Resurrected Colonial Courts and the Decolonization of the Chagos Archipelago
This post tells the fascinating story of two recent and remarkable developments in the decolonization of the Chagos Archipelago. One such development was highly publicized, the other largely overlooked. The Chagos is a group of islands in the middle of the Indian Ocean that once formed part of the former British colony of Mauritius, but now hosts a strategic US naval base under the purported administration of the UK. Despite an Advisory Opinion of the International Court of Justice, widespread UN condemnation, and mounting diplomatic pressure, the UK had continued to insist on its sovereignty over the archipelago. Last week, the governments of Mauritius and the UK issued a surprise joint statement that the two countries had reached an ‘historical political agreement’ on the exercise of sovereignty over the Chagos Archipelago. The announcement marks a momentous step towards the decolonization of the islands.
But the announcement also jars with a recent and largely overlooked development on the territory that has been proceeding in the background: the resurrection of its colonial courts. Running in counterpoint to the international plane, a once inactive colonial judiciary established as an administrative pretence has recently begun to hear cases, and in doing so set the administration of justice in conflict with the US military. This conflict and its consequences are thrown into sharp focus by the dismal and deteriorating condition of a group of Tamil asylum seekers currently held on the archipelago and trying to litigate their way out. So, what does the agreement say? How does this relate to the strange resurrection of colonial courts on the territory? And what does this mean for the administration of justice and decolonization in the Chagos?
The Chagos Agreement
Last week’s agreement purports to bring to a close the decolonization of Mauritius by remedying the UK’s unlawful retention of control over the Chagos Archipelago. In 1965, in the dusk of empire and the dawn of Mauritian independence, the UK detached the islands from the territory of Mauritius and purported to create a new colony, the British Indian Ocean Territory (BIOT). The express purpose was to provide the US with a setting for a strategic naval base on one of the islands, Diego Garcia. To do so, the UK Foreign Office took the extraordinary decision to forcibly remove the entire population of Chagossians that had lived and worked on the archipelago for generations. In the space of a few short years, the Chagossians were systematically rounded up, bullied off their homes, and shipped in unthinkable conditions over 2,000 kilometres away to Port Louis, where they were left with no money, no work, no homes, no belongings. Some stayed in Mauritius, others ended up in the Seychelles, others still have made their way over to a small diaspora in Crawley, near Gatwick Airport.
In 2019, the International Court of Justice found in a landmark advisory opinion that the process of decolonization of Mauritius was not lawfully completed, and that the UK is under an obligation to bring to an end its administration of the Chagos as rapidly as possible. The UK’s response was to fall back on the position that the opinion was not legally binding.
Last week’s agreement would seem to signal an end to the UK’s intransigence. According to the joint statement, the UK ‘will agree that Mauritius is sovereign over the Chagos Archipelago, including Diego Garcia’. Mauritius will be ‘free to implement a programme of resettlement’ and the UK ‘will capitalise a new trust fund, as well as separately provide other support, for the benefit of Chagossians’. At the same time, both countries are ‘committed’ to ‘the need to ensure the long-term, secure and effective operation of the existing base on Diego Garcia’. To this end, the UK ‘will be authorised to exercise with respect to Diego Garcia the sovereign rights and authorities of Mauritius required to ensure the continued operation of the base’ for ‘an initial period of 99 years’. The precise terms of this political agreement remain to be formulated in a treaty. But as we note the ominous implication in ‘initial period’ that this arrangement may extend beyond 99 years, we may wonder exactly which sovereign rights and authorities will continue to be exercised by the UK, and what this means for the administration of justice on the territory.
The BIOT Judiciary
As a matter of English law, the BIOT, like the thirteen other British Overseas Territories, is constitutionally separate from the UK. It has its own constitution and administration, at the head of which sits the BIOT Commissioner, who carries out the functions of both government and lawmaking. Historically, the Commissioner has been drawn from the senior ranks of the Foreign Office, and the present Commissioner is no exception. He is assisted in his duties by a Deputy Commissioner, an Administrator, and at present some fifteen other civil servants. Whether the legal status of this administration in respect of Diego Garcia will be affected by the new agreement remains unclear. But as a matter of practice, it seems likely that it will continue largely unchanged, given that a great deal of its work concerns the administration of the US naval base.
Initially, the BIOT had no judiciary: jurisdiction lay instead to the courts of the Seychelles. It was only in 1976 that a BIOT judiciary was created, including a Magistrates Court, Supreme Court, and Court of Appeal with final appeals being heard, as is common colonial practice, by the Judicial Committee of the Privy Council. (It is one of the many ironies of the Chagos that the BIOT, at least nominally, had a supreme court a full three decades before the UK.)
In actual fact, the BIOT judiciary did not exist in any meaningful sense for most of its relatively short life. Until a few years ago, it was little more than a colonial facade. There was an administrative architecture, but the court never actually sat, nobody seemed to know who the judge was, there was no registry to receive claims. It is a dubious testament to the punctilious, i-dotting, t-crossing formalism of late British colonial administration that the Foreign Office went to the effort of erecting a paper judiciary for a territory intended from its conception to be administered in its entirety and without interference by the US military.
Even within the BIOT Administration itself, knowledge of the court’s history is patchy and on the basis of a request for information it would seem that the only case heard before March 2023 was a criminal trial sometime in the 1980s. In 1999, when the Chagossians turned to the UK High Courts to challenge legislation that prevented their return to the islands, the bench dismissed the Government’s argument that they would have to bring their claim in the BIOT instead. Justice Scott Baker permitted himself to observe in passing that ‘the evidence suggests that the BIOT court, in its whole existence, has only sat on three occasions. Realistically, if it sits in this case, it would not sit in BIOT, it would sit here in London’. As recently as 2017, a US attorney trying to bring a claim before the BIOT courts was left with no other option but to submit a freedom of information request to the Foreign and Commonwealth Office to ascertain the contact information for the registry.
But now, the BIOT courts seem to be assuming a more substantial form. They have a dedicated page on the BIOT Government’s website, on which the texts of two recent judgments of the BIOT Court of Appeal are published. (Previously, the website made no mention of the courts, and the judgments were only to be found on the websites of the barristers that had litigated the cases.) When the court sits, it does so in London; as it did recently at Field House Tribunal Hearing Centre off Chancery Lane, a court ordinarily concerned with asylum and immigration matters. The BIOT’s tiny but growing caseload suggests that what was once a colonial fig-leaf has now taken root as a genuine court.
The Tamil Asylum Cases
In October 2021, eighty-nine Tamil asylum seekers fleeing persecution in Sri Lanka came into rough seas somewhere in the middle of the Indian Ocean. They were rescued by British navy vessels and brought to the US naval base on Diego Garcia. There, housed in rat-infested tents, surrounded by wire fencing, and suspended in legal limbo, they have been held ever since.
When the BIOT Commissioner ordered their removal to Sri Lanka, they sought to challenge the decision before the BIOT Supreme Court. The challenge was successful but did nothing to improve their situation, and so a further application was made with a claim for habeas corpus and judicial review of their detention. A site visit by the judge and legal teams was to be conducted in July of this year, but at the eleventh hour, the US cited security concerns to block the visit. In the ensuing diplomatic stalemate, conditions have deteriorated from untenable to inhumane, with reports of numerous attempted suicides, and UK Home Secretary Yvette Cooper has come under increasing pressure to airlift the Tamils out of their misery. By way of interim relief, a number of the Tamils were granted a limited form of bail, permitting them to leave the camp. The US Government opposed the application despite not being party to the proceedings and the BIOT Commissioner appealed. The BIOT Court of Appeal dismissed the appeal (here). While the BIOT Commissioner has now recommended that the UK Government relocate all the asylum seekers as a matter of urgency, it remains for the Home Secretary to decide whether to grant them permission to enter the UK.
The press has covered this story as an American affront to the British rule of law. Tessa Gregory, a partner at the firm Leigh Day, was cited as saying that it is unacceptable that ‘the British Indian Ocean Territory supreme court has been prevented from sitting in its own territory on Crown land’ (here). Given the Chagos Advisory Opinion, the choice of words is unfortunate and has in any event been overtaken by last week’s agreement. But the point it raises stands. The odd administrative arrangements between the UK and the US that governed the effective control over the territory pose a clear obstacle to the administration of justice. In respect of Diego Garcia, last week’s agreement would not seem to substantively change these arrangements. Whether administered by the UK as purported Crown land, or by the UK as Mauritian sovereign territory, the fact remains that US ‘security concerns’ form the real basis of the terms of administration and can intercede to interrupt judicial proceedings.
The other side of this concerns the relationship between the UK and Mauritius. The BIOT court is a colonial court. It was created by a colonial administration, to administer justice in a colonial territory, within the bounds of the constitutional arrangements prescribed by English colonial law. We can only hope that the BIOT courts will ultimately deliver justice for the Tamils. But we might also pause to wonder why their challenge is not being heard by the UK High Courts. The BIOT Commissioner is a civil servant of the Foreign Office like any other. It is only by a dated and colonial custom of English constitutional practice that he is deemed to govern in right of the BIOT rather than the UK government. In reality, the decisions affecting the Tamils and the laws on which they are based are made in Whitehall and should be subject to judicial review by UK courts in the ordinary manner until such a time as Mauritius can exercise full sovereignty over Diego Garcia. It may be that from the Mauritian perspective it is immaterial whether the UK exercises jurisdiction directly through its own courts or indirectly through the BIOT judiciary: in an ideal world, the entire territory would be subject to the jurisdiction of the Mauritian courts. But to maintain the BIOT judiciary is to give credence to a colonial creature summoned up in the dying days of empire to legitimise a colonial policy that has been deemed unlawful by the principle judicial organ of the United Nations. In doing so, it perpetuates the unlawful colonial construction of a separate sovereign entity called the ‘BIOT’, rather than acknowledging the reality that effective executive control lies with the UK.
Last week’s agreement remains a coup for Mauritian diplomacy and a remarkable reminder of what international legal projects can achieve. Unavoidable compromise should not detract from our recognition of this. But the agreement to Mauritian sovereignty has not come cheap. The UK exercise of Mauritian sovereignty in respect of Diego Garcia, and the consequent extension of UK jurisdiction, is a high price to pay. The political cost is borne by Mauritian sovereignty. The human cost for now is borne for now by the Tamils. The Tamils, like the Chagossians, are the victims of the messy coincidence of waning British and waxing American imperialism. The Tamils find themselves legally bound to the very islands from which the Chagossians were legally barred. Both have been shipped and dumped by British boats. And both have had no other option but to turn to the English law for relief. That the administration of justice on the Chagos should continue through the BIOT judiciary poses a serious problem for the territory in the future, both in practice and on principle.
