It is often said that good things come to those who wait. And the Chagossians know a thing or two about waiting. A little later today, the Law Lords will decide, once and for all, of the Chagossian community?s fate. The Chagos Refugee Group (CRG) hopes that the Law Lords? verdict will go in its favour, thus paving the way for a long-term resettlement on Peros Banhos and Salomon atolls. If, on the contrary, the Law Lords rule that the Queen acted lawfully when she signed two Orders in Council forever forbidding their return to the archipelago, the CRG will have recourse to the Human Rights Act.

The crux of the case is not, as many people suppose, the forcible removal of the Chagossian population from the archipelago in the late 1960s. What the CRG and its legal representatives, the prestigious international law firm Clifford Chance, have tried to impress upon the Law Lords is that, by emitting two Orders in Council, the Queen has acted in an executive rather than legislative capacity. The nuance is vital. Under British constitutional law, a piece of legislation cannot be submitted to legal review.

And because it befalls the Queen to legislate on the British Overseas Territories, the British government has argued that the Orders in Council signed by Queen Elizabeth II are perfectly lawful. In September 2007,10 Downing Street responded to a petition against the government?s decision to appeal to the Law Lords by saying, ?Orders in Council are the only current means, save an Act of Parliament, by which we can introduce legislation for ceded Overseas Territories, of which the British Indian Ocean Territory is one.?

The CRG?s legal team, however, hopes that the Law Lords will accept their argument that the Orders in Council were the result of political pressure rather than legal considerations. This is perhaps what the High Court had in mind when it described the Orders in Council as ?repugnant? in May 2006. ?Everyone knows that the British government went to see the Queen. She didn?t just wake up one day and decide to pass two Orders in Council. If the Law Lords rule that it was an executive decision the Chagossians will return to the islands?, explains a member of the CRG?s legal team, Robin Mardemootoo. He puts the chances of victory at ?fifty-fifty?.

Over and above the legal intricacies of the case, the Foreign and Commonwealth Office (FCO) has expended considerable amounts of time and effort to create the impression that any resettlement of the Peros Banhos and Salomon atolls, located some 135 nautical miles from Diego Garcia, would be financially and environmentally unsustainable in the long run. According to CRG supporters, the merits of such claims are dubious.

In January this year, Richard Gifford, a prominent member of the CRG?s legal team, told the Select Committee on Foreign Affairs that the feasibility study commissioned by the FCO was far from honest. ?The government?s stab at producing figures is very worrying. When Bill Rammell announced to me the cessation of the feasibility studies in June 2004 following the Orders in Council, he told me that the cost was estimated at £5 million. I was a bit staggered by that and said, ?That is not very much. It is the cost of an embassy building. It is not much by the side of expenditure on other Overseas Territories. To right an historical injustice it is very modest.? However, that figure then got altered. By the time we got to court somebody in the Department had recalculated and come up with £22 million.?

Richard Gifford has not been alone in questioning the veracity of the feasibility study?s claims that repopulation would be unpractical. In his report Returning home: a proposal for the resettlement of the Chagos Islands, published in March, the former director of the Overseas Development Institute, Dr John Howell, affirmed that resettlement is eminently feasible. ?We conclude that there are no valid environmental or economic reasons that stand in the way of the resettlement of a relatively small number of Chagossian families on islands in Peros Banhos and Salomon. The environmental risks described in earlier feasibility studies cannot be regarded as insuperable given the willingness of Chagossians to contribute to conserving the assets on which their livelihoods and long term survival on the islands will depend.?

Dr John Howell also established an interesting parallel between the Chagos Islands and other British Overseas Territories, such as the Falklands and Anguilla, which already receive funding from the British government. The former supplements this funding with revenues from fishing licenses, whereas the latter has developed tourism.

<I>?The environmental risks described in earlier feasibility studies cannot be regarded as insuperable given the willingness of Chagossians to conserve the assets on which their livelihoods and long term survival on the islands will depend.?</I>

Peros Banhos and Salomon, he averred, could make money from both these activities. ?It could well become the most self-sufficient of those British overseas territories.? According to Richard Gifford, the initial resettlement phase, involving 750 people, could be partially financed by the European Development Fund.

An evaluation of the report by a group of scientists led by Bangor University?s Dr John Turner was somewhat less rosy in outlook. ?The report fails to emphasise that any resettled community will be at risk in the short and medium term due to flooding and fresh water depletion and development impacts are likely to exacerbate these effects of climate change. The report also seriously underestimates the costs of resettlement, both in capital costs and operational costs.?

Whatever the merits of the report and its evaluation, a core group of Chagossians seems bent on returning to islands. If the Law Lords rule that the Orders in Council cannot be challenged, it?ll deal a big blow to their hopes of resettlement. It will not, however, end their decade-long legal struggle. Their lawyers will simply change their tack and use the Human Rights Act, a very strong piece of legislation, to show that the removal of the Chagossian community from the archipelago in the late 1960s and early 1970s was a gross violation of its fundamental human rights. As Robin Mardemootoo rightly states, ?Even if we lose it doesn?t mean we?re wrong.?