This post was written by Ugljesa Grusic, Associate Professor at University College London. It offers a preview of the upcoming developments relating to Zubaydah v Foreign and Commonwealth Office, a case pending before the UK Supreme Court.
While private international law is no longer regarded as an apolitical field, it is rare for it to become directly entangled in clandestine intelligence operations, secret state deals, and egregious human rights violations. However, the UK Supreme Court is set to hear precisely such a case on 14 and 15 June 2023 in Zubaydah v Foreign and Commonwealth Office. This case is important not only because of its context, but also because it raises a crucial question of private international law. Can reasonable/legitimate expectations, justice, convenience, fairness, and appropriateness, as fundamental principles underlying the application of foreign law, be of practical relevance for determining the applicable law in difficult cases?
Abu Zubaydah, the first detainee in a CIA black site and the first subject of what the CIA euphemistically refers to as ‘enhanced interrogation techniques’, but what should rightfully be recognised as torture and cruel, inhuman or degrading treatment, is currently a ‘forever prisoner’ in Guantánamo. He is suing the UK government for its alleged complicity in the CIA’s wrongful conduct, which itself was part of the US ‘war on terror’.
Zubaydah is suing the UK government for misfeasance in public office, conspiracy, trespass to the person, false imprisonment, and negligence. The crux of the claims is that the Security Service and the Secret Intelligence Service (better known as, respectively, the MI5 and the MI6) were aware that Zubaydah was being arbitrarily detained at CIA black sites, where he was being subjected to torture and maltreatment during interrogations conducted by the CIA, but nevertheless sent questions with a view to the CIA eliciting information from him, expecting and/or intending (or at the very least not caring) that he would be subjected to such torture and maltreatment. The defendants are neither confirming nor denying these allegations.
The claim is brought in tort. The Rome II Regulation does not apply due to the acta iure imperii exception. Section 15(1) of the Private International Law (Miscellaneous Provisions) Act 1995 states that the choice-of-law rules for torts in 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 lex loci delicti applies pursuant to section 11 of the 1995 Act. However, section 12 provides an escape clause.
In this case, the claimant (respondent in the appeal) aims to plead and establish his claim by reference to English law. On the other hand, the defendants (appellants in the appeal) argue that the laws of Thailand, Poland, Cuba (Guantánamo Bay), Morocco, Lithuania, and Afghanistan (the ‘Six Countries’, where he was allegedly detained, tortured, and mistreated) should govern.
Private international law thus becomes the focal point of the power dynamics at play in this case. Of course, the defendants are not asserting that the MI5 and MI6 officers who sent questions to their CIA counterparts had the specific laws of the Six Countries in mind as governing their actions. Rather, they are arguing that the laws of the Six Countries apply because this would make the claimant’s claim more uncertain and resource intensive and, consequently, more challenging to establish. Lane J accepted the defendants’ argument, but Dame Sharp P, Thirlwall and Males LJJ unanimously allowed the appeal.
Importance of the Case
This case holds importance for private international law for two reasons. Firstly, it highlights the role of private international law in holding the executive accountable and vindicating fundamental rights, particularly in cases involving alleged wrongs arising out of the external exercise of British executive authority. I will not discuss this aspect of the case here, except to say that I have written a whole book on the topic, Torts in UK Foreign Relations, which will be published by Oxford University Press in their Private International Law series on 13 June 2023.
The focus here is on the second important aspect of the case, which involves the reliance by the parties and the courts on reasonable/legitimate expectations, justice, convenience, fairness, and appropriateness, as fundamental principles underlying the application of foreign law, as important factors in the choice-of-law process.
As elucidated by the editors of Dicey, Morris and Collins in paragraph 1-006, ‘The main justification for the conflict of laws is that it implements the reasonable and legitimate expectations of the parties to a transaction or an occurrence.’ In the following paragraphs, the editors further assert that failing to apply foreign law in ‘appropriate cases’ would lead to ‘grave injustice and inconvenience’. As private international lawyers, we recognise these and similar principles as the truths of our field. However, courts rarely delve into the reasons for applying foreign law and the practical relevance of these fundamental principles. It is in the most difficult cases, such as Zubaydah, that courts may have to go back to the drawing board.
Consider a scenario where a person negligently injures a Ruritanian victim while driving in Ruritania. It is well-established that Ruritanian law would govern the tort in such a case. The application of Ruritanian law can be justified based on the reasonable/legitimate expectations of the parties involved. By driving to Ruritania, the tortfeasor submits to Ruritanian law, and the Ruritanian victim naturally expects the application of its own country’s law. Additionally, the application of foreign law can be explained by notions of justice, either as the attainment of individual private justice or the systemic justice derived from the appropriate allocation of regulatory authority among states.
However, do these ideas still hold weight where the victim was forcibly and unlawfully ‘extraordinarily rendered’ from one country to another, where their senses of sight and hearing were deprived during transportation using goggles and earmuffs, and where they were kept unaware of their location by their captors and torturers? What if the defendant accomplice was oblivious and indifferent to the victim’s whereabouts? And what if the objective of the claims is to hold a government accountable and vindicate fundamental rights that are part of the forum state’s bill of rights?
These are big questions, and I address them all in my new book. Here, I want to limit myself to summarising the parties’ arguments, based on the arguments advanced in the High Court and the Court of Appeal.
The claimant is relying on three arguments. First, the focus should be on the defendants’ alleged tortious conduct of sending questions to the CIA, rather than the conduct of the CIA. Second, the factors connecting the tort to the Six Countries are weak because the claimant had no control or knowledge of his location, the defendants were unaware or indifferent to the claimant’s whereabouts, and the claimant was effectively held in ‘legal black holes’ in the Six Countries, outside any legal system. Third, the factors connecting the tort to England are strong because the relevant conduct occurred in England, it was undertaken for the perceived benefit of the UK, the defendants acted in their official capacity under UK law, and they were subjected to UK criminal and public law.
The defendants are relying on four arguments. The first and second arguments (the relevant conduct; the strength of the relevant factors) present a mirror-image of the claimant’s first two arguments. Third, the escape clause in section 12 of the 1995 Act should be strictly interpreted. Fourth, tortious claims arising out of the external exercise of British executive authority do not require the disapplication of the lex loci delicti and the application of the escape clause, as shown by a string of cases involving the wars in Afghanistan (Mohammed v MoD) and Iraq (R (Al-Jedda) v SoS for Defence; Rahmatullah v MoD), as well as the UK’s participation in the extraordinary rendition, arbitrary arrest, torture, and maltreatment by foreign states (Belhaj v Straw), where English courts refused to apply English law.
While the High Court aligned with the defendants’ arguments, adopting a broad view of the relevant conduct and a narrow interpretation of the escape clause, the Court of Appeal was sympathetic to the claimant’s arguments. The Court of Appeal relied in its decision on reasonable/legitimate expectations, justice, convenience, fairness, and appropriateness, as is clear from these paragraphs:
41. These are strong connections connecting the tortious conduct with England and Wales. They reflect also the parties’ reasonable expectations. While it is true that the claimant himself had no connection with this country, he could reasonably have expected, if he had thought about it during the 20 years in which he has been detained, that the conduct of any country’s security services having to do with him would be governed by the law of the country concerned. As for the Services, they would reasonably have expected that their conduct here would be subject to English law …
42. … This conclusion gives effect to the principles on which the 1995 Act is founded, including the reasonable expectations of the parties, and to the general principle of private international law identified by the Law Commission “that justice is done to a person if his own law is applied”… the Services can hardly say that it would be unfair (or to use the statutory term, inappropriate) for their conduct to be judged by the standards of English law, as distinct from (for example) Lithuanian or Moroccan law.
Zubaydah is now awaiting a decision from the UK Supreme Court, which will determine whether or not English applies. Regardless of the outcome, this case is likely to become a prominent authority on the reasons for applying foreign law and the practical relevance of fundamental principles underlying the application of foreign law.
The hearing at the UK Supreme Court will be streamed live for those interested, scheduled for Wednesday and Thursday, 14 and 15 June 2023. The live stream can be accessed by following the link ‘watch live court sittings’ on the court’s home page.