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Full-text: February 14 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Feb 14 2002 Nancy Mayer Whittington, Clerk U.S. District Court





No. 1:01-CV-02629 (RMU)

 )
Olivier Bancoult, et al.,)
Plaintiffs,)
)
v.)
)
Robert S. Mcnamara, et al.,)
Defendants.)
 )

Motion for Preliminary Injunction

Relief Sought

Plaintiffs respectfully move the court for a preliminary injunction enjoining Defendants, United States of America and De Chazal Du Mee (“DCDM”) and their officers, employees, agents and any persons in active concert and participation with the Defendants, pending a trial on the merits and final order in this action, from:

1.  Denying Plaintiffs access to the islands known as the Chagos Archipelago; and

2.  Using discriminatory hiring practices that deny Plaintiffs access to employment opportunities on Diego Garcia.

Grounds for Relief

It is essential that the court issue the requested preliminary injunction to prevent immediate and irreparable injury to the Plaintiffs. As grounds for this motion, Plaintiffs rely on:

1.  The verified complaint and the affidavits of Pierre Willy Jaffa, Jacques Gervais Florian, Louis Olivier Bancoult, and Benoit Emilien, which establish that, unless {p.2} restrained by this court, the Defendants will continue to perform the acts sought to be enjoined.

2.  As established by the verified complaint and the affidavits of Pierre Willy Jaffa, Jacques Gervais Florian, Louis Olivier Bancoult, and Benoit Emilien and the memorandum of points and authorities in support of this motion, if the Defendants continue to perform the acts sought to be enjoined, Plaintiffs will suffer immediate and irreparable harm. Absent a preliminary injunction, the Plaintiffs will continue to be the victims of distinction, restriction, and exclusion from employment on Diego Garcia and from visitation to their homeland based on their race, descent, and national and ethnic origin and will suffer the immediate and irreparable ill effects of such discrimination. Plaintiffs will also suffer the severe and irreparable harm of the complete destruction of their culture as a result of both the denied access to their homeland and the necessity of hiding their national origin in order to avoid discrimination at the hands of the Defendants. Elderly Plaintiffs also stand to suffer the immediate and irreparable harm of denied visitation rights to family graves, church and homes before their deaths. Furthermore money damages cannot fully compensate for the harm caused by Defendants present discriminatory policies and practices.

3.  As established by the verified complaint, the affidavits of Pierre Willy Jaffa, Jacques Gervais Florian, Louis Olivier Bancoult, and Benoit Emilien, and the memorandum of points and authorities, the Plaintiffs are likely to succeed on the merits of this action. {p.3}

4.  As shown by the verified complaint, the affidavits of Pierre Willy Jaffa, Jacques Gervais Florian, Louis Olivier Bancoult, and Benoit Emilien, and the memorandum of points and authorities, the injury to Plaintiffs, if Defendants are not enjoined, will substantially exceed any foreseeable hardship to the Defendants. The issuance of a preliminary injunction will cause the Defendants little if any hardship in that the preliminary injunction will require Defendants to treat Plaintiffs as they are already treating all non-Chagossian civilians. The Plaintiffs on the other hand stand to suffer substantial and irreparable harm if the preliminary injunction is not ordered.

5.  A preliminary injunction will support public interest in that the peremptory norms against discrimination, forced relocation, cruel, inhuman and degrading treatment, being violated by Defendants are against the public interest and will continue to be violated unless Defendants are enjoined from their discriminatory practices. In addition, the inclusion of Plaintiffs will not cause Defendants’ operations or non-parties harm.

Support for Motion

This motion is based on all the papers and records on file in this action, including this document, the verified complaint, the supporting affidavits of Pierre Willy Jaffa, Jacques Gervais Florian, Louis Olivier Bancoult, and Benoit Emilien, the supporting memorandum of points and authorities, and on any reply Plaintiffs may make and any further evidence and/or argument presented prior to or at the hearing or ruling on this motion. {p.4}


Respectfully submitted,


Signature: Michael E. Tigar

{Signature}

Michael E. Tigar
Bar Identification # 103762

Michael E. Tigar
Professor of Law
American University
Washington College of Law
4801 Massachussetts Avenue, N.W.
Room 460
Washington, D.C. 20016
(202) 274-4088 {p.1}

 

{Separate document, case caption omitted}

Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for a Preliminary Injunction

Statement of the Case

A. The Nature of the Case

Plaintiffs (“Chagossians”) in this action are the indigenous people of the Chagos Archipelago (“Chagos”), their survivors, and their direct descendants. From 1965 to 1973, the Chagossians were forcefully removed from their homeland. The Chagossians were relocated to the islands of Mauritius and Seychelles where they were stranded with little to no compensation and forced to live in abject poverty. Defendants’ policies and practices have ensured that the forced relocation of the Chagossians continues to this day. While non-Chagossians are permitted access to Chagos and hired for employment on Diego Garcia, Defendants systematically exclude the Chagossians from the entire Archipelago.

This action seeks to halt Defendants’ discriminatory policies and practices that deny Chagossians employment opportunities and access to their homeland; access enjoyed by non-Chagossian civilians. This action does not address or seek to interfere with matters of United States foreign policy, national security, or defense. The Chagossians do not wish to interfere with the operation of the military facility on Diego Garcia. 1  Instead the Chagossians would like the opportunity to contribute to the successful operation of the base through available employment opportunities. The United States successfully operates other military bases around the world that co-exist with and employ local indigenous populations, indicating that employment of the Chagossians on the base is feasible. {p.2}

B. The Facts of the Case

1.  Plaintiffs are the indigenous people of the Chagos Archipelago, their survivors, and their direct descendants. See Compl. ¶ 8. Chagos includes the islands of Diego Garcia, Peros Banhos, Salomon, and numerous other islands. See id.

2.  Defendant United States of America is party to an agreement with the Government of the United Kingdom for use of Chagos for defense purposes. See Compl. ¶ 9. The United States operates a military facility on Diego Garcia and provides the primary orders and guidance for admittance into the Chagos Archipelago and for employment on Diego Garcia. See id.

3.  Defendant De Chazal Du Mee (“DCDM”), a Mauritian company, is an accredited representative of Arthur Andersen with offices in Washington D.C. See Compl. ¶ 49. DCDM recruits civilians for positions on Diego Garcia for the U.S. Navy and Department of Defense. See id.

4.  In 1965, the United Kingdom detached Chagos from Mauritius and included the Chagos islands in the newly formed British Indian Ocean Territory (“BIOT”). See Compl. ¶ 9. Following the detachment, the governments of the United States and the United Kingdom negotiated and concluded agreements resulting in an agreement to make the Chagos islands available to the U.S. for military purposes. See id. ¶¶ 17, 18. The U.S. insisted on the removal of the Chagossians from Chagos and from 1965 until 1973, the United States and the United Kingdom forcefully removed the Chagossians from their homeland and relocated them to Mauritius and Seychelles. See id. ¶¶ 17, 18, 21. The Chagossians were not consulted regarding their removal and never gave their approval. See id. ¶¶ 21, 22. Furthermore, no provisions for shelter, food, or money were made for the Chagossians stranded in Mauritius and the Seychelles. See id. ¶ 23. Many Chagossians suffered health {p.3} problems and death as a result of exposure to new diseases, homelessness, lack of food, and squalid living conditions. See id. ¶ 28.

5.  In November 2000, the High Court of Justice, Queens Bench Division, in the United Kingdom, found that the removal of the Chagossians from Chagos was illegal. See The Queen v. Sec’y of State for the Foreign & Commonwealth Office: ex parte Bancoult, 2 W.L.R. 1219 (2000), 2000 WL 1629583, ¶ 57 (QBD (Admin. Ct.)) (holding the ordinance, which “effectively exiles the [Chagossians] from the territory where they are belongers and forbids their return,” unjustifiable and as having no “conceivable source of lawful authority”). The High Court ordered the repeal of the ordinance that prevented the return of the Chagossians to their homeland and the United Kingdom amended its laws accordingly. See id. Furthermore, the United Kingdom has formally accepted that refusal to allow the Chagossians to return to Chagos is unlawful. See Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, Human Rights Committee, 73rd Sess., ¶ 38, U.N. Doc. CCPR/CO/73/UK (2001), advanced unedited version, available at http://www. unhchr.ch/. A member of the United Nations Sub-Commission on the Promotion and Protection of Human Rights recently observed that the United States Government has prohibited the lawful return of the Plaintiffs to their homeland. See Summary Record of the 23rd Meeting, Sub-Commission on the Promotion and Protection of Human Rights, U.N. Commission on Human Rights, 52nd Session, ¶ 7, U.N. Doc. E/CN.4/Sub.2/ 2000/SR.23 (2000). Despite the High Court’s decision, the Defendants continue to deny the Chagossians even temporary access to Chagos. See Compl. ¶¶ 26, 27.

6.  Chagossians employed on fishing vessels often go on fishing expeditions and are at sea for weeks or even months on end. See e.g., Florian Aff. Attach. 1 ¶ 5; Jaffa Aff. Attach. 2 ¶ 5. {p.4} During these long trips, fishermen usually disembark on islands near the boat for breaks. See e.g., Florian Aff. Attach. 1 ¶¶ 6, 8; Jaffa Aff. Attach. 2 ¶¶ 6, 8. While on lawful expeditions in the waters of the Chagos Archipelago, the Chagossian fishermen have regularly encountered yachts and other pleasure boats and have observed the occupants of these boats on the shores of various islands in Chagos. See e.g., Florian Aff. Attach. 1 ¶ 7; Jaffa Aff. Attach. 2 ¶ 7. Books for Yachters discuss Chagos as an ideal vacation spot and a tour group currently sailing around the world is offering tourists a three-month stay in Chagos. See Jimmy Cornell, World Cruising Routes (4th ed. 1998); Web page of the sailboat Minuit, Attach. 5, http://www.minuit.net. Pleasure boaters and non-Chagossian fishermen are allowed on shores of the Chagos islands, while Chagossians have been threatened and harassed by BIOT patrols acting on behalf of the United States and United Kingdom Governments. See e.g., Florian Aff. Attach. 1 ¶¶ 6, 10; Jaffa Aff. Attach. 2 ¶¶ 6, 10. The Chagossian fishermen have been forced off Chagos islands and forbidden to set foot on any of the islands in the future under threat of fines of approximately $290,000. See e.g., Florian Aff. Attach. 1 ¶ 6; Jaffa Aff. Attach. 2 ¶ 6. On one occasion, a UK official used racist language to reiterate these threats, stating to several fishermen that no Chagossian would ever be allowed to set foot on any of the Chagos islands. See e.g., Florian Aff. Attach. 1 ¶ 10; Jaffa Aff. Attach. 2 ¶ 10. The Captains of various fishing vessels that employ Chagossians have also been threatened with fines and with having their licenses revoked. See e.g., Florian Aff. Attach. 1 ¶ 11; Jaffa Aff. Attach. 2 ¶ 11. Consequently, these Captains have stated that any Chagossian employee who gets off the fishing vessel on any of the Chagos islands will be dismissed from employment. See e.g., Florian Aff. Attach. 1 ¶ 11; Jaffa Aff. Attach. 2 ¶ 11. {p.5}

7.  Defendants’ recruitment and hiring practices also continuously deny the Chagossians access to Chagos. See Bancoult Aff. Attach. 3 ¶ 7; Emilien Aff. Attach. 4 ¶¶ 10, 12, 13, 14. DCDM advertises jobs on Diego Garcia on behalf of the United States Government, including positions for stonemasons, electricians, divers and mechanics. See Compl. ¶ 49; Emilien Aff. Attach. 4 ¶ 9, 12. At least 540 Chagossians have applied for available jobs on the U.S. military base in Diego Garcia, some applying multiple times. See Compl. ¶ 26; Bancoult Aff. Attach. 3 ¶ 7. Chagossian applicants have been qualified in the skills required for the positions, yet all applicants known to be native-born Chagossians have been summarily rejected. See Bancoult Aff. Attach. 3 ¶¶ 4, 5, 7, 8; Emilien Aff. Attach. 4 ¶ 9, 10. The few Chagossians accepted for jobs on Diego Garcia were born in Mauritius and actively and successfully hid their Chagossian heritage from the hiring personnel. See id. ¶ 9. On many occasions, Plaintiffs have been told that Chagossians cannot apply for jobs on Diego Garcia and that they are automatically disqualified. See id. ¶¶ 5, 7, 8. Often after Chagossian applications have been rejected, the jobs have remained open and advertised or have been filled by Mauritians, Sri Lankans, or Filipinos. See id. ¶ 6; Emilien Aff. Attach. 4 ¶ 9.

Argument

A preliminary injunction is the appropriate and authorized relief to halt Defendants’ discriminatory policies and practices that deny Plaintiffs access to Chagos and employment on Diego Garcia. A court considering a request for a preliminary injunction must examine whether:

(1)  Plaintiffs will suffer irreparable injury if an injunction is not granted;

(2)  an injunction will substantially injure the other parties;

(3)  public interest will be furthered by the issuance of the injunction; and

(4)  Plaintiffs are likely to succeed on the merits.

See McVeigh v. Cohen, 983 F.Supp. 215, 218 (D.D.C. 1998) (citing Washington Metro. Area Transit Comm’n v. Holiday {p.6} Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)). No one factor is dispositive, rather “[t]hese factors interrelate on a sliding scale and must be balanced against each other.” Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998). A particularly strong argument for one factor can overcome a weaker argument for another. See CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).

Plaintiffs in this action satisfy all four factors and a preliminary injunction is the necessary and appropriate relief to remedy the irreparable injuries Plaintiffs will suffer.

I.
A preliminary injunction should issue because the resulting harm to plaintiffs will be immediate and irreparable

One basis for preliminary injunctive relief is irreparable harm and inadequacy of remedies at law. See Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985). The harm must be imminent and money remedies inadequate to correct the harm to Plaintiffs. See id. [S]ubjective, psychological harm is one of the factors the court may consider. See Vencor Nursing Centers, L.P. v. Shalala, 63 F.Supp. 2d 1, 12 (D.D.C. 1999) (finding the consideration of trauma resulting from the transfer of nursing home residents to a new facility, such as distance from family and friends, as proper in irreparable-harm analysis); see also Fund for Animals v. Clark, 27 F.Supp. 2d 8, 14 (D.D.C. 1998) (stating that seeing or contemplating the treatment of animals, who were to be killed in a Government organized hunt, would cause Plaintiffs to suffer an “aesthetic injury” for which money damages could not compensate and holding this a concrete and irreparable injury supporting the issuance of a preliminary injunction).

The harm to Plaintiffs will be immediate, continual, and irreparable if a preliminary injunction does not issue. Absent a preliminary injunction, Defendants will continue implementing discriminatory policies, and as a result, Plaintiffs will suffer irreparable injuries for {p.7} which money damages are inadequate. See supra ¶¶ 4, 6, 7. The harms Plaintiffs stand to suffer include: the ill effects of discrimination; exclusion from homeland; loss of culture and society; lack of access to family graves, homes, and churches; and loss of employment opportunities.

The irreparable harms Plaintiffs will suffer warrant a preliminary injunction now as opposed to an injunction after a trial on the merits for several reasons.

First, many of the Plaintiffs who were forced to leave their homeland are elderly or in poor health and may not be alive when a final order in this action is entered. 2  They stand to suffer the irreparable harm of not seeing their homeland, family graves, churches or homes before death.

Second, younger Chagossians born in the Seychelles or Mauritius stand to suffer the loss of never visiting the Chagos islands, family graves, churches and homes with their older relatives, those Chagossians who can share and salvage the history and culture of the Chagos people. The loss of this opportunity will complete the ruin and decimation of the Chagossian culture and society.

Third, Defendants’ discriminatory hiring practices encourage the Chagossians to hide their true ethnic identity and national origin and further contribute to the destruction of the Chagossian culture and society. See supra ¶ 7.

Finally, the continued exclusion of Chagossians from the Chagos and from employment on Diego Garcia will cause the Plaintiffs to continue suffering the ill effects of racial discrimination and exclusion, loss of employment opportunities, severe emotional distress, loss of self-esteem, and embarrassment. Correcting the harmful acts at a later date cannot reverse the effects of the harm already done. As established over five decades ago,

“[t]o separate [people] from others of similar ... qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Brown v. Board of Education, 347 U.S. 483, 494 (1954). {p.8}

Money damages alone are also inadequate to fully remedy the irreparable harms the Chagossians will suffer. No amount of money can fully compensate Plaintiffs for the emotional suffering that results from denied access to graves where parents, children, and siblings are buried; from denied access to one’s homeland or the homeland of one’s ancestors; or for denied access to places where all others are welcome. No amount of money can fully compensate for the ill effects of discrimination based on race, ethnicity, and national origin. Money damages at a later date are also inadequate to compensate Plaintiffs for years of struggling to feed and house themselves and their families in the face of greatly reduced job opportunities. 3 

II.
A preliminary injunction should issue because the balance of hardships substantially favors the plaintiffs and a preliminary injunction would serve public interest

In deciding whether to issue a preliminary injunction, courts balance the hardship to Plaintiffs if the preliminary injunction is not granted, against the hardship to other interested parties if the preliminary injunction issues. See Fund for Animals, 27 F.Supp. 2d at 14. A preliminary injunction is warranted, if the hardship to Plaintiffs outweighs the hardship to others. See id. In the present case, this analysis supports issuing a preliminary injunction.

Without a preliminary injunction Defendants will continue to implement their discriminatory policies denying Plaintiffs access to Chagos and employment opportunities on Diego Garcia. See supra ¶ 6, 7. Defendants’ acts will cause Plaintiffs to suffer significant irreparable harm in the form of complete loss of culture, exclusion and discrimination based on race, ethnicity, and national origin, loss of employment opportunities, severe emotional distress and trauma, loss of self-esteem, and embarrassment. See supra Part I. {p.9}

By comparison, Defendants will suffer little or no hardship as a result of the proposed preliminary injunction. Defendants already provide non-Chagossian civilians with access to the Chagos islands and access to Diego Garcia under certain circumstances. See supra ¶¶ 6, 7. The preliminary injunction would simply require Defendants to allow Plaintiffs the same access to the islands as others already enjoy. See id. In addition, because Defendants hire and employ civilian workers on Diego Garcia, a preliminary injunction would merely require Defendants to stop discriminating against Plaintiffs in hiring and fairly and equally include Plaintiffs in already established hiring practices. See id.

The Plaintiffs’ irreparable harm and severe suffering significantly outweigh any potential harm to others. Therefore, the balance of hardships weighs substantially in favor of issuing the preliminary injunction.

A preliminary injunction is also warranted because it furthers public interest. The Defendants’ actions cause the forced relocation of Plaintiffs to continue to this day, in violation of fundamental human rights norms and customary international law. See infra Part III.A. Defendants’ discriminatory policies and practices also violate customary international law and U.S. law. See infra Part III.B-C. Furthermore, the U.K. Government and the High Court of Justice in the U.K. have both explicitly stated that the exclusion of Plaintiffs from Chagos is illegal. See supra ¶ 5.

The prevention of human rights violations and the enforcement of international and U.S. law further the public’s interest in enforcing the law and providing protection for fundamental human rights.

Finally, the issuance of a preliminary injunction will not cause damage to any third parties because Defendants will not be enjoined to change their behavior towards anyone but the Plaintiffs. {p.10}

III.
A preliminary injunction against defendants should issue because it is likely that plaintiffs will prevail on the merits

Introduction

Plaintiffs are likely to succeed on the merits of their action because Defendants’ policies and practices, which the preliminary injunction seeks to enjoin, maintain the forced relocation of the Chagossians. Defendants continue the forced relocation of the Chagossians on Mauritius and the Seychelles by denying them access to Chagos. Forced relocation of individuals is well established as a violation of customary international law. The decision of the High Court of Justice in the United Kingdom, which held the ordinance that authorized and continued the forced relocation of the Chagossians illegal, further supports that Defendants’ policies and actions are illegal and that Plaintiffs will succeed on the merits of their action.

The likelihood that Plaintiffs will succeed on the merits of their action is further supported by the prohibition of discrimination in international and U.S. law. Defendants’ exclusionary actions are motivated by discrimination based on the race, descent, ethnicity and national origin of Plaintiffs. Furthermore, the Defendants’ discriminatory acts deprive Plaintiffs of the enjoyment of certain human rights and fundamental freedoms.

Discrimination that implicates such rights is firmly established as illegal in both customary international and U.S. law and lends further support to the issuance of a preliminary injunction.

A.  Defendants’ policies and acts continue the forced relocation of the plaintiffs in violation of customary international law

Forced relocation 4  is the removal of individuals from their homes or place of residence by force or compulsion. See Decl. of Int’l Law Scholars on Forced Relocation, Attach. 6, 1-2 {p.11} (2000) (originally written and submitted to the court for Doe v. Unocal, 110 F.Supp. 2d 1294 (C.D. Cal. 2000). Forced relocation violates international law if it is carried out without minimal procedural guarantees; 5  if it is carried out in a manner that violates international law; 6  or if it has a negative impact on the enjoyment of other human rights. See id at 2.

Plaintiffs have been forcefully removed from their homes and homeland without minimal procedural guarantees, in a manner that violates international law, and with a negative impact on the enjoyment of their human rights. Defendants’ policies and practices, which the preliminary injunction seeks to enjoin, exclude Plaintiffs from their homeland, homes, churches, family graves, beaches enjoyed by all others, and jobs open to all racial and ethnic groups except Chagossians. See supra ¶¶ 6, 7. It is likely that Plaintiffs will prevail on the merits of this action because such exclusion continues their forced relocation in violation of customary international law.

It is well settled that customary international law is part of U.S. federal common law. See e.g., Paquete Habana, 175 U.S. 677, 700 (1900); Restatement (Third) Foreign Relations Law of the U.S. § 702, comment c (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}. In Paquete Habana, United States ships captured two coastal fishing vessels and claimed the vessels and cargo as prizes of war. See Paquete Habana, 175 U.S. at 679. The United States Supreme Court stated that

“where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat.”

Id. at 700. {p.12}

In addition to the works of jurists, U.S. Courts look to international and regional treaties to establish the “customs and usages of civilized nations” as evidence of customary international law. See Filartiga v. Pena-Irala, 630 F.2d 876, 881-84 (2d Cir. 1980); Alvarez-Machain v. United States {64kb.pdf}, 266 F.3d 1045, 1051-1052 (9th Cir. 2001) {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}.

U.S. Courts have relied on the following treaties and declarations as evidence of the customs and usages of nations for establishing customary international law: Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. No. 993; Universal Declaration of Human Rights (“Universal Declaration”), Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 (1948); International Covenant on Civil and Political Rights (“ICCPR”), Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368; ¶

SuWho? SuDoc Serial Set CIS   DL

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (Dec. 16 1966, March 23 1976) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat} (status) (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 95-20; President Jimmy Carter transmitted, “Human Rights Treaties, Message to the Senate,” 1978 PPPUS 395-396 {ucsb} (Feb. 23 1978) {SuDoc: GS 4.113:978/BK.1, ISSN: 0079-7626, LCCN: 58061050, GPOCat, LL: paper, WorldCat: JC}; Senate Document No. Executive 95/2-E (Feb. 23 1978), part of, Four Treaties Pertaining to Human Rights, message from the President of the United States {SuDoc: Y 1.95/2:C-F/corr, Serial Set 95-2: omitted (“Senate executive documents and reports were not included in the Serial Set until 1980”), CIS: 78 S385-3, LCCN: 78601565, GPOCat, LL: paper, UC, WorldCat}; Senate Hearing 102-478 (Nov. 21 1991) {SuDoc: Y 4.F 76/2:S.Hrg.102-478, CIS: 92 S381-25, LCCN: 92191239, GPOCat, LL: paper, microfiche); Senate Executive Report No. 102-23 (March 24 1992) {63kb.txt, 302kb.pdf} {SuDoc: Y 1.1/6:102-23, Serial Set 102-2: 14102, CIS: 92 S384-1, GPOCat, LL: paper, microfiche}; Senate consent, 138 Cong. Rec. S4781-4784 {pf} (April 2 1992, daily edition 138/49) {SuDoc: X/A.102/2:138/49, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified, June 8 1992, effective Sept. 8 1992, 1676 U.N.T.S. 543, accord, T.I.F. {185kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604, DL}CJHjr

American Convention on Human Rights {U.S. Senate Treaty No. 95-21, transmitted February 23 1978} (“American Convention”), Nov. 22, 1969, 9 I.L.M. 673; American Declaration of the Rights and Duties of Man (“American Declaration”), May 2, 1948, OAS Doc. OEA/Ser. L/V/II.65, Doc. 6; European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”), Nov. 4, 1950, 312 U.N.T.S. 221, E.T.S. 5, as amended by Protocol No. 4, Sept. 16, 1963, E.T.S. 46, 7 I.L.M. 978; and African Charter on Human and Peoples’ Rights (“African Charter”), June 27, 1981, 21 I.L.M. 58. See Filartiga, 630 F.2d at 881-84; see also Alvarez-Machain {64kb.pdf}, 266 F.3d at 1051 {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}.

Finally, U.S. Courts have considered the domestic laws of nations when ascertaining rules of customary international law. See e.g., Filartiga, 630 F.2d at 884; Restatement (Third) Foreign Relations Law of the United States § 102 (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}. In Filartiga, the Court found that U.S. foreign policy and the express and implicit prohibition of torture in the constitutions of many nations, including the U.S. Constitution, indicated further support for the universal recognition of torture as a violation of customary international law. See Filartiga, 630 F.2d at 884.

Therefore, the prohibition of forced relocation as an established rule of customary international law can be {p.13} ascertained by consulting the works of jurists, international treaties and declarations, and U.S. laws and foreign policy.

1.  Forced relocation is well established as a violation of customary international law as evidenced by the writings of jurists.

International law scholars consider forced relocation without minimal procedural safeguards; in a manner that violates international law; or with negative impact on the human rights as “a particularly egregious violation of international law because it implicates a variety of fundamental human rights.” See Decl. of Int’l Law Scholars, Attach. 6, 2-3 (2000). The international law scholars contributing to the Declaration concluded, after reviewing the writings of jurists, international and regional treaties, and U.S. law and practice, “that the prohibition against forced relocation is a definable, universal, and obligatory norm that binds all states.” Id. at 4.

2.  International treaties and declarations express the acceptance by the international community of the prohibition of forced relocation in customary international law.

The forced relocation of populations often deprives the removed individuals of those fundamental human rights that are accepted principles of customary international law or are established as peremptory norms. 7  Holding that transborder abductions violated customary international law, the Court in Alvarez-Machain found that “although no international human rights instruments refer to transborder abduction specifically, various established international human rights norms, like the rights to freedom of movement, to remain in one’s country, and to security in one’s person, encompass [transborder abductions].” Alvarez-Machain {64kb.pdf}, 266 F.3d at 1051 {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. As was the case with transborder abductions in Alvarez-Machain, forced relocation is not {p.14} explicitly referred to in international human rights treaties and declarations. See id. However, these international agreements explicitly prohibit the violation of many of the international human rights norms implicated by forced relocation. See id.

The United Nations Charter provides that one of the purposes of the United Nations is to promote and encourage respect “for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” Charter of the United Nations, June 26, 1945, 59 Stat. 1033, T.S. No. 993, art. 1. The Universal Declaration, Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 (1948), defines the human rights and fundamental freedoms that the U.N. Charter aims to protect and is recognized by the international community as an expression of binding obligations of customary international law. See Filartiga, 630 F.2d at 883. Forced relocation violates many of the international human rights norms expressed in the Universal Declaration, including the norm that

“[a]ll human beings are born free and equal in dignity and rights;” the right to “life, liberty and the security of person;” the norm that “[n]o one shall be subjected to arbitrary arrest, detention or exile;” the right to be free from “arbitrary interference with [ ] privacy, family, home...;” and that “[e]veryone has the right to freedom of movement and residence within the borders of each State ... [and] [e]veryone has the right to leave any country, including his own, and to return to his country.”

See Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, arts. 1, 3, 9, 12, 13 (1948).

The norms expressed in the Universal Declaration are further recognized and protected in customary international law by numerous international and regional treaties. The ICCPR codifies the rights expressed in the Universal Declaration and in addition provides that anyone who is subjected to ¶

“arbitrary or unlawful interference with his privacy, family, home or {p.15} correspondence ... has the right to the protection of the law against such interference or attacks“ ¶

ICCPR, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368, art. 17 {U.S. Senate Treaty No. 95-20, cited above}.

Regional treaties of the Americas, Europe, and Africa are further evidence of the integration of forced relocation in customary international law. U.S. Courts have relied on, among others, the American Convention and the American Declaration to establish the right to move freely in the territory of a state, the right to remain or return to one’s country, and the right to personal liberty and security as principles of customary international law. See American Convention {U.S. Senate Treaty No. 95-21, transmitted February 23 1978}, Nov. 22, 1969, 9 I.L.M. 673, arts. 7, 22; Alvarez-Machain {64kb.pdf}, 266 F.3d at 1051 (relying on principles expressed in American Convention and American Declaration) {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. ¶

These rights are implicated in forced relocation and are further supported by the European Convention and the African Charter. See European Convention, Nov. 4, 1950, 312 U.N.T.S. 221, E.T.S. 5, as amended by Protocol No. 4, Sept. 16, 1963, E.T.S. 46, 7 I.L.M. 978; African Charter, June 27, 1981, 21 I.L.M. 58.

3.  The U.S. Government and U.S. laws have contributed to the establishment of forced relocation in customary international law.

The United States Government, by its laws and foreign policy, has recognized and contributed to the establishment in customary international law of the human rights norms implicated by forced relocation. See Decl. of Int’l Law Scholars, Attach. 6, Part I.D (2000) (finding support for the prohibition of forced relocation by the United States Government in case law, acts of Congress, and government statements). As protected by international treaties, the United States’ Constitution provides that

“[n]o person ... shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

U.S. Const. amend. V.

The United States Government also has {p.16} acknowledged to the UN Human Rights Committee that its laws recognize and protect rights provided for in the ICCPR. See Initial Report of the U.S. to the U.N. Human Rights Committee Under the ICCPR, ¶ 7, U.N. Doc. HRI/CORE/1/Add.49 (July 29, 1994).

United States foreign policy and statements have further solidified U.S. acceptance of the rights implicated by forced relocation as binding principles of customary international law. On numerous occasions the U.S. Department of State and U.S. Department of Labor have made statements acknowledging that forced relocation violates fundamental human rights. See Decl. of Int’l Law Scholars, Attach. 6, Part I.D (2000). The Restatement (Third) of the Foreign Relations Law of the United States {ISBN: 0314301380, LCCN: 86020665, WorldCat}, also recognizes that the rights violated by forced relocation are fundamental human rights and that a violation of these rights constitutes a violation of customary international law, stating:

[a]ll the rights proclaimed in the Universal Declaration and protected by the [International Covenant on Civil and Political Rights {U.S. Senate Treaty No. 95-20, cited above} and the Covenant on Economic, Social and Cultural Rights {U.S. Senate Treaty No. 95-19, President transmitted February 23 1978, status}] are internationally recognized human rights, but some rights are fundamental and intrinsic to human dignity ... These include, for example, systematic harassment, invasions of the privacy of the home, arbitrary arrest and detention (even if not prolonged) ... denial of freedom to leave a country; denial of the right to return to one’s country; mass uprooting of a country’s population; and invidious racial ... discrimination. A state party to the Covenant on Civil and Political Rights is responsible even for a single, isolated violation of any of these rights; any state is liable under customary law for a consistent pattern of violations of any such right as state policy.

Restatement (Third) of the Foreign Relations Law of the United States § 702, comment m (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}.

As explored above, the writings of jurists, international treaties and declarations, along with U.S. laws and foreign policy, establish the following rights as binding principles of customary international law: the right to life, liberty, and security of person; the right to freedom {p.17} of movement; the right to remain in one’s country; the right to be free from arbitrary arrest, detention, or exile; the right to be free from arbitrary interference with privacy, family, and home. These fundamental human rights are all violated when the forced relocation of a population occurs absent procedural safeguards, is discriminatory in nature, or is carried out in a manner that specifically violates these rights and in such circumstances forced relocation is a violation of customary international law. Furthermore, Restatement (Third) Foreign Relations Law of the U.S. states that “a consistent pattern of gross violations of internationally recognized human rights” is a violation of customary international law. § 702(g) (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}.

4.  The Plaintiffs are likely to succeed on the merits of their action because Defendants’ policies and actions violate the international law prohibition of forced relocation.

The forced relocation of the Chagossians to Mauritius and the Seychelles, which began around 1965, continues to this day. See supra ¶¶ 4, 6, 7. Plaintiffs are presently prevented from setting foot on their native islands while others enjoy the right to visit, work, and live on Chagos. See supra ¶¶ 6, 7. As defined by the Declaration of International Law Scholars on Forced Relocation, the forced relocation of Plaintiffs amounts to “a particularly egregious violation of international law because it implicates a variety of fundamental human rights.” See Decl. of Int’l Law Scholars, Attach. 6, 3 (2000).

The Chagossians’ rights to life, liberty and security of person were and continue to be violated by Defendants’ policies and acts. See supra Part III.A.2-3. Initially, Chagossians were prevented from returning to their homes, forced from their homeland, put in fear of their lives and in some instances lost their lives. See supra ¶ 4. Defendants continue to deny Plaintiffs their liberty rights, by preventing them from going to their homeland while non-Chagossian civilians enjoy the right. See supra ¶¶ 6, 7. The right of Plaintiffs to be free from arbitrary {p.18} interference with their privacy, family, and home also were and continue to be violated. See supra Part III.A.2-3. During the beginning phases of their forced relocation, families were separated when certain members were denied return to their islands, entire Chagossian families were forced to become homeless on the islands of Mauritius and the Seychelles, and all were eventually forced to leave their homes. See supra ¶ 4; Compl. ¶ 22. Defendants continue to violate this right by preventing Plaintiffs from visiting their homes, churches and family graves, all of which have become tourist sites for non-Chagossians. See supra ¶¶ 6, 7.

The forced relocation of Plaintiffs violates many other recognized human rights norms including the right to return to one’s country; the right to move freely; the right to choose residence within the borders of each state; the protection of human rights without distinction as to race, ethnicity, or national origin; and the prohibition against the mass uprooting of a country’s population. See supra Part III.A.2-3.

The November 2000 High Court decision in the United Kingdom lends further support to the merits of the argument that the forced relocation of the Chagossians is a continuing violation of international law. See The Queen v. Sec’y of State for the Foreign & Commonwealth Office: ex parte Bancoult, 2 W.L.R. 1219 (2000), 2000 WL 1629583 (QBD (Admin. Ct.)). The Court held that the ordinance forbidding the Chagossians from entry into the Chagos was illegal and that the Chagossians are “belongers” to Chagos. See id at ¶ 57. In response, the United Kingdom amended its laws to permit the Chagossians return to the Chagos Archipelago.

Despite these legal findings, the Defendants continue to implement policies that maintain the forced relocation of Plaintiffs on the islands of Mauritius and Seychelles. See supra ¶¶ 6, 7.

Plaintiffs are likely to succeed on the merits of their action because the policies and actions of the Defendants, which the preliminary injunction seeks to enjoin, continue the forced {p.19} relocation of the Chagossians by treating them differently from all others and by denying them access to their homeland through discriminatory hiring practices and discriminatory threats of exorbitant and arbitrary fines. This forced relocation implicates numerous well-established international human rights norms in violation of customary international law; rights that are recognized and protected by the laws of the United States. In addition, the High Court of England held the continuing forced relocation of the Chagossians was illegal.

For these reasons, the Plaintiffs are likely to succeed on the merits of their action and a preliminary injunction should issue.

B. Defendants’ policies and acts are motivated by discrimination in violation of customary international law.

The international community has long recognized discrimination on the basis of race, ethnicity, and national origin as a violation of customary international law. Condoning, practicing, or encouraging systematic racial discrimination has risen to the status of a peremptory norm of international law. See Restatement (Third) Foreign Relations Law of the United States § 702, comment n (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}. Derogation of peremptory norms is not allowed under international law and any international agreement that conflicts with a peremptory norm will be void. See id. at § 102.

The well-established prohibition of racial discrimination in customary international law is evidenced in the writings of jurists, international treaties and declarations, and domestic laws of many nations. Furthermore, racial discrimination is at the forefront of the international community’s agenda as evidenced by the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerances (“World Conference Against Racism”) held August 31 to September 7, 2001 in South Africa. Over 160 countries attended the Conference and the conference report acknowledged

“that no derogation from the prohibition of {p.20} racial discrimination ... is permitted.”

Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, at 7, U.N. Doc. A/CONF. 189/12 (2001).

Racial discrimination is defined in international law as

“any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

International Convention on the Elimination of all Forms of Racial Discrimination, March 7, 1966, 660 U.N.T.S. 195, 5 I.L.M. 352, arts. 1, 5 (expressing that parties to the treaty “undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... [t]he rights to work, to free choice of employment ... [and] [t]he right of access to any place or service intended for use by the general public...”).

660 U.N.T.S. 195 (March 7 1966, Jan. 4 1969) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 95-18; President transmitted: February 23 1978 (1978 PPPUS 395-396 {html}) {SuDoc: GS 4.113:978/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Executive Document No. 95/2-C (Feb. 23 1978) {SuDoc: Y 1.95/2:C-F/corr, Serial Set: 13205-?, CIS: 78 S385-3, LCCN: 78601565, GPOCat, LL: paper, UC, WorldCat}; Senate Hearing 103-659 (May 11 1994) {SuDoc: Y 4.F 76/2:S.Hrg.103-659, CIS: 94 S381-23, LCCN: 94231890); Senate Executive Report No. 103-29 (June 2 1994) {SuDoc: Y 1.1/6:103-29, Serial Set: 14230, CIS: 94 S384-3}; Senate consent: June 24 1994, 140 Cong. Rec. S7634 (daily edition 140/82) {9kb.txt} {SuDoc: X/A.103/2:140/82, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified: Oct. 21 1994, effective Nov. 20 1994, 1830 U.N.T.S. 284, accord T.I.F. {134kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604, DL}CJHjr


There are numerous other international treaties and declarations that prohibit racial discrimination as defined by the International Convention on the Elimination of all Forms of Racial Discrimination and one of the purposes of the United Nations is the protection of fundamental freedoms and human rights without distinction as to race. See Charter of the United Nations, June 26, 1945, 59 Stat. 1033, T.S. No. 993, art. 1.

The UN General Assembly expressed the rights and freedoms to be protected absent discrimination in the Universal Declaration. See Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 (1948). The UN General Assembly “declared that the Charter precepts embodied in this Universal Declaration ‘constitute basic principles of international law.’” Filartiga, 630 F.2d at 882 (citing G.A. Res. 2625 (XXV) {25 U.N. GAOR Supp. (No. 28) at 121} (Oct. 24, 1970)). The Universal Declaration provides: {p.21}

Everyone has the right to work, to free choice of employment, ... no one shall be subjected to cruel, inhuman or degrading treatment..., no one shall be subjected to arbitrary interference with his privacy, ... nor to attacks upon his honour and reputation, [e]veryone has the right to freedom of movement and residence within the borders of each State ... [and] [e]veryone has the right to leave any country, including his own, and to return to his country ... [and] [e]veryone is entitled to the[se] rights and freedoms ... without discrimination of any kind, such as race, colour, ... national or social origin, property, birth or other status.

Universal Declaration, Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, arts. 2, 5, 12, 13, 23 (1948).

The ICCPR further supports that the prohibition of discrimination based on race, ethnicity and national origin is well established as customary international law. See International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 {U.S. Senate Treaty No. 95-20, cited above}. The ICCPR provides that individuals be treated without distinctions based on race, color, national or social origin. See id. The covenant further provides that even in times of public emergencies states shall not discriminate solely on the basis of race, color or social origin. See id.

Racial discrimination is considered particularly egregious in international law when the victims of the discrimination are indigenous peoples. The Committee on the Elimination of Racial Discrimination (“Committee”) as well as the report issued at the conclusion of the World Conference Against Racism express the international community’s particular concern that the indigenous populations of the world not be subject to discrimination. See General Recommendation XXIII Indigenous Peoples, Comm. on the Elimination of Racial Discrimination, 51st Sess., annex V, U.N. Doc. A/52/18 (1997); Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, at 15 ¶ 39, U.N. Doc. A/CONF. 189/12 (2001). The Committee recommended that states “ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity ... [and] ensure that indigenous {p.22} communities can exercise their rights to practice and revitalize their cultural traditions and customs and to preserve and to practice their languages...” General Recommendation XXIII Indigenous Peoples, Comm. on the Elimination of Racial Discrimination, 51st Sess., annex V, U.N. Doc. A/52/18 (1997).

In addition to the widespread recognition of discrimination as a violation of customary international law, the United States has acknowledged and accepted the prohibition against discrimination based on race, ethnicity, and national origin as customary international law as evidenced by its domestic laws prohibiting the same. The Due Process Clause of the Fifth Amendment of the United States Constitution states that

“[n]o person shall ... be deprived of life, liberty, or property, without due process of law...”

U.S. Const. amend. V. The Due Process Clause has been interpreted to contain an equal protection component prohibiting the U.S. Government from invidiously discriminating against individuals or groups. See Boiling v. Sharpe, 347 U.S. 497, 500 (1954). “[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect” and must be subject to the most rigid scrutiny of the courts. Korematsu v. United States, 323 U.S. 214, 216 (1944).

Defendants have excluded Plaintiffs because of their race, ethnicity, national origin and indigenous origin from employment and access to islands where all others are allowed. See supra ¶¶ 6, 7. Plaintiffs have been told they are automatically disqualified from employment opportunities, not because of a lack of skill, but because they are Chagossian. See supra ¶ 7. Furthermore, while lawfully in the Chagos Archipelago, Plaintiffs have been singled out based on their race, ethnicity, national origin and indigenous origin and as a result had their movements restricted while lawfully in Chagos. See supra ¶ 6. Such distinctions and exclusions violate the internationally recognized and binding prohibition against racial discrimination. {p.23}

In addition, the exclusion of Plaintiffs based on their race, ethnicity, national origin and indigenous origin violates many of their fundamental and human rights protected by customary international law. Defendants’ discriminatory practices prevent Plaintiffs from enjoying their right to freedom of movement within the borders of each state. See e.g., Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, art. 13 (1948).

While Plaintiffs are admitted into the Chagos’ waters, they are not allowed to go where others are allowed. See supra ¶ 6. Among the many rights denied Plaintiffs, Defendants deny Plaintiffs the right to return to or remain in their own country; instead Plaintiffs are arbitrarily detained on fishing vessels and exiled in Mauritius and Seychelles. See supra ¶¶ 6, 7.

The Plaintiffs know of no other individuals or groups that are systematically excluded from the Chagos Archipelago. Chagos is open to yachtsmen and all other non-Chagossian tourists. See e.g., supra ¶ 6; Jimmy Cornell, World Cruising Routes (4th ed. 1998); Web page of the sailboat Minuit, Attach. 5, http://www. minuit.net. Plaintiffs are consistently prevented from entering Chagos and have been told that they will never be allowed on the islands because they are Chagossian. See supra ¶¶ 6, 7. Such blatant discrimination against an indigenous people is unjustifiable and illegal and lends further support to the issuance of a preliminary injunction.

C. Defendants’ policies and acts are motivated by discrimination in violation of the U.S. Constitution.

For over half a century, U.S. Courts have recognized that the Due Process Clause of the Fifth Amendment protects individuals and groups from invidious discrimination by the U.S. Government. See U.S. Const. amend. V; Boiling v. Sharpe, 347 U.S. 497, 500 (1954) (finding that the due process clause contains an equal protection component). The Fifth Amendment {p.24} proscribes not only direct involvement in racial discrimination but also Government actions which authorize or encourage private discrimination or support discrimination through any arrangement, management, or funds. See Reitman v. Mulkey, 387 U.S. 369, 375-76 (1967); see also Nat’l Black Police Ass’n, Inc. v. Velde, 712 F.2d 569, 580 (D.C. Cir. 1983). These Fifth Amendment protections against discrimination extend to legal and illegal aliens within the United States. Mathews v. Diaz, 426 U.S. 67, 77 (1976).

U.S. Courts have not specifically addressed whether due process protections apply to aliens abroad who are subject to U.S. Government action. However, it has been decided that the U.S. Government is required to act within the limitations of the Constitution when acting in the United States as well as abroad. See Reid v. Covert, 354 U.S. 1, 5-6 (1957) (holding that the United States Government must comply with the constraints of the Bill of Rights when acting against citizens abroad).

There is case law that supports the extension of Fifth Amendment due process protections to aliens abroad and the Restatement of Foreign Relations Law recognizes that constitutional limitations apply to some actions by the U.S. Government against aliens abroad. Restatement (Third) Foreign Relations Law of the United States § 722, comment m (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}. In Dostal v. Haig, the D.C. Circuit accepted arguendo the “attractive position that the Bill of Rights is fully applicable to govern the conduct of U.S. judges and officials [abroad], respecting friendly foreign nationals.” Dostal, 652 F.2d 173, 177 (D.C. Cir. 1981). More recently, the Court held that the Constitution protects aliens overseas by restricting the activity of foreign officials. See United States v. Yunis, 681 F.Supp. 909, 917-18 (D.D.C. 1988), rev’d on other grounds, 859 F.2d 953 (D.C. Cir. 1988) (analyzing the limited case law on the applicability of the Constitution abroad and concluding “that the Constitution applies to circumscribe the activity of federal officials overseas.”). {p.25}

Defendants’ hiring practices violate the U.S. Constitution by discriminating against the indigenous people of Chagos. See supra ¶ 7. Defendants further violate the U.S. Constitution by denying Plaintiffs access to places where others are free to move about. See supra ¶ 6. The U.S. Government is further responsible for violating the U.S. Constitution because it “authorize[s] [and] encourage[s] private discrimination” against the Chagossians. See Reitman, 387 U.S. at 375-76.

Defendants’ joint discrimination prevents the Plaintiffs from enjoying many of their fundamental human rights in violation of the U.S. Constitution and is further support for the issuance of a preliminary injunction.

Conclusion

For the reasons stated above, the motion of the Plaintiffs, Olivier Bancoult on his own behalf and on behalf of all those similarly situated, Terese Mein on her own behalf and on behalf of all those similarly situated, Marie Isabelle France-Chariot on her own behalf and on behalf of all those similarly situated, the Chagos Refugee Group on behalf of its members, and the Chagos Social Committee on behalf of its members, for a preliminary injunction to prohibit Defendants from employing discriminatory hiring practices and from denying Plaintiffs access to the islands of the Chagos Archipelago should be granted. {p.26}


Respectfully submitted,


Signature: Michael E. Tigar

{Signature}

Michael E. Tigar
Bar Identification # 103762

Michael E. Tigar
Professor of Law
American University
Washington College of Law
4801 Massachussetts Avenue, N.W.
Room 460
Washington, D.C. 20016
(202) 274-4088

______________________

Certificate of Service

I hereby certify that on February 14, 2002, I served a true copy of the foregoing Memorandum for Preliminary Injunction:

By facsimile and by first class mail, postage pre-paid, addressed to defendant’s counsel as follows:

Richard Montague
Department of Justice
Civil Division
1425 New York Ave., N.W.
Suite 8122
Washington, DC 20005

By first class mail, postage pre-paid, addressed to Defendant’s counsel as follows:

Cynthia Andreason
LeBoeuf, Lamb, Greene & MacRae
1875 Connecticut Ave. N.W.
Suite 1200
Washington, DC 20009

By facsimile and by first class mail, postage pre-paid, addressed to defendant as follows:

De Chazal Du Mee
C/O Jean Louis Imhoff
1819 H Street, N.W.
Suite 600
Washington, DC 20006

By hand delivery (to be accomplished by Mauritian Counsel), addressed to defendant as follows:

De Chazal Du Mee
10, Frere Felix de Valios Street
Port Louis
Mauritius

Signature: Andrew Rapp

 

{Signature}

Andrew Rapp

Footnotes

Each footnote appears entirely on the same page with its text reference.  CJHjr

 1  “Diego Garcia was appropriated by the United States in the mid-1960s and is currently used by the U.S. military, civilian employees, and guests as a military installation. Although imposed upon them, the Chagossians would have been willing to participate in a peaceful and lawful transition from a plantation economy to a military base-oriented economy. They stood ready to accept and fulfill employment opportunities that were created by construction of the base. Instead, Defendants evicted them, deliberately excluding them from such opportunities.” Compl. ¶ 1.

 2  Plaintiffs of all ages were removed from their homeland between 1965 and 1973. See supra ¶ 4.

 3  In 1995, the base on Diego Garcia employed approximately 1,500 civilian contract workers. See Central Intelligence Agency, The World Fact Book 2001 71 (2001).

 4  “Forced relocation is also referred to as forced eviction, forced displacement, internal displacement, population transfer, and involuntary resettlement.” Decl. of Int’l Law Scholars on Forced Relocation, Attach. 6, n.2 (2000).

 5  Procedural guarantees include public consultation and endorsement, when possible the consultation of those affected, and the absence of discrimination. See id. at 2.

 6  As the declaration states, “torture, summary execution, or other violent methods can never be used to displace individuals from their homes.” Id.

 7  Peremptory norms permit no derogation and “prevail over and invalidate international agreements and other rules of international law in conflict with them.” Restatement (Third) Foreign Relations Law of the U.S. § 102, comment k (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}.

 

Source: Photocopy of a duplicate original (the court’s file copy). Omitted: Table of contents and table of cases and authorities. Substituted: The abbreviated caption used in subsequent documents, instead of this document’s caption which, like the complaint, lists the names and addresses of all plaintiffs and defendants, excluding the individual defendants and Haliburton, to whom this motion does not apply.

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This case: Bancoult v. McNamara, complaint filed, Dec. 20 2001, refused to adjudicate, 370 F.Supp.2d 1 (D.D.C., No. 01-CV-2629, Dec. 21 2004), appeal docketed, Feb. 22 2005, affirmed refusal to adjudicate, 445 F.3d 427 {justia, altlaw, 147kb.pdf, copy} (D.C. Cir., No. 05-5049, April 21 2006), petitions to rehear and en banc filed, June 5 2006, denied, July 11 2006, petition for certiorari docketed, Oct. 11 2006, refused to review refusal to adjudicate, certiorari denied, 549 U.S. — (U.S., No. 06-502, Jan. 16 2007).

Commentary: Diego Garcia: The Criminal Question Doctrine and Bancoult v. McNamara.

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Jan. 3 2003. Updated May 18 2008.

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