Abuse of Power
Unless you live in Great Britain or fly in B-52, B-1, or B-2 bombers, you may well have never heard of the Chagos Islands. But if you were told that the Chagos archipelago was in the Indian Ocean some 500 kilometers south of the Maldives, you might well guess that this is the group of 65 islands that includes Diego Garcia, at 44 km2 the largest island and therefore the location of the U.S. air base.
Some quick background:
In the 1960s, the Soviets were courting India and the U.S. was tied down in Vietnam. Should India fall under the Soviet’s sway, the U.S. position in the Persian Gulf would be outflanked across the Arabian Sea (neutralizing Pakistan) all the way to Africa as Washington had no reliable anchor south of the Strait of Hormuz. Coincidentally, in 1965 the UK created the British Indian Ocean Territory, bringing under one office three British dependencies.
In a secret deal between Washington and London, the UK agreed to “lease” the largest island to the U.S. and to move the 2,000 inhabitants in return for preferable pricing from the Pentagon for U.S. military equipment and parts. Although the law the UK government used as the basis of the removal of the Chagossians was not passed until 1971, the process of “cleansing” the archipelago started in 1967 and took six years.
In 2000, the original islanders and their descendants, now numbering some 5,000, won a significant victory when the High Court ruled that the 1971 act could not be used to remove an entire population from their place of abode. (The UK tried, to no avail, to convince the High Court that the inhabitants of the Chagos, because they were descendents of African slaves and Indian plantation laborers, at best had “contractual rights” to the islands, not the rights of “indigenous” or native people as do Native Hawaiians or New Zealand Maoris. Robin Cook, the Foreign Secretary when the 2000 decision from the law lords was announced, declined to appeal the decision, but in true UK fashion, called for a “feasibility study” on how to approach the resettlement question. Of note in the decision, the court ruled that Diego Garcia could not be opened for resettlement, something the islanders had not requested.
From the islanders’ perspective, the ruling both set in place the basic principle of their “right of return” and pointed to the next hurdle: who would pay for re-resettling the islanders? The logical response: the UK government. But this remedy was dealt a blow in 2003 when another High Court judge ruled against the islanders on three points: an insufficient amount of reliable evidence of what had transpired at the time of the evictions; the islanders’ lack of standing as to ownership of the land; and – most puzzling – the probability that the claim would not succeed even though the issue of their unlawful removal had effectively been settled in the 2000 case.
Grounds for an appeal proved persuasive. The Court found unpersuasive the UK government’s argument that “national security” was a sufficient justification for excluding the islanders from the entire archipelago. In an appeal to a three-judge panel of the Court of Appeals, the government relied on what is called an Order in Council under the Royal Prerogative – equivalent to a presidential finding – that no one had a “right of abode’ in the archipelago. Moreover, the court ruled that the discretionary power of the Royal Prerogative, while nominally belonging to the crown, is used by the government and thus is subject to judicial review.
The ruling further forbade the government from taking the case to the House of Lords. However, the government may appeal directly to the highest legal authority – the law lords – the equivalent of the U.S. Supreme Court.