Pending judgment

The decision of the Supreme Court in this case will have serious and wide-reaching ramifications. This is patently true for the families themselves, whose future will be determined once and for all. It is also true for the wider landscape of human rights and public international law, because the verdict reached on the issue of application could alter significantly the protection afforded to people in comparable situations in the future.

If the Secretary of State’s position is approved, then not only will the test under Bancoult persist, but a narrow interpretation of it will take hold. No legal change will be required whatsoever – even on a domestic level. Provided the territory is ‘fundamentally different’, the UK will no longer be bound with respect to it.

This would have deeply concerning repercussions. Legal certainty would be inhibited, both for the beneficiaries of the treaty obligations and for other contracting states. There would effectively be no way of knowing whether a treaty still bit, short of investigating the totality of changes to a territory, and attempting to assess whether they rendered it ‘politically’ new.

Similarly, the gravity of entering into such treaties would be curtailed. What reason would exist not to extend human rights to overseas territories, in order to benefit from the concomitant suggestion of compassion, if it were possible to later do away with those rights, without appearing to do anything at all.

Conversely, approval of either of the respondent’s submissions would improve the position. The first does not ask the court to overturn the ‘new political entity’ test, but would at least establish as a prerequisite for disapplication some perceptible legal change in the status of a territory – such as that enacted by the BIOT Order.

The second goes further still, asserting that Bancoult is fundamentally flawed, and should be repudiated entirely. This is because it wrongly focuses on the internal arrangements of territories, when what is in fact at issue are the international responsibilities that the signatory state holds.

The effect of this is that purely domestic changes would no longer be relevant – legal or otherwise. Instead, for as long as the UK continued to be internationally responsible for a geographical territory, it would only be able to shirk its duties through actions on the international law plane.

Thus, the UK would either have to formally denunciate the treaty in question, inasmuch as it applied to a specific territory (as expressly provided for under the Refugee Convention, art 44(3) and the ECHR, art 58(4)); or they would have to cede sovereignty, through international law principles such as cession or independence.

The consequences of a verdict being passed in these terms should not be underplayed. It would bring UK law into alignment with various international law doctrines, such as pacta sunt servanda (treaty obligations are not affected by unilateral state actions). Perhaps more importantly, by making disapplication contingent on compliance with international processes, it would force future governments to openly acknowledge any intention to revoke protection from their peoples – and to pay the political price of any ensuing backlash.

Please see Part One here.