I would use of international law the words which Galileo used of the earth: "But it does move."¹

International law and sovereign immunity

Since international law is about the way in which nations generally agree to behave towards one another, the notion of sovereign immunity is a rule of international law par excellence. A discussion of the origins and status of this rule brings us quickly upon questions of the very nature of international law, and perhaps even of law as such.

The current early stages of the development and codification of much international law harks back to a time when national law was experiencing analogous growing pains.

The communal courts before the Norman Conquest "declared" a customary law. That is, they drew upon local established practice to determine rights or duties in controversies. ²

These local declarations of law grew into a more generalised and formalised legal system, in common law, case law and statutes set out by Parliament. Today, international law is very much in its infancy, little more advanced than was national law at its earliest times. International law is still very much based on local declarations of what is perceived to be the general custom amongst nations. (However, even the question of how courts ought to decide what in fact qualifies as a general custom is a tangled subject of debate, often turning on individuals' views of the nature of law itself. ³) This customary law approach follows what is known as the 'positivist' theory of law, where law codifies how nations have already generally tended to act, shying away from a more active prescription of how we ideally ought to act; the theory

stresses decentralized lawmaking by the participants in the international legal process, and casts an international tribunal in the role of a declarer of a customary norm rather than of creative law-maker.⁴

Of course, there do exist some international bodies whose members have agreed upon the self-imposition of some international laws, and these sometimes involve as much creative lawmaking as the codifying of what is already practised. International human rights agreements are by far the most striking move forwards from the realpolitik of legal positivism - does any nation in the world live up to the ideals set out in the human rights treaties they have signed and ratified?

 The idea of human groups or nations keeping their noses out of others' business is as old as time - as old as war, often the implication of violating this rule of international etiquette. And just as animals would usually rather avoid a physical fight, preferring to settle a dispute by posturing and mutual assessment of strength and fighting ability, so nations may try to settle disputes by diplomacy. The diplomats are allowed to bring the protection of respect for territorial sovereignty with them; it is understood that a nation's legal jurisdiction does not extend beyond its borders or to visiting officials from beyond its borders.

But the law on sovereign immunity was and remains very much at the uncreative, positivist stage. Essentially, it is simply historical practice that has been codified in international treaties such as the 1648 Peace of Westphalia⁵ (perhaps the first Law of Nations) and the 1961 Vienna Convention on Diplomatic Relations. ⁶ Each nation has its own additional immunity laws, which vary quite widely. Most notably - from the point of view of the Pinochet case - only relatively recently has the habit of granting foreign sovereigns and their officials absolute immunity from local legal process been seriously questioned. This move towards some form of restrictive immunity has been done in a nation-by-nation, piecemeal fashion, leaving room for a great deal of legal disparity. Confusion then quickly multiplies; if nations follow different rules and practices on sovereign immunity, what are we are to say is the accepted custom when reference to international customary law was supposed to be the way of deciding what the law is?

The most frequently cited precedent for the doctrine of absolute sovereignty - from which, roughly speaking, that of sovereign immunity is a logical extension - is the 1812 U.S. case of Schooner Exchange v McFaddon⁷:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself... All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself.⁸

However, the capitalist market developments of this century meant that many companies ran into trouble when engaged in foreign commercial operations with foreign, state-owned ventures. If the foreign, state-owned company could claim sovereign immunity in any legal dispute, this put local companies in a seriously weak position. The result was a catalogue of cases around the globe where nations revised their immunity laws to become restrictive, drawing a legal distinction between official and commercial dealings with states. (The private, non-official activities of visiting diplomats also came to lose immunity). Britain lagged behind many others in this respect, until our turn came along with the 1977 case of Trendtex Trading Corporation v Central Bank of Nigeria.⁹

The Trendtex case is hugely important, since it was the first time that the UK applied restrictions to its sovereign immunity laws, soon followed by the respective codification in the 1978 State Immunity Act. Surely, if this was the paradigm UK precedent for restricting immunity, one would have expected it to feature prominently in the High Court's and House of Lords' debates over the question of Pinochet's sovereign immunity. And yet, it was only fleetingly mentioned in passing, by Lord Slynn in the House of Lords appeal (against the High Court judgement that Pinochet qualified for sovereign immunity.)

Trendtex is a fascinating case, but not because it is about the purchase of 240,000 tons of cement. It is the stage on which a fierce debate is played out over the natures of sovereign immunity, international law and national law, the way in which law can change, and the very purpose of law. (It was also a case in which Mr. Bingham QC, who now as the Lord Chief Justice headed the High Court decision in favour of Pinochet, fought and lost.) Judgements were given by Lord Denning M.R., Lord Stephenson L.J. and Lord Shaw L.J. In the final analysis, the case turned on the perceived relationship between UK national law and international law and on the nature of international law. Lords Denning and Shaw agreed with the doctrine of "incorporation" rather than "transformation" - in other words, that "the rules of international law are incorporated into English law automatically." ¹⁰ Although Lord Stephenson could not accept quite as strong a doctrine of incorporation, he agreed with the thrust of the overall argument. The second step of the argument was that international law changes with the times,

and the courts have applied the changes without the aid of any Act of Parliament. Thus, when the rules of international law were changed (by the force of public opinion) so as to condemn slavery, the English courts were justified in applying the modern rules of international law... It follows too, that a decision of this court - as to what was the ruling of international law 50 or 60 years ago - is not binding on this court today... I see no reason why we should wait for the House of Lords to make the change. After all, we are not here considering the rules of English law on which the House has the final say. ¹¹

Thirdly, the icing on the cake was applied thus:

It is, I think, for the courts of this country to define the rule as best they can, seeking guidance from the decisions of courts in other countries, from the jurists who have studied the problem, from treaties, and conventions, and above all, defining the rule in terms which are consonant with justice rather than adverse to it. [My emphasis]¹²

In conclusion, it seemed that the world was moving - committing - itself to a restrictive immunity law which justly tackled the earlier problems which absolute immunity had presented to international commerce. It was decided that the legal parameters allowed decisions of UK courts to serve justice by transcending the crudity of absolute immunity. Agreeing with the spirit of Lord Denning's argument, Lord Stephenson added,

Precedents handed down from earlier days should be treated as guides to lead, not as shackles to bind ... Some move must be made by states, or their tribunals, or jurists, to prevent petrification of the living law. [My emphasis] ¹³

The only really significant difference between the views of Lords Denning and Shaw and that of Lord Stephenson was that Stephenson did not believe that the Court of Appeal had the authority to wrest itself free of precedent, in contrast to the House of Lords and Parliament. This was an Appeal Court hearing.

Lord Shaw countered possible fears that the Appeal Court's decision would be a precendent for legal chaos, reassuring us that,

changes in rules of international law do not come about abruptly; and changes will not be recognised in an English court without convincing support.[14]

Not long after this case, the 1978 State Immunity Act came into force. It excluded from immunity a range of commercial/financial crimes and also "personal injuries and damage to property"¹⁵ in the UK. However, it did not exclude (even if suffered by UK citizens).

A further case is noteworthy here. In 1994 a UK citizen, Sulaiman al-Adsani, appealed against a High Court decision that the government of Kuwait was immune, under the 1978 State Immunity Act, from jurisdiction concerning his allegations of torture by its state security services in Kuwait. ¹⁶ In the Court of Appeal, Lord Justice Evans reversed the High Court decision, ruling that

... no state or sovereign immunity should be accorded even under the State Immunity Act in respect of acts which it is alleged are properly to be described as torture in contravention of international law.¹⁷

Furthermore, section 134 of the 1988 Criminal Justice Act made torture a universal crime, affording jurisdiction by UK courts regardless of where in the world the torture happened.

However, this Court of Appeal decision in favour of al-Adsdani was itself reversed, also in the Court of Appeal. The ruling now was that the 1978 Act was comprehensive and not subject to any overriding considerations. ¹⁸ Thus, it was finally settled that British citizens tortured abroad by foreign state agents had no right to legal redress in this country of any kind! But if immunity had been restricted, in the Trendtex case, to protect our companies in their commercial dealings abroad, why was it not similarly restricted to protect our citizens from torture abroad? Is business more important than human rights? - Indeed, as Lords Denning and Stephenson had warned us, we witnessed here a "petrification of the living law" into a contorted form in no way "consonant with justice."

As a nation riven with capitalist ideology, it isn't perhaps so surprising that human rights take second place to business. Was there a fear of questioning the extent of immunity, when the current laws were partly what attracted one of the biggest players to the City of London, the Kuwaiti Investment Office? A fear, perhaps, that if the al-Adsani case had restricted the Kuwaiti government's immunity in this area, its immunity in another might also be brought into question. As a branch of the Kuwaiti government, the KIO can claim immunity from UK taxes. During a controversy surrounding KIO's purchase of a 21.7% stake in British Petroleum and the question of the associated hundreds of millions of pounds corporation tax normally due, Gordon Brown, then shadow chancellor said,

I will call for a statement from the chancellor on this extraordinary loss of tax revenue... I want an independent inquiry into it... Sovereign immunity is being abused. ¹⁹

If [the] figure of £250m on tax credits alone is correct, that would pay for 150,000 health service operations or employ 20,000 nurses. ²⁰

It was thought that the total amount of tax lost in this way could run into billions each year.²¹

Pinochet's immunity - a debate in a black box

The High Court

Unfortunately, history shows that it has indeed on occasions been state policy to exterminate or to oppress particular groups. One does not have to look very far back in history to see examples of that sort of thing having happened. There is in my judgment no justification for reading any limitation based on the nature of the crimes committed into the immunity which exists. ²²

Reading the newspapers the following day, many people were rather bemused or even shocked by reports of this decision, that no matter what General Pinochet had done or ordered to be done, so long as it didn't affect anyone here that was fine by our law. We were powerless even to consider extraditing him to Spain to be brought to trial there for the murder and torture of Spanish citizens. Even if Pinochet's victims had been British - not that, morally, that should make a difference - we were just as powerless: Sulaiman al-Adsani had already learned that. Not in law school. No, he'd learned it the hard way.

Who had come to this decision, and how? Did I feel happy that my country could be this way? Was my country so weak in moral fibre? We'd won wars, for God's sake - couldn't we make more of our freedom, independence and self-determination than this? What laws, and whose laws? Not my laws. But they were my laws; they were my country's laws.

The news reports explained infuriatingly little of how the decision had been made and what the background to it was. But we have here filled in the background - the history and the precedents. We are now in the thick of the present case, expectant, fearful of the decision of the law, apparently based on the meanings of words in books of which neither you nor I have any knowledge. These are voids in our democracy.

I decided to get serious. If they weren't going to tell me what was inside the legal black box, I'd just have to find out for myself...

In a nutshell, and only cutting a few rough edges, the 1978 State Immunity Act sets the stage for the arguments over whether or not the UK could exercise legal jurisdiction over General Augusto Pinochet. (Specifically, in this case, the legal right to respond to Spain's extradition request by triggering the associated proceedings.) In the High Court's view, the extradition request had presented good grounds for charging Pinochet with crimes against humanity - the ordering of systematic hostage taking, torture and murder. The stage was set for debating Pinochet's possible immunity:

By the Act, Pinochet would be immune from prosecution, as a former head of state, if -

1. Pinochet was head of state at all of the times of his alleged offences, and
2. the offences count as official acts of state, and
3. the offences did not involve violence against anyone on UK territory, and
4. the 1978 State Immunity Act is not subject to any overriding considerations, and
5. Chile had not waived its state immunity for such offences.

The High Court decided that all five criteria were fulfilled and that General Pinochet was therefore immune from any legal action in this country regarding these allegations. The Lord Chief Justice Bingham had decided to go against the precedent of wise restriction of immunity in the Trendtex case. Instead, his perception was that customary international law grants immunity for human rights offences but not for financial offences. But, as Lord Denning had pointed out in Trendtex , if no legal practitioner ever did anything we were unaccustomed to, change in law would be impossible: "Whenever a change is made, someone some time has to make the first move." ²³ - A simple matter of logic! Or was it a simple matter of sour grapes, Mr. Bingham QC having been on the losing side in Trendtex ? What limited his powers now? After all, on his appointment as Lord Chief Justice, he was seen as someone who

is known for the great importance he attaches to the protection of the rights of the individual. He has long been an advocate of a British Bill of Rights, based broadly on the European Convention of Human Rights.²⁴

However, Lord Bingham did grant leave for appeal against this High Court decision:

We do that having regard to the obvious public importance and international interest in the issue that has been raised and argued. We would not wish it to be thought that we give leave because we are doubtful as to the outcome. ²⁵

What I wondered was, if this was of such "public importance and international interest", why were the arguments not made accessible to Joe Public? Perhaps the courts ought to have a department dedicated to informing the public of what one of its most powerful institutions gets up to. Is this too much to ask of a healthy democracy?

For example, could it be explained why the High Court judgement contained no reference whatever to the International Covenant on Civil and Political Rights? This legally binding agreement[26] was ratified by Chile on 10th February 1972 and by the UK on 20th May 1976 ²⁷; it came into force on 23rd March 1976. Therefore, the ICCPR was effective - between Chile and the UK - less than three years after General Pinochet became President of the Government Junta of Chile, on 11th September 1973. Article 2.3(a) of this covenant states,

Each State Party to the present Covenant undertakes: To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. [My emphasis]²⁸

Among the rights "herein recognized" are those stated in Articles 1.1 and 7:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.²⁹

Surely, the hostage taking, torture and murder of supposed political opponents amounts to an obvious violation of these articles. Surely, then, this covenant ought to have received some attention, even if its pertinence were rejected on some legal ground or other. However, this oversight would not have been surprising to some, such as Professor Rosalyn Higgins, QC:

Members of Parliament... certainly know nothing about the Covenant... There is comparable total ignorance among the media... Judges, of course, know of the European Convention. They know of the problems of its application. However, they do not even know, for the most part, of the existence of the Covenant, and even those judges who are now publicly calling for the incorporation of the European Convention know virtually nothing about the Covenant. They are rather surprised when one tells them that there is another unincorporated human rights treaty that they might like to be thinking about at the same time.³⁰

The House of Lords

The Lords' overturning of the High Court's judgement sent shock waves throughout the nation and across the globe. This was a ground-breaking precedent, a moment of history. However, the shock was partly due to the fact that the judgement had been carried by the slimmest three to two majority. Indeed, as was pointed out on TV news that evening, this meant that if we included the decisions of the three High Court judges, Pinochet's immunity had been supported by five judges to three! There seemed to be something tragically ridiculous about the whole procedure, as if no one - not even the judges themselves - had a clue what was going on. Perhaps it shook one's very faith in the legal process (if it had not already been shaken before). How were we to feel confident that justice had been done? What if it had gone the other way - which it so easily could have?

The Lords now had more time to reflect. Would the rigour of their arguments for or against Pinochet's immunity, when read, prove their cases? (Although how could the arguments prove both sides?) Unfortunately, I was to be dissappointed, and to be disturbed by the weaknesses of the two dissenters' arguments which, despite these weaknesses, could so easily have won the day.

The debate essentially followed the lines of that in the High Court, thus inheriting many of its weakness and blind spots. Again, the ICCPR went unmentioned. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (ratified by both the UK and Chile) received some attention; but this agreement - in contrast to the ICCPR - only came into force on 26th June 1987, just three years before General Pinochet stepped down as head of state on 11th March 1990. By the time he relinquished his constitutional leadership, the ICCPR had already been in force for fourteen years. But despite these and numerous other agreements - some of them, like the ICCPR and Convention against Torture signed by both the UK and Chile - Lord Slynn felt able to say,

I am not satisfied that even now there would be universal acceptance of a definition of crimes against humanity... This is no doubt a developing area but states have proceeded cautiously.³¹

In that case, what do these supposedly legally binding agreements - such as the ICCPR and the Convention against Torture, binding between the UK and Chile - amount to? Are they not worth the paper they're written on? If these agreements had been taken a little more seriously, perhaps the argument could have been considered that, having signed them, Chile had effectively waived its immunity regarding the crimes they were intended to combat. Remembering point 5 above, sections 2(1-2) of the 1978 State Immunity Act say,

(1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.
(2) A State may submit... by a prior written agreement... ³²

Taking this in conjunction with Article 3(a) of the ICCPR quoted above, had Chile not waived its immunity here? - especially when section 17(2) of the 1978 Act states that the submissions in section 2(2),

include references to a treaty , convention or other international agreement... ³³

However, section 2(2) continues,

...but a provision in any agreement that [a signatory state] is to be governed by the law of the United Kingdom is not to be regarded as a submission . [My emphasis]³⁴

What this means is that even if an international agreement had absolutely explicitly stated that violations of it would be prosecutable in the UK, our own statutes forbid any such prosecution! This would have been a good argument for Pinochet's immunity - but I didn't hear it in either of the judgements (unless it went without saying). It would have clarified matters a little: in respect of violations of the ICCPR, Convention against Torture or any other international agreement, which occur abroad, the UK courts are indeed quite powerless.

Therefore, any talk of international agreements could only be introduced as evidence of customary international law. The question could only be of whether, despite section 2(2) of the 1978 Act, international etiquette requires us to override this statute of ours. However, the strong implication of section 2(2) is that UK law now follows the doctrine of transformation rather than incorporation. In other words, contrary to the judgement in the Trendtex case (before the 1978 Act), UK law can now only follow international custom or agreement once it has been written, by Parliament, into our domestic statutes. Thus, Trendtex had become an irrelevant precedent.

So, have we codified any of these agreements into statute? (notwithstanding that section 2(2) would have conflicted with any such code which restricted immunity). The answer is that, supposedly, we had ratified the ICCPR and Convention against Torture, meaning that we guaranteed their effectiveness as stated. Hence the significance of various references, throughout the Lords' judgements, to the 1988 Criminal Justice Act. The Act puts this ratification into practice, bringing universal jurisdiction over crimes of torture:

A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in his performance or purported performance of his official duties. [My emphasis]³⁵

A "General Note" to this section 134 on torture elucidates:

Ss. 134-138 have been enacted to enable ratification of the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, of which the United Kingdom is a signatory. They were introduced at the Report stage in the Commons after the Government had agreed to amendments proposed by the opposition former Solicitor General, Mr. Peter Archer. Although other multi-lateral treaties to which the United Kingdom is a party already prohibit torture (notably the International Covenant on Civil and Political Rights, Art. 7 and the European Convention on Human Rights, Art. 3) the Convention requires specific domestic implementation by the creation of a new criminal offence (this section and s.135) and the making of arrangements for extradition (ss. 136-138). ³⁶

Lord Slynn, while not having put his case particularly clearly, did eventually arrive roughly at this point. But to my amazement, he proceeded to define "Head of State" out of his interpreted legal definition of "public official". Thus, the following statements from international agreements were read as indicating that, "States have not taken the position that the words public official or government official are wide enough to cover Heads of State or former Heads of State, but that a specific exclusion of a defence or of an objection to jurisdiction on that basis is needed" [My emphasis]³⁷:

...whether they are constitutionally responsible rulers, public officials or private individuals.
...The official position of any accused person, whether as Head of State or Government or as a responsible Government official...
...official capacity as a Head of State or Government ... or Government official...

But any sane reader would see that the whole point of these statements was to group these terms together, any shades of difference not mattering one iota; when human rights violations are at issue, one's official position cannot remove culpability. It beggars belief that Lord Slynn could read these as intending a substantive distinction between the terms head of state and public/government official. And that this was the cornerstone of his rejection of the appeal against immunity for General Pinochet, former head of state of Chile, is, well, what can I say? I declare one of the Lords' dissenters defeated.

Coming now to Lord Lloyd, Lord Slynn's fellow dissenter. Before I come to the fatal flaw in his argument, it is worth noting a glaring oversight of his. He states blandly that "there is nothing in the Torture Convention which touches on state immunity," ³⁸ not bothering to pause to argue his point more convincingly, given that Article 1(1) of this convention ends,

... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.³⁹

Letting this pass - having been forced to lower our expectations for the standard of debate - we turn to the linchpin of Lord Lloyd's position. He decides to follow that adopted in the rejection of Sulaiman al-Adsani's case, discussed above. The final position there - where it was decided that the 1978 State Immunity Act was not subject to any overriding considerations - is recalled by Lord Lloyd:

Stuart Smith L.J. observed that the draftsman of the State Immunity Act must have been well aware of the numerous international conventions covering torture (although he could not, of course, have been aware of the convention against torture in 1984). If civil claims based on acts of torture were intended to be excluded from the immunity afforded by section 1(1) of the Act of 1978, because of the horrifying nature of such acts, or because they are condemned by international law, it is inconceivable that section 1(1) would not have said so.[My emphasis]⁴⁰

But, as Professor Rosalyn Higgins, QC, has already told us, such a lack of awareness on the part of judges is not only inconceivable but is very much in evidence. ⁴¹

So the score is now 5-0 against Pinochet in the Lords, who now loses 5-3 on aggregate if we include the High Court judgement. But how strong were the arguments, of Lords Nicholls, Steyn and Hoffman, that the appeal be allowed? I leave that question as an exercise for the reader...

References:

[1] Lord Denning MR, Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529.
[2] Henry J. Steiner, Detlev F. Vagts, and Harold Hongju Koh, Transnational Legal Problems: Materials and Text, 4th edition, New York: Foundation Press, 1994, p.233.
[3] Ibid., pp.231-245. Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, Oxford: Clarendon Press, 1996, pp.26-58.
[4] Ibid., p.241.
[5] Ibid., pp.148-9, 152; Ian Brownlie, International Law and the Use of Force by States, Oxford: Clarendon Press, 1963, p.14.
[6] Steven Wheatley, International Law, London: Blackstone Press, 1996, pp.83-85.
[7] Andrea Bianchi, 'Overcoming the Hurdle of State Immunity in the Domestic Enforcement of International Human Rights', p.409, in Benedetto Conforti and Francesco Francioini (ed) Enforcing International Human Rights in Domestic Courts, London: Martin Nijhoff, 1997; D.W. Grieg, 'Forum State Jurisdiction and Sovereign Immunity Under the International Law Commission's Draft Articles', International and Comparative Law Quarterly, Vol. 38, Part 2, April 1989, pp.244-5; Stefan A. Riesenfeld, 'Sovereign Immunity in Perspective' , Vanderbilt Journal of Transnational Law, Vol. 19, No. 1, Winter 1986, p.2.
[8] Quoted by Bianchi, p.409.
[9] As cited above, n.1; Ian Brownlie, Principles of Public International Law, 5th edition, Oxford: Clarendon Press, 1998, p.340; Yemi Osinbajo, 'Sovereign Immunity in International Commercial Arbitration: The Nigerian Experience and Emerging State Practice', African Journal of International and Comparative Law, Vol. 4, Part 1, March 1992, p.6.
[10] Lord Denning, Trendtex.
[11] Lord Denning, ibid.
[12] Lord Denning, ibid.
[13] Lord Stephenson, ibid.
[14] Lord Shaw, ibid.
[15] State Immunity Act 1978, Part I, section 5.
[16] Al-Adsani v Kuwait and others [1994] 21.1.94, reported in Steven Wheatley, 'Redress for Torture Victims' , Law Teacher 29, 1995, pp.231-3. See also Writ can be served on Kuwait, court rules , The Independent 22.1.94.
[17] Ibid.
[18] Michael Byers, 'Al-Adsani v Government of Kuwait and others [1996]', British Year Book of International Law 67, 1996, Oxford: Clarendon Press, 1997, pp.537-542; State entitled to plead immunity , Law Report, The Times 29.03.96, p.41; Geoffrey Bindman, How courts condone torture , The Times 25.03.97.
[19] Kuwait misled UK over buyer of $1.7bn BP stake , Financial Times 24.9.93.
[20] How Arab Billionaires avoid tax in Britain , Sunday Times 19.6.88.
[21] See n.19.
[22] Mr Justice Collins, Regina v Evans and Another, Ex parte Pinochet Ugarte Regina v Bartle, Ex parte Pinochet Ugarte In re Pinochet Ugarte, QB, 28.10.98
[23] Lord Denning, Trendtex.
[24] Indictment over missed opportunity , Financial Times 25.5.96.
[25] Regina v Evans and Another, Ex parte Pinochet Ugarte Regina v Bartle, Ex parte Pinochet Ugarte In re Pinochet Ugarte, QB, 28.10.98.
[26] David Harris, 'The International Covenant on Civil and Political Rights and the United Kingdom: An Introduction', in David Harris and Sarah Joseph (ed), The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford: Clarendon Press, 1995, p.2.
[27] Ibid., p.661-2.
[28] ICCPR, Article 2.3(a), http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
[29] Ibid., Articles 1.1 and 7.
[30] Rosalyn Higgins, Harris and Joseph (ed), pp.xv-xvi. This foreword is a speech "delivered by Professor Rosalyn Higgins, QC, Professor of International Law at the London School of Economics and Political Science, and UK member of the Human Rights Committee since 1984, at a conference held on 29 September 1993 at the Parliament Chamber, Inner Temple, London, on 'The ICCPR and United Kingdom Law'." Ibid, p.xi.
[31] Lord Slynn, Regina v Bartle and the Commissioner of Police for the Metropolis and others Ex parte Pinochet, Regina v Evans and another and the Commissioner of Police for the Metropolis and others Ex parte Pinochet , Lords of Appeal, 25.11.98, http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd981125/pino01.htm
[32] State Immunity Act 1978, sections 2(1) and (2).
[33] Ibid., section 17(2).
[34] Ibid., section 2(2).
[35] Criminal Justice Act 1988, section 134(1).
[36] General Note to Criminal Justice Act 1988, section 134.
[37] Lord Slynn, Regina v Bartle and the Commissioner of Police for the Metropolis and others Ex parte Pinochet, Regina v Evans and another and the Commissioner of Police for the Metropolis and others Ex parte Pinochet , Lords of Appeal, 25.11.98.
[38] Lord Lloyd, ibid.
[39] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1(1), http://www.unhchr.ch/html/menu3/b/h_cat39.htm
[40] Lord Lloyd, Regina v Bartle and the Commissioner of Police for the Metropolis and others Ex parte Pinochet, Regina v Evans and another and the Commissioner of Police for the Metropolis and others Ex parte Pinochet , Lords of Appeal, 25.11.98.
[41] See note 26.

By Keith Fisher, December 1998.
keith@flyingfish.org.uk