Information Note on the Court’s case-law No. 158
December 2012
Chagos Islanders v. the United Kingdom (dec.) - 35622/04
Decision 11.12.2012 [Section IV]
Article 34
Victim
Loss of victim status following settlement in widely publicised proceedings: inadmissible
Facts – The applicants, several thousand former inhabitants, or descendants of such, of the Chagos Islands, in what is now known as British Indian Ocean Territory (BIOT), were effectively expelled from or barred from returning to their homes between 1967 and 1973 by the United Kingdom Government to facilitate the construction of a military base on Diego Garcia operated by the USA. Some islanders were prevented from returning after visits elsewhere while others were transferred to Mauritius and the Seychelles. No force was used but the islanders were told that the company which owned the coconut plantations where they worked was closing down and that, unless they accepted transportation elsewhere, they would be left without supplies. The islanders suffered miserable conditions on being uprooted, having lost their homes and livelihoods.
Three immigration ordinances were enacted, prohibiting the islanders’ return. The first in April 1971 made it unlawful, and a criminal offence, for anyone to enter or remain in the BIOT islands without a permit. The second in 2000 mainly repeated the provisions of the 1971 ordinance but contained a new section lifting the bar – except entry to Diego Garcia which remained subject to permit – as concerned British Dependent Territories Citizens (that is, the Chagos islanders) by virtue of their connection with BIOT. This ordinance was then repealed in 2004, and anyone without a permit from the immigration officer was prohibited from entering the territory. During the four years when the bar was lifted, a few of the islanders made visits to the outer islands to tend family graves and or see former homes, but none actually went to live there.
A number of proceedings were brought by the islanders concerning the expulsion and the damage that this inflicted on their lives. The first set were brought in 1975 (the Ventacassen case) which were settled in 1982 on payment of 4,000,000 pounds sterling (GBP) by the United Kingdom and provision of land worth GBP 1,000,000. In settling, the islanders agreed to give up their claims. In the later Chagos Islanders case (involving 4,466 claimants), the High Court struck out the action in October 2003, finding that an attempt to claim further compensation and make further claims arising out of the expulsion and exclusion from the islands was an abuse since the claims had been renounced by the islanders. The most recent proceedings (Bancoult 2 case) involved an unsuccessful challenge by the applicants by way of judicial review of legislative measures imposing immigration control on the islands which barred entry without leave. In rejecting that claim, the House of Lords held that in the context of the present day, rather than 1968, any right of abode on the outer islands was purely symbolic, none of the islanders having gone to live on the islands in the four-year period when this had been permitted under the ordinance then in force.
Law – Article 34 (victim status): The Court reiterated that where applicants accept a sum of compensation in settlement of civil claims and renounce further use of local remedies, they will generally no longer be able to claim to be a victim in respect of those matters. Having accepted and received compensation in the Ventacassen litigation and thus having effectively renounced bringing any further claims, the applicants could no longer claim to be victims of a violation of the Convention. The islanders could have pursued their claims and obtained the domestic courts’ findings as to whether the expulsion and exclusion from their homes had been unlawful and breached their rights. They chose, however, to settle their claims without obtaining such a determination. It was not for the Court, in that event, to undertake the role of a first-instance tribunal of fact and law.
The argument that not all the applicants had signed the waiver forms in the settlement or had not realised that the settlement was final was rejected. In the Chagos Islanders case the High Court judge had rejected those arguments after having heard extensive evidence and, in any case, the islanders had been represented by lawyers in the litigation which settled. Furthermore, any other islanders – not part of the 471 islanders involved in the settlement – had to have been aware of the proceedings, which were widely known, and could have made claims and thus taken advantage of the settlement offer put forward or, if they preferred, pursued their claims in the domestic court proceedings. Those applicants who were not party to the proceedings but who could at the relevant time have brought their claims before the domestic courts had failed to exhaust domestic remedies.
As to the applicants who were not born at the time of the settlement, they had never had a home on the islands and could therefore have no claim to victim status arising out of the expulsions and their immediate aftermath.
As regards the prohibition on the applicants’ return to the islands imposed by the 2004 ordinance, the House of Lords had held that in the context of the present day, rather than 1968, any right of abode on the outer islands was purely symbolic, none of the islanders having gone to live there in the four year period when this had been permitted under the previous ordinance. While it remained open to the applicants to apply for permits for transient visits, there was no prospect of their being able to live on the islands in the foreseeable future without funding which the Government were not willing to provide and which was not likely to be forthcoming from any other source. In these circumstances, the 2004 ordinance could not be said to have amounted to an interference with the applicants’ right to respect for their homes.
Recent events did not disclose any developments relevant to the applicants’ victim status. The heart of the applicants’ claims under the Convention was the callous and shameful treatment which they or their antecedents had suffered during their original removal from the islands from 1967 to 1973. Those claims had been raised in the domestic courts and settled definitively. The applicants’ attempts to pursue matters further in more recent years had to be regarded as part of an overall campaign to bring pressure to bear on Government policy rather than disclosing any new situation giving rise to fresh claims under the Convention.
Conclusion: inadmissible (absence of victim status).
Article 35 § 3 (compatibility ratione loci): The United Kingdom had at no time made a declaration extending the right of individual petition to BIOT. The fact that many of the applicants now lived within the United Kingdom did not bring their complaints within the Court’s competence either and, as an overseas Crown territory, BIOT could not be regarded as part of metropolitan United Kingdom. Nor did the fact that the ultimate decision-making authority lay with politicians or officials within the United Kingdom constitute a sufficient ground on which to base competence under the Convention for an area otherwise outside the Convention space.* In so far as the applicants complained of the decisions of the United Kingdom domestic courts under Article 6, the Court’s examination would be limited to the procedural rights guaranteed under that provision.
As to the applicants’ contention that the United Kingdom had jurisdiction over BIOT under Article 1 of the Convention under the doctrine of extraterritorial responsibility, the Court could not agree that any possible basis of jurisdiction under Article 1 as set out in the Al-Skeini judgment had to take precedence over Article 56 of the Convention on the grounds that that provision should be set aside as an objectionable colonial relic and to prevent a vacuum in protection offered by the Convention: the meaning of Article 56 was plain on its face and could not be ignored merely because of a perceived need to right an injustice. It remained in force and could not be abrogated at will by the Court in order to reach a purportedly desirable result. As to whether, in the light of Al-Skeini, jurisdiction could be founded on “State agent authority and control” or “effective control” even where a Contracting State had not made a declaration extending application of the Convention to the overseas territory in issue, the Court noted that such an interpretation would render Article 56 largely purposeless and devoid of content. However, it was unnecessary to decide that point in view of the Court’s finding that the applicants did not, in any event, have victim status (see above).
Conclusion: unnecessary to decide.
Article 6 (access to court and fair trial issues): The Court perceived no appearance of the applicants’ having been deprived of the benefit of a final, enforceable decision and no indication of arbitrariness or unfairness in the proceedings before the national courts which could be construed as a denial of access to court.
Conclusion: inadmissible (manifestly ill-founded).
(See Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, 7 July 2011, Information Note no. 143)
* See Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, 12 December 2001; and Quark Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, 19 September 2006, Information Note no. 89.
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This summary by the Registry does not bind the Court.
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