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

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 […]

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By Donato