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Jack L. Goldsmith & Curtis Bradley, Pinochet and International Human Rights Litigation, 97 Mich. L. Rev. 639 (1999).

Abstract: The British House of Lords recently considered whether Augusto Pinochet was entitled to immunity from arrest and possible extradition to Spain for human rights abuses allegedly committed during his reign as Chile?s head of state. In its second decision in the case (after the first one was vacated due to a conflict of interest), the House of Lords concluded that Pinochet was not entitled to immunity for acts of torture and related conduct committed after Britain?s 1988 ratification of an international convention against torture. In addressing this immunity issue, the parties and judges in the Pinochet case looked closely at the large and growing body of U.S. case law involving civil suits against foreign officials for alleged human rights abuses committed in foreign countries. In this article, we in effect do the opposite: we assess how the Pinochet decision might be relevant to international human rights litigation in U.S. courts. The article focuses on three issues in particular. It first considers whether developments in international human rights law limit the scope of the domestic immunity available to foreign governments and officials. The House of Lords held that these developments did limit the scope of Pinochet?s immunity from criminal process in Great Britain. In the United States, however, the political branches and the federal courts have, with narrow and specific exceptions, declined to permit developments in international human rights law to limit the scope of foreign sovereign immunity from civil process. As we explain, the adverse political consequences that might flow from otherwise-unfettered private lawsuits against foreign officials for human rights abuses justify the broader immunities available in U.S. domestic courts. The second issue is the legitimacy of a U.S. counterpart to the British rule, invoked by some of the Law Lords in Pinochet, that customary international law ("CIL") is part of the British common law. In the United States, plaintiffs and scholars have argued for a similar rule of incorporation to justify the domestic application of substantive international human rights law. As we explain, however, the constitutional implications of an automatically-incorporated CIL are substantially different for the United States than they are for Great Britain. And, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Instead, they seek and follow political branch authorization. The failure by courts to apply CIL as automatically-incorporated common law in this context, involving traditional rules of CIL that are a central component of international relations, casts substantial doubt on the conventional wisdom that international human rights law should be applied as self-executing federal common law. Finally, the article defends the United States? general resistance to the domestic application of international human rights law. This resistance has two dimensions. First, the United States does not apply international human rights law to domestic officials. This approach is justified by the profound uncertainty regarding the source and content of international law, and the general adequacy of U.S. domestic human rights protections. Second, the United States permits the domestic application of international human rights law against foreign governmental officials, but only in very narrow contexts. This limited embrace of international human rights law reflects a legitimate concern with giving private citizens, and unelected judges, too much influence over U.S. foreign relations. As we explain, both of these justifications for resistance to the domestic application of international human rights law ? the vagueness of international norms and the danger that private lawsuits will interfere with foreign relations ? find support in the House of Lords? decision in Pinochet.