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LAW, DOMINION, and EMPIRE in the CHAGOS LITIGATION* TT Arvind†

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LAW, DOMINION, and EMPIRE in the CHAGOS LITIGATION* TT Arvind† THE SUBJECT AS A CIVIC GHOST: LAW, DOMINION, AND EMPIRE IN THE CHAGOS LITIGATION* TT Arvind† Abstract This essay examines the judicial dismissals of the Chagossians’ attempts to challenge their forced exile on constitutional principles and on human rights grounds. Although the decisions present formalist justification, in neither case did the law require the decision that the courts reached. The decisions represent, instead, another step in an ongoing shift in the way relations between individuals and states are conceptualised. At the heart of this shift lies the representation of the state as pursuing irreducibly complex purposes and, hence, of being infinitely vulnerable to disruption by the actions of individuals. The common good of the polity, in such a conception, is understood as requiring and justifying the subordination of individuals and groups to those systemic interests. The conferral of rights accordingly becomes a privilege of citizenship, to be withheld at the state’s discretion from particular classes of its subjects. In the Chagos litigation, these trends operated in a particularly extreme way, transforming the Chagossians into ‘civic ghosts’: subjects of the law deprived of key ingredients of civic personality. The result of the judicial acceptance of such a status, I argue, is the banalisation of both constitutional law and human rights law, and their withdrawal from a central component of the role they claim to occupy in the post-war constitutional state. INTRODUCTION: CONSTITUTIONS AND RIGHTLESSNESS In legal thought, constitutions are typically seen as sources of legal rights, which protect basic personal interests and secure certain minimum safeguards to all members of a polity. But constitutions, throughout history, have also served the opposite purpose: of instituting and legitimising states of rightlessness where constitutional principles and structures work not to confer the members of a polity * An earlier version of this chapter was presented at Chagos Litigation: A Socio-Legal Dialogue, a conference held at the University of Greenwich on 29 June 2015. I am grateful to participants at the conference for their comments on the paper. I am also grateful to Colin Murray and Tom Frost for giving me access to documents they discovered in the course of archival research, and to Hélène Tyrrell and Lindsay Stirton for offering comments and suggestions at various stages in the development of this chapter’s argument. † Newcastle Law School, Newcastle University 1 with rights but to deprive them of the protection of law. Constitutions in this role simultaneously empower the governing power to act with partial or total disregard for their subjects’ interests and turn those subjects into mere civic ghosts,1 powerless to politically or legally alter their state of rightlessness. Legal history provides us with several examples of constitutional principles whose primary purpose was the institution of a state of rightlessness, ranging from the atimia of the classical Greek world in which individuals faced a complete civil death, in effect ceasing to exist as legal persons in the eyes of the state,2 to the ‘political theology’ of Carl Schmitt,3 and the modern phenomenon which Thomas Nagel has vividly described as ‘ruthlessness in public life’.4 A key issue for the critical study of a constitutional system is, accordingly, considering not just the basis of the rights which that constitution confers, but also the basis on which, and circumstances in which, it places individuals and groups in a state of rightlessness. The Chagos cases5 provide a particularly vivid illustration of the role which states of rightlessness play within constitutional law, and the consequences of their invocation. The governmental interest at stake in the cases was on its face a strong one. The expulsion was justified as being necessary to pursue defence interests which were said to be intimately linked to national security and the transatlantic alliance. This has a particularly strong resonance in the context of the cold war and the shifts in military capabilities brought about by the end of empire. Yet the extent of the harm wrought upon the population of the islands – forcible displacement and exile from their homeland, and reduction to penury – was also extraordinarily severe, and arguably without precedent in relation to a people as vulnerable to government action as the Chagossians were. The effect of placing the Chagossians in a state of rightlessness was to render them voiceless in the processes through which their fate was determined: the government took no account of their interests in making its decision, nor was it subject to legislative constraints on its decision- 1 The phrase is adapted from Edward Peters’ work on the loss of civil status in mediaeval law – a condition he described as becoming a ‘civil ghost’. See E Peters, ‘Wounded Names: the Medieval Doctrine of Infamy’ in EB King and SJ Ridyard (eds), Law in Medieval Life and Thought (Sewanee 1990). 2 For an overview, see B Manville, ‘Solon’s law of stasis and Atimia in Archaic Athens’ (1980) 110 Transactions of the American Philological Association 213-221. 3 C Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (G Schwab trans, University of Chicago Press, 1985 [1922]). 4 T Nagel, ‘Ruthlessness in Public Life’ in S Hampshire (ed), Public and Private Morality (Cambridge University Press 1978). 55 This chapter focuses on three strands of the Chagos litigation: (a) the private law action seeking compensation (Chagos Islanders v The Attorney General and Her Majesty’s British Indian Ocean Territory Commissioner [2003] EWHC 2222 (QB) and [2004] EWCA Civ 997), (b) the public law challenge to the validity of the British Indian Ocean Territory (Constitution) Order 2004 (including the initial decision of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2009] AC 453 and the decision of the Supreme Court on the subsequent application to set aside the House of Lords’ decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35, [2016] 3 WLR 157), and (c) the human rights litigation brought before the European Court of Human Rights (Chagos Islanders v United Kingdom (2013) 56 EHHR SE15). 2 making power.6 Equally, placing the Chagossians in a state of rightlessness enabled the United Kingdom to disclaim any responsibility for the welfare of the Chagossians after their expulsion, as well as any obligation to play a role in establishing a proper scheme of rehabilitation and resettlement for the displaced islanders,7 despite the government’s acknowledgment that the Chagossians were British subjects at the time of their expulsion, and had a continuing right to claim citizenship.8 The aim of this chapter is to examine how and why the UK’s judiciary came to accept that the constitution placed the Chagossians in such an extreme position of rightlessness. Much of the commentary around the cases has taken the view that the cases present a contrast between two understandings of the constitution.9 The purpose of this chapter is to examine in more detail the specific understanding of the constitution underlying the decisions in the public law and private law cases brought by the Chagossians in the UK’s courts, and the doctrinal devices it deployed in order to create and justify placing the Chagossians in a state of rightlessness. As this chapter will show, three theoretical and doctrinal elements lie at the heart of the understanding of the constitution seen in the Chagos cases. The first is an account of the relationship between the citizen and the state which diminishes the importance of rights (and, for that matter, of ordinary legal conceptions of wrongs) in determining the bounds of state power over the individual. The second is a fragmentation of responsibility, where the law places the focus on judging the legality of individual actions taken at individual moments, rather than on judging the state’s actions in relation to a particular group as a whole and over time. The third is a general retreat of the law away from the post-war idea of a core of inviolable fundamental rights, towards a new understanding where the state is free to act in disregard of the rights of individuals, unless specifically restrained by a rule of positive law. Underlying these is a legal representation of the state as a complex system, pursuing irreducibly complex purposes and, hence, of being infinitely vulnerable to disruption by the actions of individuals. The common good of the polity, in such a conception, is understood as requiring and justifying the subordination of individuals and groups to those systemic interests. The conferral of rights accordingly becomes a privilege of citizenship, to be withheld at the state’s discretion from particular classes of its subjects. As this chapter will show, this understanding of the constitution is not new, but has deep roots which can be traced 6 R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453. 7 This last point contrasts sharply with other displaced people, notably the Banabans, whose unsuccessful attempts to recover their homeland were the subject of Tito v Waddell (No 2) [1977] Ch 106. Unlike the Chagossians, the Banabans were resettled on a nearby island (Rabi Island) for the express (and largely successful) purpose of mitigating the effects of their displacement. 8 See the discussion in section 2 of this chapter. 9 See eg Stuart Lakin’s contribution to this volume. 3 back to Diceyan constitutionalism. Its role in the Chagos litigation, accordingly, is not an anomalous exception, but points to fundamental conceptual limitations that are deeply entrenched in the UK’s system of public law. This chapter begins by elaborating on the contrast between the two understandings of the constitution at issue in the Chagos cases, and drawing out the implications of the understanding that ultimately informed the Chagos decisions (Section 1).
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