America blocking a British judge and her team from holding a court hearing in Diego Garcia could possibly trigger a diplomatic row between the US and the UK
The United States’ (US) decision to block a British judge from holding a court hearing in Diego Garcia, which the UK considers its own territory (though on long-lease to the US for its military base since 1966) could lead to a straining of relations between the two trans-Atlantic allies, with the potential to trigger an avoidable diplomatic row. Though not covered in the news as much as the UK-Mauritius sovereignty dispute over the Chagos Archipelago, the current issue, also centred on Diego Garcia, will require equally sensitive handling by London and Washington, D.C.
The specific issue has its beginning on 3 October 2021 when a boat carrying about 60 Sri Lankan Tamils became distressed in the Indian Ocean and was rescued by the British Royal Navy and brought to the island of Diego Garcia. They have been stranded there for almost three years and some have sought legal remedies, claiming they are being unlawfully detained at Thunder Cove Camp in Diego Garcia.
British Judge Margaret Obi (Acting Judge of Diego Garcia’s Supreme Court) ordered that “a three-day hearing incorporating a site visit shall take place between 5 and 15 July 2024”. A team of lawyers, members of the press, and Judge Obi were due to fly out to Diego Garcia during the week to hold hearings on the unlawful detention claim. However, based on official communication made public in another court hearing, it has been reported that the US said it was withdrawing its consent and “would not allow participants of the hearing to board US military flights to Diego Garcia.”
Diego Garcia is the largest island in the Chagos Archipelago situated in the middle of the Indian Ocean. Historically, the Chagos Archipelago was treated as part of Mauritius under British colonial rule. However, prior to granting Mauritius independence in 1968, the UK separated the Chagos islands and renamed it the British Indian Ocean Territory (BIOT).
There is an ongoing sovereignty dispute between Mauritius and the UK over the Chagos Archipelago/BIOT. Though there is support within the UK government for the it to hand back the Chagos islands to Mauritius, as of today, the White Hall still maintains its sovereignty over the island. The Territory is administered from London, by a Commissioner, who is appointed by the British monarch.
Although Diego Garcia is part of BIOT, it alone is on lease to the US for defence purposes which began in 1966 for an initial 50-year period. In 2016, the agreement was rolled over and will now expire in 2036.
Although Diego Garcia is part of BIOT, it alone is on lease to the US for defence purposes which began in 1966 for an initial 50-year period. In 2016, the agreement was rolled over and will now expire in 2036. The military base on Diego Garcia is formally considered a joint UK-US military facility.
The Sri Lankan Tamils who are being detained on the island said they had been fleeing persecution and were trying to sail to Canada to claim asylum. Having been stranded in Diego Garcia for more than 1,000 days, some have claimed that their treatment on the island constitutes unlawful detention. Evidence from previous court hearings shows that UNHCR conducted a monitoring site visit and concluded that “the policy of holding asylum seekers on a mandatory and indefinite basis, in the absence of a clear legal framework, amounts to arbitrary detention”. The UN inspectors further identified “high levels of mental distress and significant risk of suicide and attempted suicide” within the group and said some of them required urgent relocation.
Judge Obi agreed to hold the judicial review on Diego Garcia so that the court “could conduct a fact-finding site-visit to examine whether the asylum-seekers are detained and whether other options exist on the island allowing greater freedom.” Obi considered it necessary for the hearing to happen on the island so that the asylum-seekers could also meet their legal representatives in person.
Following Judge Obi’s decision and subsequent order that a site visit was necessary, the BIOT Commissioner appealed against this in the BIOT Court of Appeal on the grounds that the “Supreme Court can fairly determine the disputed issues from written, photographic and video evidence together with the witness’ evidence”. It was argued that a site visit would add little evidential value and that in the current litigation environment, remote hearings are increasingly common and a fair hearing could be achieved remotely. Further, the costs and practical difficulties of holding court hearings in Diego Garcia were argued to be substantial.
It was argued that a site visit would add little evidential value and that in the current litigation environment, remote hearings are increasingly common and a fair hearing could be achieved remotely.
The Court of Appeal refused the BIOT Commissioner, the required special leave to appeal the original verdict, and the Judge and her team were set to conduct their site visit. However, they had to abandon the hearing after US government officials informed the BIOT Administration and the British Foreign Office that Judge Obi and her party of lawyers “would not be given transport, accommodation or food on Diego Garcia.”
From a UK perspective, it would appear that the US has blocked the BIOT Supreme Court from holding court hearings in one of its own territories. A lawyer representing some of the asylum-seekers called it “an extraordinary affront to the rule of law” and called upon David Lammy, the Foreign Secretary, to do everything in his power to ensure that the hearing goes ahead as soon as possible. A Foreign Office spokesman said: “We are working with the BIOT Administration and US authorities to enable a court hearing to go ahead in a manner that respects the unique context on Diego Garcia.”
Diego Garcia indeed presents a unique case in international relations. This adds several layers of complexity to this incident and distinctively impacts both the future possibility of a site visit and the actual lives of the Sri Lankan asylum seekers.
First, BIOT is constitutionally distinct and separate from the UK, with its own laws and administration. The constitutional arrangements for BIOT give the Commissioner power to make laws that maintain peace, order, and good governance of the territory. The Commissioner carries out the function of both government and legislature in the Territory.
The BIOT justice system is made up of a Magistrates Court, Supreme Court, Court of Appeal and final appeals going to the Judicial Committee of the Privy Council. Therefore, when the BIOT commissioner initially issued decisions that the asylum seekers could be lawfully returned to Sri Lanka, some of the group challenged this decision in the BIOT Supreme Court. The Commissioner eventually withdrew the removal orders for all other asylum seekers. It is notable that prior to 2023 the BIOT Courts very rarely heard any cases. In late 2023 and early 2024, there has been a flurry of appointments to the BIOT Courts following several cases arising from the stranding of Sri Lankan asylum seekers on Diego Garcia.
The BIOT justice system is made up of a Magistrates Court, Supreme Court, Court of Appeal and final appeals going to the Judicial Committee of the Privy Council.
Second, it is important to note that Diego Garcia is a military facility. Conceivably, it is a highly restrictive and controlled base. Responding to claims of unlawful detention, the BIOT Commissioner explained that the asylum seekers were asked “not to leave the camp for their own safety, because they were present on a military facility.” However, the BIOT Supreme Court granted bail earlier this year to the asylum seekers, allowing them to access more of the island beyond their encampment including access to the beach. This is not a tenable long-term arrangement. The Territory has had no permanent population since 1973 and the Foreign Office has said it is not a suitable location for the asylum seekers.
Third, though Diego Garcia is referred to as a Joint US-UK defence facility, the reality is that it is used and controlled by the US. A former BIOT Deputy Commissioner has stated that the UK has never run any military operations out of Diego Garcia and has no military interest in Diego Garcia. Regional experts have also pointed out that the UK has “limited presence on and practical control over Diego Garcia”. Therefore, if the US believes a site visit presents “risks to the security and effective operation” of the base (according to official documents), then it is unlikely they will relent. Unfortunately, in international relations, there is little room for manoeuvre when it comes to security concerns. Security risks tend to trump all other issues. The fact that Judge Obi’s team were travelling with members of the press would have further added to their concerns.
When it comes to the Chagos Islands, the ongoing sovereignty dispute between the UK and Mauritius and the question of the Chagossians’ right to return, the US has remained largely reticent simply stating “It is a bilateral matter for the UK and Mauritius to work out” and that they “recognise UK sovereignty over BIOT”. However, the US blocking Judge Obi and her team from entering Diego Garcia both undermines UK sovereignty and suggests that US interests are crucial to any decisions made regarding BIOT now or later in the future. Coming to the case of the Sri Lanka Asylum seekers, according to BIOT Constitution Order 2004 section 13(4)—“the court may sit in the UK”. Therefore, rather than the US reconsidering its position it is more likely, as Legal Commentator Joshua Rozenberg recommends, “the simplest and cheapest solution to this long-running problem would be to fly the asylum seekers to Britain while attempts are made to find permanent homes for them elsewhere”.
Vinitha Revi is an Independent Scholar associated with the Observer Research Foundation
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Dr. Vinitha Revi is an Independent Scholar associated with ORF-Chennai. Her PhD was in International Relations and focused on India-UK relations in the post-colonial period. ...
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