The (de)colonisation of the Chagos Islands

Devisha Vythelingum

We all have seen that kind of movie which starts with a tropical island surrounded by clear blue water and filled with coconuts, a lot of animals and simple people leading simple lives. The climax then suddenly portrays foreign men arriving to the island with capitalistic motives and displacing local people, the start of urbanisation clearing natural wildlife, and the wiping away of decades of native memories with the cloth of modernity. Most people in the audience will empathise with the local people whose conventional lives have been disrupted by people in power and more often, divine justice will force storytellers to create a plot where, in the end, those people have their island returned to them and their lives restored. However, in real life, remedying to the transgression of the human rights of inhabitants from a developing country is more complicated. Most often, the audience being the international community, hardly cooperate to deliver justice and, on the contrary, prefer to stay silent behind the power of imperialism and politics. An example is the scandal of the Chagos islands, which has been stretching across six decades now.

Chagos

(Image Source: The Brief)

The Republic of Mauritius is located in the Indian Ocean. In 1810, the British captured the island and all its dependencies from the French. The Chagos Archipelago, consisting of several islands, the largest one being Diego Garcia, were considered as dependencies of Mauritius by the British between 1814 and 1865. In February 1964, there were discussions between the UK and the US about the use of Diego Garcia as a military base by the US. As a result, according to a Memorandum of the United Kingdom Foreign Office, the UK was to be responsible for acquiring land, resettling the population inhabiting the Chagos islands and providing compensation at its expense. The only way for it to do that was to detach the Chagos islands from Mauritius before the latter’s independence and without its consent. The UK was of the view that the detachment would be possible if Mauritius was told of the UK’s plans at the last minute and knew that such an approach would eventually generate the criticism of the UN.

Mauritius preferred a long-time lease of the Chagos islands to the UK but the latter rejected the idea and emphasised that should Mauritius refuse to a complete detachment of the Chagos islands from its territory, it would consequently leave the UK with no option but to forcibly detach them and provide compensation. During that time, there were also discussions about the possible grant of independence to Mauritius.  Sensing the hope of self-determination, on 22 September 1965, a Note was prepared by Sir Oliver Wright, Private Secretary to the United Kingdom’s Prime Minister, Sir Harold Wilson, who put forward the idea that Sir Ramgoolam, the premier of Mauritius at that time, should be “[frightened] with hope: hope that he might get independence[…]” during a meeting with him and that the Prime Minister could, as a result, advance the idea that the UK could detach the Chagos islands from Mauritius without the latter’s consent. This sheds light on the sneaky process which the UK took when it decided to detach the islands from Mauritius. Abusing the hope of Mauritius in getting its independence, it lured the country into a safe zone at the cost of taking away its right over the Chagos islands for capitalistic motives. Following that, agreement to the detachment of the Chagos islands was given on certain conditions, such as the following: fishing rights would still be made available to Mauritius, any minerals found on the Chagos islands should be reverted to Mauritius, and that the islands could not be ceded to any third party and would be returned to Mauritius in the future. Those conditions were accepted by the UK.

On 8th November 1965, under the British Indian Ocean Territory Order, the UK established a new colony (in a period of decolonisation) known as the British Indian Ocean Territory (BIOT) which included the Chagos Archipelago, detached from Mauritius, and falsely claimed to be inhabited. This was in breach of General Assembly Resolution 1514, adopted in 1960, which banned the breakup of colonies before independence: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”. Following negotiations, the UK then leased Diego Garcia to the US as a military base, in return for millions of dollars in clandestine payments.

From 1965 to 1967, a number of resolutions were passed inviting the UK “to take no action which would dismember the Territory of Mauritius and violate its territorial integrity” (General Assembly Resolution 2066 (XX)) and that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of colonial Territories and the establishment of military bases and installations in these Territories is incompatible with the purposes and principles of the Charter of the United Nations and of General Assembly resolution 1514 (XV)” (General Assembly Resolution 2232 (XXI). Resolution 2357 (XXII) also reiterated Resolution 2232 (XXI)). The UK ignored those resolutions.

On 12 March 1968, Mauritius became an independent state. Section 111, paragraph 1, of the 1968 Constitution of Mauritius defined Mauritius as “the territories which immediately before 12th March 1968 constituted the colony of Mauritius”. The Chagos Archipelago was not included in the territory of Mauritius.

In 1971, the BIOT Commissioner enacted the Immigration Ordinance, whereby section 4 of the Ordinance made it unlawful for someone to be in BIOT without a permit. The indigenous population on the island was forcefully removed and refused entry in their homeland between 1967 to 1973, the main forcible removal being in 1971. Following their forced deportation, the Chagossians settled in Britain and Mauritius, with many not offered compensation and having to live in inhumane conditions. In oral proceedings, the UK admitted that the way they treated the Chagossians was shameful and wrong.

On 7 July 1982, the UK reached an agreement with Mauritius for the payment of £4 million by the UK in exchange of no admission of liability by the UK “in full and final settlement of all claims […] against the United Kingdom by or on behalf of the [Chagossians].” Those claims by or on behalf of the Chagossians were in regards to those arising out of “(a) All acts, matters and things done by or pursuant to the British Indian Ocean Territory Order 1965, including the closure of the plantations in the Chagos Archipelago, the departure or removal of those living or working there, the termination of their contracts, their transfer to and resettlement in Mauritius and their preclusion from returning to the Chagos Archipelago; and (b) Any incidents, facts or situations, whether past, present or future, occurring in the course of the events or arising out of the consequences of the events.” The Chagossians were required to sign or place a thumbprint on a form giving up their right to return to the Chagos islands. The form was a legal document which was written in English and bearing no Creole translation (a language which the Chagossians spoke and understood).

In 1998, Mr. Louis Olivier Bancoult challenged the validity of the legislation preventing him from going back to the Chagos islands in UK courts. In 2000, the Divisional Court granted a judgment in his favour, demanding that the 1971 Ordinance be quashed. The UK repealed the 1971 Ordinance and made another immigration ordinance which provided that the Chagossians would not be restricted from entering and residing in the Chagos islands, with the exception of Diego Garcia.

In 2001, the Human Rights Committee declared that the forceful deportation of the Chagossians was unlawful. It recommended that the UK allow the Chagossians to return to their territory. This was again ignored by the UK.

In 2002, following a feasibility report submitted by the Foreign Secretary of the UK, which highlighted the high costs associated with, as well as the presence of natural calamities which would hinder the proper resettlement of the indigenous population on the islands, the BIOT Constitution Order 2004 and the BIOT Immigration Order 2004 were passed. This meant the refusal of entry and stay in the islands for the Chagossians and the restoring of full immigration control. Stephen Akester, the Director of the Consulting Company, confided to the Chagossians that resettlement was feasible but that his views had not been included in the report. The report has also been criticised by several scientists as being scientifically flawed.

In 2003, a feasibility study led by the UK government again cited both costs and sea level rise as reasons for not allowing the Chagossians to resettle on the islands. However, this was again refuted by several scientists.

In 2004, Mr. Bancoult challenged the validity of the BIOT Constitution Order 2004 and the BIOT Immigration Order 2004 in UK courts. The High Court sided with the Chagossians. When an appeal was brought by the Secretary of State for Foreign and Commonwealth Affairs against the decision of the High Court, the Court of Appeal upheld the decision of the High Court and declared the orders as invalid and an abuse of power. The decision was appealed again by the Secretary of State in October 2008 and unfortunately the House of Lords later upheld the appeal in favour of the UK. However, the feasibility study examining their possible resettlement was never presented at the hearing. The House of Lords’ decision that year removed one of the most fundamental liberties of the Chagossians, namely the right to return to their home. The islanders also tried to bring their case in front of the US courts. However, both the District Court and the US Court of Appeal held that they were not an appropriate forum to judge the case.

It is important to note that in this time frame 9/11 had just occurred and Diego Garcia was frequently being used as a bomber base for strikes against Iraq and Afghanistan. Planes used to take off frequently from the island and British customs officers used to check customs and passenger manifests for planes which were offloading in Diego Garcia. However, military aircrafts in transit were never inspected, which suggests the possibility that if a prisoner was held at the back of a military aircraft in transit and did not get off, their presence on Diego Garcia would have hardly been noticed by British officials. At that point, even records of flights were not properly kept, pointing to a grey area over the possible detention of prisoners during a time where the US defied international human rights mechanisms and public international law in the name of its war on terror. In the midst of wars being carried out, the resettlement of the Chagossians was suddenly put in reverse.

In 2009, discussions were centred around the setting up of a Marine Protected Area (MPA) in the islands. The setting up of the MPA was widely considered an attempt to prevent the resettlement of the Chagossians. A US telegram recording the meeting with British officials showed that the aim was to make it impossible for the Chagossians to resettle and one way for that to happen was to turn the island into a marine reserve. Indeed, for an MPA to be set up, the islands should not have had inhabitants there. Relying on the absence of the Chagossians in, and their prohibition from, the islands, it was held that the MPA would have no direct impact on the population. It also meant that no inhabitants would be able to return or resettle there. However, this position was not accurate because certain Chagossians had been fishing in BIOT even if they had not been authorised to return to the islands and the right of abode had been recognised as fundamental by British courts. Nevertheless, the Foreign Secretary held that commercial fishing would now be completely banned. This ultimately meant that those islanders who were still fishing in the BIOT area would no longer be allowed to do so.

In addition, the feasibility report conducted to assess whether an MPA could be set up, was inaccurate because it had not been conducted by independent experts but by government officials. Moreover, when the report was published, it overlooked the feasibility of resettlement. Failure to consider all information impeded the consultation process and rendered it unlawful. The consultee must have had all the proper facts and evidence in front of him to be able to undertake an informed decision. Therefore, the decision maker had a duty to reveal all the information available to him. Here, the procedure had been flawed because adequate information had not been given despite requests by the islanders. Leaked documents later revealed that this was intentional to discourage the resettlement of the Chagossians. For instance, potential risks of natural calamities were interpreted as predicted likelihoods. The documents also disclosed that it was important that the US did not oppose the setting up of an MPA. As the US was concerned about their military base, the UK moulded the suitability of the creation of an MPA in this context. In other words, because of the presence of the military base, inhabitants could not return. Therefore, the creation of an MPA would not have been opposed by the US as inhabitants were no longer living on the islands.

The inaccuracy of the report was challenged by the Chagossians in front of the UK High Court.  The islanders advanced that the lawfulness of the consultation process was subject to review  because the MPA would prevent resettlement in the long term and that resettlement was initially found to be feasible by the Foreign Secretary’s consultants but that relevant information had not been disclosed. The inadmissibility of the leaked documents and the fact that the judges took the feasibility of resettlement and the MPA as two separate issues, contributed to an unfavourable ruling. Had the documents been disclosed, the judges would have found that these two issues were not segregated. Thus, these procedural hurdles have contributed to the unfair treatment of the Chagossians and have hindered the Court from making an informed decision based on all the information available. The islanders also brought their case in front of the European Court of Human Rights (ECtHR) to no avail because the European Convention on Human Rights (ECHR) was declared as being non extendable to the BIOT.

In 2014, claims that Diego Garcia was being used as a ‘‘black site’’ detention centre (for kidnapping, interrogation and/or torture) emerged  following the arrest of Abdel-Hakim Belhaj, a rebel military commander and opponent of Muammar Gaddagi, who was supposed to be returned to Libya but has been allegedly taken, held and tortured at Diego Garcia. Papers discovered in Tripoli in 2011 point to the fact that the British helped Libya seize Belhaj. A flight plan also confirmed that the CIA had intended to render him via Diego Garcia. Though the British Government has consistently denied the presence of detainees or terror suspects on the island, it admitted in 2008 that flights carrying detainees had stopped for refuelling in Diego Garcia in 2002. Testimony filed in the high court by a Royal Marine, Michael Blyth, who represented the Foreign Office in Diego Garcia also pointed to the discussion that the US wanted to hold 500 people as suspects in Diego Garcia but this was written off because of a lack of space capacity. The Foreign Office also released information that the UK had its own detention facilities on Diego Garica. How far these claims can be proven is still a matter of debate which remains unresolved. Indeed, Diego Garcia is a highly restricted place. The air space above it is protected and is not accessible to normal planes. Moreover, what the US or the UK does on those islands is still a grey area. To this date, there exist no pictures or testimony as to what happens on those islands or how the US operates its military base. Planes refuelling in Diego Garcia had been accused of holding blindfolded detainees in them, a matter which can be difficult to prove due to the secrecy around the use of the islands.

Moreover, the Commons foreign affairs committee referred to a US congress investigation which outlined that the British was still withholding information about the full extent of the CIA’s use of Diego Garcia. The US Senate intelligence committee undertook a four-year inquiry into the Central Intelligence Agency’s (CIA) torture programme and published a report on how the latter has been detaining suspects in Diego Garcia and that this was done with the full coorperation of the UK. This has been reinforced by Manfred Nowak, the UN’s former special rapporteur on torture who has interviewed detainees held on Diego Garcia between 2002 and 2003. However, there is still a grey area on the extent to which the UK cooperated with the CIA. Aside from security and military reasons, Britain has previously cited only costs of resettlement and sea level rise as reasons which will make the Chagossians’ return to Diego Garcia impossible. The sum of £64m cited as the cost for resettling the Chagossians is hardly realistic, nor the fear of possible calamities in the future, fear which seem not to have deterred the US military from living there. On many occasions, the islanders had advanced the idea of a gradual resettlement. Citing such high costs for resettling simple islanders shows that the UK and the US had been advancing mere reasons to delay resettlement. The vision seems to have been to develop a model of a developed country on the islands. However, the Chagossians led a very simple life which revolved around coconut plantations and fishing before they were evicted, which if undertaken again, will help gradual resettlement and would not involve high costs. Therefore, Britain holding on to the island because of massive costs of resettlement suggest the possible erasing, or modification, of the Chagossians’ reality by the whims of imperialism which might be dictated by the secretive actions of the CIA.

The Chagos scandal is a classic example of a colonial power removing inhabitants who had been living on the islands since their birth, and preventing them from resettling because of reasons which did not impeach on their normal lives before they were forcibly removed. Moreover, the Chagos islands are surrounded by clear water and an abundance of fish which can act as the economic base of any residential community. However, since the setting up of an MPA, the only people who had been allowed to fish there were the US military and that too for sport. The UK acts as a typical colonial in the 21st century, still deciding for other countries, such that their “concern” as to the possible resettlement of the Chagossians is the foreground to their imperial motives. Indeed, the UK wanted its actions to be interpreted as caring and thoughtful when it cited high costs and natural calamities as possible deterrence for resettlement. However, it only brought to the forefront the image of an imperial power which had forcibly deported a community from their islands for capitalistic motives, and then pretended to care so much that they had to check whether it was “safe” enough for the islanders to go back to their land. Neo-colonialism here finds its way in the actions of the UK pretending to know what is best for former colonies and still choosing for them. Compensating the Chagossians also shows the human problem of compensating people for the arbitrary whims of imperialist policy, holding the belief that money can buy anything. However, self-determination has no price.

Between 2014 and 2015, another feasibility study regarding the possible resettlement of the Chagossians was carried out. Again, it was concluded that resettlement would be possible although there would be numerous challenges associated with it, amongst them being high uncertain costs at the expense of the UK. Thereafter in 2016, the UK decided against the resettlement of the islanders based on “grounds of feasibility, defence and security interests and cost to the British taxpayer”.

Britain’s sovereignty and the US’s lease of Diego Garcia were questioned in 2015 by the permanent court of arbitration (PCA), a UN tribunal whose rulings are binding. The judgment threw into doubt the alleged absolute ownership of Diego Garcia by the British and a possible expansion of the US rendition air base on the island. The judgment not only leaned towards a possible hope of return for the evicted Chagossians but also accused Britain of the snubbing of the rights of Mauritius when the British created an MPA and banned Mauritius from fishing there. A partly dissenting judgment from two of the five judges outlined this action as a breach of Mauritius’s territorial integrity, both when the BIOT was established in 2010 and when the MPA was set up. They also found that the UK does not have sovereignty because the Chagos Archipelago was not meant to be separated from Mauritius, and by doing so the UK breached international law and left the process of decolonisation incomplete. The Tribunal advanced that the islands should be returned to Mauritius when no longer needed for defence purposes.

On 30 December 2016, the 50-year period of the lease of Diego Garcia to the US came to an end. However, it was extended for a further period of twenty years.

In 2018, the UK rendered its judgment on the case which was brought by Mr. Bancoult who challenged the setting up of an MPA by the UK which had the goal of preventing the resettlement of the Chagossians. This was evidenced by a diplomatic cable sent by the US Embassy in London to departments of the US government in Washington. The cable recorded a 2009 meeting in which US and UK officials discussed the reasons for the establishment of the MPA. The Supreme Court held that the leaked cable was admissible.

In 2019, the International Court of Justice (ICJ) delivered an advisory opinion on the legal consequences of the separation of the Chagos islands from Mauritius in 1965. The Court observed that the UK was in breach of several principles of the United Nations. Article 1, paragraph 2 of the Charter outlines the “respect for the principle of equal rights and self-determination of peoples” [as] one of the purposes of the UN and that such a purpose includes the “Declaration regarding non-self-governing territories” (Chapter XI of the Charter), since the “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government” are obliged to “develop [the] self-government” of those peoples (Article 73 of the Charter). Article 1, common to the International Covenant on Civil and Political Rights and to the International Covenant on Economic, Social and Cultural Rights, reaffirms the right of all peoples to self-determination, and provides that:“The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.” The nature and scope of the right to self-determination of peoples, including the respect for “the national unity and territorial integrity of a State or country”, were also reiterated in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. The ICJ outlined that inhabitants of non-self-governing territories have the right to self-determination in relation to their territory as a whole and this should be respected by the administering power. Any detachment by the administering power of part of a non-self-governing territory breaches the right to self-determination, unless the detachment is based on the freely expressed and genuine will of the inhabitants.

The Court also observed that when Mauritius agreed to the detachment of the Chagos islands, the country was still under the power of the UK as its colony. Therefore, any international agreement between the two cannot be termed as such because its “consent” to the detachment of the islands was not based on the free and genuine expression of the will of Mauritius when it was under the authority of the UK. As a result, the ICJ concluded that the Chagos islands were unlawfully detached from Mauritius and the process of decolonisation of Mauritius was not lawfully completed when it achieved its independence in 1968. This ultimately engaged the international responsibility of the UK to put an end to its administration of the islands and return them to Mauritius.

As the right to self-determination, which has been breached, is a right erga omnes, the ICJ declared that all States should protect that right and must cooperate with the United Nations to ensure that the right can be properly exercised. This is explicitly stated in the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations: “Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle”. Therefore, not only does the UK have an obligation to bring its administering power of the Chagos islands to an end and to ensure that the right of self-determination is respected, but all States should cooperate to make sure that the process of decolonisation of Mauritius is completed. However, an advisory opinion from the ICJ is not binding. It is barely a judgment. How relevant the status of the ICJ is in front of powerful states is another thing to consider. As a result, to this day, the Chagos islands remain in the administering power of the UK and the process of decolonisation of Mauritius stays incomplete. Today, most of the 1800 Chagossians who had been forcibly displaced had died, leaving their right to return to their islands and their right to self-determination forever violated.

At the current moment, some 1,000 US military personnel and about 2,500 civilians are based on Diego Garcia, with many working for the private security giant G4S which has the multimillion-dollar contract to operate the base. The people living there have their essentials flown in. The 50 remaining islands and reefs are still uninhabited.

The injustice caused to the Chagossians not only brings to the forefront neo-colonialism but the situation also creates a grey area over the role of the United Nations today and the relevance of international law. It seems that international law is enforced upon and observed only by developing countries which do not sit amongst the five permanent members of the Security Council. The latter hardly show allegiance to international law. Indeed, since the Chagos islands have been detached from Mauritius, a number of General Assembly resolutions have urged the UK to give the islands back to Mauritius but to no avail. It is to be noted that General Assembly resolutions are not binding, which puts into question the efficacy of the United Nations for developing nations when they are faced by the whims of powerful states.

Whether the United Nations and international law works only for the interests of the powerful is still a topic to ponder over. The silence of the international community over the actions of the US and the UK stays alarming. It depicts a perfect representation of silence in front of power which is currently dictating the workings of the United Nations. In an era where the sovereignty of states is being celebrated as freedom from a period of colonisation, a disguised face of neo-colonialism is still prevalent today and will prevail until powerful states release their grips on less powerful ones. Whether a rights dialogue is appropriate and relevant in the face of imperialism is still a matter to be considered. When faced with the Chagos scandal, one can hardly say that it is.

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