Denying exiled Chagos islanders the right to return to their homes on the Indian Ocean archipelago is a continuing breach of their human rights and not just a historical injustice, the court of appeal has been told.
The claim was made on Tuesday in the first legal battle over the territory in a British courtroom since the international court of justice (ICJ) in The Hague ruled last year that the UK’s assertion of sovereignty was illegal.
The latest challenge has been brought on behalf of two former Chagos residents. Solange Hoareau, who was born on the island of Diego Garcia and transported to the Seychelles in the early 1970s, has never received any compensation for her exile. The other claimant, Olivier Bancoult, the leader of the Chagos Refugee Group, who now lives in Mauritius, was born on the island of Peros Banhos in the archipelago.
The UK government refers to the islands as a British Indian Ocean Territory (BIOT). Between 1,500 and 2,000 native islanders were forcibly deported in the early 1970s so that the largest island, Diego Garcia, could be leased to the US to use as an airbase. They have never been allowed to return home.
By a majority of 13 to one, the ICJ, the United Nation’s highest court, found that the UK’s decolonisation of Mauritius, of which the Chagos Islands were originally a part, had not been lawfully completed. It said the islands must be handed back to Mauritius “as rapidly as possible”.
Although the ICJ’s ruling, commissioned by the UN general assembly, was only advisory, it was a damaging blow to the UK’s international standing and, it is argued, has significantly altered the legal status of the UK’s assertion of its sovereignty.
Addressing the court of appeal over a video link on Tuesday, Ben Jaffey QC, representing Hoareau, said: “She has never received compensation to any extent. No agreement was reached with Chagossians resettled in the Seychelles. If the UK is in effective control of the territory, it is required to observe human rights. There’s no difference in principle between the [status of BIOT] and that of [UK] military bases in Afghanistan or occupied Iraq.”
The European court of human rights in Strasbourg has recognised that where states are in effective control of territory, even if it is geographically outside Europe, they can be held liable for breaches of human rights.
Jaffey said: “The UK is in practical control of the territory. If Ms Hoareau wanted to exercise her rights [under the European convention of human rights] she would be arrested. The continued exclusion of Chagossians is a human rights issue, and it’s an ongoing issue rather than a historical one.”
Hoareau, who is represented by the law firm Leigh Day, and Bancoult, who is represented by the firm Clifford Chance, argue that a decision taken by the UK government in 2018 not to support resettlement of the Chagossians was unlawful. The high court dismissed their claims in February 2019.
Hoareau said last year: “For years, we have fought tirelessly to be able to return home to our islands and we will continue to do so. We have been dealt a blow today but we will fight on to try to hold the UK government to account for their shameful actions.”
The hearing continues.