Gordon Brown must be a happy man. Not so long ago, the British Prime minister was plagued by such unpopularity that members of his own Labour party threatened to revolt against him. The past few weeks have seen his fortunes improve markedly. Credited with having acted swiftly and decisively to prevent Britain’s financial system from collapse, the former Chancellor of the Exchequer showed the type of mettle and nous that few people suspected he possessed. Last week, another potential political maelstrom was dispelled compliments of the Law Lords. By ruling 3-2 that the Chagossians have no right to return to the archipelago from which they were expelled more than three decades ago, they averted an embarrassing showdown with Britain’s closest ally, the United States. The “special relationship” binding the two countries thus remains blissfully intact.

The appeal lodged by the Secretary of State for Foreign and Commonwealth Affairs (FCO) concerns “the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004”, which goes as follows: “(1) Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory. (2) Accordingly, no person is entitled to enter or be present in the Territory except as authorized by or under this Order or any other law for the time being in force in the Territory”. In May 2006, the High Court ruled that the Order was unlawful. A year later, its judgment was upheld by the Court of Appeal. By the thinnest of margins, the Law Lords concluded that the Order was indeed valid. It averred that the European Convention on Human Rights did not apply in this case because the archipelago is uninhabited.

According to Hervé Lassemillante, legal representative of the Comité social des Chagos, which opposes Olivier Bancoult’s (the respondent in the appeal) legal battle, the ruling is beneficial to the Mauritian government’s sovereignty claims over the archipelago. “By preventing Olivier Bancoult from returning to the islands, this judgment gives the government time to decide on a course of action”, such as going before the International Court of Justice (ICJ) in The Hague and reopening negotiations with the British government. It’s worth noting however that advisory opinions issued by the ICJ are not legally binding.

He concedes however that such an undertaking will “take a lot of time” and will involve getting the support of the United Nations’ General assembly. He also speaks of the need to address the issue in a “healthy and rational way”, as any emotional will play right into the hands of the British government. “They don’t have a written constitution. This gives them a lot of latitude.”

For his part, Robin Mardemootoo, who is part of the legal team for Olivier Bancoult’s Chagos Refugee Group (GRC), remains upbeat about the Chagossians’ prospects with regards to their right of return. He believes that the fact that the presiding judge, Lord Bingham of Cornhill, was one of the two dissenters (the other being Lord Mance), “says a lot about the case”. Within the coming month, his client will appeal against the judgment in front of the European Court of Human Rights in Strasbourg, France, which is “the last court of appeal of all European countries. In fact, he “can’t wait to go to Strasbourg”, where all the judges are “human rights specialists”.

The Chagossians’ legal team will also petition the Human Rights Council of the United Nations to ask the ICJ to issue an advisory opinion on the subjects of right of return and compensation. And, to those who argue that Olivier Bancoult’s legal battle has been detrimental to the government’s sovereignty, he responds emphatically, “Learn your subject!”. He vehemently affirms that his client’s long-running battle for redress has given Port-Louis’s stance global exposure. “The whole world now knows about the Mauritian government’s sovereignty claims. No government has been entirely free to discuss the Chagos because economic and trade issues have always clouded the debate. It’s like an employee talking to an employer.” On the other hand, Olivier Bancoult’s struggle, he says, has been unhindered by considerations such as textile and sugar quotas.

Conspiracy theorists allege that the closeness of the ruling was part of a calculated attempt to create the false impression that victory was within touching distance, when, in fact, there wasn’t a snowball’s chance in hell that the Law Lords would rule in favour of the Chagossians. A brief perusal of Lord Mance’s dissenting, and emphatically empathetic, judgment suffices to discredit such unadulterated cynicism. “Their wish for recognition of their historic connection, and on their case rights of abode, in relation to the Chagos Islands is deep-felt, longstanding and, in my view understandable. Arguments that any right of abode is symbolic, since it would be impracticable to exercise without any expensive government support to which it is accepted that there is no right and which would not be forthcoming, in my view miss the point.”


Status quo that suits all

Despite agreeing with Lord Hoffman on several points, Lord Mance could not bring himself to justify the way the royal prerogative was used in this particular case. “But enacting a constitution for a conquered or ceded colony which has the aim of depopulating the whole of a habitable territory in the interests of the United Kingdom or its allies is another matter. A colony, whether conquered, ceded, or settled, consists, first and foremost, of people living in a territory, with links to a parent state. The Crown’s ‘constituent’ power to introduce a constitution for a ceded territory is a power intended to enable the proper governance of the territory, at least among other things for the benefit of the people inhabiting it. A constitution which exiles a territory’s inhabitants is a contradiction in terms.” He also notes the significance of “the absence of any precedent for the exercise of the royal prerogative to exclude the inhabitants of a colony from the colony”.

In an interview in l’express earlier this week, the minister of Foreign affairs, Arvin Boollel denied that the ruling was good news for the Mauritian government’s sovereignty claims. Port-Louis is “studying its options” and the State Law Office is conducting an “in-depth analysis of the judgment, taking into account the geopolitical and geostrategic aspects”. He also believes that, if elected, Barack Obama , could carry out some important changes in terms of US foreign policy. It’s highly unlikely however that any US president would take the huge political risk of jeopardizing his country’s military presence in so vital a geopolitical theatre.


“The whole world now knows
about the Mauritian government’s
sovereignty claims. No government
has been entirely free to
discuss the Chagos because
economic and trade issues
have always clouded the debate.
It’s like an employee talking
to an employer.”


On the view of all this, it seems that the GRC has the biggest chance of seeing its claims vindicated. The Law Lords’ ruling might have dealt a body blow to its legal struggle, but the fact that it will have recourse to the European Court of Human Rights is cause for hope, not least because the British government would be legally obliged to obey any decision emitted by Strasbourg. As for Mauritius’s sovereignty claims, nothing is likely to change in the foreseeable future for the simple reason that the status quo suits the UK and US governments just fine. Even if the ICJ issues a critical advisory opinion against them, this will do little to dislodge the superpower from Diego Garcia. Washington has made it unequivocally clear that defence matters take precedence over all other considerations.

What makes the Chagossian’s legal battle so fascinating is that it leaves no one indifferent. Over and above the finer legal points adjudicated upon by the Law Lords, there is a human dimension to the story which never fails to stoke passions. Add to that the issue of sovereignty and the sense of patriotism it inevitably stirs, and you have a saga of epic proportions. “Better to be without logic than without feeling”, wrote Charlotte Bronte. In this particular case, the two are virtually undistinguishable.