martedì, luglio 27, 2004

The Death of Diego Garcia?

The full text of the Approved Judgment of the Court of Appeal in the case of the Chagos Islanders (which includes the island of Diego Garcia) and The Attorney General with Her Majesty’s British Indian Ocean Territory Commissioner is available here. As I outlined some while ago, it is a tragic situation, involving as it does the US Government requirement for a military base in the region resulting in the complete removal of the indiginous population of Diego Garcia by the British Government, in compliance with the demands of the US Military.

Reading the background of the judgment, we see: "During the 1960s the United States administration decided that it required Diego Garcia as a strategic military base. The government of the United Kingdom set about accommodating this request, but at an early stage realised that it and the neighbouring islands had a substantial population". I find the statement "at an early stage realised that it and the neighbouring islands had a substantial population" almost unbelievable in the implication that there was an argument laid by the British Government that they were not aware of the existence of the people that lived on the islands.

The counsel representing the islanders in their plight, Mr Robin Allen QC, had submitted that the British Government were liable for their actions in the eviction of the population of the islands. Lord Justice Sedley, no stranger to controversy himself, in his judgment says of this, however; "The fallacy of his approach is seen most plainly in the contention that to exile people from the Queen's dominions without lawful authority is - because it must be - a tort. Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already established by the judgment in Bancoult. But to make it a state tort requires a legal system in which the Crown, in private law, can do wrong; and this, apart from the Human Rights Act, we do not have."

So, we find that Magna Carta gives the state (which was at the time comprised ONLY of England, by the way) the right do do whatever it wishes without being answerable to the people of Britain - save for the more modern provisions of the Human Rights Act, which is not applicable in this case through there being no provable harm to any physical body involved in the action.

The final Conclusion of the Judgment is: "This judgment brings to an end the quest of the displaced inhabitants of the Chagos Islands and their descendants for legal redress against the state directly responsible for expelling them from their homeland. They have not gone without compensation, but what they have received has done little to repair the wrecking of their families and communities, to restore their self-respect or to make amends for the underhand official conduct now publicly revealed by the documentary record. Their claim in this action has been not only for damages but for declarations securing their right to return. The causes of action, however, are geared to the recovery of damages, and no separate claims to declaratory relief have been developed before us. It may not be too late to make return possible, but such an outcome is a function of economic resources and political will, not of adjudication.

So, that's it then, is it? Subject closed?

Is it?

Lord Justice Sedley has been a Lord Justice of Appeal since 1999


At martedì, luglio 27, 2004 8:37:00 PM, Anonymous Anonimo said...

It isn't the end of the story by a longshot. In addition to the possibility of Mauritius taking the case to the ICJ, the ilois could go to Strasbourg and file a complaint with the ECHR. I'm actually surprised they haven't done so already, given that a Strasbourg appeal is pretty much the only way to obtain judicial review of a British statutory instrument. I wish them luck; they'll need it with both the UK and US against them.

Jonathan Edelstein

At mercoledì, luglio 28, 2004 9:25:00 AM, Blogger Peter said...

I see that the groundrules for the next engagement are already being set with; "Under Commonwealth rules, members of the organisation of mostly British former colonies are restricted from suing each other in the international court. Shortly before Berenger arrived in London this week, Britain notified the Commonwealth that it would not accept lawsuits from former members either." Commonwealth obviously doesn't stand for the 'common' wealth anymore, does it.

At mercoledì, luglio 28, 2004 2:35:00 PM, Anonymous Anonimo said...

It's actually pretty amazing how far the UK government has been willing to go to avoid coming to terms with the ilois (which leads me to believe that the real driving force is the US). Berenger's legal advisors, though, have apparently concluded that he can seek an ICJ advisory opinion through the General Assembly (as the Palestinians did) without leaving the Commonwealth. Such an opinion would be non-binding but would be widely publicized and embarrassing to the UK, and might influence any ruling the ECHR makes thereafter.

Jonathan Edelstein

At mercoledì, luglio 28, 2004 6:35:00 PM, Blogger Peter said...

I would like to think that the UK might be influenced in it's actions by world opinion, but I fear that the opinion of the US government would take priority over the rest of us. The British have already ignored one court ruling in favour of the ilois, so it would seem inconceivable that they would not do exactly the same in respect of any futurs advisory opinion from the ICJ - particularly in light of the recent advisory regarding the Israeli 'wall' in the occupied Palestinian territories.

At giovedì, luglio 29, 2004 7:56:00 AM, Anonymous Anonimo said...

Yeah, one of the (many) disagreements I have with the ICJ ruling on the West Bank wall is that the court has compromised its authority. If it issued an advisory on Diego Garcia and its ruling was ignored, it would lose even more standing. That would be a shame, because the ICJ has an excellent track record of sorting out border disputes and fishing rights, and is possibly the only court that can claim to have stopped a war (Burkina Faso-Mali in 1985). It's the political cases that turn the ICJ into a circus, and Chagos would certainly be that.

In any event, I agree that the UK government is fronting for the United States, which means that the people the ilois should really be lobbying are in Washington. The Chagos affair has received almost no play in the American media and is probably unfamiliar even to most legislators, and the ilois might do well to highlight the totally unreasonable position the American government is taking. If they can convince Washington to moderate its stand, Westminster might follow.

Jonathan Edelstein

At giovedì, luglio 29, 2004 10:02:00 AM, Blogger Peter said...

Have you read this Washington Post article yet, by the way ?

It is interesting to see how law can be controlled - even if the law is badly framed, as this one obviously was - and completely overuled whilst cases are in progress, on the whim of a foreign power (in this case the US).

Stories such as this one do not help give one confidence that there isn't a wholly unpleasant agenda in progress somewhere though. With the ICJ not having the teeth to implement it's decisions, together with the fact that the British government have already alluded to the legal grounds on which they would rebuff any legal claims against it from a member of the Commonwealth - past or present - gives me no confidence that justice might actually prevail in any case - from either British or US sources.

At venerdì, luglio 30, 2004 12:01:00 AM, Anonymous Anonimo said...

I hadn't seen that particular Washington Post article, but I did follow the controversy surrounding the Belgian war crimes law. The key problem with it, at least IMO, was that it allowed private prosecutions, which resulted in everyone with an agenda attempting to hijack the Belgian criminal justice system. The prosecutions were theoretically screened by a judge, but the standard for admissibility in Belgium isn't very high; from what I understand, it amounts to nothing more than a prima facie case. The final straw was the attempt to prosecute the Belgian Foreign Minister for selling weapons to Myanmar; that, along with the deterioration of relations with the United States and Israel, convinced the Belgian government that the law was a bad idea.

It also seems to me that Belgium was attempting to set itself up as the arbiter of international justice (much as the United States has done with the Alien Tort Claims Act). This is a role that would be better filled by an international court; the Rome Statute and the ICC have largely obviated the need for any national justice system to reach outside its borders as the Belgians did.

At any rate, I agree that there probably isn't much hope that this administration would do anything for the ilois. A Kerry administration, however, might be more sympathetic if the issue is brought to its attention. In fact, I honestly don't understand why the United States has been so adamant in opposing repatriation; the ilois have never turned to violence or terrorism to achieve their goals, they aren't demanding political independence and they aren't even demanding that the USN base be closed. Done right, resettlement of Diego Garcia could be mutually beneficial; the base would provide jobs to the ilois, and the USN would have a civilian labor pool without having to import workers from Mauritius or the Philippines. I certainly don't understand why the US opposes resettlement of Peros Banhos and the Salomon islands, which are more than 100 miles from Diego Garcia and pose no conceivable security risk. Maybe a campaign here would bear some fruit; it certainly wouldn't do the ilois any harm.

Enjoy your vacation.

Jonathan Edelstein

At venerdì, luglio 30, 2004 2:33:00 PM, Blogger Peter said...

I felt that you might find the following articles of interest - particularly with regard to the 'threat' of using membership of the Commonwealth, past or present, as a way to block any action which may be considered in the ICJ. There are some interesting views and perspectives expresed.

Chagos: Is the Government taking us for a ride?

Risky Plan For Recovery of Sovereignty for Mauritius

Human Rights Begin at Home...

The Given "reason".

The Commonwealth Secretariat reporting the meeting between Sec-General Don McKinnon with PM Paul Berenger, July 9th.
I would hazard that the US military have reasons of their own for not wishing any bothersome non-military people around whilst they get on with whatever it is they are doing on Diego Garcia. I would further hazard that there are senior people involved that are now just simply 'digging their heels in' for little other reason than their ego.

Sorry to be so brief. As far as my feeling about the Belgian situation, I just fancy they had a very badly framed law and were caught out by people intent on subverting the spirit of it for political reasons. I'm not passing comment on the political reasons themselves, of course, only the misuse of the Belgian legislation, which resulted in further 'knee-jerk' legislation to overcome the problems. They certainly 'knee-jerked' with their solution though, IMHO.

Issues regarding International courts and the responses thereto are interesting to examine though. There are a great many bodies that have, theoretically, international authority with regard to the protection of national and individual rights - the United Nations easily springs to mind with regard to national rights protection. However, we can see clearly that the rulings and declarations of even the UN can be - and are - riden over rough-shod when a decision is not politically popular, for whatever reason - I hardly need to elaborate further, I feel.

And, thank you. I certainly will enjoy it - my brain is already changing gear in anticipation!


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