The Application of Foreign Tort Law to Extraterritorial Exercises of UK Executive Authority: A Practice without Principle?

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When the United Kingdom exercises executive authority outside its territory, a variety of legal claims may (and in practice often do) ensue in the English courts. Such claims may arise, for example, from those who allege that they have been mistreated at the hands of members of the UK armed forces in the course of foreign operations. One possible form in which such claims may be brought is in tort, and it is this form of litigation which is the principal focus of Dr Uglješa Grušić’s commendable book, Torts in UK Foreign Relations.

These proceedings raise a variety of complex issues, not least because of an apparent conflict between their form and their substance. On the surface, these are actions in private law and should be resolved accordingly, including through rules of private international law – which means, generally, the application of foreign law to torts which take place on foreign territory. This is, indeed, the approach which has most commonly been taken by the courts in dealing with such claims, and it is the correctness of this approach which is the focus of Part III of the book and also the subject of this post. Viewed in this ‘private’ light, tort claims against the UK armed forces operating abroad are not greatly distinguished from claims based on the (no doubt very occasional) misbehaviour of UK tourists on holiday.

In substance, of course, proceedings arising from foreign executive acts are not merely concerned with private rights, but with the public conduct of the state. The question of to whom the state owes duties and what those duties are is not, or not necessarily, an ordinary question of tort law. It is a question with an intensely public focus and context, concerned with the accountability of the state and its public officials both under domestic law and under international law, each including particularly human rights law. This public context is self-evident in relation to torts with a public focus, like misfeasance in public office, but is equally present in general torts like the tort of negligence, which have long been understood as potentially serving both private functions (such as compensating individuals for losses caused by another party’s wrongdoing) and public functions (such as regulating general standards of behaviour). How the law should engage with these issues is thus an intensely complex question, which (in Uglješa’s words) confronts the ‘well-worn dichotomies’ of ‘private and public, internal and external, domestic and foreign, and national or municipal and international law’ (at 1.06).

The book presents a complex and nuanced engagement with these issues, which of course cannot be entirely reflected in a blog post. But four key contributions of the book on these questions may be noted.

First, Uglješa highlights the inconsistency in the existing case law dealing with these issues, with courts drawing variously on English or foreign law, or in some cases international law, in sourcing the appropriate rules to apply to different questions. This inconsistency is indeed highly unsatisfactory, and the book is in part a response to the demand it makes for greater clarity.

Second, Uglješa rejects a questionable starting point from which English law approaches these issues, which is that when state agents commit wrongs they are necessarily acting outside their authority and thus in a personal capacity, and that the law should apply to them in the same way as to other ‘private’ actors (although with the possibility of state vicarious liability). Uglješa rejects this as a fiction, and argues that it leads the analysis astray by mischaracterising the conduct of public officials as private when it is self-evidently public. (From a public international law perspective, we might note that this also seems more consistent with the fact that the conduct of state organs remains attributable even if it is ultra vires, pursuant to ARSIWA Art.7.)

Third, the book argues for the importance of a disaggregated approach, rather than one which is absolute. This is to say, it highlights the need for analysis of each distinct issue raised in a tort claim, rather than adopting a perspective under which the claim must be governed as a whole by English or foreign law. This is one of the benefits of Uglješa’s adoption of a private international law perspective, under which distinct analysis of different issues is a well-established methodological practice.

Fourth, although Uglješa adopts a private international law perspective, perhaps paradoxically he in fact argues for more of a public rather than private law focus. Chapter 5 of the book presents the main argument in this respect, and expressly rejects the ‘private law approach’ which has been applied in the majority of UK cases (Al-Jedda, Belhaj, Rahmatullah (No 2), Sophocleous) in favour of what he characterises as the ‘public law approach’ of the Court of Appeal in Husayn (also reported as Zubaydah, and subject to an appeal which is pending before the Supreme Court). His argument is not that English law should be invariably applied to every question, but rather that there should be a shift toward more issues being governed by English law, with foreign law playing a smaller residual role. He argues that foreign tort law generally provides an unsuitable vehicle for regulating the conduct of UK public authorities, as it will have developed in the context of a different system of foreign public law, and applying English law makes greater sense of the public context in which these issues arise. He also contends that applying English law would facilitate the ‘more rational’ development of the law governing the use of UK governmental authority.

The book makes its case clearly and very well, although the issues are perhaps more finely balanced than at times suggested, and the reader may occasionally wonder if the counter-arguments have been as fully fleshed-out as the arguments. For example, Uglješa contends (at 5.53) that “the application of foreign law in general to tortious claims arising out of the external exercise of British executive authority is not supported by traditional justifications for the application of foreign law advanced in English private international law theory.” He considers, among other potential justifications, questions of justice, convenience, fairness, appropriateness, and the legitimate expectations of the parties, finding that none of these offer persuasive reasons to prefer the general application of foreign to English law in this context. Perhaps, however, this would be a topic worthy of further exploration. For example, while it may be suggested that a person detained by UK troops for a long period of time would expect English law to apply to regulate the conditions of their detention, it might equally be suggested that a person in a foreign state would expect their local law to determine what protection from unjustified detention is offered to them. This is perhaps particularly the case where UK forces operate as part of a multinational force, as it would seem unrealistic to suggest that individuals would have expectations that the possibility, duration and conditions of their detention would differ depending on which troops happen to detain them. As Uglješa notes (at 5.55) it is of course difficult to be clearly guided by expectations in this context, because expectations may differ between the parties, and the law also sets expectations. These arguments could, however, also be reframed in classical private international law terms as part of the eternal debate about whether the applicable law for tort claims should be focused on the rights of the injured party (which might be thought to be primarily territorial, and thus governed by foreign law) or the duties of the wrongdoer (which in this context might be thought to be connected to their public office).

One of the most striking features of the cases in which these questions have arisen is, however, that the party advocating for application of a particular law is precisely the opposite of what this framing might be thought to suggest. In each case, the UK government has argued for the application of foreign law, contending that its own law should not regulate the conduct of its own troops, even though it is highly unlikely that their training will encompass compliance with foreign tort law. On the other hand, the (generally foreign) claimants have argued for the application of English law, contending that this law (which is to them generally foreign law, and equally likely to be unknown in substance) is the most appropriate to govern their treatment on non-UK territory. The most likely driver for this perhaps surprising feature of the case law appears to be pragmatism, rather than principle, which may not have aided the sensible development of the law, and is in tension with private international law’s traditional blindness to outcomes. In each case, it would have been advantageous for the claimants if English law applied, both because English law was in some respects more protective of their rights than foreign law, and because if English law applied they did not need to go to the expense of pleading and proving foreign law before the English courts. The book’s advocacy for the greater application of English law in these cases is thus supportive of the arguments of past claimants, and their practical access to justice, despite adopting a public perspective which places the focus on the defendants. One wonders if the same arguments would feel quite so persuasive if foreign law was actually much more advantageous than English law – if, for example, English law excluded or limited liability in tort. Would it seem quite so appealing to say that persons wronged by the conduct of UK armed forces in foreign territory would expect English law to apply in such circumstances, or equally that the tort liability of foreign state actors in English territory should be governed by their own national law and not English law? Conversely, would UK government lawyers still support the application of foreign law to the conduct of UK troops if it benefited claimants?

The issues raised by these types of cases are numerous, and many other points of interest could be raised, and indeed are addressed in the book. It might be wondered, for example, whether (at the cost of greater unpredictability) an even more disaggregated or flexible approach would create the room for responding to the varying degree of ‘publicness’ in different cases, and the varied circumstances in which these issues arise. The territorial location of a detention is, for example, evidently more significant where it is the detainee’s place of residence, and less significant where it has arisen as a result of an involuntary rendition. It might also be wondered whether it is entirely right that the ‘public’ law for tort claims arising from UK foreign military operations is identified as English law – English law may be the law of the forum in London, but that has no higher status in the United Kingdom than the Scots law of delict. The range of such questions reflects both the complexity of these issues, and also the thought-provoking nature of the book. Whether or not we are persuaded by the argument that foreign torts by UK public actors should be governed (or rather more governed) by English tort law, Uglješa’s work makes a significant and valuable contribution to understanding these issues. It prompts academics, and should equally prompt the courts, to think more carefully about when and why the application of foreign law is truly warranted in these complex disputes.

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