The Chagos case and the (dis)application of land rights norms
The rule of law and human rights are core normative ideas for law, yet their intrinsic value and application is contested. Some have argued that the human rights movement is on a regressive path, as it has long ignored economic considerations bearing on rights implementation, frequently leaving the most vulnerable without voice and lacking prospects of securing access to justice. One of the reasons that rule of law and human rights are so easily relegated is the routine sacrifice of those norms by powerful actors to narratives of development, private property and modernity. Thinkers from post-colonial genres would call these narratives imperial in nature as they continue practices of control which privilege neoliberal economic interest by forwarding benefits of development, private property and modernity. My recent article, published Gold Open Access in the International Journal of Law in Context, presents a timely and human focused case study of the Chagos islanders that demonstrates executive and judicial support for this trend of rule of law and human rights regression to economic development and imperialism.
Following the 2012 judgement of the European Court of Human Rights, in 2016 the UK Supreme Court rejected the ongoing requests of a group of indigenous peoples from the Chagos Islands near Mauritius, to return to their ancestral home. This disappointment continued their decades-long exile in the UK which started after their forced eviction in 1965 by the UK government to make way for the creation of a US military base. The rationale for this continued denial has been the subject of much debate amongst practitioners, activists and academics who remain astonished by the legal record despite the ethical and moral merits of return. So far, understanding the rationale for the continued physical and legal exile of the islanders has not been read through a post-colonial lens making this article’s approach novel. As the case is currently sitting with the International Court of Justice where it will likely review the case from a decolonization lens the post-colonial angle of this article is exciting.
My article argues that Chaggossians have strong legal rights to land and remedies of compensation and return through a purposive application of the international legal definition of Indigenous, Magna Carta right to abode and international human rights law that could address their dispossession. Failure to implement those rights is seen through legal and executive dialogue that shows favour with economic narratives that work to subjugate indigenous Chagossians right to return to their traditional lands to state power to use land for more ‘effective’ military and development needs. One novel argument made is of a new trend of deploying environmental protection language as a contemporary development paradigm through which the UK government, with legal support, has prevented return. It concludes with a call for academics and practitioners to think bravely about using legal concepts like Indigenous status in wider transnational social settings of marginalization and eviction when faced with economic power, as a means to push for better rights protection for peoples threatened with developmental expulsions.
Kinnari Bhatt is a postdoctoral researcher on the research project ‘integrating normative and functional approaches to the rule of law and human rights’ (INFAR) at Erasmus University Rotterdam. Her article “A post-colonial legal approach to the Chagos case and the (dis)application of land rights norms” from International Journal of Law in Context is now available online.