Torts in UK Foreign Relations: Response to Professors Mills, Ryngaert and Webb

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I am grateful to Professors Alex Mills, Cedric Ryngaert and Philippa Webb for discussing various aspects of my book on Torts in UK Foreign Relations in their posts. Their comments raise important questions about the act of state doctrines, the application of foreign law to tort claims arising out of the external exercise of British executive authority and the position of the UK approach to such claims in comparative law.

Foreign Act of State

In her post, Professor Webb focuses on the foreign act of state doctrine (“FAOS”). She raises the question of whether private international law can help us understand the nature of the doctrine and play a role in taming the public policy exception to it.

This question is partly motivated by the Canadian Supreme Court judgment in Nevsun Resources Ltd v Araya, where the court relied on private international law to hold that FAOS had played no role in Canadian law and was not part of Canadian common law. Regardless of the merits of this argument in the Canadian context, it clearly does not apply in the UK. The UK Supreme Court has confirmed the existence of FAOS in UK law on no fewer than three occasions since 2017 (Belhaj v Straw; “Maduro Board” of the Central Bank of Venezuela v “Guaidó Board” of the Central Bank of Venezuela; Law Debenture Trust Corp plc v Ukraine). Therefore, the question for UK law (as well as for the laws of Anglo-Commonwealth countries that still recognise FAOS as part of their law) is whether private international law can help clarify the nature of FAOS and map out the relationship between different jurisdictions and rules that are engaged when the doctrine operates.

I share Professor Webb’s view that, upon examining the relevant caselaw, one is left with the impression that FAOS is “messy, a bit wild”, with “shifting rationales”. I believe that private international law can indeed help us understand the nature of the doctrine and its operation.

The UKSC judgment in Belhaj v Straw is particularly useful in this context because it tells us that FAOS comprises three rules (though there is a potential fourth rule, but the courts have not definitely confirmed its existence and it need not distract us further): the so-called first, second and third rules of FAOS. At first sight, these rules may appear similar and are often collectively discussed in public international law literature. As Professor Mills notes in his post, a benefit of adopting a private international law perspective is that it helps us grasp the subtleties of legal doctrines, principles and rules because “distinct analysis of different issues is a well-established methodological practice” in this field. Looking at FAOS from this perspective reveals that the first and second rules of FAOS share similarities, while these two rules significantly differ from the third rule of FAOS.

The first and second rules of FAOS prevent the courts from deciding 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. They are subject to a public policy exception, allowing the courts to regard a foreign territorial legislative or executive act as unlawful if it violates English public policy, which is usually derived from public international law. A classic example is Kuwait Airways Corp v Iraqi Airways Co, where the House of Lords held that Iraqi legislative and executive acts, aiming to legalise the looting of Kuwait property following Iraq’s annexation of Kuwait that went against customary public international law and UNSC resolutions, violated English public policy. As a result, they were regarded as unlawful, despite being lawful under the applicable Iraqi law. This demonstrates that the first and second rules of FAOS operate as hard-and-fast rules, with one exception. Private international law can play a role in taming the public policy exception here because the courts possess extensive experience in applying the public policy doctrine in the fields of choice of law and recognition and enforcement of foreign judgments, using it sparingly and in exceptional circumstances.

The third rule of FAOS operates under a different set of circumstances, specifically when an issue, claim or defence requires the courts to decide on the lawfulness of a foreign sovereign act under public international law. In such cases, the courts are prima facie required to refuse to decide the issue, claim or defence. This rule is subject to a public policy exception, allowing the courts to review the lawfulness of a foreign sovereign act under public international law and, thus, decide the issue, claim or defence in question. The caselaw demonstrates that the courts can take into account a range of factors for this purpose. For example, the Court of Appeal in Law Debenture Trust considered six factors (party autonomy, comity, justice, existence of justiciable and manageable legal standards, separation of powers and the existence of strong domestic and international public policies) at [174]-[180]. This case and subsequent cases such as High Commissioner for Pakistan in the United Kingdom v Prince Muffakham Jah, Al-Maktoum v Al-Hussein and Western Sahara Campaign UK v Secretary of State for International Trade confirm that applying the public policy exception in this context entails a “balancing exercise” (Jah, [312]; Western Sahara Campaign, [156]). This demonstrates that the third rule of FAOS does not operate as a hard-and-fast rule, but, in the words of the High Court in Al-Makthoum, on a “nuanced, case-by-case” basis. Drawing an analogy with forum non conveniens is, therefore, apt.

However, Professor Webb raises the question of whether drawing an analogy with forum non conveniens is beneficial. She notes that this doctrine is characterised by uncertainty, concerned with finding the appropriate forum, which is often a foreign domestic court, and not discretionary.

I agree that forum non conveniens operates with a degree of uncertainty. However, this is inherent in any doctrine that tasks the courts with conducting a multi-factor analysis on a case-by-case basis. As evidenced by the Law Debenture Trust case and the subsequent cases mentioned above, the courts are indeed conducting such an analysis under the public policy exception to the third rule of FAOS. Rather than denying this reality, we should focus instead, as we do when we analyse forum non conveniens, on determining the relevant factors and evaluating the significance of each factor under different circumstances.

The Law Debenture Trust case and the subsequent cases mentioned above further illustrate why I disagree with Professor Webb’s assertion that the third rule of FAOS is not discretionary. The courts’ adoption of a “nuanced, case-by-case” approach involving a “balancing” of a range of factors suggests that they exercise a degree of discretion in this context.

I also agree that forum non conveniens is concerned with finding the appropriate domestic judicial forum and that the third rule of FAOS differs in this respect. However, when this rule applies, the claimant is essentially directed to seek resolution of the dispute in another forum, be it a foreign domestic court, an international court or tribunal or a diplomatic forum. Analytically, this is not vastly different from trying to find the appropriate domestic judicial forum.

Conceptualising the third rule of FAOS as analogous to forum non conveniens offers certain advantages. For example, forum non conveniens does not apply when there is no alternative domestic judicial forum. Similarly, the courts perhaps should refrain from applying the third rule of FAOS when there is no alternative forum to resolve the dispute. This type of reasoning can play a role in taming the public policy exception here and has the potential to increase access to justice.

Choice of Law

In his post, Professor Mills engages with Part III of my book, which focuses on choice of law. He raises three points that I want to address here.

First, Professor Mills notes that inquiring whether questions of justice, convenience, fairness, appropriateness and the legitimate expectations of the parties offer persuasive reasons to prefer the general application of foreign to English law in the context of tort claims arising out of the external exercise of British executive authority is a topic worthy of further exploration. He illustrates this point by writing that:

“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.”

Professor Mills also wonders whether an even more disaggregated and flexible approach than I adopt in my book would create the room for responding to the varying degree of “publicness” in different cases: “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.”

However, the scenario Professor Mills envisions should be placed within a slightly broader context. Consider a situation where UK forces operate as part of a multinational force that detains a person. Due to the immunity doctrines, that person will not be able to commence proceedings in the state of detention. If detained by the forces of state A, state B or state X, which are also part of the multinational force, he would have to commence proceedings in the courts of state A against state A, in the courts of state B against state B etc. Similarly, if detained by UK forces, he would have to commence proceedings in the UK courts against the UK government. 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 and typically applying the place of the tort (lex loci delicti) to such claims. While the subjective expectations of a detainee in this scenario are unknown and irrelevant, it is clear that in a setting where only the English courts apply the lex loci delicti to the existence and extent of the forum state’s tort liability for its wrongful exercise of executive authority abroad, there are no reasonable expectations for the application of the lex loci delicti. This supports the argument that I make in my book, that the traditional justifications for the application of foreign law, including reasonable expectations, are of limited relevance.

This does not imply that the lex loci delicti should have no role. The choice is not between exclusively applying English law and exclusively applying foreign law to all issues. Presently, and despite their rhetoric, the English courts do not subject all aspects of the tort liability of the UK government and its officials to the lex loci delicti. Many issues are governed by English law (or at least there is no indication, in the caselaw or scholarship, that they should be governed by the lex loci delicti), such as the UK government’s capacity to be liable in tort, conditions for imposing tortious liability on the UK government, certain defences to liability etc. Similarly, under the approach that I propose, most issues would be governed by English law, while some would be governed by the lex loci delicti. These issues include the applicable standard of conduct and justifications for prima facie tortious conduct – precisely the issues that Professor Mills suggests should be governed by the lex loci delicti.

The second point I want to address pertains to Professor Mills’ query regarding whether my 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”. In English law, the accountability of public authorities is assured through five bodies of rules: criminal law, the law of judicial review, the Human Rights Act 1998 (“HRA 1998”), the law of habeas corpus, and tort law. The relationship among these five bodies of rules is complex and has been fine-tuned by the courts and Parliament over many decades and even centuries. When the UK government or its officials act abroad, their conduct is undisputedly governed by English public law. Even the availability of the writ of habeas corpus under English law is not questioned when the UK government exercises de facto control over an individual abroad, or there is a reasonable prospect of such control (Ex p Mwenya [1960] 1 QB 241 (CA); Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah), despite the fact that habeas corpus proceedings can be commenced against both public and private persons (Somerset v Stewart (1772) Lofft 1, 98 ER 499). Foreign tort law is unlikely to be able to substitute for English tort law. This is the main reason why English tort law should be applied to claims against the UK government for its external exercise of sovereign authority. This is also the reason why the question of what law governs the tort liability of foreign state actors in English territory is immaterial as different considerations apply in this context (for example, violation of UK’s sovereignty over its territory: Shehabi v Bahrain, [134]).

Finally, Professor Mills raises a valid question about “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.” I acknowledge that my book primarily analyses English law, although many of the doctrines, principles and rules discussed, such as the choice-of-law rules of the Private International Law (Miscellaneous Provisions) Act 1995 (see section 18(3)) and the act of state and immunities doctrines, are also applicable in other parts of the UK. However, apart from Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75 (HL), all tort cases arising out of the external exercise of British executive authority (or at least those decided since the adoption of the Crown Proceedings Act 1947) have been brought in England. That justifies the focus on English law in my book, which I believe offers valuable insights applicable to Scots law as well.

Comparative Context

In his post, Professor Ryngaert contextualises UK developments within a broader comparative framework by drawing comparisons and contrasts with equivalent developments in Dutch law. This comparative analysis is apt for several reasons. First, the Netherlands stands as one of the few states where courts entertain tort claims against the forum state arising out of its wrongful exercise of executive authority abroad. Second, the similarity between the UK and Dutch caselaw is striking – the Dutch courts have, like their UK counterparts, handled cases arising out of the wrongful exercise of executive authority abroad and cases for historical wrongs in former colonies. Moreover, the Dutch courts formerly applied the lex loci delicti, but shifted their approach in 2014 and now apply Dutch law. Third, the wrongful exercise of executive authority abroad by a European state often violates the European Convention on Human Rights (“ECHR”). A comparison of the UK and Dutch caselaw illuminates two distinct approaches to the same problem, namely translating violations of international human rights law into domestic tort law.

I would like to make two points about this.

First, it is interesting to observe how the UK and Dutch courts accommodate international human rights law in their reasoning.

In Dutch law, there is one mechanism for suing the Netherlands and it is provided by the Dutch Civil Code. The most important provision is Section 6:162. As Professor Ryngaert explains, the Dutch Supreme Court in Mothers of Srebrenica held that, as the standards derived from the ECHR and the International Covenant on Civil and Political Rights are also inherent in Dutch law, a breach of them must be deemed contrary to the general standard of due care laid down in Section 6:162. Interestingly, these standards are also inherent in Dutch law even if the territorial scope requirements of these instruments are not met.

By contrast, in UK law, there is not one mechanism for suing the UK government. The two main mechanisms are claims under the HRA 1998 and tort law.

The readers of EJIL Talk! will know that the HRA 1998 allows the victim of a violation of the ECHR by a UK public authority to bring a claim for a relief or remedy, which can include the payment of compensation. Since the availability of a relief or remedy is contingent on the violation of a “Convention right”, there can be no valid claim where the territorial scope requirement of the ECHR is not met. If the territorial scope requirement of the ECHR is met, but the alleged violation of a Convention right occurs in the course of a military operation, the courts have to decide on the effect of international humanitarian law on international human rights law (see Al-Waheed v Ministry of Defence).

In a tort claim arising out of the external exercise of British executive authority, the courts may also have to consider the application of international human rights law and international humanitarian law, but in the context of deciding whether the Crown act of state doctrine applies. This is because this doctrine only applies when the act in question is done in the lawful exercise of the foreign relations prerogative. If the act in question is judicially reviewable and violates the HRA 1998 (which means that it violates a Convention right and, possibly, also violates international humanitarian law), then the court moves to the second stage of the analysis, namely to determine whether the UK government is liable under the law governing the tort.

Professor Ryngaert further notes that:

“Not too much should be made, however, of the formal applicability of Dutch tort law. Insofar as the relevant tort can be qualified as an international human rights violation (e.g., violation of the right to life or the prohibition of torture), for Dutch courts, the content of the duty of care in tort law is strongly influenced by international, and especially European human rights law.”

This is not the case as far as litigation in the UK is concerned. The issue of applicable law can be crucial. While it is to be expected that every developed system of tort law will sanction unlawful killings, torture and detention, rules on some other aspects of tort claims against the UK government for its external exercise of sovereign authority in different legal systems may be very different. Examples include accessory tort liability, liability for omissions and the availability of exemplary and punitive damages.

The second point that I would like to make is that an analysis of tort claims against the UK government for its external exercise of sovereign authority tells us quite a lot about the separation of powers in the UK, the nature of the liability of the central government in English law and the limits of private (international) law. I wonder whether Dutch law and the laws of other states whose courts entertain tort claims against the forum state arising out of its wrongful exercise of executive authority abroad (for example, Denmark, whose Supreme Court has held that Danish law should be applied to a tort claim arising out of the Green Desert military operation in Iraq in 2004) can lead to similar insights if the disaggregated approach that I adopt in my book is applied.

Similarly, some of the cases that I examine in my book were for historical wrongs in former colonies, as was the 2011 District Court of The Hague seminal judgment in the Ragawede case. The historical wrongs cases brought in England tell us a lot about the relationship between law and colonialism. I wonder whether the Dutch caselaw holds similar potential.

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John Morss says

December 24, 2023

As a year of terrible events and appalling suffering comes to its close it is timely to acknowledge the invaluable contribution of EJIL:Talk! to sober debate and reflection, and not least on doctrinal frameworks and the practice of judiciaries and governments, as exemplified in this Book Symposium. Ahead of reading Dr Grusic's so timely book, it strikes me that assumptions (expressly or constructively constitutionalised or otherwise) concerning judicial independence and the separation of powers (which are not the same thing) deserve greater scrutiny for their articulation with both public and private international law; and pronouncements by Law Lords are not the whole of that story. SoP suggests a collaborative tripod of governance under which it might be plausible to find judicial decisions as (somewhat distantly) representing state practice (etc) going to CIL; however judicial independence which would seem a more fundamental value (?) seems more difficult to square with that orthodox mantra. In any event such topics as Foreign Act of State, torts across borders and statehood-based immunities bring to a focus the challenging convergence of the private, the public, the constitutional and the invasively personal.