Time to take the vestiges of colonialism out of the ECHR?

Last month, the UN General Assembly voted overwhelmingly for a resolution that the UK must withdraw its administration of the Chagos Islands within 6 months. This followed an ICJ Advisory Opinion that the UK's decolonisation of Mauritius and the annexation of the Chagos Islands was unlawful.

This marks the latest stage in a long-running legal battle that has seen the Chagos Islanders who have lived in exile since they were evicted from the islands in the 1960s and 70s assert their rights to return to their homeland. While the UK Government has so far indicated that it will not be bound by the resolution or the advisory opinion, the findings of the ICJ do raise questions about an earlier decision of the European Court of Human Rights and highlight problems in the way the ECHR deals with the legacy of colonialism.

In its Admissibility Decision in Chagos Islanders v UK, Application no. 35622/04, 20 December 2012, the ECtHR found that the Chagos Islanders couldn't rely on the protections of the Convention in relation to their eviction because the ECHR had never been extended to the Islands by the UK under Article 56, the so called "colonial clause" of the Convention. This article allows signatory states to choose which of their overseas territories the ECHR will apply to, and crucially, which not. It creates a black hole at the heart of the Convention where jurisdiction under Article 1 cannot reach.

Given the analysis of the ICJ in its advisory opinion, it could be argued that the conclusions of the Strasbourg Court were based on a misunderstanding of the legal position of the Chagos Islands at the relevant time. Applying the reasoning of the Supreme Court in another case involving British Overseas Territories, [R (on the application of Tag Eldin Ramadan Bashir and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2018] UKSC 45,] that found that the Refugee Convention and its Protocol should continue to apply to the British Sovereign Base Areas in the same way they had to Cyprus before independence, might give rise to a different conclusion on the application of the ECHR to the Chagos Islands in light of the ICJ's opinion.

The Advisory Opinion and the General Assembly Resolution both highlight ongoing issues in the process of decolonisation that are still unresolved in the 21st Century. The European Court of Human Rights, in the Chagos Islanders case recognised that Article 56 may be an anachronism but said that, to change it would require an amendment to the Convention. In light of these new developments, perhaps it is time for European states to draw a line under their colonial past by removing this remnant of another era and recognising that human rights under the ECHR are truly universal.