The islands passed to British rule from 1814. At the beginning of the twentieth century there was a floating population of some 426 families of African, Malagasy and Indian origin, although most regarded themselves as permanent residents. The copra production company provided living quarters but the Ilois people as they were known generally preferred to build their own thatched cottages. There was no electricity, sanitation or other infrastructure. The men and women who worked on the plantations received a monetary wage but the chief payment was barter. Copra workers also fished and most families had small kitchen gardens and reared chickens and ducks. During the decades which followed there was movement of workers between the islands and Mauritius and the Seychelles under contract to the plantation company, while there were other inhabitants who had been born on the island and whose families went back several generations. By the early 1960s the islands population was in decline, due to low wages, monotonous work, the lack of facilities and the great distance from Mauritius and the Seychelles, while the plantations were suffering from a lack of investment. In 1962, when the Chagos Agalega Company Ltd acquired the plantations, the settlement population was a very small community of less than a thousand, settled on the three main islands. No one had lived on the outer islands for years.

5. In 1964 discussions started between the Governments of the United States of America and the United Kingdom over the establishment of American defence facilities in the region. It was envisaged from the beginning that any inhabitants would be transferred or resettled.

6. On 8 November 1965, the British Indian Ocean Territory (BIOT) Order in Council (SI 1965/120) established a new colony, which included the Chagos Islands and other islands formerly part of the Colony of Mauritius and of the Seychelles. The order created the office of the Commissioner of BIOT and bestowed on him the power to make laws for the peace, order and good government of the Territory. Those inhabitants of BIOT who had been citizens of the United Kingdom and Colonies by virtue of their birth or connection with the islands when they were part of Mauritius retained their citizenship.1

7. On 20 December 1966, the United Kingdom and United States Governments agreed that the latter should have use of the islands of BIOT for defence purposes for an indefinite period with provision...