The BIOT: A judicial vacuum now consuming Tamil refugees

Samuel Bashfield

In October 2021, a group of 89 Tamil asylum seekers hoping to claim asylum in Canada was intercepted while traversing the Indian Ocean and brought to a joint UK-US military facility on Diego Garcia, the only inhabited island in the Chagos Archipelago, otherwise known as the British Indian Ocean Territory (BIOT). Nine months on – and after 30 other arrivals this April – these people are still stuck on the remote Indian Ocean atoll, and dozens have begun a hunger strike.

Despite supposedly landing on a British Overseas Territory, these asylum seekers have no clarity about their future, because, in legal terms, the BIOT is a “grey hole”, likened by one academic to Britain’s own Guantánamo. Simply put, a range of international treaties do not apply to this territory, which allows British and American authorities to keep them in limbo.

Diego Garcia, the remote island these Tamil asylum seekers currently inhabit, was once part of Britain’s colony of Mauritius. As Britain’s influence in the international arena started to dwindle after the second world war, it adopted a strategy of gaining leverage by allowing the new rising hegemonic power, the United States, to use its colonial possessions as military bases. In 1965, as Mauritius was gearing up for independence, Britain separated the Chagos Archipelago – including Diego Garcia – from it and dubbed this new construct the BIOT with the intention of building bases there to be used both by its military and that of the US. In 1966, the United Kingdom concluded an agreement with the US giving it permission to use the BIOT, including the island of Diego Garcia, for defence purposes. A sizeable and strategically critical navy base was built on Diego Garcia in the 1970s.

Over the years, the US military presence in the Indian Ocean grew and Britain continued to allow its stronger ally largely unimpeded access to the BIOT. To allow US forces to operate more freely in the territory, it has also pursued a strategy of limiting the number and variety of international treaties that are applicable to the BIOT. It is this strategy of trying to keep the territory outside the confines of international treaties that led to the Tamil asylum seekers’ current predicament.

The list of international treaties Britain has not extended to the BIOT is considerable. The 1951 Refugee Convention, which defines refugees, their rights, as well as the obligations on states to protect them, for example, was never extended to the BIOT. Britain justifies this decision by pointing to the fact that the BIOT does not currently have a permanent population.

Research by Peter Sand shows that many other treaties ratified by the UK were also never extended to the BIOT. These include the 1966 Covenant on Economic, Social and Cultural Rights, the 1966 Covenant on Civil and Political Rights, the 1984 Convention against Torture and the 1998 Statute of the International Criminal Court.

The 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1966 United Nations Covenants on Human Rights and the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment do not apply in the BIOT either. Britain’s House of Lords’ Appellate Committee in 2008 claimed that its Human Rights Act of 1998 also does not apply to the BIOT.

Beyond human rights-related treaties, numerous environmental treaties have not been extended to the BIOT. Furthermore, Britain controversially claims the BIOT is excluded from the 1996 African Nuclear-Weapon-Free Zone (Pelindaba) Treaty, meaning these two Western nations are free to use the BIOT to land and dock nuclear-armed aircraft and submarines, as well as to dock nuclear-powered ships.

Despite this dearth of treaty law extended to the BIOT, customary international law – rules that originate from a general practice accepted as law – still apply to the territory. This means many provisions of the above treaties and conventions which reflect or codify customary international law still do apply in the BIOT. This fact may bring some solace to asylum seekers and their lawyers.

There are also concerns that the US may be using the territory – in part due to its ambiguous legal status – to conduct intelligence operations it may not be able to elsewhere.

Legal scholar Stephen Allen notes that there are “credible and consistent reports” of Diego Garcia being used in relation to the CIA’s rendition, detention and interrogation programmes since 2001. In 2008, Manfred Novak, the UN special rapporteur on torture, said he had received credible evidence that Diego Garcia had been used as a detention centre to hold US suspects between 2002 and 2003. British officials were then forced to admit that two US CIA rendition flights had refuelled in Diego Garcia in 2002. Time will tell whether declassified or leaked files (or indeed further British admissions) will reveal the role (if any) Diego Garcia and the BIOT have played in the US’s other extraordinary rendition operations.

In sum, while these Tamil asylum seekers have arrived at a British Overseas Territory, legally speaking, they landed in a judicial vacuum, created to establish a base from which the US military could run operations without being restricted by international treaties. The UK-based solicitors representing many of these asylum seekers, who also represented those stuck in Cyprus, will need to navigate this complex legal maze, purpose-built for the remote and secretive Indian Ocean island.

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