The legal status of territories forming part of former British colonies has been in the news in the past week, in light of the decision of the UN General Assembly to request an advisory opinion from the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965. The ICJ will, pursuant to the request, have to consider whether the process of decolonisation of Mauritius was lawfully completed when Mauritius gained independence in 1968 (in light of the UK’s purported excision of the Chagos Archipelago from Mauritius’ territory in 1965), and the legal consequences of the UK’s continuing administration of the Chagos Archipelago. (For analysis of the advisory opinion request, see here and here). This week also sees the Supreme Court hearing a challenge to the lawfulness of the UK Government’s decision to declare a “Marine Protected Area” around the Chagos Archipelago.
The legal status of territories forming part of former British colonies has been in the news in the past week
The human suffering caused by the expulsion of the residents of the Chagos Archipelago is now widely recognised and acknowledged. Less attention has been directed to the conditions currently being suffered by the residents of a lesser-known relic of the colonial era – the Sovereign Base Areas in Cyprus (“SBAs”). This was the subject of a recent decision of the Court of Appeal in R (Bashir) v (1) Secretary of State for the Home Department (2) Sovereign Base Authority  EWCA Civ 397.
The issues in the case
The Claimants in that case represent a group of refugees who were rescued in the Mediterranean in 1998, en route to Italy, and taken instead to the SBAs, where they have remained ever since, isolated and in increasingly poor conditions, in hazardous and dilapidated accommodation with no real community or facilities. They wish, understandably, to move to the UK. The Government agrees that their needs cannot possibly be met in the SBAs. But it takes the view that the 1951 Refugee Convention does not apply to the SBAs. So, it says, the UK has no obligation to permit the refugees to move to the UK. Instead, it has sought to reach an agreement with Cyprus, allowing them to relocate there.
On the facts, the Claimants argue that the proposed arrangements with Cyprus are “uncertain, unreliable and unacceptable” . But more fundamentally, they argue that the the Refugee Convention does apply to the SBAs, and that, since the UK cannot not satisfy its obligations to them under the Convention by keeping them confined to the SBAs, it must allow them to move to the UK. A number of other factual and legal points arose in the appeal; this post concentrates on the key question of the applicability of the Convention.
The Sovereign Base Areas
The Sovereign Base Areas (“SBAs”) are two areas of Cyprus, comprising about 3 per cent of the island, each containing a military base. When Cyprus gained its independence in 1960, the Treaty of Establishment of the Republic of Cyprus provided that “The territory of the Republic of Cyprus shall comprise the Island of Cyprus, together with the islands lying off its coast, with the exception of the two areas defined in Annex A to this Treaty”, namely “the Akrotiri Sovereign Base Area and the Dhekelia Sovereign Base Area.”
The technique of retaining part of a former colony to house a military base is similar to that employed in the Chagos Archipelago
Those areas were to remain under British control, rather than forming part of the Republic of Cyprus. The technique of retaining part of a former colony to house a military base is similar to that employed in the Chagos Archipelago. The lawfulness of the creation of the SBAs was not in issue in the Bashir case: the argument was, rather, about what obligations the UK owes to the refugees who have ended up their in their quest for safety.
The test for the continuing application of the Refugee Convention
In the court below, Foskett J had held that the Convention did not apply to the SBAs. Was he right? Giving the main judgment in the Court of Appeal, Irwin LJ summarised the issue as follows:
The United Kingdom signed the Refugee Convention in 1951, ratified it in 1954, and in October 1956 made a formal declaration pursuant to Article 40(1) that the Convention was extended, inter alia, to the colony of Cyprus, taking effect from 23 January 1957. There is therefore no question but that the Refugee Convention applied to Cyprus, including the territory subsequently comprised by the SBAs, whilst Cyprus remained a British colony. The first issue under consideration turns on whether that application survived the creation of the Republic of Cyprus, the exclusion of the SBAs from the territory of the new Republic and the maintenance of British sovereignty over the SBAs. 
The process of answering this question took the Court back to the Chagos Archipelago. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  UKHL 61, a challenge by the Chagossians to their continued exclusion from the Chagos Archipelago, Lord Hoffmann (as summarised by Irwin LJ) held that, when considering the status of a treaty which the UK had expressly extended to a colony:
…the key question as to whether an existing extension (in that case of a different Convention) survived constitutional change to a colony, was whether or not the change in question represented the creation of a “new political entity”. That formulation was agreed in that case by those of their Lordships who expressed a view. 
Whether the Sovereign Base Areas were a ‘new political entity’
Accordingly, the Court considered that “With that test in mind, the question here is whether the SBAs constitute a ‘new political entity'”. In considering this question, it reviewed the legal framework which had created the Republic of Cyprus; decisions of the courts of the SBAs; and a range of historical materials about the attitude of UK officials to the status of the SBAs over time. Having done so, Irwin LJ said in understated fashion that “It is not clear to me that the phrase ‘a new political entity’ is easy in its application.”  As he observed,
It must be considered in the context of the obligation of a state in public international law, not just in a general sense. Clearly a state may go through enormous political and constitutional change, and indeed a radical change of territory, without shedding its international obligations… Even very major constitutional or political changes cannot be said automatically to create a new political entity. [51-53]
On the facts, he concluded that:
The entity which became the SBAs appear to me to have been a continuation of the Colony of Cyprus, albeit with the loss of the great majority of the previous colonial territory, and with administrative and treaty arrangements necessary for good relations with the new Republic. Constitutionally and politically it was a continuation of what had gone before… Drawing together the threads, in my view the SBAs were a continuing political entity, rather than a new political entity, within the test in Bancoult (No 2). The public international law obligations of the British Government as the Colonial power must be taken to have continued… For those reasons, I would conclude that as a matter of public international law, the Refugee Convention continued to apply in those parts of the Colony of Cyprus which continued, with the status of Colony or British Overseas Territory, as the SBAs. [57, 58, 62]
As an interesting side note, he rejected the relevance of historical evidence as to the attitude of British officials over time to the legal issues: the use of such evidence as a means of illuminating the legal issues was, in his view, “simply inappropriate”, as “[t]he fact that the official mind was Janus-faced cannot determine the law.” [59-60]
As is often the case in judicial reviews, the Claimants’ victory did not lead directly to an order requiring the Government to grant them the outcome which they seek. The Court did not order the Government to allow them to move to the UK – as is common in judicial review claims, it simply required the Secretary of State to take a fresh decision on whether the Claimants could move to the UK, “but on the basis that the Refugee Convention applies directly and the United Kingdom owes direct obligations to the Claimants by operation of public international law.” 
the United Kingdom owes direct obligations to the Claimants by operation of public international law
However, the Court’s concluding remarks made it clear that, given that the Government agrees that the Claimants could not be expected to remain in the “unacceptable” conditions in the SBAs, a decision had to be taken quickly – and an attempt to solve the problem by moving the Claimants to Cyprus “would be very likely to represent a repeated failure to meet the obligations which I conclude fall upon the UK”.  This is a very clear steer, and it is hoped that the Government responds quickly, so as to bring to an end the suffering caused by this particular relic of Britain’s colonial past.