A post-colonial legal approach to the Chagos case and the (dis)application of land rights norms

Kinnari Bhatt

doi:10.1017/s1744552318000095

Abstract

AbstractOne way of understanding the exile of the Chagos Islanders and their inability to return to their ancestral land is through a reading of the case from a perspective of post-colonial legal scholarship. Chagossians 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. Yet, the inability of those rights to be meaningfully applied has been constrained because of the post-colonial way they are legally interpreted, creating a legal vacuum in which basic fairness and substantive equality have been routinely compromised. Drawing attention to the continued legal denial of return in the context of decolonisation, ongoing colonialism and the rule of law makes sense of the legal record and explains the expulsion of the islanders despite the moral merits of return.

Highlights

1 Introduction How are we to understand the decades-long exile of the Chagos Islanders from their ancestral land? What bearing on the islanders’ ability to access justice might the international legal understanding of ‘Indigenous’ identity have on the case? That identity is based on distinctive claims to land focused on collective ownership (Kingsbury) – a unique way of life dependent on deep cultural and often spiritual connections to land and traditional rights to own, use and access their land and its natural resources1 and a related ‘view of the world characterised by a strong and often spiritual relationship with the land’ (Wiessner, 2011, p. 127)
We find in the Chagos case first-hand evidence of just how the Indigenous label might be racialised when connected to ethnicity and culture
Despite the strong merits of the case, might we understand the decades-long exile of the Chagos Islanders and their inability to return to their ancestral land? What bearing might the international legal definition of ‘Indigenous’, human rights displacement case-law on land and the English law right to abode have on the Chagos Islanders’ ability to return? the rationale for the continued denial is the subject of ongoing debate amongst practitioners and academics who remain astonished by the legal record despite the ethical and moral merits of return

Summary

Introduction

How are we to understand the decades-long exile of the Chagos Islanders from their ancestral land? What bearing on the islanders’ ability to access justice might the international legal understanding of ‘Indigenous’ identity have on the case? That identity is based on distinctive claims to land focused on collective ownership (Kingsbury) – a unique way of life dependent on deep cultural and often spiritual connections to land and traditional rights to own, use and access their land and its natural resources and a related ‘view of the world characterised by a strong and often spiritual relationship with the land’ (Wiessner, 2011, p. 127). Given that current estimates for resettlement amount to a sum potentially reaching up to half a billion pounds and on top of which could, through supporting and evolving jurisprudence, include further damages for loss of ancestral lands, the political pressure that such a legal claim provides is compelling Those arguing the case for Chagossians based on ongoing colonial narratives can point to the legal policies discussed in this paper. The legal evidence presented here illustrates how the basic applicability of potentially useful land right claims has been diluted and fragmented through examples of imperialist thinking, placing brakes on the ability of Chagossians to advance Dworkin’s (1985) and Bingham’s (2010) conception of a morally ‘thick’ rule of law that translates into recognition of the islanders’ traditional land connection, appropriate compensation and, a legal right to return. Understanding the legal processes examined in this paper might provide clues into why the Chagossian people continue their historic struggle against expulsion emanating from colonial times for legal rights to their traditional land

A history tied to land

Fragmenting the right to abode through judicial construction

Concluding remarks