Torts in UK Foreign Relations: An Introduction

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If a British soldier or a member of the British security services commits a wrong in a foreign country while acting in an official capacity, the victim’s best chance of obtaining a remedy is often to commence proceedings against the UK government in England. On what basis can such proceedings be brought? An international lawyer is likely to answer this question by referring to the Human Rights Act 1998. Yet, in many cases, victims opt to pursue their claims against the UK government and its officials in tort. Sometimes, tort claims are pursued in conjunction with HRA 1998 claims as a means of increasing the chance of success. Other times, tort claims are pursued because HRA 1998 claims are unavailable, for example when the territorial scope requirement of the European Convention on Human Rights is not met.

I am delighted that the editors of EJIL Talk! are hosting a symposium on my book on Torts in UK Foreign Relations, which was published in the Oxford University Press Private International Law Series in June this year. While the business and human rights movement has elevated the profile of tort claims as a means of redress for victims of extraterritorial human rights violations, scholarship has largely neglected the role of tort law with respect to the wrongful exercise of state executive authority abroad. My book fills this gap. While the focus of the book is on the UK, it provides lessons that can be valuable for other states as well.

I am particularly delighted that Professors Alex Mills, Cedric Ryngaert and Philippa Webb have agreed to participate as discussants. One could not wish for a better panel to comment on various aspects of the book (which include the role of tort law as a mechanism for vindicating fundamental rights and controlling the exercise of executive authority, the interplay between tort law and the act of state and state immunity doctrines, and the relationship between public and private international law in this field) and on the place of UK developments in a wider comparative context.

At the heart of the book lies an intriguing phenomenon. The English courts adopt a unique approach in comparative law, subjecting tort claims arising out of the external exercise of British executive authority to the choice-of-law process. They typically apply foreign law, specifically the law of the place of the tort (lex loci delicti), to determine the existence and extent of the tort liability of the UK government. For instance, this approach has led to the application of Afghan and Iraqi laws to tort claims arising out of the wars in Afghanistan and Iraq. If the government’s appeal succeeds in Zubaydah v FCO, currently pending before the UK Supreme Court, this approach will result in the application of the laws of Thailand, Poland, Morocco, Lithuania and Afghanistan and the law in force in Guantanamo Bay (the parties agree that it is currently unclear whether this is Cuban law, the law of pre-Communist Cuba, or US law) to a tort claim arising out of intelligence sharing with the Central Intelligence Agency. Why do the English courts adopt this approach? Should the English courts be applying foreign law to such claims?

The formal answer to these questions lies in section 15 of the Private International Law (Miscellaneous Provisions) Act 1995. This section stipulates that the choice-of-law rules for torts laid down by the Act apply “in relation to claims by or against the Crown as [they apply] in relation to claims to which the Crown is not a party”. The general choice-of-law rule from section 11 provides for the application of the lex loci delicti. The “escape clause” from section 12 allows for the displacement of the general rule. Sections 11 and 12 have been primarily interpreted in cases concerning garden-variety torts arising out of road traffic accidents, torts suffered in the course of employment and torts arising out of commercial dealings. This caselaw underscores the importance of legal certainty and foreseeability. The application of foreign law to tort claims arising out of the wars in Afghanistan and Iraq and out of intelligence sharing with the CIA shows that the English courts do not see these cases as exceptional and, for choice-of-law purposes, treat them as claims for garden-variety torts.

Formal explanations, such as the one provided in the previous paragraph, rarely manage to persuade. Therefore, the book searches for a substantive explanation for the application of the lex loci delicti to tort claims arising out of the external exercise of British executive authority. Such explanation can be found in Dicey’s principles of equality before the law and personal responsibility of wrongdoers. In a strange twist of legal reasoning, these two principles that were developed to vindicate English fundamental rights and to control the exercise of British executive authority under English law have become the substantive justification for applying foreign laws, such as the laws of Afghanistan, Iraq, Guantanamo Bay etc, to the existence and extent of the tort liability of the UK government.

Let me further elaborate on this point. When Dicey wrote his constitutional law treatise in the second half of the 19th century, the Crown (that is, the UK government) could not be liable in tort. However, individual British officials who committed wrongs could. This is because private law, administered by ordinary courts, applied equally to both private individuals and officials. The tension between the idea that the Crown could not be liable in tort, while individual officials could, was reconciled by the notion that an official committing a tort acted outside his official capacity and, consequently, bore personal tort liability. In other words, if a British official, for example, tortured a person, the law regarded the act of torture as a private act, although done in purported exercise of executive authority, thereby attracting personal tort liability. These ideas vindicated fundamental rights and controlled the exercise of executive authority.

Today, tort law still operates in a similar way, but with one major exception. The Crown Proceedings Act 1947 provided for the vicarious liability of the UK government for the torts of its officials; additionally, it introduced three narrow bases of direct tort liability of the UK government (employer’s liability, occupier’s liability and breach of statutory duty), which are not relevant for wrongs committed in the external exercise of British executive authority. As these wrongs are still regarded as deriving from private acts, attracting personal tort liability of officials, they are subject to the choice-of-law process like all other private wrongs and foreign law usually applies to them. Consequently, if a British soldier tortures a person abroad, while acting in an official capacity, the law regards the act of torture as a private act done by an individual citizen who happens to wear a uniform. If a private individual tortures a person abroad, the lex loci delicti usually applies. Because the act of a soldier torturing a person is treated in the same way, the lex loci delicti also usually applies. The fact that the UK government is now vicariously liable for the torts of its soldiers does not change the analysis.

A key question, therefore, concerns the separation of acts of British officials that can attract their personal tort liability and the vicarious liability of the UK government from those acts that are attributable to a sovereign authority, which cannot attract such liability. This is where the act of state and immunities doctrines come into play. When the Crown act of state doctrine applies, the act in question is done in the lawful exercise of the foreign relations prerogative, is attributable to the Crown and precludes the application of tort law. Thus, when a British soldier lawfully detains a person abroad, his acts are attributed to the Crown and are not regarded as private acts that can attract personal tort liability. When the act in question is attributable to a foreign state (possible in cases where a British soldier is embedded in another state’s military unit) or even an international organisation (possible in cases where a British soldier operates under the auspices of the UN or NATO), the foreign act of state and state immunity doctrines may apply, thereby precluding litigation in England or the review of the act’s lawfulness.

The structure of the book follows the separation between acts attributable to a sovereign authority and other acts. This structure also aligns well with the book’s focus on the private international law aspects of tort claims arising out of the external exercise of British executive authority. One part of the book addresses the jurisdiction of courts and acts of state, comprising three chapters on the Crown act of state (chapter 2), jurisdictional immunities and foreign act of state (chapter 3) and the law applicable to the attribution of conduct (chapter 4). Another part of the book covers choice of law and includes five chapters on the general treatment by the English courts of torts in foreign relations (chapter 5), the law governing the tort liability of the UK government (chapter 6) and UK government officials (chapter 7), the law governing defences (chapter 8) and pleading and proof of foreign law (chapter 9). A third part of the book deals with the recognition and enforcement in England of foreign judgments given against the UK for its wrongful external exercise of executive authority (chapter 10).

The book presents three overarching arguments. An analysis of the doctrines, principles and rules operating in this field, with a focus on the private international law issues being raised, helps clarify the nature of these doctrines, map out the relationship between different jurisdictions and rules engaged by tort claims arising out of the external exercise of British executive authority and explore some unchartered territories.

Importantly, the Crown and foreign act of state doctrines are reconceptualised as analogous to well-established private international law doctrines and rules. The Crown act of state doctrine (see Rahmatullah (No 2) v Ministry of Defence) is best regarded as analogous to exclusive jurisdiction rules. Thus, when a British soldier lawfully detains a person abroad, the Crown act of state excludes the jurisdiction of the English courts in a similar way that the Moçambique rule excludes the jurisdiction of the English courts over property claims concerning foreign immovable property. The third rule of the foreign act of state doctrine (see Belhaj v Straw) is best regarded as analogous to the forum non conveniens doctrine. For example, an English court can refuse to decide an issue, claim or defence if it requires the court to decide on the lawfulness of a foreign sovereign act under public international law. This rule is, however, subject to a public policy exception, which allows the English courts to take into account a range of factors (the Court of Appeal in Law Debenture Trust Corp plc v Ukraine, for example, considered six factors at [174]-[180]) in order to decide whether an issue, claim or defence should, nevertheless, be decided. The first and second rules of the foreign act of state doctrine (Belhaj v Straw) are best regarded as “super choice-of-law rules” (Perram J in Habib v Commonwealth of Australia) that come into play when foreign law applies, preventing the court from hearing and deciding certain issues under the foreign applicable law. Thus, an English court will refuse to decide on the lawfulness of a territorial legislative or executive act of a foreign state under the law of that state. These rules operate only when foreign law applies and limit the operation of the applicable foreign law, thus building on the application of choice-of-law rules.

The second argument is that there are no compelling theoretical justifications for the application of foreign law in general to tort claims arising out of the external exercise of British executive authority. Furthermore, an analysis of the caselaw on the law governing the direct and vicarious tort liability of the UK government, primary and accessory tort liability of UK government officials and defences to tort liability shows that the English courts are not always practicing what they preach. They often pay lip service to the lex loci delicti and apply English law to many aspects of the tort liability of the UK government and its officials.

The third argument is that the approach of the English courts is ripe for reconsideration. For example, it flies in the face of reality to regard the acts of soldiers in Alseran v Ministry of Defence, who operated as part of the British military chain of command and detained the claimant in accordance with a British policy that was announced to Parliament, as private acts of individual citizens who happen to wear a uniform. The same applies to the acts of British spies in Zubaydah, who sent requests for information to their CIA counterparts. Admittedly, section 15 of the 1995 Act requires the courts to submit tort claims arising out of the external exercise of British executive authority that pass the obstacles posed by the act of state and immunities doctrines to the choice-of-law process. However, in purely domestic cases, the courts recognise that the tort liability of public authorities exhibits special features and that the law needs to be interpreted and applied with this in mind. Sections 11 and 12 of the 1995 Act should be approached in a similar manner. In other words, the English courts should apply English law to tort claims arising out of the external exercise of British executive authority and reserve the application of foreign law only for certain issues, such as the lawfulness of the relevant conduct.

The discussion in the book is timely for three reasons. First, if the HRA 1998 is ever replaced with a British Bill of Rights (see here for the latest attempt), tort claims may end up being the only game in town for victims of the wrongful external exercise of British executive authority seeking damages from the UK government. Second, the book reviews a substantial body of case law, including contemporary cases ranging from R (Al-Jedda) v Secretary of State for Defence, brought in the immediate aftermath of the Iraq war, to Zubaydah, currently pending before the Supreme Court. The courts of many other countries, including Australia, Canada, Denmark, Germany, Israel, Italy, the Netherlands and the US, have addressed tort claims against their governments arising out of the external exercise of sovereign authority. However, the English courts stand alone in applying the lex loci delicti to such claims. The book describes and criticises this approach.

Finally, tort claims arising out of the external exercise of British executive authority share many similarities with tort claims brought in the English courts against multinational enterprises for wrongs committed by their subsidiaries and in their supply chains. These cases are often commenced by the same lawyers (such as Leigh Day) and argued by the same barristers (such as Richard Hermer KC). The basic mechanism provided by tort law is the same in both kinds of cases. Many business-related human rights claims concern complicity in wrongs committed by governments, while some others concern private military and security companies. The liability of the UK government/UK-domiciled multinational enterprises is often alleged to arise out of acts and decisions made or omitted to be made in the UK. Consequently, the book contributes to a broader scholarship on the use of tort law as a mechanism for remedying human rights violations committed by powerful actors with a cross-border reach.

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Lawrence Hill-Cawthorne says

December 20, 2023

A really fascinating and superbly-written book. And the UKSC judgment in Zubaydah has just come out today, affirming your approach: https://www.supremecourt.uk/cases/docs/uksc-2022-0083-judgment.pdf