Chagossians hit the buffers in Strasbourg – but not over yet

22 December 2012 by David Hart KC

Chagos Islanders v. United Kingdom, ECtHR 4th Section, 11 December 2012 read admissibility decision

The set of injustices which led to these claims is well known – and see my posts here and here. For the uninitiated, in the 1960s, the US wanted Diego Garcia (one of the Chagos Islands) as a major air base. It spoke nicely to the UK, its owners, who consequently evicted and banned all the inhabitants from it and the neighbouring islands. The constitutional arrangements were apparently decorous. A new UK colony was established (the British Indian Ocean Territory or BIOT) with a Commissioner to make laws for the peace, order and good government of the Territory.

The UN was told that the population consisted of migrant workers, their position had been fully protected, and they had been consulted in the process – none of this in fact happened. Those evicted mainly went to Mauritius and the Seychelles. So the peace, order and good government in fact forthcoming from the UK amounted to total depopulation for military objectives.

Unsurprisingly, and after an ultimate lack of success in UK Courts (including a court judgment in their favour in effect reversed by legislation), the Chagossians went to Strasbourg. They complained under Article 3 about the way in which they had been evicted, the conditions which met them in Mauritius and the Seychelles, and the lack of compensation. They put in matching claims under Article 8 in respect of their private and home life, Article 6 (the reversal of the court judgment), and Article 13 (no effective remedy).

None of these substantive claims, except for those under Article 6, were determined by the Strasbourg Court. It ruled the case inadmissible on jurisdictional grounds, and it also said that the applicants had either ceased to be victims because they had received compensation or because they had failed to exhaust local remedies.

Jurisdiction

This is legally the most interesting of the findings. You can only make a complaint if it arises in a territory covered by the Convention, i.e.it occurs within its jurisdiction. Overseas territories belonging to Convention States are not automatically subject to the Convention – the State may notify additional territories under Article 56 of the Convention if it wishes to do so. The UK had done this in respect of Mauritius, but had then in November 1965 severed off BIOT from Mauritius. The UK then for the first time granted the right of individual petition under the Convention – in January 1966. So, said the UK, those in the BIOT never had the right to go to the Strasbourg Court. And the Court accepted this; the decision not to extend the right of petition to BIOT was a deliberate one – which I dare it would have been, given what the UK was just about to do to its inhabitants.

The more formidable argument was of the Al-Skeini type (to see some of the controversy about this, Adam’s post here)’ remember, the Basrah cases where the UK was held responsible for the deaths caused in security operations there. The Grand Chamber in Strasbourg had decided that because the UK had assumed authority and responsibility for the maintenance of security there, it had exercised control of individuals killed there so as to establish a jurisdictional link between the deceased and the UK for purposes of Article 1 of the Convention. Why then, given the circumstances of UK actions in BIOT, was it not so similarly responsible?

The Strasbourg Court is pretty unconvincing on the differences between the cases – even accepting that the extra-territoriality principle is meant to be an exceptional one. One senses that the anomaly is in Al-Skeini, rather than in the Court’s response in this case. The principle that a State should be able to decide which of its overseas territories should be within or without Convention protection has to be right – the Convention is a treaty like any other treaty, and a state can sign up to the bits of a treaty which it likes, assuming that is permissible under the treaty’s rules.  The anomaly lies in the fact that within its territories the state is free to choose to notify under Article 56, but outside those territories it has jurisdiction forced upon it, despite the fact that it is exercising temporary military control – i.e. one would have thought far less territorial and jurisdictional linkage than when it owns those territories.  But once the Court had taken the step in Al-Skeini, in part due to an underlying feeling that if a Convention state is running the show in a given territory, then it ought to stand up and be counted for what it did there in human rights terms, then the underlying merits of this case, with its unvarnished overriding of individuals’ interests in the face of foreign policy, must be no less (if not a great deal more) than the excesses in Basrah.

The applicants had various other arguments to found jurisdiction which were unsuccessful – the fact that some of the applicants now lived in the UK was insufficient; nor did it help that all the material decisions were taken in the UK, albeit with their effects abroad. This latter fell foul of an earlier decision, Quark, in which a determination of fishing licences in South Georgia was held to outside the jurisdiction of the Convention, despite the fact that all the strings underlying that determination were pulled in the UK.

The applicants’ Article 6 claims did fall within the jurisdiction of the Court, but were dismissed on the merits; various domestic court decisions had engaged with the islanders’ arguments: [84]-[86].

Still victims?

The problem for the applicants was that there had been a good deal of litigation, some of which had led to sums being paid to islanders. £4m and land worth £1m had been paid over in the 1980s to settle initial litigation. This had not helped all applicants, particularly those who had ended up in the Seychelles. A further attempt to sue domestically was struck out as an abuse of process.

The Court was brisk on this issue. Either the applicants had been party to this previous litigation and had recovered in it, in which they had ceased to be victims  -or they had not done so, but should have done so, in which case they had not exhausted their domestic remedies: for this concept, see the post here. But just a glimpse of sympathy comes through from the Court’s description of their underlying claims

the callous and shameful treatment which they or their antecedents suffered from 1967 to 1973 when being expelled from, or barred from return to, their homes on the islands and the hardships which immediately flowed from that.

Quite so – but those claims, the Court decided, had already been settled.

End of the line?

But the story is not finished. Leaving aside any attempts there may be to persuade Strasbourg to re-hear the case, there is still the continuing case in which a challenge to the designation of the islands as a Marine Protected Area is going to be heard in Spring 2013 – a case much aided by some Wikileaked information: see my earlier post

The judgment: “by a majority”

Tantalisingly, the Court revealed that the decision was by a majority. But the minority’s views have not been allowed to surface in what has been published. In a case which is both legally and politically controversial, one wonders why not. The majority was plainly unconvinced by the minority reasoning – but that is no reason to bury it.

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Related posts:

• Chagossians – the latest
• A Chagossian double-bill; an environmental information contest and a touch of Wikileaks
• Strasbourg judge: “Those who export war ought to see to the parallel export of guarantees against the atrocities of war”
• How do you exhaust local remedies for the purposes of applying to Strasbourg?