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The Chagos Archipelago: A Failure of International Law to Protect Powerless Peoples

By: Cali Smith



The opening act of 2024 featured David Cameron, the United Kingdom’s (UK) latest Foreign Secretary, dashing the hopes of a displaced people; the island natives of the Chagos Archipelago.[1] The Chagos islanders (Chagossians) have waged a decades long battle for the right to return to their homeland, from which they were forcibly removed in the 1960’s and 70’s.[2] The former Foreign Secretary, James Cleverly, indicated that the UK was in negotiation regarding the resettlement of the Chagossians to their native islands.[3] However, on January 9, 2024 Cameron stated that the return of the Chagossians to their islands was “not possible.”[4] Cameron’s comments are the latest in a series of events surrounding control of the Chagos Archipelago, highlighting the continued failure of international law to protect powerless peoples.

 

The Chagos Archipelago consists of over fifty-five islands located approximately 1,000 kilometers from Mauritius.[5] The islands were populated in the eighteenth and nineteenth centuries mainly by Afro-Madagascar slaves who were brought over by French and British settlers.[6] In 1965, the UK split the Chagos Archipelago from Mauritius, a former British colony, and incorporated the islands as the British Indian Ocean Territory (BIOT).[7] Between 1968 and 1973, the Chagossians were systematically forced from their homes and relocated to Mauritius and Seychelles[8] to make way for a United States (US) military base.[9] Their removal was accomplished via a multistep process involving economic and emotional pressure in addition to outright force.[10] First, Chagossians traveling outside the islands were abruptly denied re-entry, leaving families unexpectedly separated.[11] Embargos were then imposed to limit the availability of food and other supplies on the islands.[12] Finally, any remaining Chagossians were forced onto ships and crowded onto only two islands, where they were eventually exiled to Mauritius or Seychelles.[13] In 1982, the UK made ex gratia payments to Mauritius in addition to a sum of £650,000 paid in 1972 to aid in the resettlement of the Chagossians.[14] However, these payments are far lower than the “damage suffered by the Chagossians to date,”[15] and many of the Chagossians never personally received any of the money.[16]

 

Despite the military base and its personnel occupying only a part of the largest island, Diego Garcia, the Chagossians were expelled from every single island in the Chagos Archipelago.[17] In 1971, an ordinance was put in place by the commissioner of the BIOT which essentially banned the Chagossians from returning to the islands.[18] Today, all the Chagos islands except Diego Garcia[19] remain uninhabited, as the Chagossians are continually denied the right to return to their homeland despite significant efforts and what they believed were legal victories.[20]

 

The Chagossian’s greatest triumph, or so they thought, was the advisory opinion of the International Court of Justice (ICJ) in 2019.[21] The opinion concluded that Mauritius was not lawfully decolonized, and the separation of the Chagos Archipelago was deemed invalid. [22] Moreover, the court determined that the UK was “under an obligation … to end its administration of the Chagos Archipelago as rapidly as possible.”[23] However, the ICJ left the matter of the Chagossian resettlement to the United Nations General Assembly (UNGA), stating that it was an “issue relating to the protection of the human rights [and] should be addressed by the General Assembly during the … decolonization of Mauritius.”[24] Consequently, the UNGA adopted a resolution requiring the UK to “unconditionally withdraw its colonial administration [of the Chagos Archipelago] within six months.”[25] The resolution further demanded that the resettlement of the Chagossians be “addressed as a matter of urgency during the completion of the decolonization process.”[26]


The UK appears to have largely ignored the ICJ advisory opinion and the UNGA, claiming that the opinion is just that; advisory.[27] While both Cleverly and Cameron suggested that there was some negotiation with Mauritius over the Chagos Archipelago, Cameron firmly prioritizes apparent national security interests over the human rights and suffering of the Chagossians, indicating that their resettlement will not be part of any future agreement with Mauritius.[28] Cameron claims: “When I was prime minister, it was all about trying to see if we could relocate Chagossians back on to the outer islands; lots of work was done, and it was not possible.”[29] Given the absence of any significant progress towards the return of the Chagos Archipelago or the resettlement of the Chagossians, the ICJ opinion has so far failed to have any intended effect, and Cameron’s comments make any future success for the Chagossians seem unlikely.

 

Alternative legal avenues have proven similarly ineffectual. Prior to the 2019 ICJ opinion, a group of Chagossians brought suit in DC District Court against the US and certain government officials for the crimes committed against the Chagossians during their removal from the islands.[30] However, the court held that the government officials had immunity since the plaintiffs could not show that the relevant actions were taken outside of the scope of employment.[31] Furthermore, the court held that the issue was a nonjusticiable political question since the US Constitution commits the conduct of military operations to the political branches.[32] Accordingly, the claims against both the government officials and the US were dismissed.[33] The US case serves as just one example of the attempts made by the Chagossians over the years to return to the islands, or at least gain further reparations for their loss.[34] The ICJ opinion in 2019 rekindled hope that the Chagossians might finally make some progress in returning to their homeland, only for the UK to sidestep international law on the vague basis of security.[35]

 

When major powers may ignore the opinions of the ICJ and UNGA resolutions, what purpose do these instruments of international law serve? Arguments have been made that ICJ advisory opinions “generate legal effects through … informal mechanisms,” such as pushing states to negotiate effective solutions.[36] However, these “legal effects” and negotiated solutions have yet to be seen in the case of the Chagos Archipelago and the Chagossian resettlement. Moreover, Cameron’s latest position clearly demonstrates once again that in the case of the Chagos Archipelago, the UK has no intention of adhering to ICJ’s findings. Given the failure of alternative legal avenues, this latest blow is undoubtedly sharp and painful for the Chagossian people and leaves the rest of us wondering what the UK’s continued failure to comply with the ICJ opinion will mean for the power of international law in the future, and its role in protecting otherwise helpless peoples.


Cali Smith is a Staff Editor at CICLR.


[1] HC Deb (9 Jan. 2024) (325) cols. 582-725.

[2] Bancoult v. McNamara, 370 F. Supp. 2d 1, 2 (D.D.C. 2004); See “That’s When the Nightmare Started”; UK and US Forced Displacement of the Chagossians and Ongoing Colonial Crimes, Hum. Rts. Watch (Feb. 15, 2023), https://www.hrw.org/report/2023/02/15/thats-when-nightmare-started/uk-and-us-forced-displacement-chagossians-and [https://perma.cc/9Y4S-KDB2].

[3] James Cleverly, British Indian Ocean Territory / Chagos Archipelago, UK Parliament (Mar. 17, 2023), https://questions-statements.parliament.uk/written-statements/detail/2023-03-17/hcws645 [https://perma.cc/SUR4-PTZP].

[4] HC Deb, supra note 1.

[5] The Chagos Archipelago, Chagos Conservation Tr., https://chagos-trust.org/chagos/overview [https://perma.cc/ZX25-5SUJ] (last visited Mar. 8, 2024).

[6] Peter Hilpold, ‘Humanizing’ the Law of Self-Determination – the Chagos Island Case, 91 Nordic J. Int’l L. 189, 193 (2022).

[7] Bancoult, 370 F. Supp. 2d 4.

[8] Hilpold, supra note 6.

[9] DeNeen L. Brown, They Were Deported to Build a U.S. Naval Base. Now They Want Reparations, The Wash. Post (Oct. 8, 2023, 7:00 AM), https://www.washingtonpost.com/history/2023/10/08/chagos-islands-reparations-return/ [https://perma.cc/FW2H-VERY].

[10] Bancoult, 370 F. Supp 2d 4.

[11] Id.

[12] Id.

[13] Id.

[14] Written Statement of the Republic of Mauritius, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 2019 I.C.J. Pleadings, 157 (Feb. 25, 2019); Hum. Rts. Watch, supra note 2.

[15] Hilpold, supra note 6, at 215.

[16] Hum. Rts. Watch, supra note 2.

[17] Bancoult, 370 F. Supp 2d 4.

[18] Brown, supra note 9.

[19] Diego Garcia plays host only to the military base and no permanent civilian population. Explore All Countries - British Indian Ocean Territory, CIA (Feb. 20, 2024), https://www.cia.gov/the-world-factbook/countries/british-indian-ocean-territory/ [https://perma.cc/SG9D-3KUQ].

[20] Id.

[21] See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 2019 I.C.J. 95, 140 (Feb. 25).

[22] Press Release, General Assembly, General Assembly Welcomes International Court of Justice Opinion on Chagos Archipelago, Adopts Text Calling for Mauritius’ Complete Decolonization, U.N. Press Release GA/12146 (May 22, 2019).

[23] Advisory Opinion, 2019 I.C.J. Reports 140.

[24] Id. at 139.

[25] Press Release, supra note 22.

[26] Id.

[27] Eran Sthoeger, How Do States React to Advisory Opinions? Rejection, Implementation, and What Lies in Between 117 AJIL Unbound 292, 293 (2023); HC Deb, supra note 1, at 26.; Mark Townsend, Chagos Islanders Stunned as David Cameron Rules Out Return, The Guardian (Jan. 26, 2024), https://www.theguardian.com/global-development/2024/jan/26/chagos-islanders-stunned-as-david-cameron-rules-out-return [https://perma.cc/KBA4-8JF3]. The English Court of Appeals declared that the opinion was “not a judgment in the traditional sense of determining a dispute as between parties where the judgment has binding effect.” Sthoeger, supra note 27, at 294.

[28] See HC Deb, supra note 1.

[29] Id. 

[30] See Bancoult, 370 F. Supp 2d 2.

[31] Id. at 10.

[32] Id. at 13.

[33] Id. at 17.

[34] See Sthoeger, supra note 27, at 294.

[35] See Aufa Hirsch, Chagos Islanders Remind Us That Britain is a Shameful Coloniser, Not a Colony, The Guardian (Feb. 27, 2019), https://www.theguardian.com/commentisfree/2019/feb/27/chagos-islanders-britain-coloniser-colony [https://perma.cc/9RT2-MKSE].

[36] Massimo Lando, Advisory Opinions of the International Court of Justice in Respect of Disputes, 61 Colum. J. Transnat’l L. 67, 129 (2023).

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