Denial of justice: the latest indigenous land disputes before the European Court of Human Rights and the need for an expansive interpretation of Protocol 1.

Author:Gismondi, Giovanna
Position::III. The Latest European Court of Human Rights' Rulings on Indigenous Land Rights A. Hingitaq 53 and Others v. Denmark (2006
 
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d. Alternative International Mechanism of Protection

Denmark became a party to the ICCPR and its Optional Protocol in 1972, (144) almost twenty years after the relocation of the Inughit to Qaanaaq in 1953. In principle, therefore, the HRC lacks temporal jurisdiction to review the issue of expropriation, for the views of the HRC indicate that deprivation of property is an "instantaneous act." (145). However, like the European Court, the HRC has, in some instances, investigated seizures of property that occurred before the ICCPR and its Optional Protocol entered into force. The HRC exerts temporal jurisdiction in such cases after verifying the connection with a subsequent alleged breach, which must take place after the treaties entered into force. (146) Furthermore, even though the HRC does not protect the right to property, it can investigate issues of expropriation to the extent that the expropriation is linked to rights protected by the ICCPR. Therefore, because the Inughuit have claimed violation of the right to an effective remedy and fair trial in the context of the judicial proceedings that led to the expropriation, the HRC could have exerted its jurisdiction ratione temporis. (147) A critical aspect to consider, however, is that NGOs are not accorded victim status before the HRC. Therefore, Hingitaq 53 as an organization could not have relied on the system of protection afforded under the ICCPR. Thus, the Strasbourg Court was the only means of redress available to Hingitaq 53.

The traditional way of life of the surviving Inughuit continues to be threatened by the loss of their lands and access to natural resources. Without connection with their ancestral lands, there is little hope of survival for these communities in Greenland. A few months after the Inughuit lodged their application, 1,786 Chagossians followed with a claim against the UK. After eight years of handling the case, the European Court dismissed this application as well.

  1. Chagos Islanders v. the United Kingdom (2012)

    1. The Chagos Islanders Overview

      The Chagossians (or Ilois) are the native inhabitants of the Chagos Islands, an archipelago located in the Indian Ocean. They are indigenous peoples of African, Malagasi, and Indian origin who were brought to the Chagos by investors to work as slaves on plantations. They settled for nearly two hundred years and developed their own distinct society. They speak Chagos Creole. (148) During the 1920s, after slavery was abolished, most Chagossians began working under contract at coconut plantations dedicated mainly to the production of copra oil. They traded with companies in Mauritius and the Seychelles.

      Formerly under French domination, the UK administered the Chagos Islands as part of the colony of Mauritius beginning in 1814. In 1965, the Chagos Islands were separated from Mauritius to form a new British colony, which was officially known as the British Indian Ocean Territory (BIOT). The present case arose as a result of measures taken by the UK in the Chagos Islands.

    2. Facts of the Case

      Beginning in the 1960s, the UK and the U.S. organized a lease for Diego Garcia, the largest of the Chagos Islands on which native indigenous people lived. The parties agreed that the U.S. would establish defense facilities on the island. Under the agreement, all native inhabitants would be transferred or resettled. By the Order of 1965, the Chagos Islands became part of the BIOT to be administered by the BIOT Commissioner. Between 1967 and 1973, the islands were evacuated. The Chagossians were removed and their homes destroyed. (149)

      In 1971, the BIOT Commissioner passed an immigration ordinance that made it unlawful for anyone to enter or remain in the BIOT without a permit. (150) Eleven years after the Ordinance was passed, the Chagossians received compensation for the eviction. Most Chagossians had been relocated to Mauritius, and some to the Seychelles. After reaching a settlement with the Mauritian government and Chagossian representatives, the UK agreed to pay four million British Pounds to the Mauritian government. Part of the settlement was allocated to pay for housing for the Chagossians; the other part, however, was handed over to the people themselves. By receiving compensation, the Chagossians agreed to renounce the right to make further legal claims. (151) The Chagossians contended later on that the settlement was intended to pay for all damages resulting from their sudden departure, transfer, and resettlement in Mauritius, but excluded compensation for immaterial damages. (152) The UK also granted citizenship to some 1,000 Chagossians, allowing for resettlement in the UK. (153)

      In 1998, Olivier Bancoult, a native Chagossian, brought a case in London challenging the legality of the 1971 Ordinance. In 2000, the Divisional Court issued the Bancoult 1 ruling, which overturned the 1971 Ordinance. The court found that the power of the BIOT Commissioner to legislate did not include authority to remove populations. The Bancoult 1 decision was undoubtedly perceived as a victory for the Chagossians, and opened the possibility to return to the BIOT. The immigration ban was consequently lifted on all of the islands, except Diego Garcia, on which the U.S. had already established its military base. (154)

      In 2002, 4,466 Chagossians sought to secure more compensation and to return to Diego Garcia. They sought damages on the grounds that the eviction was illegal, particularly after the ruling in Bancoult 1 and the continued denial of the Chagossians' right to return to the BIOT. They also stated that this action was an attempt to secure the funds to make resettlement in the BIOT viable because the UK government was not likely to pay for it. (155) However, the claim was struck down by a UK Court, citing previous compensation. The appeal attempt was also denied. After plans for an unauthorized landing on Diego Garcia were discovered, the government adopted the BIOT 2004 Order, which stated that "no person had the right of abode in the territory or the right to enter it except as authorised," (156) thus leaving the Bancoult 1 judgment without effect. After subsequent appeals, the House of Lords upheld the 2004 Order in a 3-2 decision that reestablished the immigration ban to the BIOT. In reaching this decision, the House of Lords concluded that there was no violation of the Chagossians 1 "legitimate expectation" to return to Diego Garcia, since resettlement was not a viable option without funding, and the UK government had no legal obligation to pay for it. In addition, the "feasibility study" indicated that life in the BIOT was almost impracticable. (157) Furthermore, the Human Rights Act, which implements the ECHR and Protocols into UK law, was found not to be applicable in the BIOT as no declaration was made by the UK government extending the European instruments to said territories. Ultimately, the Order was deemed justified based on "the defense and diplomatic interest of the state." (158)

    3. Analysis of the Issue Before the European Court of Human Rights

      a. Requirements of Admissibility

      After exhausting domestic remedies, the Chagossians pursued their grievances before the European Court of Human Rights. Applicants sought to establish their right to return to the Chagos Islands, and alleged that forced removal from their lands violated their right to peaceful enjoyment of possessions under Protocol 1. Additionally, they claimed that their rights to be free from inhumane treatment and of respect for private and family life, among others, had been violated. (159) The ECHR entered into force for the UK in 1953 and Protocol 1 in 1954; thus, these instruments were in force at the time of the eviction. (160) The two relevant issues in the Court's preliminary assessment were (1) whether the European Court could exert its jurisdiction ratione loci in reference to the acts that took place in the BIOT, and (2) the victim status of the applicants.

      i. The European Court's Jurisdiction ratione loci and its Application to the Instant Case

      The power of the European Court to investigate alleged violations of human rights by the contracting parties is not unlimited. The application of the European instruments under the supervision of the European Court has territorial limits. The power of the Court to investigate alleged violations that take place within the state's national borders is not disputed. Two provisions of the ECHR clarify the issue of its territorial application, more specifically, Article 56 (colonial clause) and Article 1 (jurisdiction clause). Both of them provide grounds for application of the European instruments to the territories. (161)

      Article 56 of the ECHR applies to former colonial territories, referred to as "dependent territories." (162) This provision establishes the conditions under which dependent territories, such as the BIOT, fall under the jurisdiction of the contracting states for purposes of conventional obligations. Particularly, the contracting state must make a formal declaration to extend the Convention into territory "for whose international relations ... [the state] is responsible." Protocol 1 contains a similar requirement. (163) That means that the contracting states are given the option to include or exclude dependent territories from treaty protection. Together with a formal declaration, states must accept the system of petition to enable individuals to institute legal proceedings before the European Court. In the Chagos Islanders case, the Court noted that the UK had issued a declaration under Article 56, extending the protection of the ECHR to the colony of Mauritius, which at the time included the Chagos Islands. Nevertheless, this declaration automatically expired for the Chagos Islands in 1965 when it was detached from Mauritius to form a new colony. (164) More importantly, no declaration was ever issued to extend Protocol 1 to such territories. (165) Absent a formal...

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