European Court of Human Rights

Clifford Chance LLP and SPEAK, have filed a petition at the European Court of Human Rights (ECHR), claiming for their right to return to their islands and for compensatory damages for the prejudice suffered.

The Chagossian people have petitioned the European Court of Human Rights (“ECtHR”) on the basis that their treatment from 1965 to date by the Government of the United Kingdom constitutes violations of Articles 3, 6, 8 and 13 of the European Convention of Human Rights (“ECHR”).

Essentially, it is claimed that the forcible removal of the Chagossians from their homeland, is a violation of multiple articles of the European Convention on Human Rights. The Chagossians have asserted that as they are subject to the UK’s administrative, legislative and judicial control of the islands and, coupled with the fact that they were physically present on the BIOT territory at the time of deportation, they are therefore within the jurisdictions rationae personae and rationae loci of the Court. SPEAK contended that the treatment inflicted on the Chagossians cumulatively constitute inhuman and degrading treatment and amount to a violation of their moral and physical integrity.

Moreover, the failure of the United Kingdom to enforce the 2004 judgment rendered by the British High Court restoring their right to return has, in effect, breached the Chagossians’ right to a fair trial. Consequently, it is submitted that the Chagossians are entitled to reparation as well as to restoration of their right to return.

On the 20th of December 2012, the ECHR declared the Chagos Islanders’ application inadmissible. The Court in effect ruled that the European Convention on Human Rights have not been extended to British Indian Ocean Territory (BIOT). Moreover, the Court stated that regardless of the fact the convention was applicable to the Chagos Archipelago while Mauritius was still a British Colony, the right for individual was never given and therefore the applicants would not have been eligible to bring a claim in any case.

Lastly, the Court further contended that jurisdictional competence is primarily territorial and that only exceptional circumstances give rise to exercise of jurisdiction by a State outside its own territorial boundaries and that is a question of fact. The Court stated that there only 2 exceptions to territoriality and these are ‘State agent authority and control’ and ‘effective control over an area.’

While the ‘state agent authority and control’ criterion was irrelevant, the Court stated that the present scenario does not meet the threshold of an ‘effective control over an area’. Furthermore the Court stated that the applicants have lost its victims status due to settlement reached during the Vencatassen litigation despite the fact that the applicants accurately highlighted that only 471 Chagossians were involved in the settlement. According to the Court in accepting and receiving compensation, those applicants have in effect renounced further use of these remedies. The Court stated that insofar as those who have never obtained compensations and were not party to the proceedings of the Vencatassen litigation, have failed to exhaust domestic remedies and as they did not bring claims at the relevant time.