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II. Ex parte Pinochet: Lacuna or Leap?

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
Eileen Denza
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Extract

The Lords were not lost in admiration of section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson described it as “strange” and “baffling”. It is certainly true that (as Lord Browne-Wilkinson continued) “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”.1 Nor was it intended that their rights should be inadvertently curtailed. The State Immunity Bill originally introduced into the House of Lords in 1977 would, by reflecting in UK statute law the European Convention on State Immunity2 make huge inroads into absolute sovereign immunity—tottering but not yet demolished through the repeated onslaughts of Lord Denning. The European Convention was however “essentially concerned with ‘private law’ disputes between individuals and States”.3 It was not intended to have any application to criminal proceedings—in so far as lawyers in 1977 even contemplated criminal proceedings in domestic courts against foreign States in their public capacity. It did not deal with the personal privileges or immunities of heads of state. There were no ready-made treaty rules on heads of state and no clear customary rules either.4

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 48 , Issue 4 , October 1999 , pp. 949 - 958
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. [1999] 2 W.L.R. 827, 845–846.Google Scholar

2. ETS No. 74.

3. Para.113 of Commentary on the Convention (Art.29). Art.29 is reflected in S.16(3), (4) and (5) of the Act.

4. Sir Arthur, Watts, 17 years later, in the introduction to his Hague Lectures, suggested that “… Heads of State tend to conduct themselves with discretion, and relevant judicial decisions and publicly-known state practice are relatively scarce.” Recueil des Cours (1994–III) 19.Google Scholar

5. S.14 provides that references to a State include “the sovereign or other head of that State in his public capacity”.

6. Art.32, reflected in S.16(1) of the Act.

7. S.20(2).

8. 1979 RGDIP 803, 812Google Scholar; Watts, : 1994–III Hague Recueil, at p.95.Google Scholar

9. Lord, Millett, supra n.1, at p.913Google Scholar and Lord Phillips, ibid, at pp.926–927.

10. Ibid. at p.846.

11. Denza, , Diplomatic Law (2nd edn, 1998), at p.363Google Scholar; Salmon, , Manuel de Droit Diplomatique 420, 580–621.Google Scholar

12. Op. cit., Recueil des Cours Vol.247 (1994–III) pp.56–57.Google ScholarThe test was expressly endorsed by Lord Slynn supra n.1, at p.1468.Google Scholar

13. See Arts 5 and 6 of International Law Commission's draft Articles on State Responsibility, and Commentary, 1975 I.L.C. Yearbook Vol.11, pp.60–70.Google Scholar

14. This may now be changing: it has been reported that negotiations between Spain and Chile are envisaging arbitration before the International Court of Justice under the provisions of the Torture Convention (The Times, 2 08 1999).Google Scholar

15. Supra n.1, at pp.847 and 899–901.Google Scholar

16. Ibid. p.927.

17. Ibid. pp.886–87, 903–904.

18. Ibid. pp.911–915.

19. 1996 I.L.C. Yearbook Vol.I, pp.32 and 35–46.Google Scholar

20. For examples, see Watts, , op. cit., Recueil des Cours Vol.247 (1994–III) at pp.82–84.Google Scholar

21. [1998] 3 W.L.R. 1456, 1473.Google Scholar

22. Supra n.1. at p.863.Google Scholar

23. Supra n.21, at p.1493.Google Scholar

24. Quoted above, from Recueil des Cours Vol.247 (1994–III) pp.56–57.Google Scholar

25. See editorial comment by Charney in (1999) A.J.I.L. 452–464, at pp.457–459.Google Scholar

26. Supra n.1, at pp.1478–79.Google Scholar

27. Ibid. at p.1498.

28. Ibid., at pp.1507–1508.

29. Ibid. at pp.1494–96. For discussion of the relationship between State immunity and act of state see Barker, , “State Immunity, Diplomatic Immunity and Act of State: A Triple Protection against Legal Action” (1998) I.C.L.Q. 950, pp.956–958.Google Scholar

30. [1982] A.C. 888.Google Scholar

31. Kirkpatrick v. Environmental Tectonics 110 S.Ct. 701.

32. Judgment of 12 May 1998, Times Law Reports 12 May 1998.

33. Another recent case of this kind was Westland Helicopters v. Arab Organisation for Industrialization et al. [1995] 2 All E.R. 387.Google Scholar