Bancoult

• What is the background for Bancoult?

  • The Chagos Islands were a part of Mauritius which was a part of the British overseas territory
  • After WWII, the UK gave the Islands to the US for a secret discount on nuclear weapons
  • The Chagos Islands were still inhabited by slaves brought from France
• How did the UK separate the Chagos Islands from Mauritius?


  • Through a prerogative order-in-council: the British Indian Ocean Territory Order-in-Council 1965
  • In 1971, an Immigration Ordinance was passed using powers granted under the 1965 Order
• What's an Order-in-Council and what's the procedure for passing one?

  • Govt drafts a document, a meeting of the privy council incl. the monarch is called
  • The King heads the council and requires a minimum of three govt ministers
  • The clerk would read out the title of the order and the King would say approved et voila
  • Parliament is informed after it has happened and it cannot be struck down
• The Dispossession of the Chagossians

  • Diego Garcia was the specfic island for which the U.S wanted their base and was inhabited
  • In an attempt to make it uninhabited, a prerogative Order in Council was passed, buying all of the copra plantations
  • The Chagossians were then treated as migrant workers despite having lived there for years and being British citizens
  • Their existence denied and their numbers were minimised
  • The population was reduced gradually, without enforced evictions to avoid publicity
  • The last Chagossian was evicted in 1971
• What did the Courts rule on the dispossession?

  • Chagos Islanders v Attorney General (2003)
  • The ability to impose such hardships constitutes the very “essence of sovereignty”
  • Didn't find it be unlawful
• The Full and Final Settlement

  • In 1982, the UK govt offered the Chagossians a ‘full and final settlement’ and were given an English legal document to get compensation even though most of them were illiterate and didn’t speak French
  • It stipulated that they would never return to Chagos Islands
• What was the hypocrisy of the full and final settlement

  The terms of the settlement if it occurred in England and was governed by English contract law, it would be declared void on the grounds of unconscionability
• R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001]


  • In 2000, Oliver Bancoult brought a judicial review claim challenging the legality of the Immigration Ordinance 1971, issued under the authority of the BIOT Order 1965, which prevented any return by the Chagossians to their homeland
  • The islanders’ difficulty, however, remained that the BIOT had been created under the royal prerogative
  • The Divisional Court held that these powers were broad, but not broad enough to confer the power to exclude the Chagossians from their homeland
• What waa the government's response to Bancoult (2001)?

  • In 2004, two Orders in Council to this effect were issued under the Royal Prerogative on the basis that life there would be too precarious to be sustained and that a depopulated Diego Garcia remained necessary for defence purposes
  • The UK aimed to create a legal ‘firebreak’, so that the judicial review decision would not stop the continued exclusion of the islanders
• R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008]


  • A House of Lords case that challenged the legality of the 2004 Orders in Council
  • 3 Law Lords upheld its legality
  • The Human Rights ct 1998 didn't apply to the British Indian Ocean Territory
• What did Lord Hoffman say in Bancoult (No 2) (2008)?


  • Her Majesty in Council is … entitled to legislate for a colony in the interests of the United Kingdom..."
  • "...she is entitled … to prefer the interests of the United Kingdom."
• The International Court of Justice and the Chagos Islands

  • In 2019, the ICJ ruled that the separation of the Chagos Islands from Mauritius was unlawful
  • Ordered the UK to return the Chagos Islands
• The UN's Special International Maritime Court and the Chagos Islands

  • In 2021, the International Tribunal for the Law of the Sea ruled that the UK didn't have a claim to sovereignty over the Chagos Islands
  • Mauritius holds the sovereign title to the islands
• The UK Government and the Chagos Islands


  • The UK government announced in March 2023 that it was entering into discussions with the Mauritian government to return the islands and allow Chagossians to return
  • In January 2024, the UK government announced it had no intention of signing any agreement to resettle Chagossians in the Chagos Islands