Conclusion


IND. INT'L & COMP. L. REv.

such circumstances have no "free-wheeling coordinate lawmaking power ...
in the field of foreign affairs."'5t 7

In my view, the approach of eight of the Law Lords in the two Pinochet
judgments came close to being exercises of "free-wheeling ... lawmaking
power." They employed arguments from propositions of customary inter-
national law never before incorporated in U.K. law to support the conclusion
that Pinochet was or was not entitled to former head of state immunity. In
doing so, they went well outside the bounds of any legislation or treaty enacted
by Parliament.

I find the approaches of Lords Browne-Wilkinson, Goff, and Saville
more congenial. They struggled to make sense of the former head of state
immunity provision adopted by Parliament in light of a treaty (the Torture
Convention) and another statute (the torture provisions of the Criminal Justice
Act) without straying far afield into customary international law. They
attempted to give meaning to the enactments of the legislature, not make law
themselves. It is an approach that reflects the very same values that animate
the principle of separation of powers.

CONCLUSION

Beyond my broad abstention and statutory construction claims, I have
tried in this article to illustrate several themes about this most extraordinary
episode in world legal history, including the following:

(1) The United Kingdom's court of last resort, the Appellate
Committee of the House of Lords, rendered three opinions in Pinochet, two on
the merits of his claim to sovereign immunity as a former head of state. The
House of Lords vacated its first decision when it found that one of the judges
who participated in it had an impermissible conflict of interest. As such, it is
an important case on judicial bias and disqualification. When the House of
Lords issued its second decision on the merits, it again found that Pinochet was
not entitled to former head of state immunity but for very different (and much
more narrow) reasons. As such, it is an important case on appellate procedure.

(2) Pinochet required construction of the "double criminality" require-
ment of the Extradition Act, required the Home Secretary to make important
determinations under §§ 7 and 12 of the Extradition Act, and required a
magistrate's court to make an important determination under § 9 of the Act.
As such, it is an important case on extradition law.

(3) Pinochet implicated important foreign relations considerations:
acquiescence by the U.K. government to Chilean government behavior under
Pinochet; opposing positions taken by two U.K. allies (Chile and Spain); extra-
territorial recognition of domestic reconciliation amnesties. As such, it is an
important case on foreign and diplomatic relations.

517. Id.

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A SEPARATION OF POWERS PERSPECTIVE ON PINOCHET

(4) The Pinochet litigation featured a Spanish prosecutor pursuing in
the United Kingdom a former head of state for human rights abuses alleged to
have been committed in Chile. As such, it is an important case on extra-
territorial enforcement of human rights law.

(5) Pinochet implicated important international human rights con-
siderations: proper interpretation of the Genocide Convention, the Hostage
Convention, and the Torture Convention; the extent of universal jurisdiction
over international human rights abuses; and the extent to which a former head
of state is entitled to sovereign immunity. As such, it is an important case on
substantive human rights law.

As of today, the most tangible result of Pinochet appears to be that the
willingness of Spain and the United Kingdom to examine allegations against
Pinochet made it politically possible for Pinochet and his henchmen to be
pursued at home in Chile. The role played by the U.K. courts undoubtedly
contributed to that salutary result. But the U.K. courts paid a price in terms of
prestige and institutional legitimacy; it remains to be seen whether the price
was too high.

In this article, I have argued that separation of powers and its animating
values of institutional competence and democracy should have dictated that
U.K. courts dismiss Pinochet's application for habeas corpus on grounds of
non-justiciability and that, if faced with the sovereign immunity defense
during judicial review of an extradition order, resolved the question as a matter
of statutory construction and not by reference to customary international law.
Had the courts followed this more restrained course, I believe they would have
played a more appropriate role in this most extraordinary drama.

2004]