In June 2004, the BIOT issued an Order stating that no person had the right of abode in the territory or the right to enter it except as authorized and repealed the previous order from 2000. The U.K. government announced that they would abandon the feasibility study at the same time. The reasons they stated were:
- “Whilst it may be feasible to resettle the islands in the short-term, the costs of maintaining long-term inhabitation are likely to be prohibitive. Even in the short-term, natural events such as periodic flooding from storms and seismic activity are likely to make life difficult for a resettled population … Human interference within the atolls, however well managed, is likely to exacerbate stress on the marine and terrestrial environment and will accelerate the effects of global warming. Thus resettlement is likely to become less feasible over time.” [¶ 23]
- “With reference to climate change the report was quoted as stating that ‘the main issue facing a resettled population on the low-lying islands will be flooding events, which are likely to increase in periodicity and intensity and will not only threaten infrastructure, but also the freshwater aquifers and agricultural production. Severe events may even threaten life.’ It also highlighted the implications on such low-lying islands of the predicted increase in global sea levels.” [¶ 24]
The 2004 Order was challenged in a London court and initially was struck down, before the Court of Appeal reversed. The Court distinguished the situation today from the 1960s and stated that “any right of abode of the islanders was purely symbolic.” [¶ 30] They saw any effort to attempt resettlement as an attempt to pressure the U.K. and BIOT to fund their activity. In other words, this was more about a right to protest than any other right which had previously been extinguished.
Summary of holding
The Court rejected the applicants’ claim for a number of reasons. For purposes of this summary, only the argument that the applicants qualified as victims under the ECHR is considered.
The applicants argued that their Article 8 right to the respect of their home related to both the initial expulsion from the islands, as well as the 2004 Order, but that these were distinct events. Essentially, the applicants argued that the 2004 Order represented a new development that had not been adequately addressed by prior settlement and litigation and therefore was not precluded.
First, the Court rejected the argument of certain applicants because those “who were not born on the islands and never had a home on the islands, can have no claim to victim status arising out of those events and their immediate aftermath.” [¶ 82] The Court did not find the applicants’ argument connecting the 2004 and initial expulsion persuasive in determining their victim status. The Court said that the recent complaint under the ECHR was born out of events between 1967 and 1973, which domestic courts had definitively settled. They agreed with those domestic courts’ recent decisions that these new efforts were meant to pressure the U.K. government into new policy rather than remedy new injuries.
The applicants tried to get around the above issue that their claims had already been settled, and that they were therefore estopped from proceeding. They argued that many of them were not a party to the earlier settlements, did not sign waivers in the settlement, or had not properly consented to or understood the earlier litigation. The Court did not find this persuasive and deferred to the substantial litigation that arose out of the 2004 Order, which already addressed the issue. The fact that only 471 of the applicants were involved in the earlier settlement did not matter. The Court relied on the U.K. court’s decisions that the proceedings were widely known at the time and that the others could have brought their claims then.
The applicants argued they were denied their Article 6 right to a fair trial because the 2004 Order invalidated the earlier decision that struck down the original 1971 Order. They also argued that the most recent litigation constituted an unjustified failure by the courts to address the merits of their compensation claims.
The Court held that the applicants should have presented this in their domestic proceedings. Notwithstanding this, nothing that occurred on the domestic level invalidated the 2004 decision, nor did that decision require the government to take any particular action. The government’s feasibility studies were not out of legal obligation and did not create any legitimate expectation that the government would aid the applicants’ return. Further, the litigation challenging the 2004 Order appropriately considered the new circumstances that would make resettlement costly and infeasible. The Court dismissed their second point because they did not find any impropriety in the domestic courts that could be construed as a denial of access to the court.
Potential takeaways for future climate migration litigation
- One notable takeaway from this case is that issue and claim preclusion can be a significant bar for any future relief when large groups of people are affected by the same circumstance, such as the Chagos Islanders. There is the argument that defendants should not be hauled into court long after an issue is settled. However, this case shows that it might incentivize a government to settle disputes early and attempt to couch any future developments as part of the same issue and therefore not distinct enough to bring future claims.
- An interesting portion of this case is quoted above, where the U.K. conducted feasibility studies into resettling the Chagos Islands. The government clearly stated that current and future impacts of climate change warranted a finding that government-aided resettlement was not feasible. This could be relevant to future climate migration cases because the inability to return to one’s country or internally relocate is generally a factor courts must consider. If the government can prohibit return to a territory based on the (anticipated) effects of climate change, it stands to reason they would have to recognize that individuals might make the same argument when migrating from areas that face similar circumstances. Further, it highlights that decisions on resettlement and return can be predicated on the likelihood of future injury.
- A distinguishing factor to the above is that there was a colonial relationship between the U.K. and the Chagos Islanders, and many of the former inhabitants of the Chagos Islands were granted U.K. citizenship in the years following the 1971 Order.
- Lastly, the court only briefly mentions the rights of future generations in this case. It did not find the argument that descendants of the islanders could allege injury when they were not born or ever lived there. However, this was in the context of discrete harm, the 1971 Order, and may not have the same bearing on a case where the injury is ongoing, aggregated, or otherwise spread out temporally.