The Court of Appeal (Sir Terence Etherton MR, Green and Dingemans LJJ) has today handed down judgment in conjoined appeals arising from the UK Government’s 2016 decisions: (i) not to support or permit resettlement of the British Indian Ocean Territory (BIOT); and (ii) to provide a support package of approximately £40m over 10 years for Chagossians in the communities in which they now live: R (Hoareau and Bancoult (No.5)) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1010.
Unusually, these appeals relied extensively upon matters that post-dated both the UK Government’s decisions and the Divisional Court judgment (R (Hoareau and Bancoult (No.5)) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 221 (Admin). In particular, the Appellants invoked the 25 February 2019 Advisory Opinion of the International Court of Justice on Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 and a subsequent UN General Assembly Resolution (UNGAR 73/295) adopting the ICJ’s conclusions. Relying upon those developments, the Appellants advanced ambitious arguments including that the Human Rights Act 1998 applied in the BIOT, even though the UK had made no declaration extending the scope of the ECHR to the territory under Article 56 ECHR.
The Court of Appeal dismissed the appeals on all grounds, after a careful analysis of the interplay between public international law principles, ECHR jurisprudence and domestic case law.
The ICJ Advisory Opinion and Article 56 ECHR
The Advisory Opinion and UNGAR 73/295 had to be read together, as the Opinion was not dispositive but provided legal advice for the General Assembly to consider what further steps should be taken. Both were concerned with resettlement in the context of a right to self-determination of the Mauritian people during decolonisation. However, that was not the same as the resettlement that was in issue in the domestic judicial review claims.
It did not follow from the ICJ’s conclusions on failure to complete decolonisation that all of the acts of the UK Government in connection with the foreign relations of the Chagos Islands were retrospectively deemed unlawful. It was significant that the Advisory Opinion had not said that the UK was in breach of a peremptory norm of international law. The UK had therefore been responsible for the international relations of the BIOT, for the purposes of Article 56 ECHR, and had not extended the Convention to the BIOT.
As the Article 56 regime applied to the BIOT, Article 1 jurisdiction was thereby excluded, applying the consistent reasoning of the Strasbourg Court in Quark Fishing Ltd v United Kingdom (2007) 44 EHRR SE4, and Chagos Islanders v United Kingdom (2013) 56 EHRR SE15.
Nor could customary international law give rise to an enforceable common law right of self-determination/resettlement. Customary international law would shape the common law only where it could do so consistently with, inter alia, statute law (as Lord Mance had concluded in R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs  UKSC 69). The field had been occupied by the 2004 BIOT Constitution Order, which prohibited resettlement.
Intensity of Review
The Government’s decisions did not engage any human rights and therefore did not require anxious scrutiny in the ex parte Smith  QB 517 sense. The Supreme Court had not determined in Bancoult (No.4)  UKSC 35 that any future legal challenge would be in the context of human rights for the purposes of anxious scrutiny. In any event, the existence of an important right did not mean that the courts would not recognise that certain cases involved evaluative, multi-factorial judgments, which the Executive was best placed to undertake.
The Court also rejected the Second Appellant’s argument that a public authority decision maker had to apply anxious scrutiny, or an equivalent process, to any decision in a human rights context. That would be artificial and elevate form over substance. The conclusion of Buxton LJ in WM (DRC) v Secretary of State for the Home Department  EWCA Civ 1495, that the Home Secretary was obliged to exercise anxious scrutiny, had been a function of the particular scheme in issue.
Finally, an appeal was not a rehearing and the Court would be cautious of overturning findings of fact that had been made by the Divisional Court on the basis of fuller material and more extensive submissions. It found no irrationality in the decision and did not disturb the findings of the Divisional Court.